JUDGMENT R.B. Misra, J.
Heard Sri Neelambar Tripathi, learned Counsel for the petitioner, and learned Standing Counsel for the State respondents.
1. In this petition prayer has been made to quash the impugned orders dated 10.08.1990 and 16.11.1990 (Annexures-1 & 2 respectively to the writ petition) passed by the Executive Engineer, Gramin Abhiyantran Sewa Prakhan, district Etah/respondent No. 2 terminating the service of the petitioner after payment of one month salary in lieu of one month notice and rejected the representation of the petitioner by its order dated 10.08.1990.
2. According to the petitioner by requisitioning the names from the employment exchange against the temporary vacancy arose due to dismissal of Kunwar Pal (respondent No. 3), a Jeep Driver, the selection committee appointed the petitioner on 05.10.1989 in the scale of Rs. 950-1500 absolutely on temporary basis with indication that his service could be terminated by giving one month notice or on payment of one month's advance salary in lieu thereof. The service of the petitioner was terminated by order dated 10.08.1990, against which he filed a representation, which too was rejected on 16.11.1990 by the respondent No. 2. However, on the strength of interim order of this Court the petitioner is still working.
3. According to the petitioner, termination of his service by an order simplicitor is bad, illegal and against the principle of natural justice and also against the provisions of Articles 16 and 311 of the Constitution, and his service has been terminated by an order simplicitor without any stigma.
4. Respondents have filed counter affidavit indicating that there were only two posts of driver under the Executive Engineer, Gramin Abhiyantran Sewa Prakhan, district Etah and in short term vacancy arose due to dismissal of Sri Kunwar Pal, the jeep driver, the petitioner was given temporary appointment and in terms of appointment order the service of the petitioner was terminated by an order simplicitor under the Uttar Pradesh Government Servants (Termination of service) Rules, 1975 (hereinafter in short called as the 'Rules, 1975'). Since the petitioner was deployed in place of Sri Kunwar Pal (respondent No. 3), whose services were terminated, against which he obtained a stay order by this Court, therefore, the service of the petitioner was terminated. According to the respondents in terms of the appointment order the services of temporary employee could have been terminated in view of provisions of Rules, 1975.
5. The issue involved herein is no more res-integra. In State of U.P. and Ors. v. Kaushal Kishore Shukla , the Supreme Court has categorically held as under :
Under the service jurisprudence a temporary employee has not right to hold the post and his services are liable to be terminated in accordance with the relevant service rules and the terms of contract of service.
6. In a case like the instant the Court has to be satisfied as what is the legally justiciable right of the petitioner which has been infringed and for which the petitioner can resort to the discretionary relief under Article 226 of the Constitution of India. The Supreme Court in Purshotam Lal Dingra v. Union of India , has held that" A person can be said to acquire a lien on a post only when he has been confirmed and made permanent on that post and not earlier" and further held that "a Government servant holding a post temporarily does not have any right to hold the said post." In R.K Mishra v. U.P. State Handloom Corporation , the Supreme Court has taken the same view.
7. Similarly, in Triveni Shanker Saxena v. State of U.P. and Ors. ; Commissioner of Food and Supply v. Prakash Chandra Saxena ; Ram Chandra Tripathi v. U.P. Public Service Tribunal and Ors. 1994(2) JT 84; Madhya Pradesh Hasth Shilp Vikas Nigam Ltd. v. Devendra Kumar Jain and Anr. ; and Kaushal Kishore Shukla (supra), the Supreme Court has categorically held that incumbent to a post who has been given appointment on temporary basis, terminable without notice, has no right to hold the post and he is not entitled for any opportunity of hearing before his services are dispensed with as his termination does not amount to forfeiture of any legal right.
8. In Ravi S. Naik v. Union of India , the Supreme Court has placed reliance on the observations made in Malloch v. Aberdden Corporation 1971 (2) All E.R. 1278, wherein it has been observed as under -
A breach of procedure, whether called a failure of natural justice or an essential administrative-fault cannot give him a remedy in the Courts, unless behind it there is something of substance which has been lost by the failure. The Court does not act in vain.
