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2004 DIGILAW 1750 (ALL)

Siya Ram v. State of U. P.

2004-09-01

R.B.MISRA

body2004
JUDGMENT : R.B. MISRA, J. 1. Heard Sri Abhishek Tripathi, holding brief of Sri K. K. Arora, learned Counsel for the Petitioner and Sri S. P. Singh, along with Sri S.B. Singh, learned Counsel for the Respondents-State. 2. In this petition prayer has been made to quash the order dated 6.10.1990, passed by prescribed authority Sub Divisional Magistrate, Pilibhit whereby the Petitioner being treated as a temporary employee was terminated by an order simpliciter in view of the provisions of U.P. Temporary Government Servant (Termination of Service) Rules, 1975 (in short called 'Rules 1975'). 3. According to the Petitioner, Petitioner was appointed as Collection Amin by an order dated 26.4.1990 in clear vacant post after the termination of one Sri Mahendra Nath Misra on the ground of corruption and irregularities. The Petitioner rendered satisfactory service, however, Petitioner was surprised to receive the termination order dated 6.10.1990 which has been passed without notice or show cause or without affording opportunity of hearing and ignoring the continuous service of the Petitioner rendered for five years and instead of regularizing his service Petitioner was illegally terminated contrary to the provisions of Article 14 of the Constitution. 4. Against the above order dated 6.10.1990 an appeal before the Commissioner was filed that too was dismissed by order dated 21.10.1991. 5. Being aggrieved against both the orders dated 6.10.1990 and 21.10.1991, the Petitioner has filed the present writ petition. 6. According to the Respondent, Petitioner being a temporary employee has been terminated by an order of simpliciter in view of 'Rules 1975' where no notice, or show cause or opportunity of hearing was necessary to be given to the Petitioner in view of decision of Supreme Court in State of Uttar Pradesh and Another Vs. Kaushal Kishore Shukla, (1991) 1 SCC 691 . 7. In Ram Asray Vs. District Judge, (2004) 5 AWC 4191, it was held that temporary employee has no right to hold the post and his service is liable to be terminated without assigning any reason either under the terms of the contract providing for such termination or under the relevant statutory rules regulating the terms and conditions of temporary servants. 8. The issue involved herein is no more res-integra. In State of Uttar Pradesh and Another Vs. 8. The issue involved herein is no more res-integra. In State of Uttar Pradesh and Another Vs. Kaushal Kishore Shukla, (1991) 1 SCC 691 , the Supreme Court has categorically held as under: Under the service juris-prudence a temporary employee has no right to hold the post and his services are liable to be terminated in accordance with the relevant service rules and the terms of contract of service. 9. In the instant case, the Court has to be satisfied as to what is the legally justiciable right of the Petitioner which has been infringed and for which the Petitioner can resort to the discretionary relief under Article 226 of the Constitution of India. The Supreme Court in Purshotam Lal Dingra v. Union of India AIR 1958 SC 36 , has held that "A person can be said to acquire a lien on a post only when he has been confirmed and made permanent on that post and not earlier" and further held that "a Government servant holding a post temporarily does not have any right to hold the said post." In R. K. Mishra v. U.P. State Handloom Corporation AIR 1987 SC 2408 , the Supreme Court has also taken the same view. 10. A temporary employee has no right to hold the post and his service is liable to be terminated without assigning any reason either under the terms of the contract providing for such termination or under the relevant statutory rules regulating the terms and conditions of temporary servants. Similarly, in Triveni Shankar Saxena Vs. State of U.P. and others, AIR 1992 SC 496 ; Commissioner, Food and Civil Supplies, Lucknow, U.P. and Another Vs. Prakash Chandra Saxena and Another, (1994) 5 SCC 177 Ram Chandra Tripathi Vs. U.P. Public Services Tribunal IV and Others, (1994) 5 SCC 180 Madhya Pradesh Hasta Shilpa Vikas Nigam Ltd. Vs. Devendra Kumar Jain and Others, (1995) 1 SCC 638 and Kaushal Kishore Shukla (supra), the Supreme Court has categorically held that incumbent to a post who has been given appointment on temporary basis, terminable without notice, has no right to hold the post and he is not entitled for any opportunity of hearing before his service is dispensed with as his termination does not amount to forfeiture of any legal right. 