Uttarakhand High Court
Appellants vs Jai Kishan Sharma And Others on 25 September, 2020
Bench: Ravi Malimath, R.C. Khulbe
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Special Appeal No.194 of 2020
Executive Engineer Irrigation Division Kashipur and
Another
... Appellants
Vs.
Jai Kishan Sharma and Others ... Respondents
Shri Pradeep Joshi, learned additional chief standing counsel for the
appellants.
Shri Jitendra Chaudhary, learned counsel for respondent no.1-writ petitioner.
Shri Gopal. K. Verma, learned standing counsel for respondent nos.2 and 3.
September 25, 2020
Coram: Hon'ble Ravi Malimath, A.C.J.
Hon'ble R.C. Khulbe, J.
Hon'ble R.C. Khulbe, J. (Oral) This appeal is preferred against the judgment and order dated 24.07.2018 passed in Writ Petition (S/S) No.387 of 2018, "Jaikishan Sharma Vs. State of U.P. and Others", whereby the learned Single Judge has set aside the petitioner's termination order dated 07.08.1995.
2. Since the appeal is time barred by 762 days, accordingly, delay condonation application (CLMA No.7697 of 2020) has been moved to condone the delay. The application is supported by an affidavit. As per the affidavit, the chief standing counsel communicated to the Executive Engineer on 26.07.2018. After receiving the said information, the Chief Engineer directed the Executive Engineer, Kashipur to obtain the certified copy on 10.08.2018. After obtaining the certified copy, the Executive Engineer sent a letter to District Govt. Counsel on 07.09.2018. The said opinion of District Govt. Counsel was forwarded to Superintendent Engineer on 29.08.2018. On 22.02.2019, the Superintendent Engineer sought comments from the Division. The Executive Engineer, 2 Kashipur vide its letter dated 31.05.2019 provided the requisite documents. Thereafter, on 06.01.2020, Law Department of the State accorded approval for preferring special appeal. On 25.01.2020, the Engineer-in-Chief instructed the Executive Engineer to prefer special appeal. Hence, on 19.02.2020, the present special appeal was drafted. Thereafter, it was filed before this Court.
3. From the perusal of the affidavit, it is clear that the appellant-State has sufficiently explained the delay, accordingly, the application, seeking condonation of delay, is allowed.
4. Facts, to the limited extent necessary, are that in the year 1990, the agricultural land of respondent no.1 was acquired by the State Government for construction of a canal. At that time, Government Orders dated 21.09.1981 and 25.05.1982 were in operation, wherein, it was provided that one person of a family, whose land has been acquired, will be entitled to get a job in the concerned department. On 24.09.1990, respondent no.1 moved an application seeking employment in the Irrigation Department. On 13.07.1992, the Executive Engineer, Middle Ganga Khand- 16, Bulandshahar forwarded and recommended the case of respondent no.1-writ petitioner for employment under the then prevailing State Policy to the Superintending Engineer, Middle Ganga Canal Nirman Khand-I, Meerut. Thereafter, on 18.08.1993, respondent no.1 was sent for three months' training for the post of Seenchpal in Irrigation Department and, thereafter, a written test was also conducted. Respondent no.1 was declared successful in the test. A certificate in this regard was also issued by the Executive Engineer on 22.12.1993. Three months' training and written test was essential for getting appointment as per Rule 15 of the Irrigation Department Patrol Service Rules, 1953. Since vacancy of Seenchpal was available in 3 Irrigation Department, Kashipur, District Udham Singh Nagar, therefore, the Superintendent Engineer, Irrigation Department, recommended the case of respondent no.1 to the Kashipur Division of the Irrigation Department for giving appointment to respondent no.1 to the post of Seenchpal. Thereafter, on 30.12.1994, an appointment letter was issued in favour of respondent no.1 by the Executive Engineer, Irrigation Department, Kashipur to the post of Seenchpal in the pay scale of Rs.950-20-1150 E.B.- 25-1500. In pursuance of the said appointment letter, respondent no.1 joined the services and started performing his duties. The appointment of respondent no.1 was permanent in nature, but, suddenly, on 07.08.1995, without issuing any show cause notice and without providing any opportunity of hearing to respondent no.1, the services of respondent no.1 were terminated by the Executive Engineer, Kashipur on the directions issued by Superintending Engineer, Nainital. Against the said order, Writ Petition (S/S) No.387 of 2018 (Old No.34117 of 1995) was filed, in which a stay order was granted in favour of the petitioner by the Allahabad High Court on 28.11.1995. After formation of the State of Uttarakhand and establishment of the High Court of Uttarakhand, the matter was transferred to this Court.
5. After hearing the parties, the learned Single Judge allowed the WPSS 387 of 2018, "Jaikishan Sharma Vs. State of U.P. and Others" on 24.07.2018, by setting aside the termination order dated 07.08.1995. Aggrieved by the same, the present appeal has been preferred by the State.
6. We have heard learned counsels for the parties and perused the entire records.
47. The respondent no.1/petitioner-Jaikishan Sharma was appointed on the post of Seenchpal in the pay scale of Rs.950-20-1150 E.B.-25-1500 vide order dated 30.12.1994 issued by the Executive Engineer, Kashipur. Although his appointment was on temporary basis but after joining the service, the Department had given him A.C.P. from time to time, but suddenly his services were terminated vide order dated 07.08.1995.
8. From a perusal of the record, it is clear that the services of respondent no.1 terminated by the Executive Engineer simply on the basis of the letter dated 22.05.1995 issued by Superintendent Engineer (Irrigation) while as per the record, respondent no.1 was duly appointed by the Department on 30.12.1994. Although he was appointed on temporary basis but the pay scale of Rs.950-20-1150 E.B.- 25-1500 was granted to him. Before termination of his services, no complaint was received against respondent no.1 and even no inquiry was conducted. Respondent no.1 after joining the service has also got ACPs, however, his services were terminated simply on the basis of the letter issued by Superintendent Engineer while no such directions were issued by the Superintendent Engineer to the Executive Engineer. Apart from that, the said order was passed in violation of principles of natural justice.
9. Therefore, we are of the considered view that the learned Single Judge was justified in setting aside the petitioner's termination order dated 07.08.1995. We do not find any infirmity in the order of the learned Single Judge that calls for an interference.
10. The learned Single Judge was justified in allowing the writ petition. However, we are of the considered view that the writ petitioner would be entitled to all service benefits including promotions, if any, for the 5 relevant period of time. The same has been wrongly denied to him. However, keeping in mind that the promotion, if any, along with consequential monetary benefits have not been given to the writ petitioner and keeping in mind the fact that he was earlier appointed by the State of Uttar Pradesh, we are of the considered view that all such past benefits be granted to him. At the same time, the State Government cannot be burdened with payment of arrears. Therefore, the State Government shall grant the notional promotions to the writ petitioner along with all consequential benefits, if any in case the writ petitioner is entitled to the same. The State Government shall work out his entitlements or otherwise. All such entitlements or otherwise shall be made applicable from the date of this order. The writ petitioner, in case is granted notional promotion for monetary benefit, shall have no right to claim arrears. All his promotions and benefits, if any, will be applicable from the date of this order only.
11. The appeal is disposed off with the aforesaid observations. No costs.
12. Pending applications, if any, stand disposed off.
(R.C. Khulbe, J.) (Ravi Malimath, A.C.J.) 25.09.2020 SS