Madhya Pradesh High Court
Jai Prakash Gupta Son Of Shri Maniram ... vs District And Sessions Judge And Ors. on 2 March, 2006
Author: A.K. Shrivastava
Bench: A.K. Shrivastava
ORDER A.K. Shrivastava, J.
1. This petition was originally filed before the Gwalior Bench of this Court on 5.6.1991 where it was registered as M.P.No. 1082/91. Later on since the petitioner pertains to reinstatement of an employee who was serving in the Court of District & Sessions Judge, Datia, this petition has been called at this Principal Seat.
2. By this petition under Article 226 of the Constitution of India, the petitioner has challenged the impugned order Annexure-P-1 dated 31st May, 1991 (Annexure-P-1) whereby his services were terminated w.e.f. 1.6.1991 by giving him one month's advance salary.
3. The petitioner was appointed on the post of Lower Division Clerk vide order Annexure-P-2 dated 9.8.89 in the pay scale of Rs. 870-1420/- in the Court of District Judge, Datia. The appointment was made against the post of Stenographer. The services of the petitioner were temporary in nature and in the appointment letter there was a condition that his services could be terminated after giving one month notice or in lieu of the notice one month's salary.
4. The contention of Shri Paliwal, learned Counsel for the petitioner is that the post of LDC was lying vacant and respondent No. 3 was later on promoted on the said post. In that regard he has invited my attention to the order Annexure-P-6 dated 4.4.91 which has been issued by respondent No. 1 promoting respondent No. 3 on the post of LDC. By inviting my attention to the averments made in para 2 of the return filed on behalf of respondent No. 1 it has been submitted by Shri Paliwal, learned Counsel for the petitioner that the stand taken in the return that appointment of the petitioner was made in the Court of designated Special Judge for the Dacoity Affected area which was abolished on 30.9.90 and since no separate staff was sanctioned the petitioner became surplus, cannot be said to be a correct position in view of promotion order dated 4.4.91 of respondent No. 3 (Annex.P-6).
5. In order to claim relief of reinstatement the petitioner is required to demonstrate his right. The unfolded facts are that vide order Annex.P-2 dated 9.8.89 the petitioner was appointed on temporary basis on the post of LDC against the post of Stenographer. In the appointment letter Annex.P-2 it was specifically mentioned that the appointment is purely temporary in nature and the services could be terminated at any time either by giving one month's notice or in lieu thereof payment of salary of one month. Admittedly the services of the petitioner were terminated on 31.5.91 which would mean that he has served less than three years and if that is the position, since services of the petitioner were temporary in nature Article 311 of the Constitution of India is not applicable.
6. The provisions of the M.P. Government Servants (Temporary and Quasi-permanent Service) Rules, 1960 (hereinafter referred to as 'the rules') would be applicable to the petitioner only if he had become quasi-permanent employee in terms of Rule 3 of the rules. For better understanding it would be appropriate to re-write Rule 3 which reads thus:-
3. A Government servant shall be deemed to be in quasi-permanent service,-
(i) if he has been in temporary service in the same service or post continuously for more than three years; and
(ii) if the appointing authority being satisfied as to his suitability in respect of age, qualifications, work and character for employment in a quasi-permanent capacity, has issued a declaration to that effect, in accordance with such instructions as the Governor may issue from time to time.
Explanation.- In computing continuous temporary service for the purposes of this rule and period of break in service during a vacation shall be counted as a period of actual service where, upon re-employment immediately after the vacation, the Government servant has been allowed to draw his pay and allowances in respect of such period.
If Rule 3 is taken into consideration in the present factual scenario it would reveal that the petitioner cannot be said to be quasi-permanent employee since he had not worked on temporary basis for a period of three years nor any certificate of declaration has been issued by the appointing authority in favour of the petitioner in terms, of Rule 3(ii) of the rules. If Rule 12(a) of the rules is taken into consideration in proper perspective it would reveal that since the petitioner was not a quasi-permanent employee his services could be terminated at any time either by giving notice in writing or by giving one month's salary in advance.
7. Since the petitioner has failed to demonstrate any right under any statute by taking the aid of which his termination order dated 31.5.91 (Annexure-P-1) could be quashed, this petition is found to be bereft of any substance and is liable to be dismissed.
8. Ex-consequentie, this petition is hereby dismissed with on order as to costs.