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2017 DIGILAW 2802 (ALL)

Syed Zeeshan Haider v. State of Uttar Pradesh

2017-12-01

DEVENDRA KUMAR ARORA

body2017
JUDGMENT : Devendra Kumar Arora, J. Heard learned Counsel for the petitioner and learned Standing Counsel. 2. The petitioner has filed the present writ petition under Article 226 of the Constitution of India, challenging the order dated 31.1.2011 passed by the District Magistrate, Jaunpur, whereby his services have been terminated with retrospective effect i.e. from 2.7.1992. 3. According to the petitioner, he was appointed on the post of Assistant Accountant vide order dated 16.8.1990 against the substantive vacancy in terms of the Government Order dated 23.6.1968 and he continued to work in the same capacity upto 15.7.1992 with artificial breaks. Thereafter, on 16.7.1992, his services were terminated by an oral order. Feeling aggrieved, he filed a writ petition, bearing No. 31206 of 1992, before this Court, which was dismissed vide judgment and order dated 16.8.1994 on the ground that the petitioner is a public servant within the meaning of U.P. Public Services (Tribunal) Act, 1976 and has a remedy of filing Claim Petition under Section 4 of the Act. 4. Pursuant to the order dated 16.8.1994, the petitioner approached the State Public Services Tribunal against the oral order of termination dated 15.7.1992 by filing Claim Petition No. 1568 of 1995 : Syed Zeesham Haider v. State of U.P. and others. The Tribunal, vide judgment and order dated 30.9.2005, allowed the claim petition with a direction to treat the petitioner in service ignoring the verbal order of termination, if any; allow him to work forthwith on the post he held; he is also entitled for consequential service benefits as per rules; and his services be treated as continuous for the purpose of service benefits admissible to him under the rules. The opposite parties were further directed to take decision on the back wages of the petitioner in accordance with the provisions of rules. 5. The aforesaid order of the Tribunal dated 30.9.2005 was challenged by the State authorities in writ petition No. 260 (S/B) of 2006. This Court, vide an ad interim order dated 3.3.2006, admitted the writ petition and kept in abeyance the judgment and order dated 30.9.2005 passed by the Tribunal, till further order of the Court. 6. 5. The aforesaid order of the Tribunal dated 30.9.2005 was challenged by the State authorities in writ petition No. 260 (S/B) of 2006. This Court, vide an ad interim order dated 3.3.2006, admitted the writ petition and kept in abeyance the judgment and order dated 30.9.2005 passed by the Tribunal, till further order of the Court. 6. It has been stated by the petitioner that by taking advantage of the interim order dated 3.3.2006, the District Magistrate, Jaunpur, did not allow the petitioner to join and work on the post held by him at the time of oral order of termination. In the meantime, a Division Bench of this Court, vide an ex parte judgment and order dated 4.10.2010, allowed writ petition No. 260 of 2006 (SS) partly and the order of the Tribunal was modified and liberty was given to the State authority to pass fresh order in writing in accordance to law, in case the State authority is advised to do so. 7. Counsel for the petitioner has submitted that the order of the Tribunal was modified by the Division Bench only on the ground that the Tribunal has not granted any liberty to the State authority to pass fresh orders in accordance with law, therefore, the Division Bench opined that to the said extent, the order of the Tribunal requires modification. His submission is that the District Magistrate, Jaunpur, after receipt of the order of the Division Bench dated 4.10.2010, without appreciating the issue in its correct prospective, terminated the services of the petitioner with retrospective effect i.e. from 2.7.1992 vide order dated 31.1.2011. 8. Counsel for the petitioner has submitted that he had no knowledge about the ex parte judgment and order dated 4.10.2010 passed in writ petition No. 260 (S/B) of 2006 prior to receiving the copy of order of the District Magistrate dated 31.1.2011 through post. Thereafter, the petitioner has filed Review Petition Defective No. 141 of 2011, which was rejected vide judgment and order dated 19.5.2011 with liberty to the petitioner to challenge the subsequent order dated 31.1.2011 by way of filing writ petition afresh. 9. Thereafter, the petitioner has filed Review Petition Defective No. 141 of 2011, which was rejected vide judgment and order dated 19.5.2011 with liberty to the petitioner to challenge the subsequent order dated 31.1.2011 by way of filing writ petition afresh. 