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Allahabad High Court · body

2003 DIGILAW 2462 (ALL)

BANARASI GUPTA v. STATE OF U. P.

2003-10-20

VINEET SARAN

body2003
VINEET SARAN, J. ( 1 ) THE petitioner was appointed as Lekhpal on 28. 2. 1979 along with 176 other persons. On 3. 2. 1991, the petitioner was placed under suspension on the ground that he did not have the requisite qualification, which, according to the respondents, was High School and also that he had not obtained his training as Lekhpal. The petitioner challenged the said suspension order by way of filing a writ petition and by order dated 26. 2. 1991, this Court stayed the operation of the suspension order. On the same grounds, a charge-sheet dated 2. 5. 1991 was served on the petitioner requiring him to explain how he had obtained the appointment as Lekhpal by concealing material facts. The petitioner submitted his reply to the said charge sheet on 28. 6. 1991 stating that under the Rules the minimum qualification required for appointment of a lekhpal was Junior High School, which qualification the petitioner possessed. It was also stated that the Rules could not be amended by a circular of the Board of Revenue so as to change the minimum qualification for appointment as Lekhpal to be High School. After considering the reply of the petitioner, the Sub-Divisional Magistrate, vide order dated 30. 3. 1995, withdrew the departmental proceedings in pursuance of the aforesaid charge sheet and the suspension order was also withdrawn. Immediately within a period of six weeks thereafter, the respondents again on 12. 5. 1995, issued a fresh show cause notice on the same grounds/charges that the petitioner did not possess the requisite educational qualification for appointment as Lekhpal. The petitioner again submitted his detailed reply on 17. 5. 1995. However, the respondent No. 4 Up ziladhikari/appropriate Authority, Nautanwa, District Maharajganj passed the impugned order dated 16. 6. 1995 stating that the services of the petitioner were no longer required and hence under the provisions of the U. P. Temporary Government Servants (Termination of Services)Rules, 1975, the petitioner was given one months notice and on the expiry of the said period, the services of the petitioner shall deem to have come to an end. Aggrieved by the aforesaid order dated 16. 6. 1995, the petitioner has filed this writ petition. ( 2 ) I have heard Sri A. B. Singh, learned counsel appearing on behalf of the petitioner as well as learned standing counsel appearing for the State and perused the record. Aggrieved by the aforesaid order dated 16. 6. 1995, the petitioner has filed this writ petition. ( 2 ) I have heard Sri A. B. Singh, learned counsel appearing on behalf of the petitioner as well as learned standing counsel appearing for the State and perused the record. In the facts and circumstances of this case, in my view, the impugned order dated 16. 6. 1995 is liable to be set aside and this writ petition is liable to be allowed. ( 3 ) IT is admitted that the petitioner was duly selected as Lekhpal and appointed by order dated 28. 2. 1979. Rule 8 of Lekhpals Service Rules, 1976 prescribes that the minimum qualification for the appointment of Lekhpal shall be hindustani Middle or junior High School examination. It is not the case of the respondents that the petitioner had not passed Junior High School. The respondents contend that in view of the circular dated 3. 7. 1976 issued by the Board of Revenue prescribing High School as the minimum educational qualification for appointment of Lekhpal, the petitioner was disqualified as he did not pass the High School examination before having been appointed as a Lekhpal. ( 4 ) FROM the facts of this case it appears that the respondents were desirous of dispensing with the services of the petitioner on some ground or the other. He was first suspended in the year 1991 on the same grounds on which the subsequent notice dated 12. 5. 1995 had been issued to him. Passing of the order dated 30. 3. 1995, withdrawing the departmental proceedings as well as suspension order against the petitioner, clearly amounted to discharging the petitioner of the charge that he did not possesses the requisite qualifications for appointment as Lekhpal. At no stage the petitioner had misrepresented that he had passed High School. It cannot thus be said that the petitioner had concealed any material fact, as it is his case that he possessed the requisite qualifications as prescribed under the Rules. As such the petitioner cannot be held guilty of concealing any fact at the time of obtaining his appointment. It cannot thus be said that the petitioner had concealed any material fact, as it is his case that he possessed the requisite qualifications as prescribed under the Rules. As such the petitioner cannot be held guilty of concealing any fact at the time of obtaining his appointment. Even otherwise, the Apex Court in the case of Bhagwati Prasad v. Delhi State Mineral Development Corporation, AIR 1990 SC 371 , while dealing with the question as to whether the petitioners therein possess the requisite qualifications to hold the post or not, has held that "practical experience would always aid the person to effectively discharge the duties and is a sure guide to assess the suitability. The initial minimum educational qualification prescribed for the different posts is undoubtedly a factor to be reckoned with, but it is so at the time of the initial entry into the service. Once the appointments were made as daily rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualifications. " ( 5 ) FURTHER a subsequent notice having been issued on 12. 