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2012 DIGILAW 731 (UTT)

Vikram Singh Negi v. District Magistrate Chamoli

2012-12-04

K.J.SENGUPTA

body2012
Judgment Kalyan Jyoti Sengupta, J. By this writ petition, order of termination of services of petitioner dated 13th September, 2005 and order dated 13th September, 2005 intending to recover the excess payment are challenged. 2. The fact, as it appears from the records, is as follows:- The petitioner was appointed as a Jeep Driver on 8th June, 1999 purely on a temporary basis. The letter of appointment is annexed with the petition as Annexure-1. The aforesaid letter of appointment clearly says that it is purely a temporary appointment, but the regular pay scale was granted. There is no dispute the aforesaid post of Jeep Driver is substantive one but the engagement of the petitioner was temporary. This was the status since beginning. However, in the year 2002, by an order dated 21st May, 2002, the aforesaid status of the petitioner was sought to be changed to that of daily rated Jeep Driver. The aforesaid order of change of status was challenged alongwith another driver in this Court. In that writ petition not only the order of changing status was challenged but claim for regularization was also made. The said writ petition was filed in the year 2004 being Civil Writ Petition No. 204 of 2004 (S/S). The above writ petition was disposed of by an order of this Court dated 19th March, 2005 and the learned Single Judge of this Court has set aside the order dated 23rd July, 2002 as far as this petitioner is concerned. It appears from the judgment that the issue of regularization was framed but no decision was rendered at all and it was kept at large. Therefore, the petitioner was restored back to the position as he was at the time of initial appointment. Therefore, on fact, without any dispute, the petitioner has been working as temporary driver in the substantive post. After the aforesaid judgment was rendered, the impugned order was issued on September, 2005. This impugned order appears to have been issued in exercise of power of the U.P. Temporary Government Servants (Termination of Service) Rules, 1975. The contention of the petitioner in this regard is that firstly, the aforesaid Rules does not apply, and secondly, the aforesaid impugned order was passed illegally and arbitrarily in order to deprive his right of regularization. This impugned order appears to have been issued in exercise of power of the U.P. Temporary Government Servants (Termination of Service) Rules, 1975. The contention of the petitioner in this regard is that firstly, the aforesaid Rules does not apply, and secondly, the aforesaid impugned order was passed illegally and arbitrarily in order to deprive his right of regularization. This order has been passed in arbitrary exercise of power presumably the respondents was annoyed with the petitioner approaching this Hon’ble Court and since the Hon’ble Court held in his favour and, thereafter, the respondents have terminated the services of the petitioner. 3. In the counter affidavit, it has been stated that the whole idea to terminate the services of the petitioner after the earlier judgment was rendered was to fill up post regularly, as such, advertisement was issued. Five candidates participated in the selection process whereas the petitioner did not do so. The five candidates have been appointed. 4. Mr. Subhash Upadhayaya, the learned Standing Counsel appearing for the State fairly submits that the post now being occupied by the petitioner is substantive and lying vacant and it was not intended to fill up as the matter was pending before the Court. He also submits that no selectee is waiting to be appointed to this post. 5. Learned counsel for the petitioner submits that the U.P. Temporary Government Servants (Termination of Service) Rules, 1975 has no manner of application as the petitioner was not holding any civil post. On this, I have now been called upon to decide whether the aforesaid Rules applies or not. 6. I have already observed from the letter of appointment together with the judgment of this Court, the petitioner is temporary appointee in a substantive post. The aforesaid U.P. Temporary Government Servants (Termination of Service) Rules, 1975 is sought to be applied to all the Government Servants who are holding any temporary post. This will appear from short title of the Rules. It says that this Rules may be called the U.P. Temporary Government Servants (Termination of Service) Rules, 1975. Section 3 says that this shall apply to all persons holding a civil post in connection with the affairs of Uttar Pradesh and who are under the rule-making control of the Governor, but who do not hold a lien on any permanent post under the Government of Uttar Pradesh. 7. Section 3 says that this shall apply to all persons holding a civil post in connection with the affairs of Uttar Pradesh and who are under the rule-making control of the Governor, but who do not hold a lien on any permanent post under the Government of Uttar Pradesh. 