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2017 DIGILAW 2752 (ALL)

Rais Ahmad v. District Magistrate

2017-11-27

SIDDHARTHA VARMA

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JUDGMENT : Siddhartha Varma, J. 1. Heard Sri Syed Wajid. Ali, learned Counsel for the petitioner and Sri Harish Srivastava, learned Standing Counsel for the respondents. The petitioner has filed the above noted writ petition, praying for the following reliefs, "(a) Issue a writ of certiorari to quash the impugned order dated 26.8.1997 passed by the Deputy District Magistrate, Sadar District Maharajganj (Annexure "9" to the writ petition). (b) To issue a writ of Mandamus commanding the respondents not to interfere with the functioning and working of the petitioner as Collection Peon and pay him salary regularly as and when the same falls due. (c) To issue any such other suitable writ, order or direction as this Hon'ble Court may deem fit and proper under the circumstances of the case. (d) To award the costs of this writ petition to the petitioner." 2. The petitioner's case is that he was working as Seasonal Collection Peon and on retirement of one Pute Lal, Collection Peon on 31.12.1991, he made an application for his appointment on the post held by Pute Lal in the light of his past experience and working. The Sub-Divisional Magistrate, Sadar, Maharajganj called for a report from the Tehsildar on 20.6.1992. On the report submitted by the Tehsildar on 23.6.1992, the Sub-Divisional Magistrate, Sadar, Maharajganj approved the appointment of the petitioner in a clear vacancy on ad hoc and temporary basis. An appointment letter dated 30.6.1992 was issued by the Sub-Divisional Magistrate, Sadar, Maharajganj, appointing the petitioner under amended Rule 23 of the Collection Manual, 1984 on ad hoc basis for a period of 1 year or till regular selection takes place, which ever is earlier. The petitioner started working from 1.7.1992 and vide order dated 1.2.1996, the Sub-Divisional Magistrate, Sadar, Maharajganj confirmed the petitioner on the post of Collection Peon on the report of the Tehsildar, Sadar. However by the order dated 26.8.1997, the services of the petitioner were terminated by the Sub-Divisional Officer, Sadar, Maharajganj on the ground that his appointment was only for one year which came to an end on 30.6.1993 but playing fraud he got his services confirmed and has continued on the post and drawn salary. 3. However by the order dated 26.8.1997, the services of the petitioner were terminated by the Sub-Divisional Officer, Sadar, Maharajganj on the ground that his appointment was only for one year which came to an end on 30.6.1993 but playing fraud he got his services confirmed and has continued on the post and drawn salary. 3. The respondents have filed a counter-affidavit stating that it is true that the petitioner was appointed in clear vacancy of Collection Peon but there were more experienced and senior Seasonal Collection Peons available and working when he was given ad hoc appointment. He has been appointed on the basis of irregular proceedings. There is no rules regarding the appointment of temporary Collection Peon and their appointment is governed by Group-D Service Rules, 1985. His initial appointment on 30.6.1992 was only for a. year upto 30.6.1993, but he was illegally continued and confirmed in service on 1.2.1996. His appointment was irregular and his confirmation too was irregular. In pursuance of the termination order, the petitioner went on leave and after passing of the interim order dated 8.9.1997, he has again joined his duty. 4. The petitioner has filed his rejoinder-affidavit stating that he was working as Seasonal Collection Peon since 1985 and earlier to him other Seasonal Collection Peons were not only made Collection Peons but also confirmed in service. Even, employees appointed in 1988 and 1989, after the appointment of the petitioner, have been regularized in service. One such employee is Satya Verma. The petitioner was allowed to work after one year of his appointment because other Collection Peons appointed much later to the petitioner were working. There was no fraud or misrepresentation in confirmation of his services. His services were terminated in most illegal manner. 5. The learned Counsel for the petitioner has argued that after his confirmation on the post of Collection Peon, the petitioner's services could not terminated by an order of termination simpliciter without following the mandate of the Article 311 of the Constitution of India. On the order passed by one authority his successor cannot sit in appeal. No opportunity of hearing was granted to the petitioner before terminating his services and allegation of fraud, misrepresentation, etc., was leveled against him casting stigma. On the order passed by one authority his successor cannot sit in appeal. No opportunity of hearing was granted to the petitioner before terminating his services and allegation of fraud, misrepresentation, etc., was leveled against him casting stigma. He worked for more than 5 years and his appointment was effective till regularly selected candidate joined the posts or till regular selection is made which ever earlier. No regular selections were made and therefore, his termination from service was against the terms of appointment letter issued by the respondents themselves. 6. The Counsel for the respondents has argued that the petitioner is not entitled to protection of Article 311 of the Constitution of India. His appointment was irregular and therefore, he was not entitled to any opportunity of hearing since fraud vitiates all proceedings. 7. The learned Counsel for the petitioner has relied upon the judgment in the cases of Sheo Pujan Panday v. Director of Manias, Rajya Krishi Utpadan Mandi Parishad, U.P., Lucknow and others, (1992) 1 UPLBEC 219 Amur Singh v. U.P. Public Services Tribunal and others, (1992) 1 UPLBEC 587 and Kamal Nayan Mishra v. State of M.P. and others, 2010 (124) FLR 467 (SC). 8. By means of the above case laws, he has argued that the services of the confirmed employee cannot be terminated at any time without assigning any reason. Even if, the services of the petitioner were liable to be terminated at any time without assigning any reason, the authorities were not empowered to terminate the service on the ground that the appointment itself was illegal. 9. In the present case, the respondents have alleged that the petitioner obtained appointment by fraud and, therefore, his services were terminated without any opportunity of hearing. 10. In view of the law cited by the petitioner, the action of the respondents in terminating the services of the petitioner by the order dated 26.8.1997 cannot be justified. Since he was a confirmed employee, opportunity of hearing was required, more so when his termination' was stigmatic. Therefore, the order dated 26.8.1997 deserves to be quashed. The writ petition is allowed. There shall be no order as to costs.