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2002 DIGILAW 1224 (ALL)

YOGENDRA RAM CHAURASIYA v. STATE OF U. P.

2002-09-10

R.K.AGRAWAL, S.K.SEN

body2002
R. K. AGARWAL, J. ( 1 ) THE present Special Appeal has been filed by Yogendra Ram Chaurasiya against the judgment and order dated 5. 5. 1997 passed by the learned Single judge, where the learned Single Judge has dismissed the writ petition of the appellant on the ground that the appellant-writ petitioner was purely a temporary employee and even for the short period he was under employment there was several complaint against him as is evident from the perusal of annexures CA 1 to CA 7 to the counter affidavit. ( 2 ) BRIEFLY stated facts giving rise to the present case are that the father of the appellant- writ petitioner late Telhu baryee was working as a Lasker of 92 u. P. Battalion, N. C. C. at Ghazipur. He died while he was in service. The appellant writ petitioner being his son was given appointment on compassionate ground. The appellant was given appointment on 30. 4. 1994. It was mentioned in the appointment order that his appointment would be temporary subject to the termination under U. P. Temporary Government Servants (Termination of Service) Rules 1976. The appellant- writ petitioner accepted the said appointment and consequently he was posted as a Lasker of 92 UP battalion, N. C. C. at Ghazipur. It appears that there was certain complaint against him for which warning was also issued and subsequently, vide order dated 23. 3. 1995, his services were terminated under the provisions of U. P. Temporary government Servants (Termination of service) Rules 1975, while giving him amount equivalent to the amount of his pay plus allowance for the period of notice of one calendar month. The appellant writ petitioner challenged his termination order dated 23. 5. 1995 in the writ petition which has been dismissed by the learned Single Judge vide the impugned order under appeal. ( 3 ) WE have heard Sri Prakash Padia learned counsel for the appellant and Sri ravi Prakash Srivastava learned standing counsel for the respondents. ( 4 ) THE learned counsel for the appellant submits that the appointment of the appellant was made on compassionate grounds under the provisions of Dying in harness Rules, which appointment cannot be treated as temporary appointment and rather it was permanent appointment and, therefore, the services could not have been terminated under the provisions U. P. Temporary Government Servants (Termination of Service) Rules 1975. He relied upon the decision in the case of ravi Karan Singh vs. State of U. P. and others reported in 1991 (1) ALR 754. He further submitted that since the appointment of the appellant- writ petitioner is to be a permanent appointment, his services could have been terminated only after complying with the provisions of Article 311 of the constitution of India viz. after issuing charge sheet, holding enquiry and giving opportunity to defend his case. In the alternative, he submitted that even if the appointment of the appellant writ petitioner is taken to be a temporary appointment since the enquiry was pending against him, and the order of termination had been passed in the wake of such an enquiry, the order of termination is not simplicitor but casts stigma and, therefore, it was necessary for holding a full-fledged enquiry in which opportunity of hearing should have been given to the petitioner, and this having not been done, the impugned order is illegal. ( 5 ) THE learned standing counsel, however, submitted that the appellant writ petitioner was appointed purely on temporary basis as would be clear from the appointment letter itself and such terms and conditions of the appointment letter was accepted by the appellant- writ petitioner hence he is estopped from contending that his appointment was not a temporary appointment but a permanent one. He submitted that the appellant is not entitled for the protection of constitutional safe guards as provided under Article 311 of the constitution of India. He also submitted that the services of the appellant- writ petitioners had been terminated simplicitor and there is no stigma. According to him the termination order has not been passed in the wake of any enquiry pending against the appellant writ petitioner but on review of his work and conduct. ( 6 ) HAVING heard the learned counsel for the parties, we find that in paragraph 3 of the writ petition the appellant- writ petitioner had categorically stated that the respondent no. 3 therein, issued appointment letter to the petitioner on the post of Lasker of 92 UP Battalion, N. C. C. at Ghazipur under the provisions of Dying in Harness Rules. The appointment letter has been filed as Annexure-1 which itself mentions as appointment of Dependent of Deceased Employees". In the counter affidavit filed by Lt. Col. S. N. Upadhyaya, respondent no. The appointment letter has been filed as Annexure-1 which itself mentions as appointment of Dependent of Deceased Employees". In the counter affidavit filed by Lt. Col. S. N. Upadhyaya, respondent no. 3 in the writ petition, the contents of para 3 of the writ petition were not disputed. Thus, it is established from the material on record, that the appointment had been made on compassionate ground under the provisions of Dying in Harness Rules. ( 7 ) THE Division Bench of this Court in the case of Ravi Karan Singh has held that "an appointment under the Dying in Harness Rules has to be treated as a permanent appointment otherwise if such appointment is treated to be a temporary appointment, then it will follow that soon after the appointment the service can be terminated and this will nullify the very purpose of the dying in Harness Rule because such appointment is intended to provide immediate rehef to the family on the sudden death of the bread earner. We, therefore, hold that the appointment under Dying in Harness Rule is a permanent appointment and not a temporary appointment, and hence the provisions of U. P. Temporary government Servant (Termination of services) Rules 1975 will not apply to such appointments. " ( 8 ) THE aforesaid matter was considered by the Division Bench on reference being made by a learned Single judge of this Court disagreeing with the decisions in the cases of Budhi Sagar dubey vs. D. I. O. S. , ( 1993 (1) LLJ 798 ), gulab Yadav Vs. State of U. P. and others (1991 (2) UPLBEC 995) Dhrendra Pratap singh vs. D. I. O. S. and others (1991 (17)ALR 247 ). ( 9 ) IN view of the decision of this court in the case of Ravi Karan Singh with which we respectfully agree, any appointment made under the provisions of dying in Harness Rules is to be treated as a permanent appointment and not a temporary appointment. This is also clear from the Government order dated 23. 1. 1976 filed as annexure 2 to the writ petition wherein it has been mentioned that the dependent of deceased employee appointed on compassionate ground under the provisions of Dying in Harness Rules should not be retrenched even where the strength of the employee is being reduced. This is also clear from the Government order dated 23. 1. 1976 filed as annexure 2 to the writ petition wherein it has been mentioned that the dependent of deceased employee appointed on compassionate ground under the provisions of Dying in Harness Rules should not be retrenched even where the strength of the employee is being reduced. Thus, we hold that the appointment of the appellant writ petitioner is to be treated as permanent appointment and not a temporary appointment. The nature of appointment, will not effect the writ petitioner, even if the appellant writ petitioner has accepted the terms and conditions of the appointment which mentioned as a temporary appointment. The nature of appointment of the appellant- writ petitioner having been held to be permanent appointment, the appellant writ petitioner is entitled to the constitutional safeguards as provided in article 311 of the Constitution of India. In the present case the procedure laid down in Article 311 (2) of the Constitution of india, has not been followed before terminating the services of the appellant writ petitioner, in as much as neither the appellant had been informed about the charges leveled against him nor any enquiry was conducted before terminating his services nor he was given opportunity of hearing, nor the authorities have invoked any of the clauses mentioned in provision to Article 311 (2) of the constitution of India for dispensing with the requirement of holding the enquiry. ( 10 ) SINCE we have come to the conclusion that the appointment of appellant- writ petitioner was a permanent appointment, it is not necessary to go into the question as to whether the order of termination was simplicitor one or it casts stigma or not. ( 11 ) IN view of the foregoing discussions, the order dated 25. 3. 1995 terminating the services of the appellant writ petitioner and the order dated 5. 5. 1997 passed by the learned Single judge cannot be sustained and are hereby set aside. The writ petition and the Special appeal stand allowed. However, the parties shall bear their own costs. .