Allahabad High Court
Dr. Ramji Lal Gupta vs State Of U.P. And Anr. on 24 September, 1996
Equivalent citations: (1998)IIILLJ811ALL
Author: D.K. Seth
Bench: D.K. Seth
JUDGMENT R.A. Sharma, J.
1. By an order dated February 1, 1986 the petitioner was appointed as Ayurvedic Medical Officer, Deoria. His appointment was on ad hoc basis for a period of one year or till the candidate selected by the U.P. Public Service Commission (hereinafter referred to as the 'Commission') joins the post, whichever is earlier. Although the petitioner's ad hoc appointment was for limited period, but he was allowed to continue alongwith other Ayurvedic.
Medical Officers on ad hoc basis. The petitioner was considered for regularisation of service but he was not found suitable. His service was accordingly terminated vide order dated March 31, 1992. Being aggrieved by it he has filed this writ petition.
2. The sole contention raised by the learned counsel for the petitioner is that the service of ad hoc Government servants cannot be terminated on the ground of unsatisfactory work/performance unless he has been given an opportunity to explain and to improve his work, and in the instant case no such opportunity has been given to the petitioner. Sri Vinay Malviya, learned Standing Counsel, has disputed the said contentions and has further submitted that the petitioner's service has been terminated because he was not found suitable for regularisation by the Selection Committee.
3. In the State of Uttar Pradesh rules known as U.P. Regularisation of ad hoc Appointments (On Post within the purview of Public Service Commission) Rules, 1979 (hereinafter referred to as the 'Rules') have been framed providing for consideration of cases of the Government servants appointed on ad hoc basis for regularisation of their service. Rule 4 which provides for regularisation of ad hoc appointment, is reproduced below :
"Rule 4. Regularisation of ad hoc appointment'--
(1) Any person who -
(i) was directly appointed on ad hoc basis before January 1, 1977 and is continuing in service, as such, on the date of commencement of these rules :
(ii) possessed requisite qualifications prescribed for regular appointment at the time of such ad hoc appointment, and
(iii) has completed or as the case may be, after he has completed three years continuous service :
shall be considered for regular appointment in permanent or temporary vacancy as may be available on the basis of his record and suitability before any regular appointment is made in such vacancy in accordance with the relevant service rules or orders.
2. In making regular appointment under these rules, reservation for the candidates belonging to the Scheduled Caste, Scheduled Tribes, Backward Classes and other categories, shall be made in accordance with the orders of the Government in force-at the time of recruitment.
3. for the purposes of Sub-rule (1), the appointing authority shall constitute a Selection Committee and consultation with the Commission shall not be necessary.
4. The appointing authority shall prepare eligibility list of the candidates, arranged in order of seniority as determined from the date of order of appointment and if two or more persons are appointed together from the order in which their names are arranged in the said appointment order. The list shall be placed before the Selection Committee alongwith their character rolls and such other records, pertaining to them, as may be considered necessary to judge their suitability.
5. The Selection Committee shall consider the cases of the candidates on the basis of their records referred to in Sub-rule (4).
6. The Selection Committee shall prepare a list of selected candidates, the names in the list being arranged in order of seniority, and forward it to the appointing authority."
4. The Rules contemplate constitution of a Selection Committee by the State Government for considering the cases of ad hoc appointees on the basis of their record for regularisation of their service. In this connection Sub-rules (4) and (5) of Rule 4 require the appointing authority to prepare eligibility list of the candidates in order of seniority and the list so prepared alongwith "character rolls and such other record pertaining to them as may be considered necessary to judge their suitability", has to be placed before the Selection Committee on the basis of which the said Committee selects the suitable candidates for regularisation of their services. Candidates so selected by the Selection Committee are appointed by the appointing authority under Rule 5 which is as under:
"Rule 5. Appointments-- The appointing authority shall subject to the provisions of Sub-rule (2) of Rule 4, make appointments from the list prepared under Sub-rule (6) of the said rule in the order in which their names stand in the list."
In view of Rule 6 such appointments are deemed to be the appointments under the relevant service rules or orders, if any. Rule 8, which is reproduced below, has laid down that if the employee is not found suitable for regularisation, his service shall be terminated forthwith and on such termination he shall be entitled to receive one month's pay :
"Rule 8. Termination of service--The services of a person, appointed on ad hoc basis who is not found suitable or whose case is not covered by Sub-rule (1) of Rule 4 of these rules, shall be terminated forthwith and, on such termination, he shall be entitled to receive one month's pay."
5. In paragraph 19 of the counter-affidavit it has been stated that the Government of U.P. vide order dated January 10, 1991, constituted a Selection Committee under the Rules for considering the cases of ad hoc Ayurvedic Medical Officers for regularisation of their services. This Committee consisted of the Secretary, Medical Education as Chairman, Special Secretary. Medical Education and Director, Ayurvedic Evam Unani Services as Members. The Committee recommended 200 ad hoc Ayurvedic Medical Officers for regularisation of their services, but the petitioner and Dr. (Smt.) Shobha Rani Shukla were not recommended as they were not found suitable for regularisation. If a candidate is not found suitable by the Selection Committee for regularisation, the Government has to terminate his service in view of the provisions contained in Rule 8. As the petitioner has not been found suitable by the Selection Committee, no exception can be taken to the impugned order.