11. In Ravi S. Naik and Sanjay Bandekar Vs. 11. In Ravi S. Naik and Sanjay Bandekar Vs. Union of India and others, AIR 1994 SC 1558 , the Supreme Court has placed reliance on the observations made in Malloch v. Aberdden Corporation, 1971 (2) All ER 1278, wherein it was observed as under: A breach of procedure, whether called a failure of natural justice or an essential administrative fault cannot give him a remedy in the Courts, unless behind it there is something of substance which has been lost by the failure. The Court does not act in vain. 12. In Life Insurance Corporation of India v. Raguvendra Sheshgiri Rao Kulkarni (1997) 8 SCC 460, the Supreme Court has elaborated the difference of a permanent employee and an employee holding the post on probation and held that the service of a probationer cannot be equated with that of a permanent employee who, on account of his status, is entitled to be retained in service and his service cannot be terminated abruptly without any notice or plausible cause. "This is based on the principle that a substantive appointment to a permanent post in a public service confers substantive right to the post and the person appointed on that post becomes entitled to hold a lien on that post." However, interpreting/enforcing the terms of appointment, which provided for discharge of the said probationer from service at any time during the period of probation or extended period of probation, without any notice or without assigning any cause, the Court has held that as his termination was in consonance with the terms and conditions of his appointment letter, he cannot be heard to raise the grievances. 13. In State of Punjab and others Vs. Surinder Kumar and others, AIR 1992 SC 1593 , the Supreme Court has held that the Court must seek the adherence to the terms and conditions of the appointment and there is no reason why terms and conditions of appointments cannot be enforced in a contract of service. 14. In Hindustan Education Society and another Vs. Sk. Kaleem Sk. Gulam Nabi and others, AIR 1997 SC 2126 , the Supreme Court has held that where the rules specifically provide for permanent appointment on probation for a specific period and an employee is appointed without stipulating any condition regarding probation, the inference is to be drawn that he was not appointed in substantive capacity. In Avinash Nagra Vs. Kaleem Sk. Gulam Nabi and others, AIR 1997 SC 2126 , the Supreme Court has held that where the rules specifically provide for permanent appointment on probation for a specific period and an employee is appointed without stipulating any condition regarding probation, the inference is to be drawn that he was not appointed in substantive capacity. In Avinash Nagra Vs. Navodaya Vidyalaya Samiti and Others, (1997) 2 SCC 534 , the Supreme Court has held that a society can terminate the service not only of a temporary employee but also of a permanent employee by giving him one month's notice or three months' pay and allowances in lieu thereof if the terms of appointment and rules so permit and such termination may be valid in a given case even if the principles of natural justice have not been complied with. 15. In Union of India and others Vs. Shri Bihari Lal Sidhana, AIR 1997 SC 3659 , the termination of the services of the temporary employee as provided under the Rules was upheld by Supreme Court in spite of the fact that he had been put under suspension for a misconduct and this factum had also been mentioned in termination order. 16. In Chandra Deo Gautam Vs. State of U.P. and Others, (2001) 9 SCC 401 , the Supreme Court has held that the termination of service of temporary employee does not require interference on being removed on any ground as it does not cast any stigma or aspersion on him. In Nazira Begum Laskar and Ors. v. State of Assam AIR 2001 SC 102 , the Supreme Court held that where appointment neither confers any right nor any equity in favour of the employee, as the appointment was purely temporary and could be terminated without notice, no grievance can be entertained by such employee. More so, cannot claim any equitable relief from any Court. 17. In Dhananjay v. Chief Executive Officer, Zila Parishad, Jalana, AIR 2003 SC 739 , the Supreme Court upheld the termination order passed under Central Civil Service (Temporary Service) Rules, 1965, in spite of the fact that the employee had been prosecuted in the criminal case and acquitted however the inquiry into the allegations was also directed but not held observing that order was not stigmatic and termination was within the ambit of the statutory rule. 18. 18. I have heard learned Counsel for the parties, I find that the Petitioner being a temporary Government employee could be terminated in view of the above 'Rules 1975' by order simpliciter and the contentions of the Respondent have force that the temporary employee while being terminated by order simpliciter is not required to be given any notice or opportunity of hearing. 19. In view of the above observation, the writ petition is dismissed.