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2000 DIGILAW 487 (ALL)

VINAY KUMAR SRIVASTAVA v. STATE OF UTTAR PRADESH

2000-03-30

BHAGWAN DIN

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BHAGAWAN DIN, J. ( 1 ) THE order dated 22. 8. 1997 passed by Deputy Cane Commissioner, Eastern Zone, Gorakhpur, terminating the services of the petitioner is under challenge in the writ petition on the grounds that it is arbitrary and violative of the principle of natural justice. ( 2 ) THE petitioner was appointed by Cane Commissioner, U. P. as a Jeep Driver under his order dated 2. 6. 1977 and posted him to work in the office of Beej Utpadan Adhikari, Basti. After a few years of his services, service book was prepared, wherein, entries in respect with his work and conduct were made. In the year 1994 a State level gradation list of the drivers working in the sugar Cane Department, was prepared. The petitioner was placed at Serial No. 33 in this gradation list. On the basis of the remarks made in the service book of the petitioner, he was allowed to cross efficiency bar on 2. 7. 1997. His salary was thereafter fixed on 1. 1. 1997 at Rs. 1175/- p. m. All of sudden without any reason or the cause, the Deputy Cane Commissioner. East zone, Gorakhpur, the respondent No. 3 terminated his services in view of the U. P. Temporary government Servant (Termination of Services) Rules, 1975 (hereinafter referred to as the Rules, 1975) on the pretext that his services are no more required. ( 3 ) THE petition has not been contested by the respondents and no counter affidavit has been filed. Heard Sri A. P. Tripathi, holding brief of Sri S. S. Tripathi, learned Counsel appearing for the petitioner. ( 4 ) IT is contented by the learned Counsel appearing for the petitioner that the petitioner was appointed temporarily against a substantive vacancy. He rendered unblamish service as Jeep driver, in the department, for about 20 years. There was nothing substantial against the petitioner debarring him from being regularised even then he was not regularised on the post. Though the drivers junior to him have been regularised. Having regard to the length of service rendered by the petitioner, he ought to have deemed permanent and therefore, he could not be terminated from his services, without affording an opportunity guaranteed by Article 311 (2) of the Constitution. Reliance has been placed on the case of Sanjeev Kumar v. State of U. P. and anr. , (1999) 1 UPLBEC 575 . Reliance has been placed on the case of Sanjeev Kumar v. State of U. P. and anr. , (1999) 1 UPLBEC 575 . ( 5 ) THE learned Standing Counsel present in the Court, urged that the petitioner was temporary government Employee. He has been terminated under the provisions of Rules, 1975. A temporary Government servant has no right to hold the post. His services are liable to be terminated without giving notice or without assigning any reason. He relied on the decision of honble Supreme Court rendered in State of U. P. and an Anr. v. Kaushal Kishore Shukla, (1991)1 UPLBEC 152, where Honble Supreme Court has held that "a temporary Government servant can, however, be dismissed from service by way of punishment. Whenever, the competent authority is satisfied that the work and conduct of a temporary servant is not satisfactory or that his continuance in service is not in public interest on account of his unsuitability, misconduct or inefficiency, it may either terminate his service in accordance with the terms and conditions of the service or the relevant rules or it may decide to take punitive action it may hold a formal inquiry by framing charges and giving opportunity to the Government servant in accordance with the provisions of Article 311 of the constitution. Since a temporary Government servant is also entitled to the protection of Article 311 (2) in the same manner as a permanent Government servant, very often, the question arises whether an order of termination is in accordance with the contract of service and relevant rules regulating the temporary employment or it is by way of punishment. ( 6 ) IT is now well-settled that the form of the order is not conclusive and it is open to the Court to determine the true nature of the order. ( 7 ) A Constitutional Bench of the Honble Supreme Court in Parshottam Lal Dhingra v. Union of india, 1958 SCR 828 , held that "mere use of expressions like terminate or discharge is not conclusive and in spite of the use of such expressions, the Court may determine the true nature of the order to ascertain whether the action taken against the Government servant is punitive in nature. The Court further held that in determining the true nature of the order the Court should apply two tests, namely, (i) whether the temporary Government servant had a right to the post or the rank, or (ii) whether he has been visited with evil consequences; and if either of the tests is satisfied, it must be held that the order of termination of a temporary Government servant is by way of punishment. ( 8 ) IN the instant case it is not disputed that the petitioner was appointed temporarily on a substantive post and he continued to work as Jeep Driver in the department for quite a long period of about 20 years. In para 17 of the petition it is stated, that on the termination of the petitioner, a vacancy of the post of Jeep Driver in the office of District Cane Officer, siddharthnagar occurred. To fill up the vacancy so caused Sri Uttam Prasad, respondent No. 5, who is quite junior to the petitioner, has been transferred from the office of Deputy Cane commissioner, Gorakhpur to the office of District Cane Officer, Siddharthnagar. This fact has also been controverted. ( 9 ) UNDER the Rules governing the service of Government Employees in the State of U. P. the appointments are of two kinds : (i) A temporary appointment on the contract basis for execution of the work or clearance of the back log work. As soon as the work assigned to the temporary employee is completed his services are terminated with of without notice because his services are no more required. Such temporary appointments are never made on the substantive vacancies. So in the nature of the appointment, in view of the work assigned to