Court No. - 28
Case :- WRIT - A No. - 11390 of 2006 Petitioner :- Pawan Kumar Respondent :- State Of U.P. And Others Counsel for Petitioner :- Rishikesh Tripathi,Birendra Singh,K.S.Mishra Counsel for Respondent :- C.S.C.
Hon'ble Ajay Bhanot,J.
Heard learned counsel for the petitioner and Sri Vijay Pratap Singh, learned counsel for the respondents.
The petitioner has laid his claim on the foot of his appointment letter dated 4.8.98 issued by the District Backward Classes Welfare Officer, District-Banda. The appointment letter records that the petitioner is a Jawan in P.R.D. having service No.847. The petitioner is appointed on a contractual basis with effect from 25.7.1998. By the letter dated 20.11.2001, the petitioner was reverted back to his original employer, namely, Prantiya Rakshak Dal. The aforesaid reversion to the security agency was apparently made on account of negligence on part of the petitioner in the performance of his duties. Aggrieved by the aforesaid order, the petitioner instituted a writ petition before this Court. The writ petition was registered as Civil Misc. Writ Petition No.6245 of 2002, Pawan Kumar Vs. State of U.P. and others. The writ petition was finally disposed of by judgement and order entered on 18.2.2005. The operative portion of the judgement is reproduced hereunder:
"From a perusal of the impugned order, it is clear that the order of reversion is based on certain acts and misconduct alleged to have been committee by the petitioner. Since no counter affidavit has been filed, the averments contained in the writ petition ramains unrebutted. From a perusal of the impugned order, it is clear that no opportunity of hearing was provided to the petitioner. Consequently, the impugned order, it is clear that no opportunity of hearing was provided to the petitioner.
Consequently, the impugned order is violative of the principles of natural justice. The impugned order is quashed. The writ petition is allowed and the matter is remitted back to the authority concerned to pass a fresh after affording opportunity of hearing to the petitioner."
Upon remand the respondent authority has passed an order dated 12.12.2005 terminating the contract of the petitioner. The petitioner being aggrieved has assailed the order dated 12.12.2005 passed by the District Backward Classes Welfare Officer, Banda in this writ petition.
I shall now carry the narrative forward. In pursuance of the order passed by this Court on 18.10.2005, the petitioner was afforded an opportunity of hearing. The petitioner appeared before the District Backward Classes Welfare Officer, Banda and submitted his defence. He submitted that he was responsible for the loss of the treasury bills for which he tendered a contrite apology. He made a prayer to be reinstated service. The order dated 12.12.2005 further records that on earlier occasion, the petitioner was sent a show cause notice on 8.11.2001. However, the petitioner did not respond to the same. From the impugned order dated 12.12.2005, it further transpires that the District Backward Classes Welfare Officer was facing shortage of staff.
To overcome this shortage as a stop gap measure, the Director, Backward Classes Welfare Department, State of U.P. permitted the District Backward Classes Welfare Officer to make appointments on a contractual basis through security agencies. The District Social Welfare Officer was permitted to engage one peon on contractual basis.
The communication dated 17.10.1998 has been brought in the record through the counter affidavit filed on behalf of the State respondents. The order dated 17.10.1998 passed by the Director, Backward Classes Welfare Department, State of U.P. clearly prohibits any regular appointment to be made on the post of peon by the District Backward Classes Welfare Officer. In case any such appointment is made, the officer would be personally liable for the consequences.
The petitioner was engaged on a contractual basis, through the agency of a security firm called P.R.D. The appointment of the petitioner was made on a contractual basis and was a stop gap measure till a regular appointment was made on the post of peon.
Coming back to the order impugned dated 12.12.2005, it is asserted that the Director, Backward Classes Welfare Department, State of U.P., who is the competent authority, has appointed a regular clerk and peon. There is no requirement of a peon-chawkidar on a contractual basis. On this count, the services of the petitioner terminated.
In the light of the letter dated 17.10.1998, the District Backward Classes Officer, Banda has acted in accordance with law. He would not have continued service of the petitioner after the regular appointment on the post of peon and clerk was made. He would have been personally liable for any such appointment.
The counter affidavit has further explained the situation. The appointing authority of a peon is the Deputy Director, Backward Classes Welfare Department. The District Backward Classes Welfare Officer, Banda, who appointed the petitioner, is not the competent to make regular appointments to the post of peon. Further, it is clarified that the process of making regular appointment is well laid out. The applications are invited through advertisements. Selection Committee is constituted under the Chairmanship of Deputy Director, Backward Classes Welfare Department and finally on the basis of merit, the best candidate is selected. The selection process includes an interview and the examination of the "physical condition" of candidate. Admittedly, in the appointment of the petitioner, no such procedure was followed. The post of peon in the office of the District Social Welfare Officer, Banda is liable to be filled by direct recruitment. These facts were not traversed or refuted by the petitioner.
From the above facts, it is clear and established that the appointment of the petitioner was made on a contractual basis. The petitioner accepted the contractual appointment without any demur or protest. The District Social Welfare Officer is not the competent authority to make regular appointments. A procedure for selection is not followed by making appointment of the petitioner. No right accrues to the petitioner beyond the terms of the contract. The contract was validly terminated.
In such view of the matter, the writ petition is dismissed.
Order Date :- 27.7.2018 Ashish Tripathi