6. The Rules require consideration of the cases of ad hoc appointees for regularisation of their services on the basis of their character rolls and other material on their service records and they do not contemplate that a candidate, whose work and conduct are not satisfactory should be given an opportunity to explain the deficiency and to improve his work. The principles of natural justice are not attracted when the Selection Committee considers the case of a candidate for regularisation of his service under the Rules. The opportunity of being heard is also not required to be given to a candidate whose service is terminated under Rule 8, because the order under the said Rule has to follow the rejection of his claim for regularisation of his service. Once the candidate is found not suitable for regularisation the Government has no option but to terminate his service under the Rules. The order of termination under the said Rule is merely a consequential order.
7. That apart, temporary Government servant has no right to the post and his service can be terminated without giving him any opportunity of being heard. Principles of natural justice are not applicable to such a case. In Madhya Pradesh Hosta Shilpa Vikas Nigam Ltd. v. Devendra Kumar Jain and Ors., 1995 (70) FLR 330 the Supreme Court, in this connection has laid down, as under
"A plain reading of these two orders will go to show that the appointments were made purely on temporary basis and their services were liable to be terminated at any time without notice or assigning any reason. In the Case of appointment on temporary basis a servant who is so appointed does not acquire any substantive right to the post, even though the post itself may be permanent and it is an implied term of such appointment, that it may be terminable at any time and without notice. A temporary Government servant does not become a permanent Government servant unless he acquires that capacity by force of any rule or he is declared or appointed as a permanent servant. In the present case there is no rule under which the Respondents may be deemed to have become permanent by force of such rule nor they were so declared by any subsequent order of the appellant-Company to have acquired that status. On the contrary the respondents all along continued to be temporary and according to the terms of the order of appointment their services could be terminated at any time without any notice or assigning any reason. In such a case it is not necessary to follow the formalities contemplated by Article 311 of Constitution. In these facts and circumstances the High Court was not right in holding that the respondents were entitled for being heard before passing the said order of termination of their services and that the order of termination was bad in law on that account;"
Reference may also be made to State of U.P. v. Kaushal Kishore 1991 (62) FLR 350 (SC) and Triveni Shanker Saxena v. State of U.P. (1992-II-LLJ-23) (SC). A Division Bench of this Court in Executive Chairman, U.P. State Legal Aid and Advice Board, Lucknow v. Ram Bilas, 1995 (70) FLR 294, has also reiterated the same principle by holding as under :
"The validity of the termination of the services of temporary employees has to be seen and considered in the light of their terms of appointment and if in accordance therewith, opportunity of hearing is not necessary, the mere fact that they were not heard before their services were terminated would be no ground to vitiate therorder of termination passed against them ......which is otherwise in terms of their:
appointment, nor indeed is it necessary that the services of a temporary employee be terminated only if there are some serious allegations against him, but not otherwise."
8. The following cases cited by the learned counsel for the petitioner do not support his contention. Dr. Ms. Sumati P. Shere v. Union of India (1989-II-LLJ-228) (SC) is a case where the appellant therein was appointed for certain period or till the regular candidate selected by the Union Public Service Commission becomes available, whichever is earlier. The period of her appointment was extended by successive orders till her service was terminated. As the appellant therein was entitled to continue till the candidate selected by the Commission becomes available, the Supreme Court has observed that she should have been informed about the deficiency so as to enable her to make improvement. Relevant extract from the said decision of the Supreme Court is reproduced below:
"It is not the case of the respondents that a regular candidate selected by the Public Service Commission has been posted in her place. Therefore, in the normal course, she would have continued till a select candidate replaced her. The respondents, however, have taken the stand that they were not satisfied with the performance of the appellant. But it appears that at no time she was informed about her deficiencies. The order of termination came like a bolt from the blue."
If a person is appointed to a post for a fixed term or for the period till a candidate selected by the Commission joins the post, his/her service should not normally be terminated before the expiry of the term or the period, as the case may be, without giving him/her an opportunity of being heard, unless the order of appointment or the relevant service rules provide otherwise. It is for this reason that the Hon'ble Supreme Court has made the above observation, that apart, that was not a case where the service was terminated under the statutory rules after the concerned employee was found unsuitable by the Selection Committee for regularisation. In Babulal v. State of Haryana (1991-II-LLJ-327) (SC), the employee was placed under suspension on the ground of pendency of criminal proceedings against him, which resulted in his acquittal. But his service was terminated and he, though eligible, was not considered for regularisation of his service. In the instant case that is not the position. National Central Cooperative Bank Ltd. v. Ajay Kumar AIR 1994 SC 39 also involves altogether different controversy. In that case the appointments of the employees were terminated, against which they filed writ petition before the High Court. The learned Single Judge allowed the writ petition and quashed the order of termination of service, but directed that the employees would not be immediately reinstated. Learned Judge further directed the Bank to hold the enquiry afresh. Against the latter part of the judgment of the learned judge the employees filed letter patent appeal. The Division Bench, which heard the appeal, without issuing notice to the Bank allowed the appeal and directed the employees to be reinstated. The Supreme Court struck down the order of Division Bench on the ground that it was passed in violation of the principles of natural justice. In Km. Manish Verma v. Assistant Commissioner, Kendriya Vidyalaya Sangathan 1993 (2) UPLBEC 1166, a learned Single Judge of this Court issued order directing the respondents therein not to replace the ad hoc teachers except by direct recruits from the select panel. Learned Judge also issued direction for considering the cases of ad hoc teachers for regularisation of their service. This case also does not deal with the controversy involved in the instant case. In Keshoram v. G.B. Pant University 1993 (66) FLR 30 the learned Single Judge found the order of termination of service of the employee concerned a comouflage for dismissal of his service. The case of Bhaskar Upadhyay v. State of U.P. and Ors. 1990 (16) ALR 725, is not a case of termination of service at all. The controversy involved therein was about rejection of the representation against the adverse entry.
