IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (S/B) No. 1006 of 2001 (Old No. 1970 of 1998) Vikram Chand Deopa …..…….. Petitioner Versus The U.P. State Public Services Tribunal and two others ....……… Respondents Coram:- Hon’ble J.S. Khehar, Chief Justice Hon’ble Sudhanshu Dhulia, Judge Present: Mr. M.C. Kandpal, Senior Advocate with Mr. S.S. Chaudhary, Advocate for the petitioner. Mr. P.C. Bisht, Advocate for the respondents. Date of Decision: 29.03.2010 J.S. Khehar, C.J. (Oral) After participating in a process of selection held on 16/17.01.1978, the petitioner was temporarily selected as an untrained Patwari. To be able to perform the duties of the post of Patwari, he was, in the first instance, directed to attend a ten days’ training programme at Pithoragarh. Having attended the said programme, he was deputed to work as a temporary Patwari, This factual position stands acknowledged in the instant writ petition itself. The petitioner was then deputed to the Patwari Training School, Almora to attend a one year training course. After he successfully completed the said course, as per the claim of the petitioner, he was required to discharge the duties of the post of Patwari in Tehsil-Champawat, District-Pithoragarh. Thereafter, the petitioner was required to attend a four months’ training course in police training. The petitioner claims to have completed the aforesaid training course successfully. 2. After attaining the courses referred to in the foregoing paragraph, the petitioner is stated to have rendered uninterrupted satisfactory service as Patwari. 2 3. While the petitioner was posted in Tehsil-Munsyari, District-Pithoragarh, his wife fell ill. The petitioner addressed a telegram to the Tehsildar, Pithoragarh informing him of his wife’s illness. He also applied for four days’ casual leave from 01.04.1985 to 04.04.1985, so as to able to attend to his ailing wife. The aforesaid four days’ casual leave was duly sanctioned. It is the claim of the petitioner, that the petitioner himself fell ill thereafter, and accordingly, applied for leave with effect from 05.04.1985. The Tehsildar, Munsyari, District-Pithoragarh informed the petitioner through a communication dated 06.05.1985, that the earned leave sought by him could not be sanctioned in continuation of the casual leave allowed to him. He was accordingly directed to resume his duties forthwith. The aforesaid application for leave with effect from 05.04.1985 was addressed by the petitioner to his superiors through registered post. He continued to seek extension of leave even thereafter in the same manner. Since the petitioner has not resumed his duties, through a letter dated 09.09.1985 the Collector, Pithoragarh required the petitioner to present himself before the Chief Medical Officer, Pithoragarh on 26.09.1985. In paragraph 9 of the writ petition, it has expressly been stated, that the petitioner presented himself before the Chief Medical Officer, Pithoragarh on 26.09.1985, whereupon the Chief Medical Officer, Pithoragarh further directed him to appear before the Medical Board. The writ petition is silent as to whether the petitioner actually appeared before the Medical Board. However, in paragraph 11 of the counter affidavit filed on behalf of respondent Nos. 2 & 3, it has expressly been averred that the petitioner did not appear for his medical examination. This factual position asserted in the counter affidavit has not been disputed in the rejoinder affidavit filed by the petitioner. In sum and substance, therefore, it is clear that the petitioner did not present himself for medical examination despite the fact, that he was required to do so. Even thereafter the petitioner continued to seek extension of leave by addressing communications to the authorities by registered posts. In his last communication the petitioner had sought extension of leave upto 21.01.1986, wherein he had reiterated the factual position expressed by him in his earlier communications, namely, that he was unwell. It needs to be noticed here, that at no juncture, whatsoever, any of the leave 3 applications submitted by the petitioner with effect from 05.04.1985 was approved/sanctioned, despite the aforesaid the petitioner did not assume his duties. 4. The petitioner’s employment was terminated, vide an order dated 13.01.1986 with effect from 01.04.1985. Through the aforesaid communication, he was informed that his services were no longer required. The petitioner then made several representations to the respondents requiring them to allow him to join service. He also claims to have personally met the Collector, Pithoragarh with the same request. By an order dated 12.05.1986, his representations were rejected by the Collector, Pithoragarh. The aforesaid rejection order was received by the petitioner on 17.05.1986. The petitioner then filed an appeal in the form of a mercy petition but the same was also rejected on 20.07.1989. 5. Aggrieved with the aforesaid orders passed on 13.01.1986, 12.05.1986 and 20.07.1989, the petitioner approached the Uttar Pradesh Public Services Tribunal, Lucknow (hereinafter referred to as the Tribunal) by filing Claim Petition No. 444/I/1989. The aforesaid claim petition was dismissed by the Tribunal on 02.12.1997. 