the employee the services are deemed temporarily. (ii) The other kind of appointment is of temporary nature on the substantive vacancies. The lien of the appointee continues till the post is abolished. He is initially placed on probation for a period of two or three years, if he is not discharged on account of unsuitability, misconduct or inefficiency or that his continuance in service is not in public interest, the authority shall extend the period of probation for six months or one year, as the rules provide. He is initially placed on probation for a period of two or three years, if he is not discharged on account of unsuitability, misconduct or inefficiency or that his continuance in service is not in public interest, the authority shall extend the period of probation for six months or one year, as the rules provide. If during the extended period of the probation the employee is not discharged and is allowed to continue in service, he is deemed confirmed in service even if the formal orders confirming his services are not made, and thereby he matures his right to the post or the rank he holds. ( 10 ) ON this perspective the petitioner shall be deemed to have been confirmed in the services and acquired the position of a permanent Government servant after having continuously worked as a Jeep Driver in the department for a period of 20 years against substantive post. ( 11 ) WHEN a person is appointed, Damocles sword is kept hanging over the head of the employee that he is a temporary Government servant and can be terminated at any time even though he had worked for a quite long time. After a person gets job he ordinarily gets married, procures children and contributes towards maintenance of his wife and children by salary he gets from the office. He settles down in life with a reasonable expectation that he will continue till the date of retirement. All of sudden when the services of such person after about 20 years is terminated, the entire family is ruined and left to starve. Therefore, this Court in Sanjeev Kumar v. State of U. P. and Anr. , (1999) 1 UPLBEC 575 , held that: "person inducted in Government Service in flagrant antagonism of rules and sans there being any post or vacancy, can have no legitimate expectation to be allowed to endure in service but if appointed in purported observance of the service rules ostensibly against a vacant post then such appointee can legitimately expect that his services would not be terminated as no longer required explain due observance of a reasonable and fair procedure in accordance with the principles of transparent system governance. Every public servant has a legitimate expectation of being dealt with by his master, throughout the entire field of his employment, in consonance with the rule of law and other fundamental principal of transparent system of governance envisaged by the constitution. Termination in transgression of the limits of such legitimate expectation is an instance verging ,on violation of fundamental rights guaranteed by Articles 14 and 21 of the constitution. The Government has a duty to act fairly and to adopt a nail-studded procedure, which is fair play in action natural justice and legitimate expectation are thus regarded as a facet of fundamental rights guaranteed by Articles 14 and 21 of the Constitution. " ( 12 ) A Division Bench of this Court in Special Appeal No. 522 of 1999, Bimal Chand Pandey and Anr. , v. Engineer in Chief Public Works Department and others, reported in (2000) 1 uplbec 240 (DB), has held that "in our opinion, when a person is appointed on daily wage or on temporary basis then the authority concerned must make up its mind within two or three years of the appointment whether to confirm the said employee or to terminate his service if he is incompetent, but keeping a person on temporary or on daily wage basis for a long period is arbitrary and not justifiable. ( 13 ) IN M. P. Oil Extraction v. State of M. P. , (1997) 7 SCC 592 ; it has been held "the doctrine of "legitimate expectation" operates in the domain of public law and in appropriate cases, constitutes a substantive and enforceable right. There is no denying the fact that there may be areas such as matters relating to defence and national security where wide issues of national interest may outweight that which otherwise would have been legitimate expectation. Barring these exception violation of fundamental rights would be actionable per se i. e. without proof of damages and in appropriate cases, the State may be held liable to pay compensation for infringement of fundamental rights. " ( 14 ) IT is further held "the services of the petitioner herein were terminated as no longer required. The expression as no longer required connotes vagueness in that it does not indicate as to why were the service of the petitioner not required. " ( 14 ) IT is further held "the services of the petitioner herein were terminated as no longer required. The expression as no longer required connotes vagueness in that it does not indicate as to why were the service of the petitioner not required. It is the need of transparent system of governance that dispensation of services of public servants by using the phraseology services no longer required1 be excoriated as it gives filling to avoidable litigation and tends to violate Articles 14, 21 and 41 of the Constitution. " ( 15 ) IN view of the facts that the services of the petitioner were not terminated within a period of two or three years from the date of his appointment on the post of Jeep Driver he must be deemed to have been confirmed in service and to consider as permanent Government servant. The impugned order terminating the services as his services are no more required should not be allowed to survive. It deserves to be quashed. ( 16 ) ACCORDINGLY, the writ petition succeeds and is allowed. The impugned order dated 22. 8. 1997 is quashed; The concerned authority is directed to reinstate the petitioner in service with full back salary and other allowances with liberty that in case the petitioner is unsuitable and inefficient and should not be allowed to continue in service. It may deem fit to adopt a legal procedure after giving show cause notice to the petitioner. .