ishwar Swaroop Sharma Vs. Hon'ble High Court of Judicature at Allahabad and Ors. (23.09.1996 - ALLHC) - Court Judgment

Excerpt:
- - if on the perusal of the character roll entries or on the basis of preliminary inquiry on the allegations made against an employee, the competent authority is satisfied that the employee is not suitable for the service where upon the services of the temporary employee are terminated, no exception can be taken to such an order of termination. it may also be mentioned that in a case like the instant the court has to be satisfied as what is the legally justifiable right of the petitioner which had been infringed by the termination order for which the petitioner can resort the discretionally relief under article 226 of the constitution of india. a breach of procedure, whether called a failure of natural justice or an essential administrative fault, cannot give him a remedy in the courts, unless behind it there is something of substance which has been lost by the failure.b.s. chauhan, j.1. the instant writ petition has been filed by the petitioner challenging the impugned termination order dated 4th september, 1982. the factual gamut revealed by the record of the case is that the petitioner was appointed on 3rd october, 1978 as stenographer on temporary post vide appointment letter issued by the district judge, etah which is contained in annexure no. 1 to this writ petition. the terms and conditions of the appointment letter provides that the services of the petitioner are purely temporary and liable to be terminated without notice at any time. the petitioner further claims that the learned district judge had held a test in november, 1978 in which three persons including the petitioner appeared and he was found suitable in the said test and thus selected. the said alleged test was held on 6th september, 1978 as the government of uttar pradesh had created 51 temporary post of stenographers to facilitate chief judicial magistrate of 50 district of uttar pradesh and the chief metropolitan magistrate, kanpur. however, the petitioner himself has contended that the said 51 post were temporary and had been sanctioned for a specific period which was extended from time to time. the petitioner, however, made various allegations of mala fide of very serious nature against sri b.g. saxena, the then chief judicial magistrate, etah. as the petitioner has, choosen not to implead sri b. g. saxena as respondent in this petition, it is not permissible for this court to take notice of the said allegations. the petitioner further claims that on 27th february, 1979 he proceeded on leave for his marriage and the leave had been sanctioned but the learned district judge vide order dated 27-2-1979 terminated his services without giving any notice to the petitioner. being aggrieved and dissatisfied the petitioner made a representation on the administrative side of this court, and this court vide its order dated 3rd march, 1981 quashed the order of termination passed by the learned district judge dated 27-2-1979 and reinstated the petitioner with back wages. the said order is contained in annexure 8 to this writ petition. it appears from the record that this court held an enquiry against the then district judge of etah and the petitioner happened to be one of the witnesses against him. petitioner was not paid the back wages etc., as directed by this court, vide its order dated 7th march, 1981, the petitioner filed the writ petition no. 3904 of 1982 and this court passed the order on 25th august, 1982, contained in annexure 14-b to this writ petition, to make the said payment forthwith. the petitioner lodged an f. i. r. on 22nd july, 1982 against the then district judge and other officers on various allegations and on 4th september, 1982 the services of the petitioner were terminated. the said termination order is contained in annexure 16 of the writ petition. the respondents have filed their counter-affidavits wherein they have denied the fact of any personal bias or malice against the petitioner.2. the affidavit filed on behalf of the respondent mo. 1 is to the effect that no test was ever held for the appointment of the petitioner and the petitioner was never appointed in regular manner after selection. the work and conduct of the petitioner was found unsatisfactory and sub-sequently two tests were held for making the regular selections and in spite of the notices to the petitioner he did not appear in either of the said tests. the respondents have filed the select lists prepared on the basis of the said test which are dated 3rd december, 1981 and 16th january, 1982. the said select lists are contained in annexure nos. s. c. a. i and s. c. a. ii. the specific averments in the counter-affidavit have been that in spite of the notice to the petitioner to appear in the said tests the petitioner did not participate the said tests and thus question of selection of the petitioner on regular basis did not arise.3. the counter-affidavit filed further revealed that the petitioner was not efficient in his work and he was not found suitable and thus the district judge after taking the prior permission of this court on the administrative side resorted to the provisions of the