Heard Sri Ashok Khare, learned Senior Advocate, assisted by Sri Priya Ranjan Rai, learned counsel appearing on behalf of the petitioner, Sri Indra Raj Singh, assisted by Sri Arvind Upadhyay, learned counsel appearing on behalf of the caveator and learned Standing Counsel appearing on behalf of respondent nos. 1 to 4.
By means of the present writ petition, the petitioner is challenging the order dated 26.12.2013 passed by the District Panchayat Raj Adhikari, Azamgarh by which the services of the petitioner have been terminated under the U.P. Temporary Government Servant (Termination of Service) Rules, 1975 (hereinafter referred to as the "Rules, 1975").
The brief facts of the case are that on the basis of the interview, the petitioner has been appointed as a Safai Karmi vide order dated 16.2.2009 on the following terms:
"Jh iapkuUn fxfj dh fu;qfDr iw.kZr;k vLFkkbZ rkSj ij gS tks fdlh Hkh le; fcuk iwoZ lwpuk ds lekIr dh tk ldrh gSA Jh iapkuUn fxfj dks mDr osru ds lkFk gh lkFk 'kklu }kjk le; le; ij Lohd`r eagxkbZ HkRrk ,oa vU; HkRrs Hkh ns; gksxsA ;fn ckn esa buds vkpj.k ;k buds }kjk tek fd;s x;s izek.k i=ksa ds lEcU/k esa dksbZ izfrdwy rF; izdk'k esa vkrk gSA rks budh fu;qfDr fujLr dj nh tk;sxhA^^ By the order dated 15.2.2009, the petitioner has been asked to give his joining at Vikas Khand Gram Panchayat Mehmouni. The petitioner accordingly joined on 16.2.2009. It appears that the petitioner has disclosed his date of birth 30.5.1989 on the basis of the marksheet, issued by the Madhyamik Shiksha Parishad, U.P. in the examination held on the year 2007.
It appears that one Sri Dev Nath Giri filed a complaint on 12.9.2013 stating therein that the petitioner was a student of Rashtriya Inter College Tahbarpur, Azamagarh and appeared in the High School Examination in the year 1993 with Roll No. 981890 wherein he disclosed his date of birth 30.5.1978. On receipt of the complaint, it appears that the respondent wrote a letter to the Principal of Rashtriya Inter College Tahbarpur, Azamagarh and also to the Principal of Madan Mohan Malviya Inter College Sikari, Ghazipur. The Principal of Rashtriya Inter College Tahbarpur, Azamagarh vide letter dated 12.10.2012 has informed that the petitioner was registered as a student in the year 1992-93 and appeared in the High School Examination in the year 1993 with Roll No. 981890 and was declared unsuccessful and, as per the record, his date of birth is 30.5.1978. The Madan Mohan Malviya Inter College Sikari, Ghazipur also vide letter dated 23.10.2012 informed that the petitioner was the student of his College in the year 2007 and appeared in the High School Examination in 2007 with Roll No. 2528686 and has been declared successful in II Division and as per the record, his date of birth is 30.5.1989. On the basis of the aforesaid letter, a show cause notice dated 7.12.2012 was issued to the petitioner. The petitioner filed reply on 3.11.2012 wherein he has disputed to have appeared in the High School Examination in 1993 from Rashtriya Inter College Tahbarpur, Azamagarh and in support of his date of birth dated 30.5.1989 he submitted Xerox copy of Janamkundali (horoscope). The transfer certificate issued by the Principal of Sri Yudnandan Primary Vidyalaya Khasbegpur Azamgarh from where he has passed Class V in the year 2002 and transfer certificate issued by the Principal of Sri Shankar Ji Junior High School Rasra (Parvatpur) Azamgarh from where he has passed Class VIII and the marksheet issued by the Principal of Madan Mohan Malviya Inter College Sikari, Ghazipur from where he has passed Class X wherein his date of birth is mentioned as 30.5.1989. After the reply of the petitioner, Sri Deo Nath Giri again filed a complaint dated 7.12.2012 wherein he has annexed the certificate issued by the Principal/Manager of Shankar Ji Purva Madhyamik Vidyalaya Rasra, Parvatpur, Bibipur Azamgarh wherein he has certified that from the years 2002-03 to 2004-05, no student in the name of Panchanand Giri, son of Baijnath Giri, had studied in his College and the certificate, which