1. Heard learned counsel for the petitioner, Sri Ran Vijay Singh, learned Additional Chief Standing Counsel appearing for respondent no. 1 and Sri Vikrant Raghuvanshi, learned counsel appearing for respondent nos. 2 to 4.
2. By means of the present petition, the petitioner has prayed for the following reliefs:-
"(i) Issue a writ of Certiorari or a writ, order or direction in the nature of Certiorari quashing the impugned order dated 22.12.2017 (contained in Annexure No.2 to this writ petition) passed by the opposite party no.1.
(ii) Issue a writ of Certiorari or a writ, order or direction in the nature of Certiorari quashing the item no.3 of the impugned advertisement dated 17.03.2018 contained in Annexure No.3 to this writ petition.
(iii) Issue a writ of mandamus or a writ, order or direction in the nature of mandamus commanding the opposite parties not to give effect the impugned order dated 22.12.2017 contained in Annexure No.2 to the writ petition.
(iv) Issue a writ of mandamus or a writ, order or direction in the nature of mandamus commanding the opposite parties not to give effect the item no.3 of the impugned advertisement dated 17.03.2018 contained in Annexure No.3 to this writ petition.
(v) Issue a writ of mandamus or a writ, order or direction in the nature of mandamus commanding the opposite parties to allow the petitioner to join/resume his duty on the post of Director (Commercial) and to pay the salary regularly.
(vi) Issue a writ of mandamus or a writ, order or direction in the nature of mandamus commanding the opposite parties to pay the arrears of salary to the petitioner with effect from January 2017 to May 2017 and from August 2017 onwards on the basis of letter dated 05.02.2018 contained as Annexure No.21 to this writ petition.
(vii) Allow the writ petition with costs."
3. The case set forth by the petitioner is that he was appointed as Director (Commercial) in the Kanpur Electric Supply Co. Limited (KESCO) through order dated 30.06.2016 for a period of three years from the date of assuming charge or till the age of 62 years or till the State Government passes an order otherwise. A show cause notice had been issued to the petitioner on 21.02.2017 requiring the petitioner to show cause on certain issues. Subsequently through order dated 14.08.2017, the petitioner was dismissed from the post of Director. Being aggrieved with the said order, the petitioner preferred Writ Petition No.19666 (SB) of 2017 in re: Vijay Singh Srivastava vs. State of U.P. and others, and this Court vide judgment and order dated 09.10.2017, a copy of which has been filed as Annexure-1 to the petition, set-aside the order of dismissal dated 14.08.2017 and the consequential order dated 17.08.2017. It was left open to the respondents to pass appropriate orders in accordance with the terms and conditions of engagement of the petitioner on the post of Director. It is contended that without reinstating the petitioner in service he has been served with an order dated 22.12.2017, a copy of which has been filed as Annexure-2 to the writ petition, by which the petitioner has been given three months notice pay and his services have been dispensed with immediate effect i.e. with effect from 22.12.2017. It is also contended that subsequent thereto the respondents issued an advertisement dated 17.03.2018 inviting applications for the post of Director KESCO, which the petitioner was earlier holding. Being aggrieved with the aforesaid orders the petitioner has approached this Court.
4. Learned counsel for the petitioner contends that once this Court vide judgment and order dated 09.10.2017 had set-aside the order of dismissal from service consequently the respondents were obliged to reinstate the petitioner on the post of the Director (KESCO) and it is only subsequent thereto that any such order could have been passed by the respondents. It is also contended that the salary of the petitioner for the months from January 2017 till May 2017 and from August 2017 till the petitioner who was validly appointed earlier and was to continue till November 2018, has also not been given to him.
5. Sri Vikrant Raghuvanshi, learned counsel appearing for KESCO, submits that admittedly the petitioner had been appointed on the post of Director (Commercial) in KESCO. However, on account of certain reasons the services of the petitioner had been dispensed with vide order dated 14.08.2017 and the petitioner had also been relieved on 17.08.2017. Upon this Court setting-aside the dismissal order dated 14.08.2017 and consequential order dated 17.08.2017 vide judgment and order dated 09.10.2017, the respondents issued an order dated 22.12.2017 by which the petitioner has been given notice pay of three months and his services thus stood dispensed with. It is contended that the said notice was perfectly in accordance with the terms and conditions of appointment order of the petitioner dated 30.06.2016, a copy of which has been filed as Annexure-4 to the short counter affidavit filed by respondent nos.2 to 4 dated 12.04.2018. It is contended that though the order of appointment of the petitioner stipulated that the appointment of the petitioner was for a period of three years or till he attains the age of 62 years yet it was also stipulated that the appointment was also till such time the State Government passes an order otherwise. It is contended that though the claim of the petitioner is for continuing in terms of order of appointment till he attains the age of 62 years i.e. November 2018 yet taking into consideration the specific stipulation in appointment order dated 30.06.2016 it was decided to not continue the services of the petitioner on the basis of order passed by the State Government dated 22.12.2017 and hence once the order of dispensation of the services of the petitioner dated 22.12.2017 is in accordance with the terms and conditions of appointment order of the petitioner dated 30.06.2016 there is no illegality or infirmity in the same.
