Zila Parishad v. Jata Shanker — 1991 DIGILAW 609 (ALL)

JUDGMENT Om Prakash, J. - Petitioners seek quashing of the order dated 11th January, 1978, Annexure 6 to the writ petition passed by the U.P. Public Service Tribunal, Respondent No. 2 declaring the order dated 14th January, 1976 whereby the services of the Respondent No. 1 were terminated by the petitioners, as void. 2. The facts, as succinctly stated, are that the Respondent No. 1 was appointed on 26-10-1967 temporarily as Vaccinator in the substantive vacancy caused by the retirement of one Sri Raj Narain and before that he was appointed as Apprentice Vaccinator on 20th July, 1965 by the President of Zila Parishad. By the Resolution No. 3 dated 30th October, 1975, Annexure 1 to the writ petition, the Zila Parishad, Mirzapur decided to terminate the services of temporary employees whose services were no longer required after obtain the report of Mukhya Adhikari. 3. The Mukhya Adhikari sent his report on 13th January, 1976 recommending termination of services of 9 temporary Vaccinators including the Respondent No. 1. The said report was accepted and termination order against the Respondent No. 1 was issued on 14th January, 1976 which was actually received by him on 17th May, 1976. It is by the order dated 14-1-1976, services of the Respondent No. 1 were terminated with effect from 20th January, 1976. 4. The termination order was challenged by the Respondent No. 1 before the Tribunal stating that he was appointed on the substantive vacancy and was placed on probation for a period of one year under Rule 28 of the Zila Parishad Service Rules, 1970 (for short, the Rules 1970), that by the letter dated 30th May, 1969, the District Medical Officer of Health, Mirzapur recommended to the Adhyaksha, Zila Parishad to issue a formal order confirming the temporary Vaccinators; that no formal order confirming the Respondent No. 1 was issued but he continued in service and, therefore, he should be deemed to have been confirmed and as such his services cannot be terminated. 5. The petitioner filed a written statement before the Tribunal having admitted that the Respondent No. 1 was appointed on 26-10-1967. It is not denied that the Respondent No. 1 was appointed on a substantive post which fell vacant on the retirement of one Sri Raj Narain. 5. The petitioner filed a written statement before the Tribunal having admitted that the Respondent No. 1 was appointed on 26-10-1967. It is not denied that the Respondent No. 1 was appointed on a substantive post which fell vacant on the retirement of one Sri Raj Narain. Though averments made in para 17 of the writ petition that the substantive post on which the Respondent No. 1 was appointed, was never abolished and is still existing, is denied in the written statement by the petitioner but there is no clear averment as to by which order the said post was abolished. In para 28 of the written statement, it is averred by the petitioner that retrenchment to terminate the services of the temporary Vaccinators was ordered with a view to improving the financial position of the Parishad. 6. On these facts, the Tribunal relying on the State of Punjab v. Dharam Singh, AIR 1968 SC 1210 held that the Respondent No. 1 shall be deemed to have been confirmed upon the expiry of maximum period of probation that is two years beyond which that could not have been extended. Having so held the Tribunal found that the services of the respondent No. 1 who was no more a temporary employee, could not be terminated and, therefore, the termination order dated 14th January, 1976 was declared to be illegal and void. 7. The first and foremost contention of Sri S.C. Budhwar, learned counsel for the petitioner is that the Respondent No. 1 having been appointed as Vaccinator on 26-10-1967, the Rules 1970 are not applicable to his case and the Tribunal erred in having held that on the expiry of the probation period as stated in Rule 28 of the Rules, 1970, the Respondent No. 1 shall be deemed to have been confirmed under Section 29. It is further contended that the services of the Respondent No. 1, a temporary employee, having no right to hold the post, could be terminated at any time and that being so there is no illegality in the impugned termination order. 8. The Rules, 1970 succeeded analogous Rules of the Uttar Pradesh Zila Parishad Service Rules, 1968 (briefly, the Rules, 1968). 