1. Heard Sri Rakesh Kumar Shukla, learned counsel for the petitioner and learned Standing Counsel for the respondents.
2. The Inspector General (Registration) U.P. Allahabad has rejected representation of petitioner for regularization on the post of Registration Clerk, vide order dated 16.8.2011, which is impugned in this writ petition and a writ of certiorari is prayed by petitioner Mohd. Suleman Siddiqui, for quashing the same. He has also sought a writ of mandamus directing respondents to permit petitioner to perform administrative work on the post of Registration Clerk in District Jhansi and extend consequential benefits and also confirmation on the said post, as has been given to other similarly situated persons vide order dated 25.2.2011.
3. The facts, in brief, as pleaded in the writ petition are, that, District Selection Committee made a recommendation dated 24.2.1991 for appointment on the post of Registration Clerk, pursuance whereto, petitioner and 10 others were appointed by District Registrar, Jhansi as Registration Clerk. A copy of appointment letter is Annexure 1 to the writ petition, which shows that aforesaid selection was made for engagement of Registration Clerks on daily wage basis. The petitioner and others were actually appointed on daily wage basis but then under the orders of respondent no.2, all such appointments including that of petitioner were terminated vide order dated 27.5.1991.
4. The order dated 27.5.1991 of respondent no.2 was challenged in Writ Petition no.17785 of 1991, wherein an interim order was passed on 1.7.1991. Consequently, District Registrar, Jhansi issued letter dated 19.7.1991 allowing petitioner and others to continue to work. Annexure no.1 as such is not a letter of appointment of the petitioner.
5. The writ petition No.17785 of 1991, however, was dismissed vide judgment dated 8.2.1995. The matter was taken in Civil Appeal No.9136 of 1995 before Apex Court. The Apex Court vide judgment dated 27.9.1995 allowed appeal, set side this Court's judgment dated 8.2.1995, and remitted the matter for reconsideration on merits again. The writ petition was again dismissed by learned Single Judge vide judgment dated 27.2.1998. Thereagainst Special Appeal No.254 of 1998 was preferred, which was allowed by Division Bench vide judgment dated 9.9.1999. The Court held that there was no breach of Rule 22 of U.P. Subordinate Offices Ministerial Staff (Direct Recruitment) Rules, 1985 (hereinafter referred to as "Rules, 1985") and the order of termination was in violation of principles of natural justice. Consequently, judgment of learned Single Judge as also order challenged in writ petition was set aside/ The respondents were directed to give all consequential benefits to the appellant. Pursuant thereto, respondent no.2 again continued petitioner to work vide order dated 9.12.1999.
6. In the meantime, petitioner was implicated in a criminal case under Section 323/498-A I.P.C., wherein he was convicted and sentenced for six months' simple imprisonment vide judgment dated 28.6.2000 passed by Additional Chief Judicial Magistrate, Jhansi. The Criminal Appeal No.50 of 2000 was dismissed on 16.3.2001 whereagainst he preferred Criminal Revision No.721 of 2001. The petitioner, after his conviction vide judgment dated 28.6.2000, and dismissal of appeal on 16.3.2001, had proceeded on leave from 13.3.2001 to 23.3.2001 but, on return, when he submitted joining on 24.3.2001, it was not accepted by Sub-Registrar, Jhansi-II. The petitioner was not permitted thereafter to work and respondent no.3 issued an order dated 7.4.2001 directing District Registrar not to take any administrative work from petitioner.
7. The petitioner preferred Writ Petition No.19357 of 2001 wherein an interim order was passed on 21.5.2001 directing respondents to permit him to continue, as a result whereof, petitioner continued to work but the said writ petition was tagged with a bunch of writ petitions and decided vide judgment dated 11.5.2004 whereagainst Special Appeal No.385 of 2005 was filed, which is pending. In the meantime, criminal revision was also decided in terms of compromise entered between petitioner and his wife and vide judgment dated 13.9.2006, in terms of compromise, revision was allowed and judgment of Courts below were set aside.
8. The petitioner then made a representation to respondents to allow him to work since other persons, who were appointed with him in 1991, State Government decided to regularise them and had proceeded further. The petitioner also requested for same consideration in his case also. Since nothing happened, petitioner preferred Writ Petition No.60259 of 2009, which was disposed of vide judgment dated 12.5.2011 directing respondent no.2 to take an appropriate decision in petitioner's matter. It is pursuant thereto that Inspector General (Registration), has passed impugned order dated 16.8.2011, though in the meantime, others have already been regularised vide order dated 25.2.2011.