has been filed by Panchanand, is wholly forged. On the aforesaid complaint, the respondent wrote a letter to the Principal of Shankar Ji Purva Madhyamik Vidyalaya Rasra, Parvatpur, Bibipur Azamgarh to verify the genuineness of the transfer certificate, filed by Panchanand Giri and the certificate filed by the complainant Deo Nath Giri and sought report, on which the Principal of the College vide letter dated 13.4.2013 informed that no transfer certificate in favour of Panchanand for the years 2002-03 to 2004-05 has been issued and the signature is forged and also requested to take necessary legal action against him. Sri Deo Nath Yadav, Principal of Sri Yadunandan Primary Vidyalaya Khasbegpur Vikas Khand Tahbarpur, Azamgarh, who was also Pradhan Gram Panchayat, wrote a letter dated 5.12.2012 certifying that the transfer certificate filed by Panchanand Giri that he has passed Class V in the year 2002, is totally forged, on which a report has been sought from the Principal of Sri Yadunandan Primary Vidyalaya Khasbegpur Vikas Khand Tahbarpur, Azamgarh. The Principal vide letter dated 12.4.2013 has reported that neither he knows Panchanand Giri nor he ever read in his College and no transfer certificate dated 13.7.2012 has been issued nor the transfer certificate bears his signature and seal and the transfer certificate has been said to be forged. The Principal of Purva Madhyamik Vidyalaya Tikapur Shiksha Kshetra Tahbarpur, Azamgar issued a certificate dated 4.12.2012, wherein he has certified that, as per the school record, Panchanand Giri passed Class VIII in the year 1991 and his date of birth is 30.5.1978. Smt. Gyanmati, Pradhan Gram Panchyat Medi Vikas Khand Tahbarpur Azamgarh has issued a certificate stating therein that Panchanand Giri, son of Baijnath Giri, is the resident of her Gram Panchayat and there is no other person in the name of Panchanand Giri in the Gram Panchayat. All the facts have been stated in the impugned order. On the basis of the aforesaid facts, the disciplinary authority arrived at the conclusion that the petitioner has not only obtained the service on the basis of forged and manipulated documents, but after coming in the service he has filed forged documents and accordingly a notice has been given under Rules, 1975 that his service is no more required and service shall stand terminated from the date of receipt of the notice. It has been further observed that the petitioner may be entitled for one month salary.
Learned counsel for the petitioner submitted that the High School marksheet, which has been filed by the petitioner, wherein the date of birth 30.5.1989 is mentioned, has not been found to be non-genuine. For the post of Safai Karmi, no educational qualification is required. Even if it is taken that the petitioner appeared in the High School Examination in the year 1993 and was failed wherein the date of birth alleged to have been shown 30.5.1978, is wholly irrelevant in view of the fact that it is not disputed that the petitioner has passed High School Examination in the year 2007, wherein his date of birth 30.5.1989 is shown. It is further submitted that two transfer certificates of Sri Yadunandan Primary Vidyalaya Khasbegpur Vikas Khand Tahbarpur, Azamgarh and Shankar Ji Purva Madhyamik Vidyalaya Rasra, Parvatpur, Bibipur Azamgarh were found to be non-genuine, but it does not make any difference. He submitted that as per the Uttar Pradesh Recruitment to Services (Determination of Date of Birth) Rules, 1974 (hereinafter referred to as the "Rules, 1974), the date of birth mentioned in the High School Certificate is acceptable. He further submitted that the impugned order is punitive in nature and, therefore, the petitioner's services can be terminated only after making necessary inquiries while no disciplinary inquiry has been made and, therefore, the impugned order is bad in law.
Reliance is placed on the decision of the learned Single Judge of this Court in Writ Petition No. 35397 of 2012, Sheoraj Singh Vs. State of U.P. and others, decided on 27.8.2012.