9. The Government in its counter-affidavit has given details about the unsatisfactory work and conduct of the petitioner, on account of which the Selection Committee did not find him suitable for regularisation of his service. In paragraphs 9 to 14 of the counter-affidavit there are references to various complaints made by the public and Government officials regarding misbehaviour and unsatisfactory work of the petitioner. It has also been mentioned therein that the petitioner remained absent from duty without information or leave more than once. The counter-affidavit also refers to a complaint regarding withdrawal of certain amount from the contingency fund by the petitioner and its non-payment to the rightful person. This was considered to be a case of temporary embezzlement and the petitioner was, therefore, called upon to explain. He did not submit any explanation. But the petitioner has, in the rejoinder-affidavit stated that such an explanation was submitted by him, but no proof of having filed the explanation has been placed before the Court. The counter-affidavit also mentions the complaint made by Rajkiya Ayurvedic Pharmacist Sangh against the unsatisfactory work and conduct of the petitioner, to the District Magistrate and the concerned Minister, in connection with which an enquiry was ordered, but the petitioner did not appear before the Enquiry Committee. That Enquiry report refers to discontentment against the petitioner amongst the local people and accordingly recommended for his transfer. In paragraph 15 of the counter-affidavit there is reference about the adverse entries recorded against the petitioner for the years 1987-88 and 1989-90, copies of which have been filed as Annexure-V to the counter-affidavit. During the period of 1989-90 his work and conduct have been found to be unsatisfactory and bad. It was also mentioned that he lacks administrative competence and discipline and is unfit for the job. As regards the entry for the year 1987-88 his work and conduct have been found to be ordinary. In the rejoinder affidavit the petitioner has stated that he is not aware of the various complaints and adverse entries made against him. He has however, admitted calling of explanation from him regarding the withdrawal of the amount unauthorisedly,
10. Thus the petitioner's record contains, apart from two adverse entries for the years 1987-88 and 1989-90, the complaints made by both the Government officials and the citizens against his unsatisfactory work and conduct. Whatever was there on the petitioner's service record was liable to be considered by the Selection Committee in view of the provisions contained in Sub-rules (4) and (5) of the Rule 4. The Selection Committee can also consider the uncommunicated adverse remarks as well as the other materials which do not constitute the adverse remarks, but have relevance for the purpose of finding out the suitability. Supreme Court in Baikuntha Nath Das v. Chief District Medical Officer and Anr. (1992-I-LLJ-784), has laid down that it is open to the Government to consider the uncommunicated adverse remarks, while considering the case of the Government servant for compulsory retirement. In this connection the relevant extract from the said decision of the Supreme Court is reproduced below:
"An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference. Interference is permissible only on the grounds mentioned in (iii) above. This object has been discussed in paras 29 to 31 above."
The Supreme Court has further laid down in the said case that the Government can also consider the other remarks, comments or observations, which do not amount to adverse remarks, if they are relevant for the purpose of compulsory retirement. This is clear from the following passage of the Supreme Court judgment at P 793 :
"At this stage, we think it appropriate to append a note of clarification. What is normally required to be communicated is adverse remarks, not every remark, comment or observation made in the confidential rolls. There may be any number of remarks, observations and comments, which do not constitute adverse remarks, but are yet relevant for the purpose of F.R. 56(i) or a Rule corresponding to it. The object and purposes for which this power is to be exercised are well settled in J.N. Sinha (1970-II-LLJ-284) and other decisions referred (supra)."
While considering the case for compulsory retirement of the Government servant the Government has to consider all relevant materials in order to find out his suitability for further retention in service. In the case of regularisation of service of ad hoc employees the suitability of the servant for the job is also the relevant consideration. Therefore, the Selection Committee can also consider the relevant material on service records of a candidate even if it was not communicated to him. The Committee is not required to give any notice or opportunity of being heard to a candidate, whose case for regularisation of his service is under consideration. The letters of appreciation filed by the petitioner alongwith writ petition have been disputed by the State in its counter affidavit. That apart, such letters are issued on different considerations and are not part of the service records. They do not have the effect of wiping out the adverse record of Government servant.
11. For the reasons given above, this writ petition is dismissed with costs.