JUDGMENT Rakesh Tiwari, J.
1. Heard the learned counsel for the parties.
2. The controversy involved in these writ petitions is covered by the judgment in Ajay Kumar Sharma v. State Government of U. P., 2000 (2) AWC 1020 : 2000 (1) UPESC 291, in which It has been held that the services of a peon appointed temporarily under dying-in-harness rule cannot be terminated under the provisions of U. P. Temporary Government Employees (Termination of Service) Rules, 1975, since the appointment under dying-in-harness rule should not be temporary or ad hoc. It has further been held that passing of termination order against such an employee is unjustified and violative of principle of natural justice.
3. The Court in paras 7 and 8 of the judgment in Ajay Kumar Sharma's case (supra) has held as under :
"The impugned order shows that the authority passing the impugned order has relied upon the provision of U. P. Temporary Government Employees (Termination of Service) Rules, 1975. As stated above and not disputed on behalf of the respondent the impugned order of termination could not be passed under aforesaid rules in the facts of the instant case in as such as of the petitioner is to be treated as permanent. Further, the counter-
affidavit (Para 8) shows that the termination of the petitioner cannot be justified on the ground that it casts stigma if the Veil' is lifted and the true nature of the termination is being ascertained. It is well-settled now that the Court can always x-ray the facts and find out the correct nature of the termination order and if it is found that it is penal in nature, the same cannot be sustained if passed in violation of principle of natural justice or the relevant rules requiring opportunity of hearing or termination is punishment to the delinquent employee.
In view of the above, impugned order dated 7.7.1997 (Annexure-5) passed by the respondent No. 3 (District Development Officer, Haridwar), is hereby set aside, the respondents are directed to ignore the impugned order as being void ab-initio ; treat the petitioner in service continuously and pay salary as well as arrears as may be due in accordance with law giving benefit of increment etc. within two months of the receipt of a certified copy of this judgment and continue to pay few (sic) salary month by month as is being paid to other similarly placed employee in the department. It is further made clear that if any person has been appointed on the post held by the petitioner, he shall not be thrown on street and will be adjusted in accordance with law. If there is no post a supernumerary post shall be sanctioned to safeguard the interest of a person who is not before this Court."
4. In these writ petitions, the petitioners were also appointed as Class-IV employees in the various primary schools under the Basic Siksha Adhikari, Mathura, as well as Siksha Adhikari, Nagar Palika, Mathura, on different dates on compassionate grounds. It is alleged that the services of the petitioners were terminated on the dictate of opposite party No. 1, the Secretary Uttar Pradesh Basic Siksha Parishad, Allahabad, pursuant to his G.O. dated 13th April, 1987.
5. The aforesaid G.O. provides that there was a ban on the appointment of Class-IV employees in the office and schools run under the Basic Shiksha Parishad. An exception was carved out that this ban is not imposed in respect of dependents of deceased Class-IV employees, who died-in-harness. Under this G.O. it was further directed that all the Class-IV employees who were not dependents of the employees who died-in-harness. be terminated by one month's notice or payment in lieu thereof.