Learned counsel for the respondents submitted that the service of the petitioner was only temporary. In the appointment letter, it is mentioned that service at any time can be terminated without giving any prior information and in case if any adverse information is received in respect of conduct and documents. He submitted that under Rules, 1975, no inquiry is required and under the proviso to Rule 3 of the Rules, 1975 on the payment of one month salary, the services can be dispensed with. In the present case, the petitioner has submitted the forged documents, which are evident from the impugned order itself, which reflect the conduct of the petitioner and on the basis of the material, the appointing authority found that the petitioner's services are not required and accordingly under Rules, 1975, his service has been dispensed with, which cannot be said to be illegal. Reliance has been placed on the decision of the Apex Court in the case of State of U.P. and another vs. Kaushal Kishore Shukla, reported in 1991 AIR SCW 793.
I have considered rival submissions and perused the records.
There is no dispute that the petitioner's engagement was temporary under the terms mentioned in the appointment letter. In the appointment letter, it is categorically stated that the appointment is temporary and can be dispensed with at any time without any prior notice. It is further stated that if any adverse materials come to the notice after the appointment about the conduct and service and about the documents, the services can be dispensed with. Rules, 1975, 3 provides as follows:
"3. Termination of service. (1) Notwithstanding anything to the contrary in any existing rules or orders on the subject, the services of a government servant in temporary service shall be liable to termination at any time by notice in writing given either by the government servant to the appointing authority, or by the appointing authority to the government servant.
(2)The period of notice shall be one month:
Provided that the services of any such government servant may be terminated forthwith and on such termination the government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances, if any, for the period of the notice or as the case may be, for the period by which such notice falls short of one month at the same rates at which he was drawing them immediately before the termination of his services:
Provided further that it shall be open to the appointing authority to relieve a government servant without any notice or accept notice for a shorter period without requiring the government servant to pay any penalty in lieu of notice.
Provided also that such notice given by the government servant against whom a disciplinary proceeding is pending or contemplated shall be effective only if it is accepted by the appointing authority, provided in the case of a contemplated disciplinary proceeding the government servant is informed of the non-acceptance of his notice before the expiry of that notice."
The proviso of rule 3 of the Rules, 1975 provides that it shall be open to the appointing authority to relieve a government servant without any notice or accept notice for a shorter period without requiring the government servant to pay any penalty in lieu of notice. Therefore, for termination of service of the temporary employee, neither any reason is to be given nor any inquiry. The Apex Court in the case of State of U.P. and another vs. Kaushal Kishore Shukla (supra) has held as follows:
"The High Court held that the termination of respondent's services on the basis of adverse entry in the character roll was not in good faith and the punishment imposed on him was disproportionate. It is unfortunate that the High Court has not recorded any reasons for this conclusion. The respondent had earned an adverse entry and complaints were made against him with regard to the unauthorized audit of the Boys Fund in an educational institution, in respect of which a preliminary inquiry was held and thereupon, the competent authority was satisfied that the respondent was not suitable for the service. The adverse entry as well as the preliminary inquiry report with regard to the complaint of unauthorized audit constituted adequate material to enable the competent authority to form the requisite opinion regarding the respondent's suitability for service. Under the service jurisprudence a temporary employee has no 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. If on perusal of the character roll entries or on the basis of preliminary inquiry on the allegations made against an employee, the competent authority is satisfied that the employee is not suitable for the service whereupon the services of the temporary employee are terminated, no exception can be taken to such an order of termination.