9. Pursuant to the judgment and order dated 19.5.2011 passed in Review Petition, the petitioner has filed the present writ petition inter alia on the grounds that while passing the impugned order, the District Magistrate has misinterpreted the judgment and order dated 30.9.2005 passed by the Tribunal as well as the judgment and order of Division Bench of this Court dated 4.10.2010 passed in writ petition No. 260 (S/B) of 2006, as a Division Bench of this Court has only granted liberty to pass fresh order in writing, in accordance with law, therefore, there was no occasion for the District Magistrate to terminate the services of the petitioner and that too with retrospective effect i.e. from 2.7.1992. 10. To strengthen his submission, learned Counsel for the petitioner has placed reliance upon the judgment of the Apex Court in Prem Ram v. Managing Director, Uttarakhand Pay Jal & Nirman Nigam, Dehradun and others, (2015) 3 UPLBEC 1766. 11. Per contra, learned Standing Counsel has submitted that the Government Order dated 26.4.1960 provides that under paragraph 35 of the Government Order dated 1.2.1958, the appointing authority of the Treasury Staff would be the Collector but the Treasury officers are authorized to make appointments in short term leave vacancies without reference to the Collector. In order to clarify the position further, it was ordered that only vacancies of six weeks duration or less will be filled in by the Treasury officers themselves, who will be the appointing authority in respect of the staff so employed in leave vacancies. However, if the vacancy is of more than six weeks duration or became such subsequently, he must obtain the Collector's confirmation for leave arrangement made by him and the Collector will then become the appointing authority. 12. Learned Standing Counsel has submitted that in view of the aforesaid Government Order dated 26.4.1960, the petitioner was engaged for certain period with breaks i.e. w.e.f. 1.10.1990 to 1.7.1992. 12. Learned Standing Counsel has submitted that in view of the aforesaid Government Order dated 26.4.1960, the petitioner was engaged for certain period with breaks i.e. w.e.f. 1.10.1990 to 1.7.1992. According to him, one Sri Manoj Kumar Yadav, who was also engaged under the Government Order dated 26.4.1960, his services were terminated in the year 1992 and feeling aggrieved, he preferred writ petition No. NIL of 1993, in which, an interim order was passed on 10.2.1993 to the effect that he shall be allowed to continue on the post held by him and he be paid his salary. The aforesaid writ petition was re-numbered as 4338 of 1993 and was allowed with a direction to consider his case for regularization under the Regularization of Ad hoc Appointments (On Posts outside the purview of Public Service Commission) Rules, 1979 as amended upto date. 13. Learned Standing Counsel has submitted that the claim of the petitioner cannot be said to be on equal footing with the claim of Manoj Kumar Yadav, as Sri Manoj Kumar Yadav had been continuing in service, may be, on the strength of interim order passed by this Court but the petitioner remained out of employment since 1992. Therefore, there is no illegality and infirmity in the impugned order, by which, the services of the petitioner were terminated. 14. I have examined the submissions of the learned Counsel for the parties and gone through the record. 15. In nutshell, the case of the petitioner is that Manoj Kumar Yadav was also appointed on the post of Assistant Accountant along with the petitioner and his services were also terminated on 16.7.1992 in identical circumstances. The order of termination was challenged by Manoj Kumar Yadav in writ petition No. 4338 of 1993. He was retained in service on account of the order passed by this Court in writ petition No. 4338 of 1993, whereas the petitioner has been pursuing his claim before the appropriate forum and the Tribunal, while passing the order dated 30.9.2005, has directed the respondents to treat the petitioner in service but the opposite parties have not allowed the petitioner to work. 16. From the record, it reveals that pursuant to the order of this Court dated 16.8.1994 passed in Civil Misc. 16. From the record, it reveals that pursuant to the order of this Court dated 16.8.1994 passed in Civil Misc. Writ Petition No. 31206 of 1992, the petitioner approached the State Public Services Tribunal and the Tribunal, vide judgment and order dated 30.9.2005, allowed the claim petition. The operative portion of the order dated 30.9.2005 reads as under : "In the light of the aforementioned observations, the claim petition is hereby allowed and the petitioner is treated in service ignoring the verbal order of termination, if any. The petitioner shall be allowed to work forthwith on the post he held. He is also entitled for consequential service benefits as per rules. His service is treated as continuous for the purpose of service benefits admissible to him under the rules. The opp. parties shall also take decision on the back wages of the petitioner in accordance with the provisions of rules. The judgment/order shall be complied with within a period of two months from the date of receipt of a certified copy of this judgment." 