7. The definition of temporary service completely fit to the petitioner’s status as employee. Hence, I am unable to accept the contention of the learned counsel for the petitioner that the aforesaid Rules does not apply. I hold that the same apply as correctly submitted by the learned Standing Counsel. 8. Now, the question is, whether the aforesaid power has been exercised in bonafide manner. In another word, whether this order impugned suffers from any biasedness, arbitrariness or any element of executive whims. The power is undoubtedly conferred, but in my view, this power has to be exercised not to satisfy the personal desire or whims and it has to be applied in objective manner and in the interest of administration. If there is no administrative necessity, power as above should not be resorted. Administrative necessity can be perceived illustratively in the following situations:- (i) If the post held by temporary appointee like petitioner is sought to be filled up immediately on permanent basis by taking measure, then it would be one of such objective reasons to put an end to the temporary appointment. (ii) If the post held by the appointee is sought to be abolished for any administrative reasons. 9. In my view, in this case none of the aforesaid objectives is spelt out in the counter affidavit. The element of bias, arbitrariness and whims cannot be established by direct proof. This will appear from the chain of events and facts and circumstances of each case. In this case, the petitioner was sought to be eased out by changing status of temporary appointee to a daily rated driver without any reason. The petitioner had to approach this court to get redressal and the judgment was delivered in his favour holding that the change of status of the petitioner earlier was illegal and arbitrary. This judgment was delivered in the month of March, 2005, thereafter, the aforesaid provision was sought to be applied without having any change of circumstances viz. administrative necessity. The petitioner had to approach this court to get redressal and the judgment was delivered in his favour holding that the change of status of the petitioner earlier was illegal and arbitrary. This judgment was delivered in the month of March, 2005, thereafter, the aforesaid provision was sought to be applied without having any change of circumstances viz. administrative necessity. Advertisement was issued to fill up some other posts but objective was not to fill up this post otherwise the appropriate person would have been selected for appointment for the post held by the petitioner on temporary basis. These are chains of events which really speaks about the hidden malafide intention of the employer to cease the petitioner out by any means and aforesaid Rules is one of the weapon to utilize for this purpose. 10. Therefore, I think that exercise of power of termination under Rule 3 is not done in this case bonafide or for any administrative exigency. This order does not stand to scrutiny under Article 14 of the Constitution of India which always safeguards against any arbitrary and whimsical action. But when the writ petition was filed, the petitioner had no right under the law to be regularized in the services. During pendency of the writ petition, a Rule has been promulgated following the judgment of the Supreme Court, and Rules intending to regularise services of the temporary appointees in the establishment of the Government who have been rendering services for considerable length of period. 11. In this case, I am of the view that the petitioner is entitled to be considered for regularization in terms of this Rules. Normally, the Rule is not given retrospective effect unless it is expressly mentioned. I think that the Rule has application to the petitioner’s case because it has been framed during the pendency of the writ petition wherein regularization is the issue. The interim order passed by this Court is hereby confirmed, and I direct the respondents to consider the petitioner’s case of regularization in terms of this Rule and this consideration shall be made within a period of three months from the date of receipt of certified copy of this order. If for any reason, the regularization is not made, the reasons must be assigned and be communicated to the petitioner, and if necessary, the petitioner may be heard in person. If for any reason, the regularization is not made, the reasons must be assigned and be communicated to the petitioner, and if necessary, the petitioner may be heard in person. The respondents had already paid to the petitioner in terms of the order of this Court, the salary which is admissible to the regular driver. I, therefore, allow the respondents to recover the amount, if paid, in excess in terms of the order of this Court as regular employee. 12. The writ petition is disposed of. 13. No order as to costs.