6. The petitioner assailed the order passed by the Tribunal dated 02.12.1997, as also the orders dated 13.01.1986, 12.05.1986 and 20.07.1989 by filing Writ Petition (S/B) No.1970 of 1998 in the High Court of Judicature at Allahabad before its Lucknow Bench. Consequent upon the reorganization of the composite State of Uttar Pradesh and the creation of the successor State of Uttarakhand, the aforesaid writ petition came to be transferred to the High Court of Uttarakhand at Nainital, wherein it has been re-numbered as Writ Petition (S/B) No. 1006 of 2001. Before this Court the solitary contention advanced at the hands of the learned counsel for the petitioner was, that the petitioner was a regular employee, and as such, will be deemed to be confirmed against the post of Patwari. According to the learned counsel for the petitioner, the order of termination dated 13.01.1986 was allegedly passed by the respondents under the U.P. Temporary Government Servants (Termination of Service) Rules, 1975 was wholly unsustainable in law, as the petitioner was not a temporary government servant, but a regular 4 employee duly confirmed against the post of Patwari. It is, therefore, the case of the learned counsel for the petitioner, that the order of termination dated 13.01.1986 was the result of an arbitrary exercise of the powers at the hands of the respondents, and as such, it was prayed, that the same be set aside being violative of the provisions of Article 14 of the Constitution of India. 7. As against the contention advanced by the learned counsel for the petitioner, it is reiterated at the hands of the respondents, that the petitioner was appointed against the post of Patwari on temporary basis. His employment being temporary, his services were terminated under the provisions of the U.P. Temporary Government Servants (Termination of Service), Rules 1975. It is also the case of the respondents, that the post against which the petitioner was appointed, was temporarily created according to the need of the department, and as such, there is no question of treating the petitioner as a regular employee. It is denied that the services of the petitioner had ever been confirmed. 8. We have given our thoughtful consideration to the contentions advanced at the hands of the learned counsel for the rival parties. As already noticed hereinabove, it has been acknowledged by the petitioner, that he was inducted into the services of the respondents as a temporary employee. There is no material, whatsoever, on the record of this case, on the basis whereof it can be concluded, that the aforesaid temporary employment was subsequently regularized either with effect from the date of petitioner’s induction into the service or even thereafter. This petition came to be posted for regular hearing on 31.12.2009. On that date and all subsequent dates, learned counsel for the petitioner sought an adjournment. The request for adjournment was granted to the petitioner from time to time. On 27.03.2010, learned counsel for the petitioner again sought an adjournment, so as to enable him to place material on the record of this case, so as to demonstrate that the petitioner’s appointment was regularized, or alternatively, to show that under the statutory rules prevalent, the same was liable to be treated as regular. It is in the aforesaid circumstances, that proceedings in this case were deferred to 29.03.2010 i.e. today. Although the Tribunal 5 rejected the claim of the petitioner by an order dated 02.12.1997 i.e. more than a decade back, by holding that his employment was dispensed with under the provisions of U.P. Temporary Government Servants (Termination of Service) Rules, 1975, yet neither in the pleadings of the instant writ petition, nor thereafter, the petitioner has been able to place any material on the record of this case, so as to demonstrate that his appointment was regularized or confirmed at any juncture after his induction into the service i.e. prior to the passing of the termination order dated 13.01.1986, nor has any material been placed on the record of this case, whereby on the basis of any statutory rules the employment of the petitioner was liable to be treated as regular or substantive or confirmed. Even though learned counsel for the petitioner sought yet another adjournment, so as to enable him to place further material on the record of this case, we find no justification, whatsoever, in his present request, inasmuch as, the present writ petition has been pending adjudication since the year 1998. 9. In the absence of any material on the record of this case, on the basis of which the petitioner could establish that his services after his induction into the employment with the respondents as temporary Patwari came to be regularized or confirmed, there is no other alternative but to accept the finding recorded by the Tribunal, that the employment of the petitioner was as a temporary Patwari. In the aforesaid view of the matter, the respondents were fully justified in terminating the services of the petitioner under the U.P. Temporary Government Servants (Termination of Service) Rules, 1975. In view of the above, we find no infirmity in the impugned order dated 02.12.1997, as also in the earlier orders dated 13.01.1986, 12.05.1986, and 20.07.1989 passed by the respondents. For the same reasons, we find nothing wrong with the orders passed by the Tribunal dated 02.12.1997. 10. For the reasons recorded hereinabove, we find no merit in this writ petition and the same is accordingly dismissed. ( Sudhanshu Dhulia, J. ) ( J.S. Khehar, C.J. ) 29.03.2010 29.03.2010 P.Singh