9. In Life Insurance Corporation of India v. Raguuvendra Sheshgiri Rao Kulkarni (1997) 8 SCC 460, the Supreme Court explained the difference of a permanent employee and an employee holding the post on probation and held that the services of a probationer cannot be equated with that of a permanent employee who, on account of his status, is entitled to be retained in service and his services cannot be terminated abruptly without any notice or plausible cause. "This is based on the principle that a substantive appointment to a permanent post in a public service confers substantive right to the post and the person appointed on that post becomes entitled to hold a lien on that post." However, interpreting enforcing the terms of appointment, which provided for discharge of the said probationer from service at any time during the period of probation or extended period of probation, without any notice or without assigning any cause, the Court held that as his termination was in consonance with the terms and conditions of his appointment letter, he cannot be heard raising grievance.
10. In State of Punjab and Ors. v. Surindra Kumar and Ors. , the Supreme Court has held that the Court must seek the adherence to the terms and conditions of the appointment and there is no reason why terms and conditions of appointments cannot be enforced in a contract of service.
11. In Hindustan Education Society and Anr. v. K.P. Kalim, S.K. Culam Nabi , the Supreme Court has held that where the Riles specifically provide for permanent appointment on probation for a specific period and an employee is appointed without stipulating any condition regarding probation, the inference is to be drawn that he was not appointed in substantive capacity. In Avinash Nagra v. Sarvodaya Vidhyalaya Samiti and Ors. , the Supreme Court has held that a society can terminate the services not only of a temporary employee but also of a permanent employee by giving him one month's notice or three months' pay and allowances in lieu thereof if the terms of appointment and rules so permit and such termination may be valid in a given cases even if the principles of natural justice have not been complied with.
12. In Union of India v. Bihari Lal Sidhana , the termination of the services of the temporary employee as provided under the Rules was upheld by Supreme Court in spite of the fact that he had been put under suspension for a misconduct and this factum had also been mentioned in termination order.
13. In Chandradeo Gautam v. State of U.P. and Ors. , the Supreme Court has held that the termination of services of temporary employee does not require interference on being removed on any ground as it does not cast any stigma or aspersion on him. In Nazira Begum Laskar and Ors. v. State of Assam AIR 2001 SC 102, the Supreme Court has held that where appointment neither confers any right nor any equity in favour of the employee, as the appointment was purely temporary and could be terminated without notice, no grievance can be entertained by such employee. More so, he cannot claim any equitable relief from any Court
14. In Dhananjay v. Chief Executive Officer, Zila Parishad, Jalanal 2003 AIR SCW 739, the Supreme Court upheld the termination order passed under Central Civil Service (Temporary Service) Rules, 1965 in spite of the fact that the employee had been prosecuted in the criminal case and acquitted and inquiry into the allegations was also directed but not held observing that order was not stigmatic and termination was within the ambit of the statutory rule.
15. I have heard learned Counsels for the parties. I find that in terms of the appointment a temporary employee could be terminated by an order simplicitor and for that the principle of opportunity of hearing as well as provisions of Article 311 are not attracted, therefore, there is no illegality and impropriety in the impugned order of termination, therefore, the petitioner is not entitled to any relief as prayed for and any of the person could be appointed against the existing post or vacancy according to the procedure prescribed for the appointment. The respondent No. 3 even could only be said to be legally appointed, only when the post was in existence and proper procedure was adopted therefor. However, there is none to represent the case of respondent No. 3, therefore, it is not known whether he is continuing or not, the same principle will apply in respect of service condition of respondent No. 3. However, keeping in view the long service and experience rendered by the petitioner the weightage may be given sympathetically in favour of the petitioner in future employment.
In view of the above observations, the writ petition is dismissed.
Copy of this order be given free of cost to Sri Sandeep Mukherjee, learned Standing Counsel, who will convey the respondents accordingly.