6. The G.O. dated 13th April, 1987 is quoted below :
^^izs"kd] lfpo m- iz- csfld f'k{kk ifj"kn~ bykgkckn A lsok esa] ftyk csfld f'k{kk vf/kdkjh] mkj izns'k A i=kd % cs- f'k- [email protected]&[email protected]&88 fnukd 13 viSszy] 1987 % fo"k; % csfld f'k{kk ifj"knh;
fo|ky;ksa esa 'kklu ds vkns'kksa ds fo:) vfu;fer :i ls fu;qDr vuqpjksa dh lsok lekfIr ds lEcU/k esa A egksn;] mi;qZDr ds lUnHkZ esa ;g dguk gS fd jktkKk la[;k [email protected]&77&449&78 fnukd 14 twu] 1978 ,oa [email protected] 5&80&[email protected] fnukd 9-9-80 esa fn;s x;s izkfo/kkuksa ds vuqlkj ifj"knh; fo|ky;ksa] dk;kZy;ksa] esa prqFkZ Js.kh deZpkfj;ksa ds inksa ij fu;qfDr ij izfrcU/k gS A doy prqFkZ Js.kh ds e`rd vkfJrksa dks prqFkZ Js.kh ds fu;r&osru ij fu;qfDr nsus esa NwV gS A izk;% ,slk ns[kk x;k fd bu vkns'kksa ds foijhr dfri; tuinksa esa prqFkZ Js.kh deZpkfj;ksa dh vfu;fer fu;qfDr;k dh x;h Fkha ftUgsa ckn esaa irk pyus ij lEcfU/kr deZpkfj;ksa dks uksfVl fn;s mudh lsok;sa lekfIr dj nh x;h A blh ds QyLo:i lsok lekIr fd;s x;s vuqpjksa us ek- yksd lsok vf/kdj.k rFkk ek- mPp U;kky; esa ;kfpdk,a ;ksftr dh A fu;ekuqlkj uksfVl u nsus ds dkj.k U;k;ky; ds fu.kZ; muds i+{k esa gq, A vr% vkidks vknsf'kr fd;k tkrk gS fd ;fn ,sls fdlh deZpkfj;ksa dh oxSj uksfVl fn;s lsok lekfIr dh x;h gks rks vki rqjUr ,d eghus dh uksfVl nsdj lsok;sa lekIr dj nsa vFkok uksfVl ds ,sot esa ,d ekg dk osru ns nsa A i;k bl egRoiw.kZ fo"k; dks loksZPp izkFkfedrk iznku djsa vkSj ns[ksa fd ,sls ekeyksa esa fu;eksa dk ikyu fd;k tk; A Hkonh;
g- vLi"V tokgj yky ik.Ms;
mkj izns'k csfld f'k{kk ifj"kn~ bykgkckn A i- la- % cs- f'k- [email protected]&[email protected]&87 rnfn~ukd 13-4-1987-
izfrfyfi fuEufyf[kr dks lwpukFkZ ,oa vko';d dk;Zokgh gsrq iszf"kr % 1 vij f'k{kk funs'kd csfld eq[;ky;] bykgkckn A 2 ftyk csfld f'k{kk vf/kdkjh efgyk] mkj izns'k A 3 mi fo|ky; fujh{kd] mkj izns'k A 4 f'k{kk v/kh{[email protected]/khf{kdk] mkj izns'k A 5 e.Myh; lgk;d f'k{kk funs'kd csfld] mkj izns'k A 6 ys[kkf/kdkjh dk;kZy; ftyk csfld f'k{kk vf/kdkjh] mkj izns'k A 7 cS;fDrd lgk;d f'k- fu- cs-
fu'kkrxat] y[ku dks f'k- fu- ds voyksdukFkZ A g- viBuh;
13-4-1987 tokgj yky ik.Ms;
lfpo] mkj izns'k csfld f'k{kk ijf"kn~ bykgkckn 13-4-1987-**
7. The services of the petitioners have been terminated in pursuance of the aforesaid G.O. even though he was appointed under Dying-in-Harness Rules as dependent of the deceased employee.
8. In paragraph 3 of the supplementary-affidavit, it has been stated that three other employees, namely, Ravindra Kumar Saraswat, Suresh Chandra Bhatia and Anand Gopal Gautam who were also appointed as dependents of the deceased employees under Dying-in-Harness Rules. Their educational qualifications are also intermediate. Their services have also been terminated in the year 1987 and thereafter they have been taken back in the employment and now given service of clerk in Class-III posts.
9. Same controversy is also Involved in Writ Petition No. 12290 of 1987, which has been connected with this writ petition. This Court on 4.8.1987 passed an interim order staying the impugned order dated 25.5.1987 passed by respondent No. 3 and the petitioners are continuing on the posts in pursuance of the interim order dated 25.5.1987. This judgment will govern the connected Writ Petition No. 12290 of 1987 as well.
10. In view of the facts and the law above, the writ petitions succeed and are allowed.
11. The respondents are directed to pay difference of the salary to the petitioners since 1987 by granting them annual increments, bonus, etc. if they have not been paid salary under the interim orders of this Court, within a period of 3 months from the date of production of a certified copy of this order.