Punjab-Haryana High Court
Rajesh Kumar vs Punjab And Haryana High Court on 2 December, 1998
Equivalent citations: (1999)121PLR661
Author: Iqbal Singh
Bench: Iqbal Singh
JUDGMENT G.S. Singhvi, J.
1. The petitioner, who was initially appointed as Process Server against the leave vacancy in May 1995 and who was later on offered temporary appointment vide order dated 1.3.1996, has invoked writ jurisdiction of this Court for quashing the order Annexure P-7 passed by the Civil Judge (Senior Division), Kaithal, terminating his services w.e.f. 11.1.1997. He has also prayed for quashing the order Annexure P-11 passed by the Hon'ble Inspecting Judge dismissing the service appeal filed by him against the order of termination of his services.
2. The details of the appointments given to the petitioner against the leave vacancies are given below:-
(i) Vide order dated 22.5.1995 (Annexure P-l) he was appointed as Process Server from 22.5.1995 to 22.7.1995 against the leave vacancy of Udai Singh.
(ii) Vide order dated 22.7.1995 (Annexure P-2) he was appointed as Process Server from 22.7.1995 to 30.9.1995 against the leave vacancy of Randhir Singh.
(iii) Vide order dated 11.10.1995 (Annexure P-3) he was appointed as Process Server from 11.10.1995 to 11.12.1995 against the leave vacancy of Raj Pal Singh.
(iv) Vide order dated 6.1.1996 (Annexure P-4) he was appointed as Process Server from 6.1.1996 to 10.3.1996 against the leave vacancy of Pawan Kumar.
(v) Vide order dated 1.3.1996 (Annexure P-5) he was appointed as Process Server for three months against a vacant post.
3. Perusal of the record of the case shows that while the petitioner was holding the temporary post of Process Server, the Civil Judge (Senior Division) passed the impugned order terminating his service on the ground that it is not required in public interest. The petitioner challenged the order of termination of his services in Civil Writ Petition No. 2576 of 1997, which was disposed of by the Division Bench on 13.5.1997 with the direction that the petitioner may file appeal against the order of termination of his services. Thereafter, the petitioner filed appeal on July 8, 1997, which has been dismissed by the Hon'ble Inspecting Judge.
4. Learned counsel for the petitioner strenuously urged that even though the petitioner's initial appointment by way of leave arrangement and his temporary appointment vide order dated 1.3.1996 were not preceded by any selection, the order passed by the respondent No. 4 should be declared as null and void on the ground of violation of the principles of natural justice. He relied on the averments made in the written statement filed on behalf of the respondents in C.W.P. 2576 of 1997 and argued that in the garb of termination simplicitor, the respondent No. 4 has, in fact, punished the petitioner for the so-called delinquency committed by him.
5. In our opinion, there is no merit in the submissions of the learned counsel and the writ petition deserves to be dismissed summarily.
6. Admittedly, the petitioner was initially appointed by way to stop-gap arrangement against the leave vacancy without being selected by the competent authority. The post of Process Server against which he was appointed was neither advertised nor any requisition was sent to the Employment Exchange so as to enable all the eligible candidates to compete for selection. Even a short term advertisement was not issued by the respondent No. 4 before appointing the petitioner. It must, therefore, be held that the initial appointment of the petitioner against the leave vacancy as well as his appointment on temporary basis were violative of the doctrine of equality enshrined in Articles 14 and 16 of the Constitution and on the basis of such illegal appointment, no right much less a legal and vested right accrued in favour of the petitioner to be retained in service. Therefore, we cannot issue a writ directing the respondents to reinstate him in service.
7. We also do not find any merit in the submission of the learned counsel that the orders Annexures P-7 and P-11 should be declared punitive and be quashed on the ground of the violation of the principles of natural justice. In our opinion, the reasons disclosed in the written statement filed by the respondents in Civil Writ Petition No. 2576 of 1997 cannot be construed as constituting the foundation of the action taken by the respondent No. 4. Rather, those reasons merely furnish the motive for deciding whether or not the petitioner should be retained in service even though his performance was unsatisfactory. The line of distinction between motive and foundation which may constitute the basis of the action taken by the employer is very thin but the Courts are bound to keep the fine distinction between the two concepts in mind while deciding the question whether the action taken by the public employer to terminate the services of a temporary employee can be treated as punitive and invalidate on the ground of violation of the rule of the audi alteram partem.
8. In the facts of this case, we are convinced that the order Annexure P-7 cannot be treated as punitive and the same cannot be quashed on the ground of alleged violation of the principles of natural justice. A look at the order Annexure P-7 and P-11 shows that the order for termination of the petitioner's service was passed by the respondent No. 4 because he came to the conclusion that the petitioner has failed to perform his duty satisfactorily. Thus, the impugned order cannot be treated as stigmatic and the same cannot be quashed on the ground that no inquiry was made by the respondent No. 4 before terminating the petitioner's service or that he was not given opportunity of hearing.
9. For the reasons mentioned above, the writ petition is dismissed.