17. The authorities of the State has challenged the aforesaid judgment and order dated 30.9.2005 in writ petition No. 260 of 2006 (S/B). A Division Bench of this Court, vide order dated 3.3.2006, stayed the operation and implementation of the order dated 30.9.2005. Ultimately, this Court, vide judgment and order dated 4.10.2010, allowed the writ petition partly and modified the order of the Tribunal dated 30.9.2005 only to the extent that liberty was granted to the State authority to pass fresh order in writing in accordance with law, in case the State Authority is advised to do so. The operative portion of the order dated 4.10.2010 is reproduced as under : "It has been submitted that Manoj Kumar Yadav was retained in service on account of the order, passed by the Court in the writ petition. But so far as claimant-respondent is concerned, he has no right to continue in service. The operative portion of the order dated 4.10.2010 is reproduced as under : "It has been submitted that Manoj Kumar Yadav was retained in service on account of the order, passed by the Court in the writ petition. But so far as claimant-respondent is concerned, he has no right to continue in service. It has been consistent view of the Court that the Government does not run on the basis of oral instructions or order in case the claimant-respondent was permitted to continue beyond 1.7.1992 i.e. the period for which he was appointed, then later on his services could not have been terminated on oral instructions and no order to this effect is on record, more so when Manoj Kumar Yadav, who was appointed alongwith claimant-respondent was allowed to continue. It appears that Tribunal has not granted any liberty to the petitioner to pass fresh orders in accordance to law. To that extent the Tribunal's order requires modification. In view of above, the writ petition is allowed in part and the Tribunal's order is modified to the extent that liberty is given to the Petitioner to pass fresh order in writing in accordance to law, in case the petitioner is advised to do so. Subject to the above, the writ petition is allowed partly." 18. Thus, it is manifestly clear that while passing the order dated 4.10.2010, the Division Bench of this Court has modified the order of the Tribunal dated 30.9.2005 passed in favour of the petitioner to the limited extent i.e. liberty was granted to the State authority to pass fresh order in writing in accordance to law. This shows that the order of the Tribunal dated 30.9.2005, by which the petitioner was treated to be in service and further a direction was issued to allow the petitioner to work on the post held by him, was confirmed by the Division Bench of this Court vide its judgment and order dated 4.10.2010, referred to above. Therefore, there is no question for the authorities to give its own finding on the issue, which was affirmed by the Division Bench of this Court vide order dated 4.10.2010. It may be added that the petitioner cannot be treated differently in the matter of employment and homogeneity is to be maintained in similar matters. Therefore, there is no question for the authorities to give its own finding on the issue, which was affirmed by the Division Bench of this Court vide order dated 4.10.2010. It may be added that the petitioner cannot be treated differently in the matter of employment and homogeneity is to be maintained in similar matters. There is no dispute that like the petitioner, Manoj Kumar Yadav was also orally terminated and he has been allowed to continue in service pursuant to the order passed in his writ petition and he was engaged by the same authority in the same manner as the petitioner was engaged. In these circumstances, the assertion of the respondents that the petitioner was not having requisite qualification or there were defects in the procedure adopted for engagement is wholly misconceived and untenable as the case of the petitioner is identical and similarly circumstanced as that of Manoj Kumar Yadav. Moreover, when a Coordinate Bench has not disturbed the finding and direction of the Tribunal, there was no occasion for the authority to frustrate the judicial orders in a whimsical manner. Therefore, the petitioner ought to have been allowed to continue in service. In these circumstances, the impugned order dated 31.1.2011 is unjustified and per se bad. 19. Accordingly, the writ petition is allowed. The impugned order dated 31.1.2011 is quashed. The opposite parties are directed to reinstate the petitioner on the post on which he was working in view of the judgment and order dated 30.9.2005 passed by the Tribunal. The opposite parties shall also consider the case of the petitioner for regularization at par with the similarly situated person Sri Manoj Kumar Yadav, expeditiously, say, within a period of three months from the date of receipt of a certified copy of this order.