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2002 DIGILAW 246 (ALL)

MUSTAFA HUSSAIN v. STATE OF U. P.

2002-02-06

D.S.SINHA, O.BHATT

body2002
D. S. SINHA, J. ( 1 ) HEARD Sri S. A. Gilani, learned counsel appearing for the petitioner and Sri V. N. Agarwal, learned standing counsel of the State of U. P. , representing the respondents. ( 2 ) INSTANT writ petition under Article 226 of the Constitution of India is directed against the order and judgment of the U. P. Public Service Tribunal-1, Lucknow, the respondent No. 2, dismissing the claim petition of the petitioner filed under Section 4 of U. P. Public Services (Tribunal) Act, 1976 and upholding the validity of the order dated 3rd June, 1984, passed by the Collector, district Banda, the respondent No. 3, whereby the services of the petitioner had been terminated. The relevant facts, as they emerge from the record, are these. ( 3 ) THE petitioner was appointed as peon on the recommendation of the selection committee and with the approval of the Collector, Banda, and deputed under the control of the Public prosecutor, Karvi, vide order dated 9th September, 1982, a copy of which is Annexure-1 to the petition. The work and conduct of the petitioner, according to the respondents, was not found to be satisfactory, in as much as there were several complaints in connection with performance of his duties. Indeed, the Public Prosecutor, under whose control the petitioner was serving, had submitted the reports expressing dissatisfaction about the work and conduct of the petitioner, and even recommending the termination of his service on payment of one months salary. Eventually, by means of the order dated 3rd June, 1984, a copy of which is on record as Annexure-4 to the petition, the services of the petitioner were terminated. ( 4 ) FEELING aggrieved by the order of termination of services dated 3rd June, 1984, after lapse of more than two years, on 9th October, 1986, the petitioner filed the claim petition before the respondent No. 2. ( 5 ) THE main plea of the petitioner before the respondent No. 2 was that his work and conduct was satisfactory and there was no complaint against him, and his services were terminated arbitrarily. It was also suggested in the pleading that the services of the petitioner were terminated on the basis of his involvement in a criminal case in which he was ultimately acquitted on 31st July, 1986. It was also suggested in the pleading that the services of the petitioner were terminated on the basis of his involvement in a criminal case in which he was ultimately acquitted on 31st July, 1986. ( 6 ) COUNTERING the plea of the petitioner, the respondents before the Tribunal pleaded that the services of the petitioner were not terminated on account of his involvement in criminal case as alleged by him. According to them, services of the petitioner were terminated in view of the unsatisfactory performance of the work reported by the concerned authorities. It was also pleaded that the nature of the appointment of the petitioner was absolutely temporary and was liable to be terminated at any time without notice as stipulated in the order of appointment itself, and also under the provisions of the U- P. Temporary Government Servants (Termination of service) Rules, 1975. In support of the plea that the work and conduct of the petitioner was not satisfactory, the relevant reports of the concerned authorities were also produced before the tribunal. ( 7 ) UPON detailed consideration of the material before it and after careful scrutiny of the rival contentions of the parties before it. the Tribunal has recorded finding of fact that the reports dated 9th October, 1982, 10th October, 1982, 18th July, 1983, 24th September, 1983, 7th october, 1983, 17th December, 1983, 2nd February, 1984 and 8th July. 1984. submitted by the relevant authorities, clearly established that the work and conduct of the petitioner was unsatisfactory and in these circumstances, his services were rightly terminated on that ground. On this finding of fact, Tribunal has opined that there was no illegality in the order of termination of the services of the petitioner. Accordingly, it has rejected the claim petition of the petitioner vide its order and judgment dated 18th July, 1991. This order of the Tribunal is sought to be assailed by the petitioner in this petition. On this finding of fact, Tribunal has opined that there was no illegality in the order of termination of the services of the petitioner. Accordingly, it has rejected the claim petition of the petitioner vide its order and judgment dated 18th July, 1991. This order of the Tribunal is sought to be assailed by the petitioner in this petition. ( 8 ) INVITING the attention of the Court to the averments made in paragraphs 4, 5, 6, 7, 8, 9 and 10 of the counter-affidavit of Sri C. N. Dubey, the then District Magistrate, Banda, filed before this court in answer to the averments made in the writ petition, Sri S. A. Gilani, learned counsel of the petitioner, asserts that the petitioner was substantively appointed on one year probation which was never extended by any order passed by the appointing authority recording reasons for extension of the period of probation to any specified date, as required by Rule 24 of Class IV employees Service Rule, 1975. On this premise. Sri Gilani submits that the services of the