8. The Rules, 1970 succeeded analogous Rules of the Uttar Pradesh Zila Parishad Service Rules, 1968 (briefly, the Rules, 1968). The submission of Sri Janardan Sahai, counsel for the Respondent No. 1 is that the error in regard to the year of the Rules be corrected and the Rules 28 and 29 of the Rules, 1970 which are identical to the corresponding rules of the Rules, 1968 be read as Rules, 1968 instead. It is urged by him that under Rules, 28 and 29 of the Rules 1968 the Respondent No. 1 will be deemed to have been confirmed after the expiry of the two years maximum period of probation. This is purely a legal plea and Sri Sahai cannot be prevented from pleading that the Respondent No. 1 was governed by the Rules, 1968 simply on the ground that this plea was not raised before the Tribunal, and that a specific plea before the Tribunal was that the Respondent No. 1 was governed by the Rules, 1970. Since the Rules 28 and 29 of the Rules, 1968 and the corresponding rules of the Rules, 1970 are identical, the matter of confirmation can be examined under the Rules, 1968 which came into force immediately after the appointment of the Respondent No. 1 on 26-10-1967. 9. The question for consideration is whether the Rules, 1968 were applicable to the Respondent No. 1 and whether under Rule 28 of these Rules, he could be deemed to have been confirmed after the expiry of two years-maximum period of probation. The submission of Sri Budhwar is that the Respondent No. 1 having been appointed on 26-10-1967 could not be governed by the Rules, 1968 even as they were promulgated subsequent to the date of his appointment. In short, he urged that Rules, 1968 could not operate retrospectively, unless it was said so by the rule-making authority. The Rules, 1968 were framed in exercise of the rule-making power as envisaged under Section 236 of the Uttar Pradesh Kshettra Samities and Zila Parishads Adhiniyam, 1961 and such rules came in force with effect from 13th January, 1968 when they were published in the Gazette. The respondent No. 1 was appointed about a little more than two months before the publication of the Rules, 1968. The respondent No. 1 was appointed about a little more than two months before the publication of the Rules, 1968. The submission of Sri Budhwar is that these will operate only prospectively and will not be applicable to any person who was appointed before the date of their publication. The question is whether the Rules, 1968 are applicable to those servants of the Zila Parishad who were appointed prior to the publication of the Rules, 1968. The Act, 1961 where under these Rules were framed, does not provide as to how the servants of Zila Parishad appointed before the enforcement of the Rules, 1968 will be confirmed or regularised in the service. Sub-rule (3) of Rule 1 of the Rules, 1968, however, categorically says that these Rules shall apply in all matters to all servants of the Zila Parishad. It does not make any exception to the class of servants of the Zila Parishad who were appointed prior to the enforcement of the Rules. It also does not exclude the temporary servants who were appointed against a permanent post. There being no ambiguity in the language employed in sub-rule (3) of Rule 1 by the rule making authority, it must be held that the Rules, 1968 do apply in all matters including the matter of confirmation of services of all servants of the Zila Parishad. The words "all servants" take within its sweep a temporary servant who was appointed on a permanent post The Respondent No. 1 is, therefore, fully covered by the ambit of sub-rule (3) of Rule 1. Similarly Section 28 of the Rules, 1968 states that all persons appointed to posts in the Zila Parishad in substantive vacancies shall be placed on probation for a period of one year which under the second proviso to Sub-section (1) of Section 28 cay be extended for a period of one year only. The above delineated words "all persons" clearly show that Sub-section (1) of Section 28 also does not exclude a servant of the Parishad who was appointed before the enforcement of the Rules in temporary capacity on a substantive post. A combined reading of sub-rule (3) of Rule 1 and sub-rule (1) of Rule 38 unmistakenly indicates that the Respondent No. 1 is governed by the Rules 1968. A combined reading of sub-rule (3) of Rule 1 and sub-rule (1) of Rule 38 unmistakenly indicates that the Respondent No. 1 is governed by the Rules 1968. There is no express provision in the Rules 1968 to exclude the category of servants which the Respondent No. 1 belongs to: rather the amplitude of the aforesaid Rule is so wide as to make the Rules 1968 applicable to the Respondent No. 1. Second proviso to sub-rule (1) of Rule 28 clearly for bids extension of probation period by more than a year. It means the maximum probation period is of two years and suitability of an incumbent beyond that period cannot be judged for the purpose of confirmation under Section 29. When sub-rule (1) of Rule 28 clearly prohibits the total period of probation beyond two years the respondent No. 1 could be said to have been confirmed by implication under Rule 29 of the Rules, 1968. This is precisely the view which was taken by the Supreme Court in State of Punjab v. Dharam Singh (supra). 