6. So far as the claim of the petitioner for being first reinstated in service and thereafter the respondents could have passed an order, in this regard Sri Vikrant Raghuvanshi submits that reinstatement was mere a formality inasmuch as once the respondents have issued an order dated 22.12.2017 dispensing with the services of the petitioner it is deemed that he had been reinstated in service for it is only the service of a reinstated employee which could have been dispensed with through an order dated 22.12.2017 and thus on account of mere technicality of a reinstatement order not being issued prior to dispensing with the services of the petitioner vide the order dated 22.12.2017, cannot be said to have vitiated the said order.
7. So far as the claim of the petitioner for payment of salary since January 2017 till May 2017 and from August 2017 till passing of the subsequent order of termination of service dated 22.12.2017, it is contended that the matter would be examined at the level of the State Government and suitable orders in this regard would be passed.
8. So far as challenge to the advertisement dated 17.03.2018 is concerned, it is contended that once the services of the petitioner stood dispensed with through order dated 22.12.2017 consequently there cannot be any impediment in the respondents proceeding to fill up the post of Director in KESCO by means of a fresh advertisement.
9. Sri Ran Vijay Singh, learned Additional Chief Standing Counsel, also adopts the arguments of Sri Vikrant Raghuvanshi, learned counsel for the KESCO.
10. Heard learned counsel for the contesting parties and perused the record.
11. From perusal of records and the arguments of learned counsel for the contesting parties, it comes out that the petitioner had been appointed as Director (Commercial ) in KESCO through order dated 30.06.2016. Admittedly, the order of appointment read that the petitioner was being appointed for a period of three years or till he attains the age of 62 years or till any other order was passed by the State Government. Though the petitioner claims continuance till he attains the age of 62 years yet the respondents initially through order dated 14.08.2017 dismissed the petitioner from service. He was also relieved on 17.08.2017. Both the orders upon a challenge being raised were set-aside by this Court vide order dated 09.10.2017, a copy of which is Annexure-1 to the petition. Subsequent thereto, the respondents invoking the specific term and condition of the order of appointment of the petitioner proceeded to pass the order dated 22.12.2017 by giving notice pay of three months and dispensed with the services of the petitioner. The order dated 22.12.2017 passed by the State Government is in full consonance with the terms and conditions of appointment order of the petitioner dated 30.06.2016. Thus, even if the petitioner claims to have been appointed for a period of three years or till he attains the age of 62 years, in this case November 2018, the same would not preclude the Government from passing an order, as specifically stipulated in the appointment order dated 30.06.2016. The specific condition of continuance of the petitioner till such time the Government passes an order otherwise has never been challenged by the petitioner as was indicated in his appointment order dated 30.06.2016 which has been invoked by the respondents while dispensing with the services of the petitioner vide order dated 22.12.2017. In this view of the matter once the services of the petitioner stood dispensed with through order dated 22.12.2017 there cannot be any infirmity with the respondents proceeding to issue an advertisement dated 17.03.2018 inviting applications for the post of Director (KESKO) subsequent to termination of services of the petitioner.
12. The other issue would be as to whether the respondents were obliged to pass an order reinstating the petitioner considering the judgment of this Court dated 09.10.2017. Though in the fitness of things the respondents should have passed an order for reinstating the petitioner yet when the subsequent order of termination dated 22.12.2017 is seen in the context of aforesaid factual situation, it clearly comes out that it is only a serving employee whose services could be dispensed with by giving him three months notice. Thus, it was a mere formality which has not been done by the respondent Corporation which, in the view of the Court, would not negate the subsequent termination order dated 22.12.2017.
13. Now, the only issue that remains is the question of salary for the period from January 2017 till May 2017 and from August 2017 till passing of the order dated 22.12.2017. No reasons are forthcoming as to why the salary from January 2017 till May 2017 and from August 2017 till the respondents passed the order dated 22.12.2017 has not been paid to the petitioner. Once the services of the petitioner stood dispensed with w.e.f. 14.08.2017 yet the said dismissal order has been set-aside by this Court through order dated 09.10.2017 and it is only through the order dated 22.12.2017 that the respondents have dispensed the services of the petitioner there cannot be any occasion for the respondents to not pay the salary to the petitioner for the said period. However, this aspect of the matter has not been considered by the respondents.
14. As such, the present petition is disposed of with a direction to the respondent no.1 to consider the payment of salary along with admissible allowances to the petitioner for the period from January 2017 till May 2017 and from August 2017 till 21.12.2017.
15. Let such consideration be done and reasoned and speaking order be passed within a period of six weeks from the date of receipt of a certified copy of this order.
Order Date :- 27.9.2019 A. Katiyar