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2003 DIGILAW 1469 (ALL)

TILAK BAHADUR SINGH v. STATE OF U P

2003-07-08

D.R.CHAUDHARY

body2003
D. R. CHAUDHARY, J. The petitioner, by means of the present writ petition, has challenged the order dated 31-7-1993 of respondent No. 4 by which his appointment on the post of Junior Clerk is cancelled and reverted to his original post of Field Attendant. 2. It is admitted case of the parties that the petitioner was initially appointed on 31-12-1979 as Field Attendant in the office of respondent No. 4; as the petitioners qualification was Intermediate he was required to discharge duties as Junior Clerk vide orders dated 20-7-81, 9-1-83, 18-10-86 and 30-8-88 (Annexures-3, 4, 5 and 7 respectively) passed by the competent authority; his prayer seeking regularisation of services as junior clerk was not heeded to; however, respondent No. 5 vide order dated 30-6-93 appointed the petitioner as regular junior clerk in the pay-scale of Rs. 950-1500/-against the vacant post of Assistant Accountant with recital that the appointment is temporary and is liable to be terminated on joining of regularly selected Assistant Accountant; this appointment of the petitioner was made following the recommendation of respondent No. 4 as the petitioner on that point of time had worked for about 12 years as junior clerk without flaw; the impugned order was passed without affording opportunity of hearing nor any show cause notice was served before passing the impugned order. 3. In the counter-affidavit it is admitted that the petitioner has worked as junior clerk under the orders passed from time to time by the competent authority; the petitioner was not paid salary to the post of junior clerk; the appointment of the petitioner was on local arrangement; the impugned order suffers from no illegality or vice of arbitrariness; as the appointment of the petitioner was of temporary nature he was not entitled to any opportunity of hearing; it is, however, not stated in the counter-affidavit that the regularly selected candidate has come to join the post of Assistant Accountant. 4. The petitioner has filed rejoinder-affidavit reiterating the averments contained in the writ petition. 5. I have heard learned counsel for the parties and perused the record. 6. This Court vide order dated 14-9-93 stayed the operation of the impugned order till further orders. The interim order has not been vacated or modified as it appears from the record and the petitioner is still continuing on the post as junior clerk. 7. 5. I have heard learned counsel for the parties and perused the record. 6. This Court vide order dated 14-9-93 stayed the operation of the impugned order till further orders. The interim order has not been vacated or modified as it appears from the record and the petitioner is still continuing on the post as junior clerk. 7. Undisputedly, the respondents have extracted work of Junior Clerk for a long period of about 12 years without payment of salary to that post; the petitioner was Intermediate and had earned considerable experience while working as junior clerk; the respondents having taken into consideration the long unblemished services of the petitioner as junior clerk was given regular appointment which has been cancelled by the respondent No. 4. I have perused the impugned order. No reasons whatsoever has been given in cancelling the appointment and reverting the petitioner to the post of Field Attendant. It is also not the case of the respondents that regularly selected candidate has come to join the post on which the petitioner was appointed. It is settled in-law that the order of reversion is punitive in nature which cannot be passed without affording opportunity of hearing. It is further settled in law that even in case of temporary appointment the employees are entitled to opportunity of hearing in case the order impugned amounts to punishment. Admittedly in the present case no opportunity of hearing was afforded to the petitioner before passing the impugned order. In that view of the matter, it is rightly submitted by the learned counsel for the petitioner that the order impugned is unsustainable in law. Further the petitioner has been working on the post he was regularly appointed vide order dated 20-6- 91 (Annexure-12) and since then he is continuously working under the interim order of this Court. Even though no right is created in favour of the petitioner by virtue of the interim order, however, the fact cannot be overlooked that he has completed about 12 years of service after his regular appointment and as such there appears no justification to sustain the order impugned. 8. With regard to prayer No. 2 learned counsel for the petitioner submitted that the petitioner is entitled to the promotion on regular basis and the consequential benefits. 8. With regard to prayer No. 2 learned counsel for the petitioner submitted that the petitioner is entitled to the promotion on regular basis and the consequential benefits. In support of his submission he relied upon decision of the apex Court in the case of Bhagawati Prasad v. Delhi State Mineral Development Corporation, AIR 1990 SC 371 , and the decision of this Court in Vishwamitra Yadav v. U. P. State Public Service Tribunal, Lucknow and others, 1998 (2) LBESR 190 (All) : (1998) 1 UPLBEC 23 . 9. In view of, whatever has been discussed hereinabove, the writ petition succeeds and is allowed. The impugned order dated 31st July, 1993 (Annexure-1 to the writ petition) passed by District Plant Protection Officer, Kanpur, respondent No. 4, is quashed. The petitioner shall be entitled to all consequential benefits. 10. No order as to cost. Petition allowed. .