u.p. temporary government servants (termination of service) rules, 1975 (hereinafter called the 1975 rules) and declaring the petitioner as surplus terminated the serviced of the petitioner holding that his services were no more required. in the counter-affidavit it has further been explained that the persons whom the petitioner claims to be juniors to him and further alleged that they have illegally been retained by the respondents are in fact those persons who had been duly selected vide aforesaid selection lists prepared on 3rd december, 1981 and 16th january, 1982 (annexures s. c. a. i and s. c. a. ii).4. in the rejoinder affidavit the petitioner reiterated the averments/ allogations/submissions made in the writ petition but be did not file any document to substantiate the averments that he had ever been appointed-selected on regular basis or any test had been held prior to his appointment-selection.5. petitioner in person urged that he was entitled for regularisation of his services instead of termination as he had worked for three years prior to termination. the regularisation of the ad hoc appointees is permissible under the u.p. regularisation of ad hoc appointees (on post outside the purview of the public service commission) rules, 1979 (hereinafter called the 1979 rules). the petitioner claims that he had never been appointed on ad hoc basis, he was merely appointed on a temporary post.6. without going into this controversy even if the benefit of the said rules is considered and given to the petitioner then this court has to examine the scope of the said 1979 rules. rule 4 reads as under:regularisation of ad hoc appointments.-'1. any person who-(i) was directly appointed on ad hoc basis before january 1, 1977 and is continuing in service as such on the date of commencement of these rules.............'7. as the petitioner had been appointed on 3rd october, 1978, he is not entitled to claim benefit of the said rules. though the petitioner was appointed as temporary employee the said rules are not applicable in his case and even if the said rules are applicable he is not found eligible to drive any benefit out of it. the petitioner has sought to relief on equity and asked the court to make certain concession to him. it is not permissible under the law for the court to pass any order in violation of the statutory provision as in madamanchi ramappa and anr. v. muthu-lara bojappa, air 1963 sc 1633 the apex court has held as under:'what is administered in courts is justice according to law and consideration of fair play and equity however important they may be must yield to clear and express provision of law.'8. similar view has been taken by the hon'ble supreme court in the case of gauri shankar gaur and ors. v. state of u.p. and ors., air 1994 sc 169 and union of india v. kirloshr penumatic company ltd., 1996 (5) scc 26.9. the petitioner further submits that there are certain government orders which provide the regularisation of the service of any employee who is working on temporary basis for a period of three years. the petitioner has not produced any such government order before the court but even if there is such government order it could at the most give right to the petitioner to be considered for regularisation and the petitioner cannot claim that he stood automatically regularised or deemed to have been regularised. in view of the said government orders for regularisation the precondition is that there must be a clear vacancy of a permanent or a temporary post. there can be no regularisation unless there is a vacancy. there can be no justification to keep regularly selected persons out of job and regularising a temporary employee as it would amount to giving a unqualified and ineligible person an employment even if his service record is far from satisfaction and turning down the cases of duly selected candidates as there is no vacant post.10. the next contention of the petitioner is that his services could not have been terminated without holding enquiry as required by the mandatory provisions of article 311(2) of the constitution of india. this aspect was considered by the apex court while considering the provisions of the said 1975 rules, in the case of state of u.p. and anr. v. kaushal kishore shukla. 1991 (1) scc 691; (1991) 1 uplbec 152 (sc) the court had categorically held as under:'under the service jurisprudence a temporary employee has no right to hold the post and his services are liable to be terminated in accordance with the relevant service rules and the terms of contract of service. if on the perusal of the character roll entries or on the basis of preliminary inquiry on the allegations made against an employee, the competent authority is satisfied that the employee is not suitable for the service where upon the services of the temporary employee are terminated, no exception can be taken to such an order of termination.'11. the court further held that while applying the said 1975 rules enquiry under article 311(2) of the constitution of india is not at all required. similarly in the case of state of u.p. v. smt. kamla devi, 1996(5) jt 595: (1996) 3 uplbec 1740 (sc), the hon'ble suprem court has observed that when the government has resorted to the