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IN THE HIGH COURT OF ALLAHABAD
MAHESH CHANDRA TRIPATHI, J.
Rain Pratap and Others - Petitioners
Versus
State of U.P. and 3 Others - Respondents
Writ - A No. 23895 of 2016 Connected with Writ - A No. 23936 of 2016
Decided On : 07-01-2020
Employment and Service matter - Issue on Termination – Appellants had completed 10 years of service and temporary status had been given by the respondents with retrospective effect in the 2.10.2002, we direct that the services of the appellants be regularized from the said date i.e. 2.10.2002, consequential benefits and the arrears of pay also to be paid to the appellants within a period of three months from today.
Facts of the case: It is contended on behalf of the petitioner that the petitioner was initially appointed as a Clerk by the Prescribed Authority/Sub-Divisional Magistrate, on daily wages basis –A copy of the order is on the record as annexure-2 to the writ petition – Later, the District Magistrate regularised the services of the petitioner on the post of Junior Clerk in the pay scale –It is stated that the petitioner is continuously working since the date of his initial appointment made in the year 1995 –However, the impugned order has been passed, wherein it is mentioned that the petitioner's services are no longer required and accordingly, the notice of termination has been issued to him.
Finding of the court: Coming to the facts of the instant case, there was a direction issued way back in the year 1999, to consider the regularization of the appellants – However, regularization was not done – The respondents chose to give minimum of the pay scale, which was available to the regular employees, way back in the year 2000 and by passing an order, the appellants were also conferred temporary status in the year 2006, with retrospective effect –As the respondents have themselves chosen to confer a temporary status to the employees, as such there was requirement at work and posts were also available at the particular point of time when order was passed –Thus, the submission raised by learned counsel for the respondent that posts were not available, is belied by their own action –Therefore, in view of the aforesaid facts and circumstances the impugned orders are set aside order impugned cannot sustain and are set aside
Result: Writ Petitions allowed
JUDGMENT :
1. Heard Shri Arvind Srivastava, learned counsel appearing for the petitioners and Shri Devesh Vikram, learned Standing Counsel for State respondents.
2. In these writ petitions the petitioners, who are working as Junior Clerk in the office of respondent no.4, are aggrieved by the impugned orders dated 7.5.2016 passed by the respondent no.2, Controlling Authority/District Magistrate, Controlled Area, Nagina, Bijnor, whereby one month's notice has been issued for termination of petitioners' services treating their appointment as temporary.
3. For the sake of convenience, the facts of leading Writ-A No.23895 of 2016 are being noted below:-
4. Brief background of the case, as reflected from the record, is that the State Government had issued a notification dated 9.11.1994 declaring Najibabad (Vinamay Kshetra) as Controlled Area, consisting of 42 revenue villages alongwith the areas of the Nagar Palika Najibabad, Girdawa Sahanpur and Jalalabad. The office of the same was established on 01.1.1995 and the same was duly approved by the Controlling Authority. Thereafter, the Sub Divisional Magistrate, Najibabad Controlled Area had issued a letter on 27.3.1995 in regard to appointment of a Clerk and a Peon on daily wage basis till the regular appointment is made. In pursuance thereof, the appointment of the petitioner was made by the Appointing Authority through its letter dated 4.5.1995. The appointment letter was issued by the Prescribed Authority i.e. Sub Divisional Magistrate, Controlled Area Najibabad, District Bijnor on daily wage basis. Copy of the said letter has been bought on record as Annexure No.2 to the writ petition.
5. Thereafter, a decision was taken by the Committee headed by the Controlling Authority/District Magistrate, Bijnor, Controlled Area, Najibabad in its first meeting on 5.8.1995 to accord approval to the payment of daily wages to the daily wagers and the same was adequately informed to the State Government for appointment of regular staff. The State Government issued a Government order dated 9.8.1996 addressed to all the Controlling Authorities of various controlled areas including Najibabad for creation of posts of Junior Engineer, Junior Clerk and Peon in the offices of the Prescribed Authority situated in various controlled areas. In Clause-2 of the said Government order dated 9.8.1996 it was provided that the appointment of the Junior Clerk can be done by the surplus staff of the other development authority and housing department. It is stated that the petitioner is continuously working since the date of his initial appointment made in the year 1995. In response of the Government order dated 30.8.1996 the State Government had also clarified on 7.1.1997 that for regularizing the incumbent, who is holding the post of Junior Engineer, the Appointment Authority/Competent Authority would be Mukhya Nagar Evam Gram Niyojak and so far as the Junior Clerk and Peon are concerned, the Appointing Authority would be the Controlling Authority, Controlled Area, Najibabad. Accordingly, the Controlling Authority/District Magistrate, Bijnor had regularized the services of the petitioner on the post of Junior Clerk in the pay scale of Rs.950-1500/- on 15.7.1997. It is also stated that the petitioner is working since the date of his initial appointment made in the year 1995. However, on 7.5.2016 the impugned order has been passed wherein it is mentioned that the petitioner's services are no longer required and accordingly, the notice of termination has been issued to him. The said order has been assailed in the present writ petition.
6. On 24.5.2016 the matter was taken up and on the said date, the Court had proceeded to pass following interim order in favour of the petitioner:-
"The petitioner is working as a Junior Clerk in the office of the fourth respondent. He is aggrieved by an order dated 07th May, 2016 issued by the District Magistrate, whereby one month's notice has been issued for termination of petitioner's se
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