5. 1995, on the same grounds/charges on which the earlier notice and suspension had been withdrawn on 30. 3. 1995, was wholly unreasonable and uncalled for. Thereafter, ignoring the reply of the petitioner and the passing of the impugned order dated 16. 6. 1995 terminating the services of the petitioner was also wholly unwarranted in the facts and circumstances of the present case. No doubt the service of a temporary employee can be dispensed with under the provisions of the U. P. Temporary government Servants (Termination of Services) Rules, 1975 but the same does not give unfettered powers to the State to pass an arbitrary order. In the present case, the petitioner had worked for 16 years without there being any complaint against him. ( 6 ) ALTHOUGH the Apex Court in the case of State of U. P. and Anr. v. Smt. Kamla Devi and Anr. In the present case, the petitioner had worked for 16 years without there being any complaint against him. ( 6 ) ALTHOUGH the Apex Court in the case of State of U. P. and Anr. v. Smt. Kamla Devi and Anr. , 1996 (3) AWC 1453, has held that the Government, under Rule 14 (a) of the U. P. Temporary government Servants (Termination of Services) Rules, 1975, has the power to terminate the services of a temporary Government servant, either on one months notice or pay in lieu thereof and the State Government was justified in terminating the services of a temporary Government servant under the said Rules of 1975, but the ratio of the said Judgment would not apply to the facts of the present case. In the present case, primarily the services of the petitioner were sought to be dispensed with on the ground that he did not have the requisite qualification as per the circular of Board of Revenue. The petitioner having once explained and the respondents, after being satisfied that he was duly qualified under the Lekhpals Service Rules, 1976, withdrew the notice for termination of services on the aforesaid ground. However, they have now dispensed with the services of the petitioner merely because the said ground could not survive and the respondents, taking advantage of the petitioner being a temporary government servant, terminated his services under the U. P. Temporary Government Servants (Termination of services) Rules, 1975. The State Government cannot be permitted to act arbitrarily and whimsically while dealing with its employees. The action of the respondents has to be tested on the ground of reasonableness also. Having power to terminate the services is one aspect of the matter but this Court can examine as to whether the same had been exercised in a just and fair manner. Having failed to terminate the services of the petitioner on the ground of his qualifications and after realising that his appointment was in accordance with law, taking advantage that he was in temporary service, even though for 16 years without any complaint, the respondents resorted to action against him under the Rules of 1975, Even for those who have been working on dally wages continuously for several years, the State Government has framed rules for their regularisation. The petitioner, who has been regularly selected and has worked continuously for 16 years without any complaints, cannot be placed in a position lower than that of a daily wager. In the case of Satya Deo Misra v. State of U. P. and Anr. , 1995 (3) AWC 1800 : 1995 (3) UPLBEC 1410 , this Court has held that a temporary employee who has been working continuously without any break in his service should not be terminated on the ground that his services are no longer required, when he represents for regularisation of his services after having worked for more than 15 years. Holding such action to be wholly arbitrary, the termination order was set aside by this Court. ( 7 ) THUS, in my view, although the respondents may have the power to terminate the services of the petitioner under the Rules of 1975, but in the facts of this case, the exercise of the same was not Judicious, reasonable or fair. The impugned order dated 16. 6. 1995 is not justified as the action of the respondents does not pass the test of reasonableness and fairness. The same is, thus, liable to be quashed. ( 8 ) FOR the aforesaid reasons, the impugned order dated 16. 6. 1995 terminating the services of the petitioner, is set aside. By an interim order dated 24. 11. 1995 passed in this writ petition, the operation of the impugned order dated 16. 6. 1995 had been stayed. The petitioner is thus continuing in service. Accordingly, the petitioner shall be entitled to continuity in service and all consequential benefits. ( 9 ) IN the result this writ petition stands allowed. There will be no order as to costs.