provi sions of the statutory 1975 rules, the question of holding the enquiry as required under article 311(2) is not necessary. the court has held as under:rule 14 (a) of the said rules provides for termination of theservice of temporary government servant either with one month's notice or pay in lieu thereof. x x x x x xunder these circumstances, when the government exercised the statutory power the need to conduct enquiry as contemplated under article 311(2) by necessary implication got obviated. the high court, therefore, was wrong in holding that the enquiry under article 311(2) needs to be conducted to terminate the services of even the temporary government servant.12. thus i find no force in the submission of the petitioner that his services could not have been terminated without holding the enquiry as required under article 311(2) of the constitution of india. the petitioner has vehemently argued that persons junior to him have been retained in service though he had illegally been relieved. as mentioned above the respondents had made out a categorical case that the persons whom the petitioner claims to be junior to him are the persons duly selected on regular basis vide select lists dated 3-12-81 and 16-1-82. moreover the question of last-cum-first go arises only in the case of retrenchment and it is no application whatsoever when the services of a temporary employee are terminated by resorting to the provisions of said 1975 rules. this view had been fortified by the apex court in kaushal kishore shukla (supra) and thus the contention of the petitioner is devoid of any merit. it may also be mentioned that in a case like the instant the court has to be satisfied as what is the legally justifiable right of the petitioner which had been infringed by the termination order for which the petitioner can resort the discretionally relief under article 226 of the constitution of india. the supreme court in purushotam lal dingra v. union of india, air 1958 sc 36 has held that 'a person can be said to acquire a lien on a post only when he has been confirmed and made permanent on that post and not earlier', and further held that a government servant holding 'a post temporarily does not have any right to hold the said post'. in the case of r.k. mishra v. u.p. state hand-loam corporation, air 1987 sc 2408 the apex court has observed as under:'under the service jurisprudence a temporary employee has no right to hold the post and his services are liable to be terminated in accordance with the relevant service rules and the terms of contract of service......'13. a temporary government servant has no right to hold the post, his services are liable to be terminated by giving him one month notice without assigning any reason either under the terms of the contract providing for such termination or under the relevant statutory rules regulating the terms and conditions of temporary government servant. similarly in triveni shankar saxena v. state of u.p. and ors., air 1992 sc 496; commissioner of food and supply v. prakash chandra saxena 1994 (5) scc 177; ram chandra tripathi v. u p. public service tribunal and ors., 1994 (2) jt 84 ; madhya pradesh hasth shilp vikas nigam ltd. v. devendra kumar jain and anr., 1995 (1) scc 638 and kaushal kishore shukla (supra) the apex court has categorically held that incumbent to a post who had been given appointment on temporary basis, terminable without notice had no right to hold the post and he is, not entitled of any opportunity of hearing before his services is dispensed with as his termination does not amount to forfeiture of any legal right.14. in ravi s. naik v. union of india, air 1994 sc 1558 the hon'ble apex court has placed reliance on the observations made in malloch v. aberddeen corporation, (1971)2 all fr 1278 wherein it has been observed as under:'a breach of procedure, whether called a failure of natural justice or an essential administrative fault, cannot give him a remedy in the courts, unless behind it there is something of substance which has been lost by the failure. the court does not act in vain.'15. under these circumstances i find no merit in the instant writ petition. the petition being devoid of any merit, is hereby dismissed.16. writ petition no. 3904 of 1982 has been filed only for the claim of back wages which the petitioner was entitled under the order date 7-3-31 passed by this court as the petitioner's earlier termination order dated 27-2-79 had been quashed by this court by its judgment and order dated 7th march, 1981. the petitioner states that he had been paid the entire amount as directed by this court and thus the writ petition stand dismissed as having become in fructuous.17. the petitioner, however, states that as the termination order dated 4th september, 1982 provides for one month pay to the petitioner, the said amount has not yet been paid to him. if it is so the respondents are directed to pay the said amount with 24% interest within a period of two months from the date of production of a certified copy of this order before the learned district judge, etah.18. however, no order as to costs.19. a certified copy of this order shall be supplied to the petitioner on payment of usual charges within three days.