A temporary Govt. servant has no right to hold the post, his services are liable to be terminated by giving him one month's notice without assigning any reason either under the terms of the contract providing for such termination or under the relevant statutory rules regulating the terms and conditions of temporary Govt. servants. A temporary Govt. servant can, however, be dismissed from service by way of punishment. Whenever, the competent authority is satisfied that the work and conduct of a temporary servant is not satisfactory or that his continuance in service is not in public interest on account of his unsuitability, misconduct or inefficiency, it may either terminate his services in accordance with the terms and conditions of the service or the relevant rules or it may decide to take punitive action against the temporary Government servant. If it decides to take punitive action it may hold a formal inquiry by framing charges and giving opportunity to the Govt. servant in accordance with the provisions of Art. 311 of the Constitution. Since a temporary Govt. servant is also entitled to the protection of Article 311 (2) in the same manner as a permanent Govt. servant, very often, the question arises whether an order of termination is in accordance with the contract of service and relevant rules regulating the temporary employment or it is by way of punishment. It is now well-settled that the form of the order is not conclusive and it is open to the Court to determine the true nature of the order. In Purshotam Lal Dhingra v. Union of India, 1958 SCR 828 : (AIR 1958 SC 36), a Constitution Bench of this Court held that the mere use of expression like 'terminate' or 'discharge' is not conclusive and in spite of the use of such expressions, the Court may determine the true nature of the order to ascertain whether the action taken against the Govt. servant is punitive in nature. The Court further held that in determining the true nature of the order the Court should apply two tests namely : (1) whether the temporary Govt. servant had a right to the post or the rank or (2) whether he has been visited with evil consequences; and if either of the tests is satisfied, it must be held that the order of termination of a temporary Govt. servant is by way of punishment. It must be borne in mind that a temporary Govt. servant has no right to hold the post and termination of such a Govt. servant does not visit him with any evil consequences. The evil consequences as held in Parshotam Lal Dhingra's case (supra) do not include the termination of services of a temporary Govt. servant in accordance with the terms and conditions of service. The view taken by the Constitution Bench in Dhingra's case has been reiterated and affirmed by the Constitution Bench decisions of this Court in The State of Orisa v. Ram Narayan Das, (1961) 1 SCR 606 : (AIR 1961 SC 177), R.C. Lacy v. The State of Bihar, C.A. No. 590/62 decided on 23.10.1963; Champaklal Chimanlal Shah v. The Union of India, AIR 1964 SC 1854 : (1965 (5) SCR 190); Jagdish Milter v. Union of India, AIR 1964 SC 449; A.G. Benjamin v. Union of India, C.A. No. 1341/66 decided on 13.12.1966; Shamsher Singh v. State of Punjab, (1975) 1 SCR 814 : AIR 1974 SC 814. These decisions have been discussed and followed by a three Judge Bench in State of Punjab v. Shri Sukh Raj Bahadur, (1968) 3 SCR 234: (AIR 1968 SC 1089."
In the present case, on the receipt of the complaint, when the inquiry was made, it was found that various documents in the nature of transfer certificate, etc., submitted by the petitioner, were found forged, which reflects the conduct of the petitioner and on the basis of which, the appointing authority led to take decision that the petitioner's service is not required. The High School marksheet of 2007 may be genuine, wherein the date of birth is mentioned 30.5.1989, but the other documents, submitted by the petitioner in respect of date of birth, were found to be forged, non-genuine in nature. If the petitioner has actually passed Class V and Class VIII examination from a particular school genuinely, there was no occasion to file a fabricated transfer certificate of such school. Having regard to the alleged conduct, if the appointing authority arrived to the conclusion that it would not be proper to engage the petitioner further and to continue him in service, the view taken by the appointing authority cannot be said to be without any basis and unjustified. Employer and employee relation depends upon faith and trust. If by the conduct, employer lost faith on employee, it is open to employer to dispense with the services of temporary employee without any notice.
In view of the facts and circumstances of the case, in my view, the provisions of Rules, 1974 are wholly irrelevant. It is relevant in a situation, where the question of determination of date of birth arises in a case of regular employee. The decision of the learned Single Judge of this Court in Writ Petition No. 35397 of 2012, Sheoraj Singh Vs. State of U.P. and others, decided on 27.8.2012, is also not applicable to the present case. It was a case of a regular Assistant Teacher. A complaint was filed that the petitioner in the said writ petition has failed in High School Examination in the year 1969 with Roll No. 59885 conducted by Madhyamik Shiksha Parishad and he thereafter in the year 1970 has undertaken Madhyama Certificate with Roll No. 59919 and same is forged certificate. On opportunity being given, the petitioner filed marksheet with covering letter dated 27.12.1993 of Sri Adarsh Sanskrit Madhyamik Vidyalaya. On verification of such certificate, the Principal of the institution found that marksheet genuine. The dispute was relating to date of birth and not relating to termination of service under the Rules, 1975 and, therefore, it is not applicable.
In the facts and circumstances, I do not find any merit in the writ petition, which requires interference by this Court. The writ petition fails and is dismissed.
Dated: 7th February, 2014 OP