10. The aforesaid semantic view based on the explicit and unambiguous provisions as contained in sub-rule (3) of Rule 1 and sub-rule 1 of Rule 28, is also supported by a decision of the Himachal Pradesh High Court in the State of Himachal Pradesh v. Sri Badri Prasad Pandey & others 1974 SLJ 187 Like the respondent No. 1 in the case in hand, Sri Badri Prasad Pandey, respondent before the H.P. High Court joined in a temporary capacity the post of Education Panchayat Officer in the State on 15-2-1962 and he continued to work till 6th April, 1967 when the Director of Panchayats Himachal Pradesh issued a notice to him that his services were no longer required and he was to be reverted to his parent department. This notice was challenged by Sri Badri Prasad Pandey under Article 226 of the Constitution before that High Court on the ground that on 13-8-1962 the Rules, known as Himachal Pradesh Panchayat Department Class III Service (Recruitment & Promotion and Condition of Service) Rules, 1962 came into force and that Rule 9 of such Rules prescribed the maximum probation period of two years in the case of a person who was appointed against a permanent vacancy and that he should be deemed to have been confirmed under Rule 9 after the expiry of the maximum period of probation that is of two years. This contention was accepted by the H.P. High Court and the contention of the Advocate General that the Rules promulgated on 13th August, J962 did not apply to the respondent because he was appointed on 15-2-1962, was rejected. 11. If the contention of the petitioner that the respondent No. 1 is not governed by the Rules, 1968 is assumed to be correct for argument sake then the question arises which are the rules governing his services particularly in the matter of probation and confirmation. There were no rules when the respondent No. 1 was appointed on 26-10-1967 against a permanent post but in a temporary capacity. As there were no rules on the date of appointment, could it be said that the respondent No. 1 will never be confirmed and that though, admittedly, he is a servant of the Zila Parishad will always be distinguished from his other colleagues who were appointed after the enforcement of the Rules 1968. The rule making authority in my view will not make such an invidious distinction between two classes of servants of Zila Parishad one of which the appointment preceded the date of promulgation of the Rules, 1968 and the other the appointment of which is subsequent to the date of enforcement of the Rules. If the contention of Sri Budhwar is accepted then a servant of the Zila Parishad who was appointed before the enforcement of the rules will not be given any advantage of the Rules 28 and 29 and he will always continue as a temporary servant because he could not be confirmed under Rule 29 on account of the fortuitous circumstance that he was appointed before the commencement of the Rules. Such differentiation arising merely from the fortuitous circumstance of the date of appointment would ordinarily be prohibited under Article 14 of the Constitution as held in the case of Sri Badri Prasad Pandey (supra) which has a great persuasive force and I myself do not have any inhibition in taking the same view. As already pointed out, sub-rule (3) of Rule 1 and Rule 28 of the Rules, 1968 clearly indicate that the Rules are applicable to all the servants of the Zila Parishad and the fact that the respondent No. 1 was a servant of the Zila Parishad when the Rules, 1968 came into force, cannot be doubted-It is, therefore, held that the Rules, 1968 are applicable to the respondent No. 1 and the view taken by the Tribunal that the respondent No. 1 should be deemed to have been confirmed after the expiry of the maximum period of probation, does not suffer from any infirmity. Since the Rules 28 and 29 of the Rules, 1970 and the corresponding rules of the Rules, 1968 are identical, it is immaterial that the Tribunal made the pronouncement on the basis of the Rules, 1970. 12. The respondent No. 1 having been confirmed under Section 29 of the Rules, 1968 by implication, the termination order dated 14-1-1976 deserves to be quashed. 