petitioner could not be terminated without holding regular departmental enquiry in accordance with law, and that having not been done, the order of termination of the service of the petitioner was invalid. ( 9 ) THE next submission of Sri Gilani is that the various materials produced before the Tribunal in support of the plea of the respondents that the work and conduct was not satisfactory goes to show unmistakably that the order of termination of the petitioner is punitive in nature inasmuch as it was founded on the various reports of the concerned authorities. ( 10 ) CONTESTING the submissions of the learned counsel of the petitioner Sri V. N. Agarwal, learned standing counsel of the State of U. P. , representing the respondents, submits that the nature of the appointment of the petitioner was purely temporary, and liable to be terminated at any time without notice. Neither he was appointed substantively nor he ever came to be confirmed either by any order passed by the relevant authorities or by operation of law providing for deemed confirmation. Neither he was appointed substantively nor he ever came to be confirmed either by any order passed by the relevant authorities or by operation of law providing for deemed confirmation. Further submission of Sri Agarwal is that it was never a case of the petitioner before the Tribunal that he was appointed substantively on probation and his services could not be terminated without holding the departmental enquiry, and that the averments made in the counter-affidavit of Sri C. N. Dubey referred by the learned counsel of the petitioner are of no avail inasmuch as the nature of the appointment of the petitioner has to be judged by the terms mentioned in the order of appointment, and not by the averments in the counter-affidavit filed in this Court. Sri Agarwal also submits that various reports, produced before the Tribunal to meet the plea of the petitioner to the effect that his work and conduct was satisfactory, cannot form basis of any conclusion that the said reports were the foundation of the termination order, though those reports might have constituted the motive. ( 11 ) IT is firmly settled that a temporary Government servant has no right to hold the post. His services are liable to be terminated in terms of the appointment order, and in accordance with the provisions of the relevant service rules which, in the instant case, are U. P. Temporary government Servants (Termination of Services) Rules, 1975. Further, it cannot be gainsaid that the nature of appointment of an incumbent has to be determined on the basis of contents of the appointment letter itself. ( 12 ) A perusal of the appointment letter dated 9th September, 1982 (Annexure-1) clearly shows that the nature of the appointment of the petitioner was purely temporary and liable to be terminated without any notice. The appointment of the petitioner being temporary in nature was liable to be terminated at any time without notice in terms of the order of appointment which was duly accepted by the petitioner. The appointment of the petitioner was also liable to be terminated under the provisions of U. P. Temporary Government Servants (Termination of services) Rules, 1975, which are, indisputably, applicable to him. The appointment of the petitioner was also liable to be terminated under the provisions of U. P. Temporary Government Servants (Termination of services) Rules, 1975, which are, indisputably, applicable to him. ( 13 ) WITH regard to the reliance of the learned counsel of the petitioner upon the averments made in the counter-affidavit of Sri C. N. Dubey, filed in this petition, for the purpose of demonstrating that nature of the appointment of the petitioner was not temporary, suffice it to say that the allegations made in the counter-affidavit filed in this Court cannot change the temporary nature and character of the order of appointment of the petitioner in view of the terms contained in the order of appointment. ( 14 ) THE contention of the learned counsel of the petitioner that various reports produced before the Tribunal by the respondents for justifying the plea that the work and conduct of the petitioner was not satisfactory Indicated that the said reports were foundation of the termination order rendering it punitive cannot be sustained. By way of defence, the respondents had a right to produce material to justify the termination order and demonstrate that the work and conduct of the petitioner was not satisfactory. Indeed, they were, obliged to do so to meet the plea of the petitioner that his work and conduct was satisfactory. That cannot be held to have the effect of changing the nature and character of the termination which is otherwise an order of termination simpliciter. See : State of Uttar Pradesh and Anr. v. Kaushal Kishore Shukla, 1991 (1) AWC 651 (SC) ; JT 1991 (1) SC 108 (Para 13) and Pavanendra Narayan Verma v. Sanjay Gandhi P. G. I. of medical Sciences and Anr. , (2002) 1 SCC 520 (Paras 34 and 35 ). ( 15 ) FOR the reasons stated above, the Court is of the opinion that impugned order and judgment of the Tribunal is perfect, and not open to be interfered by this Court in exercise of Its extraordinary discretionary Jurisdiction under Article 226 of the Constitution of India. ( 16 ) IN the result, the petition fails and is hereby dismissed. There is no order as to costs.