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2013 DIGILAW 246 (ALL)

VISHAMBHAR NATH TIWARI v. STATE OF U. P.

2013-01-21

TARUN AGARWALA

body2013
JUDGMENT Hon’ble Tarun Agarwala, J.—Heard Sri Siddharth Khare, the learned counsel for the petitioners and the Chief Standing counsel for the respondents. 2. Thirty one petitioners were appointed on a temporary basis on substantive posts in various departments of the State Government. The appointment letters were issued by the District Magistrate. In the case of Vishambhar Nath Tiwari, an appointment letter dated 11.8.1997 was issued directing him to work in the office of the District Supply Officer. Similar appointment letters were issued to the other petitioners. It transpires that pursuant to some complaint being made, an enquiry was instituted and, on that basis, an order of termination dated 6.11.1997 was passed invoking Rule 3 of the U.P. Temporary Government Servants (Termination of Service) Rules, 1975 (hereunder referred to as the Rules of 1975) on the ground that since their appointment was temporary in nature and since their services were no longer required, their services were terminated after giving one month’s pay in lieu of notice. The petitioner, being aggrieved by the said order, filed the present writ petition, in which an interim order was passed staying the order of termination. 3. As a result of the interim order, the petitioners continued to work as employees and were being paid the salary. More than 15 years have elapsed and the petitioners are continuing in service without any complaint. 4. Having heard the learned counsel for the parties, the Court finds from a perusal of the appointment letter that the petitioners’ appointment was made on a substantive post, but on a temporary basis. The question which arises for consideration is, whether the Rules of 1975 can be made applicable in the case of the petitioners. 5. For facility, Rule 2 of the U.P. Temporary Government Servants (Termination of Service) Rules, 1975 is extracted hereunder: “Definition.—In these rules temporary service means officiating or substantive service on a temporary post, or officiating service on a permanent post under the Uttar Pradesh Government.” 6. The aforesaid Rule indicates that temporary service means officiating or substantive service on a temporary post or officiating service on a permanent post. In the instant case, the petitioners were not appointed on an officiating basis on a temporary post nor were doing officiating service on a permanent post. Further, the petitioners were not working on a temporary post. The aforesaid Rule indicates that temporary service means officiating or substantive service on a temporary post or officiating service on a permanent post. In the instant case, the petitioners were not appointed on an officiating basis on a temporary post nor were doing officiating service on a permanent post. Further, the petitioners were not working on a temporary post. The appointment letters clearly indicate that the petitioners were appointed on a substantive post on a temporary basis. The Court is therefore, of the opinion that the Rules of 1975 was not applicable. In the instant case, the respondents could not have invoked the Rules of 1975 dispensing the service of the petitioners. The impugned orders terminating the service of the petitioner, therefore cannot be sustained and are quashed. 7. The writ petition is allowed. 8. The petitioner V.N. Tiwari, pursuant to the interim order continued to work. It transpires that at some stage, he was sent to the District Consumer Forum, where he started working and continued to work for several years and thereafter made a representation that he should be repatriated to the parent department i.e. the District Supply Office. The said Consumer Forum considered the request and allowed his representation and repatriated the petitioner to the parent department, namely, the District Supply Office. Based on the aforesaid order, the petitioner presented himself in the office of the District Supply Officer on 04th November, 2011 for his joining, but the District Supply Officer refused to allow him to join. Thereafter, the petitioner made a representation to the District Magistrate requesting him to permit him to join pursuant to the order of State Consumer Forum. Since the representation remained pending, the petitioner filed writ petition No. 25030 of 2011, which was disposed of directing the District Magistrate to decide the representation. The District Magistrate, accordingly passed an order dated 11th July, 2011 rejecting the claim of the petitioner on the ground that he is an employee of the District Consumer Forum. Based on the order of the District Magistrate, the petitioner presented himself before the District Consumer Forum and requested that he should be allowed to join. The District Magistrate, accordingly passed an order dated 11th July, 2011 rejecting the claim of the petitioner on the ground that he is an employee of the District Consumer Forum. Based on the order of the District Magistrate, the petitioner presented himself before the District Consumer Forum and requested that he should be allowed to join. The District Consumer Forum issued an order dated 13th July, 2011 intimating the petitioner that he is an employee of the District Supply Office and since his deputation in the office of the District Consumer Forum has come to an end and he could not be permitted to join at the District Consumer Forum and that he should join the office of the District Supply Officer. The petitioner, being aggrieved by the action of the respondents, filed writ petition No. 48401 of 201. 9. This Court finds that the appointment letter was issued by the District Magistrate directing the petitioner to join the office of the District Supply Officer. The District Magistrate contends that the appointment order contained an error and that the petitioner was originally appointed for the District Consumer Forum, where he actually joined and that the service book of the petitioner also indicates that the petitioner is an employee of District Consumer Forum. 10. From the pleadings, the Court finds that the District Magistrate had written a letter to the State Government for necessary instructions in this matter. The State Government has issued a letter dated 15.2.2012 intimating the District Magistrate that since he is the Appointing Authority, he should pass appropriate order at his end. Inspite of clear instructions being given by the State Government, no order has been passed by the District Magistrate. 11. The Court finds that the Appointing Authority of a class IV employee in the District Consumer Forum is the Registrar of the District Consumer Forum. The District Magistrate is not an Appointing Authority. Consequently, the Court is of the opinion that the appointment letter issued by the District Magistrate on 11th August, 1997 did not contain any error and that the petitioner was appointed as a class IV employee in the office of the District Supply Officer. 12. In the light of the aforesaid, the impugned order of the District Magistrate dated 11th July, 2011 cannot be sustained and is quashed. 13. The writ petition is allowed. 14. 12. In the light of the aforesaid, the impugned order of the District Magistrate dated 11th July, 2011 cannot be sustained and is quashed. 13. The writ petition is allowed. 14. The district Magistrate is directed to issue a consequential order permitting the petitioner V.N. Tiwari to join the office of the District Supply Officer within three weeks from the date of production of a certified copy of the order. Since the petitioner was not allowed to join from 04th January, 2011 for wrong reasons, the petitioner would be entitled for salary from 4.11.2011 onwards, which shall be paid by the office of the District Supply Officer. The salary would be released within six weeks from the date of production of a certified copy of the order. ——————