Allahabad High Court
Mohammad Raish Ahmad vs State Of U.P. And Ors. on 30 April, 1998
Equivalent citations: (1998)2UPLBEC1232
JUDGMENT S.R. Singh, J.
1. Heard Shri R. P. Tiwari, learned Counsel for the petitioner and Shri K. M. Sahai, learned Standing Counsel appearing for the respondents and perused the writ petition.
2. By order dated 15.9.97 learned Standing Counsel was granted 8 week's time to file counter affidavit but till date the respondents could not file counter affidavit in the case. I accordingly proceed to dispose of the writ petition on the basis of allegations made therein and the submissions made by the learned Counsel at the Bar.
3. The petitioner was appointed vide order dated 16.5.96 on a class IV post at Government Scheduled Caste Hostel, Bijnor. The appointment was adhoc/temporary in nature with stipulation that it could be terminated at any time without notice. By the order impugned herein dated 30th July, 1997 the appointment order dated 16.5.96 has been cancelled with immediate effect on the ground that the Joint Director (Samaj Kalyan), Moradabad Region, Moradabad who had issued appointment order in favour of the petitioner was not the appointing authority.
4. Shri R. P. Tiwari, learned Counsel appearing for the petitioner raised two-fold submissions : first, that the appointment order dated 16.5.96 which was acted upon ought not to have been cancelled without affording opportunity of hearing and second, that the services of the petitioner could not have been terminated except in accordance with the provisions contained in the U.P. Temporary Government Servants (Termination of Service) Rules, 1975 in short the Rules. Shri K.M. Sahai, learned Standing Counsel, on the other hand, submitted that the petitioner was a temporary hand and hence he had no right to the post and his services could be terminated, as per stipulation in the appointment order, at any time without any notice. It was also submitted by Shri K.M. Sahai that since appointment had been made by an authority other than the appointing authority it was a nullity and for cancellation of such an order it was not at all necessary to afford any opportunity of hearing to the petitioner nor was it necessary to comply with the requirements of the U.P. Temporary Government Servants (Termination of Service) Rules, 1975.
5. Having bestowed by anxious consideration to the submissions aforestated I veer around the view that the impugned order can not be sustained. In the case of Sheo Pujan Pandey v. Deputy Director, Rajya Krishi Utpadan Mandi Parishad, U.P., Lucknow and Ors., 1992 (1) UPLBEC 219, it has been held by a learned Single Judge of this Court, in similar situation, that before cancelling the appointment, the respondents ought to have disclosed to "the petitioner the reasons for cancelling the appointment and the petitioner should have been given a reasonable opportunity to rebut the reasons if any, for cancelling the appointment." The principle laid down in that case applies on all fours to the facts of the present case. The order impugned herein cancelling the petitioner's appointment was issued without offording any opportunity of explaining the ground, if any, justifying cancellation of the appointment order. Similar view has been taken by another learned Single Judge in the case of Pratap Singh Kawat v. State of U.P. and Ors., 1992 (2) UPLBEC 1976. In fact in the later decision reliance has been placed on a decision of Supreme Court in the case of Shravan Kumar Jha and Ors. v. State of Bihar and Ors., AIR 1991 SC 309, in which it has been held that an opportunity of hearing should be given to the concerned person before his appointment is cancelled. It may be pertinently observed here that cancellation in the instant case was not necessiated due to any change of law in which event principle of audi alteram partem rule may not be attracted. Points raised are, thus, fully covered by the Supreme Court's decision in Shravan Kumar Jha's case. The order impugned herein, therefore, can not be sustained.
6. The order impugned herein is also unsustainable on the ground that the procedure prescribed for terminating the services of the temporary Government Servants under U.P. Temporary Government Servants (Termination of Service) Rules, 1975 has nor been followed as neither a month's notice not salary in lieu thereof as comprehended by the Rule 3 of the aforestated Rules had been given to the petitioner. The decision of Supreme Court in Madhya Pradesh Hasta Shilpa Vikas Nigam Ltd. v. Devendra Kumar Jain and Ors., 1995 (1) SCC 638 and that of Calcutta High Court in the case of Jagat Kiran Sinha etc. v. Assistant Commissioner, K.V.S. and Ors., 1996 IAB. I.C. 231, reliance on which was placed by the learned Standing Counsel, have no application to the facts of the present case.
7. In the result the petition succeeds and is allowed. The impugned order is quashed. The second respondent is given liberty to proceed in accordance with law. The petitioner shall be entitled to consequential benefits.