13. The case of the petitioner is that the financial position of the Zila Parishad was for from satisfactory and, therefore, the surplus staff was retrenched with a view to improving the financial position assuming for argument sake that the respondent No. 1 did not acquire the status of a permanent employee, the question is whether his services could have been terminated by way of retrenchment. On the facts and circumstances of this case, the plea of retrenchment with a view to improving the financial position of the Parishad is nothing but specious. It has to be borne in mind that the petitioner has not controverted the averment of the respondent No. 1 that he was appointed. against a permanent post in a temporary capacity. Financial burden on the establishment comprising permanent employees is fully known to the petitioner in the beginning of the year and it is expected to make adequate preposition for that year to year. It is a sheer chance that the permanent post according to the petitioner was manner by a temporary employee. against a permanent post in a temporary capacity. Financial burden on the establishment comprising permanent employees is fully known to the petitioner in the beginning of the year and it is expected to make adequate preposition for that year to year. It is a sheer chance that the permanent post according to the petitioner was manner by a temporary employee. What would have happened if there were a permanent incumbent on this permanent post? In that case the petitioner would have had no option but to pay the salary of the permanent incumbent. Therefore, the plea of surplus staff on the facts and circumstances of this case is to be appreciated only with reference to the employees who were in the establishment besides the permanent post. The financial burden on the permanent post cannot be reduced unless the post is abolished which is not the case here. So far as the permanent posts are concerned, it is the duty of the Zila Parishad to augment its financial resources to meet out the financial burden of such posts. 14. The last submission of Sri Budhwar also proceeds on the assumption that the respondent No. 1 was temporary. Relying on State of U.P. and another v. Kaushal Kishore Shukla, JT (1991) 1 SC 108 Sri Budhwar urged that in view of this latest pronouncement of the Supreme Court, the services of a temporary hand could be terminated at any time. This submission is not tenable, firstly on the ground that the decision in the case of Kaushal Kishore Shukla is applicable only in the case of a Government servant. The respondent No. 1 is not a Government servant and, therefore, no reference could be made to the case of Kaushal Sore Shukla. Rule 50 of the Rules 1968 is the relevant rule for terminating the services of temporary employees. Under this rule also, it cannot be contended that the services of a temporary employee cannot be terminated at any time whimsically or capriciously. The scope of Rule 50 for terminating the service of a temporary employee cannot extend beyond that what has been laid down by the Supreme Court in the case of Kaushal Kishore Shukla. Under this rule also, it cannot be contended that the services of a temporary employee cannot be terminated at any time whimsically or capriciously. The scope of Rule 50 for terminating the service of a temporary employee cannot extend beyond that what has been laid down by the Supreme Court in the case of Kaushal Kishore Shukla. The Supreme Court has clearly held in the case of Kaushal Kishore Shukla that the services of a temporary Government servant can be terminated if the competent authority finds that the conduct of the employee has not been satisfactory or that the termination of services is in public interest if the employee is guilty of misconduct or if he is found inefficient in work. There is no unlimited power to terminate the services of a temporary Government servant and exercise of such power is guided by the aforesaid factors. It cannot be said that the scope of Rule 50 of the Rules, 1968 in terminating the services of a temporary employee is far bigger or wider than the scope of terminating the services of a temporary Government servant. Rule 50 is also inhibited by the same factors which obtain in the case of a temporary Government servant so far as the termination of his services is concerned. Since there is no suggestion by Sri Budhwar that the respondent No. 1 was guilty of misconduct or was found to be inefficient in his work, his submission that the services of the respondent No. 1 if he is taken to be a temporary Government servant could be, terminated at any time with or without reason, cannot be accepted. 15. I, therefore, hold that the services of the respondent No. 1 even could not have been terminated on the submission advanced by Sri Budhwar. 16. The writ petition, therefore, fails and is dismissed. No order as to costs. The stay order dated 10th April, 1978 will stand vacated forthwith.