9. It is contended that there is no foundation to subject petitioner with different treatment and disallow him to work on the basis of a criminal matter, which has already lost foundation. The impugned order, thus, is patently illegal.
10. The respondents have filed counter affidavit wherein basic facts are not disputed but it is said that petitioner was not found fit to continue as daily wage employee in Registration Department and therefore, impugned order has rightly been passed.
11. I have considered basic submissions and also perused the record.
12. The respondent no.2 in its entire order dated 16.8.2011 has narrated various facts relating to criminal case in which petitioner was initially convicted. The fact remains that order of conviction has been set aside by this Court in Criminal Revision No.721 of 2001.
13. It is said that mere fact that conviction order has been set aside in revision, would make no difference for the reason that it is founded on a compromise made between the parties. It is also said that petitioner is not working in the department for the last ten years. These are only two reasons on which petitioner has been denied right to work and other benefits. This view taken by the respondent no.2, in my view, is clearly erroneous and illegal.
14. The facts, discussed above, clearly show a chequered history so far as this petitioner is concerned, regarding his incoming and outgoing in the department, time and again, for one or the other reason, but the fact remains that since beginning, it was a faulty action on the part of respondent no.2, which resulted in initial discontinuance on the part of petitioner. Situation slightly turned in favour of petitioner in the light of order passed by this Court, which has ultimately been settled in his favour i.e. the Division Bench judgment dated 9.9.1999.
15. It is not the case of respondents that thereafter, at any point of time, petitioner has been terminated. It is claimed that appointment of petitioner was on daily wage basis but here it is not an appointment, where an incumbent was employed on daily wage basis without any process of selection or without any letter of appointment. On the contrary, selection was made on regular basis and thereafter letter of appointment was issued by District Registrar, who is the authority competent to appoint a Class III employee in his office or the offices subordinate to him, in the district. The appointment of petitioner has already been upheld by this Court in its judgment dated 09.9.1999. The termination has been found illegal and consequently set aside. Thereafter no letter of termination has ever been passed and at least none has been placed on record. If petitioner has not been allowed to perform duties by the respondents, of their own, they are at fault. Even otherwise, under which statute or principle of law or order, it has been done, is not clear. There is an order, which says that petitioner shall not be assigned any administrative work. This order cannot be constituted or read so as to constitute an order of termination. It only deprives allotment of work to petitioner, may be for some time or may be for years together but cannot result in termination of services of petitioner. Neither it can be termed as termination of service of petitioner nor be construed so as to result in nullifying letter of appointment issued to petitioner in the year 1991. In the eyes of law, in fact, petitioner has not been terminated till date. Under what circumstances, Inspector General (Registration), respondent no.2 has justified his action of non allotment of work to petitioner is really surprising. When enquired from learned Standing Counsel, he could not point out any provision. He only says that conduct of petitioner, which implicated him in dowry case under Section 498A I.P.C., is a serious matter and here is a conduct unbecoming of a Government service but if that is so, it is always open to respondents to initiate departmental proceedings against petitioner and pass appropriate order of punishment, if charge(s) is/are proved but without any such proceedings, petitioner's services cannot deemed to have come to an end, on mere conjecture and surmises and imaginary basis.
16. The petitioner's services can be terminated only by a letter of termination and not otherwise. It is not the case of respondents that any such letter of termination was issued by competent authority. Neither it has been pleaded nor any such document has been placed on record. Whatever may be the reason for setting aside judgment of conviction passed by Trial Court and appellate court it was not a matter which could have been examined by respondent no.2 when this Court has set aside orders of punishment, may be on the basis of compromise, which was accepted by this Court. The fact remains that order of conviction and sentence have been set aside resulting in as if no such orders exist in the eyes of law. The mere fact that petitioner was subjected to criminal case, therefore, cannot be taken to be a circumstance to deny duties to him and at least no such provision has been shown under which respondent no.2 or any other respondents possess any such power.
17. Even assuming that conduct of petitioner is not good or conducive of Government servant but then on mere basis of conduct, a Government employee, who has been appointed by a letter of appointment, issued after due selection, cannot be ceased unless he is terminated in accordance with law, by passing order of termination by a competent authority. It appears that respondent no.2 has not at all understood entire crux of the matter and has considered petitioner's grievance in his own vagaries and notions. I have no hesitation in holding that impugned order cannot sustain. The petitioner cannot be denied either his right to continue in service or claim salary.
18. The writ petition accordingly is allowed. The impugned order dated 16.8.2011 (Annexure 18 to the writ petition) passed by respondent no.2 is hereby quashed. It is held that petitioner shall be entitled for all consequential benefits.
Order Date :- 18.04.2014 KA