IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 8469 of 2006 Date of decision : 04-03-2008 Javed Afzal .....Petitioner Punjab and Haryana High Court and another .....Respondents CORAM : HON'BLE MR. JUSTICE MEHTAB S. GILL HON'BLE MR. JUSTICE RAKESH KUMAR JAIN Present : Mr. Vikas Chatrath, Advocate for the petitioner. RAKESH KUMAR JAIN, J. The petitioner has sought a writ in the nature of certiorari for quashing the order dated 28-02-2004 (Annexure P-14), by which, the service of the petitioner has been terminated w.e.f. 28-02-2004 on the ground of want of vacancy and order dated 28-09-2005 (Annexure P-16), whereby, his service appeal has been dismissed by a Single Judge of this Court. In brief, the facts of the case as emanating from the pleadings are that the petitioner was appointed as a Steno typist on 21-09-1998 on temporary basis against a temporary post. The service of the petitioner was dispensed with w.e.f. 28-02-2004 (A.N.) for want of vacancies since the courts were withdrawn. The petitioner had filed service appeal which was dismissed on 28-09-2005. C.W.P. No. 8469 of 2006 -2- Aggrieved against the aforesaid orders, the petitioner has filed the present petition in which it has been alleged that the order of his termination had occasioned due to withdrawal of the Court but, thereafter, the Court had revived because of the appointment of new Judges and the employees who were declared surplus earlier were appointed and the persons junior to the petitioner were given re-appointment and the petitioner was ignored against the settled principal of law “last come first go”. It was also alleged that though his service appeal has been dismissed on the ground that the enquiry was conducted by Shri Jora Singh, Additional District and Sessions Judge, Barnala, but enquiry report dated 19-05-2004 was not supplied to him which was contrary to the settled position of law, therefore, that report cannot be relied upon against him for ignoring him for the purpose of fresh appointment. On notice, the respondents have put in appearance and a joint written statement has been filed on behalf of respondents No.1 and 2 by Shri K.K. Garg, District and Sessions Judge, Sangrur. In the written statement, it has been pleaded that the petitioner was appointed on temporary basis against a temporary post and on account of withdrawal of the Courts earlier presided over by Shri V.P. Soni and Shri Karamjit Singh, Additional District and Sessions Judge, Sangrur, Shri P.S. Dhanoa, Additional Civil Judge (Sr.Divn.) Sunam, Shri Jagnahar Singh, Additional Civil Judge (Sr.Divn.) Barnala, Shri Manjinder Singh, Additional Civil Judge (S.D.), Dhuri and due to the pre-mature retirement of Shri R.S. Sachdeva, Additional District and Sessions Judge, Barnala, the services of 11 Steno- typists including the petitioner, 15 Clerks and 8 Class IV employees were dispensed with vide order dated 28-02-2004 for want of vacancies w.e.f. C.W.P. No. 8469 of 2006 -3- 28-02-2004 (A.N.). It was also pointed out in the written statement that Shri R.P. Nagrath, the then Additional District and Sessions Judge, Sangrur, vide his letter No.182 dated 01-12-1999, reported that “the work and conduct of Sh. Javed Afzal, Steno-typist was below average, despite constant advice to him that he must put in extra labour to do the work, he shirks working exactly after office hours despite the fact the the Court itself was making all efforts to comply with the instructions of the Hon'ble High Court for disposal of the cases which are of the persons above 65 years or 70 years old. He has also referred that he commits many mistakes in his work and has not picked up the speed in typing and short hand despite the completion of one year. It was further asserted in the written statement that the appellant was posted in the Court of Shri Gurjant Singh, the then Additional Civil Judge (Sr. Divn.), Barnala, who vide his letter No.C-3 dated 25-01-2002, reported about the reluctant attitude of the petitioner to the effect that “he did not know proper stenography and typing, he could not take dictation or type a single line correctly, that he was ruining the judicial record and a lot of time was wasted in correcting his in-numerable mistakes. His I.Q. level also appeared to be on lower side and he could not cope with the working of the Court, otherwise also he did not take interest in the official work. It is further highlighted in the written statement that in the Annual Confidential Report for the period 01-01-2002 to 06-06-2002, Shri Gurjant Singh, the then Additional Civil Judge (Sr. Divn.) Barnala, besides other adverse remarks mentioned that the petitioner was totally irresponsible person. Further on the transfer of Sh. Gurjant Singh, the petitioner worked in the Court of Shri Jagnahar Singh, the then Additional Civil Judge ( Sr. Divn. ) Barnala, who vide his letter C.W.P. No. 8469 of 2006 -4- No.10 dated 21-09-2002, reported that the work and conduct of the petitioner was not upto mark, despite having sufficient length of service. As per his letter No. 14 dated 18-10-2002, he reported that his work was not satisfactory and vide his letter No.20 dated 23-11-2002, reported that his work and conduct was not satisfactory and he was not picking up the work. Vide letter No.2 dated 16-01-2003, Shri Jagnahar Singh, the then Additional Civil Judge (Sr. Divn.), Barnala, reported that the petitioner had failed to improve and further requested that he may be shifted from his Court in the interest of work. Vide letter No.3 dated 02-01-2003, he further reported that the petitioner had failed to improve and it is difficult for him to cope with the work. In the Annual Confidential Report for the period from 10-06-2002 to 31-12-2002, besides the other adverse remarks, specifically mentioned that the petitioner cannot get dictation and type properly despite sufficient length of service and he was unfit for the job of Steno and recommended for his removal from the job of Steno. It was also pointed out that after him, the Magistrate also reported against him. On the basis of the said report, the petitioner was served with a charge sheet vide Office Memo No.3707 dated 30-04-2003. The reply to the charge sheet furnished by the petitioner, was found to be not satisfactory and as such a regular enquiry into the matter was ordered to be held and entrusted to Shri Jora Singh, Additional District and Sessions Judge-I, Barnala. Since the petitioner did not appear after service, ex-parte proceedings were initiated against him by the Enquiry Officer vide order dated 30-08-2003. Thereafter, the Enquiry Officer, Shri Jora Singh, Additional District and Sessions Judge, Barnala, vide his letter No.333 dated 22-10-2003, submitted his enquiry report holding that the petitioner is not fit to be retained in service, C.W.P. No. 8469 of 2006 -5- his work and conduct is very poor, he is irresponsible and is in the habit of making false complaints. However, since the petitioner was proceeded against ex-parte, the enquiry was set aside and it was remanded for fresh enquiry, after notice to the petitioner vide order dated 13-01-2004. Pursuant to that, the petitioner joined the enquiry proceedings on 19-02-2004. Jora Singh, Additional District and Sessions Judge, Barnala, again vide letter No.241 dated 19-05-2004, submitted his enquiry report and found that the petitioner is inefficient, not fit to be retained in service, because his work and conduct is very poor. He is mischievous and is in the habit of filing complaints against the Judicial Officers. It was further contended in the written statement that the complaints were also received from Shri Harjit Singh, Judicial Magistrate Ist Class, Malerkotla, vide his letter No.139 dated 10-12-2003, about the inefficiency of the petitioner. It was reported that he is totally irresponsible and his work and conduct is not satisfactory. It was also reported that he does not know his work and he is not a sincere steno-typist, neither he type the order correctly as dictated to him. In view of the enquiry report submitted by Shri Jora Singh, Additional District and Sessions Judge, Barnala, it was ordered that the petitioner does not deserve to be re-employed in the Office because the major penalty of removal from service was otherwise required to be imposed upon the delinquent official, but no such action could be taken against him as his services had already been dispensed with for want of vacancy. We have heard learned counsel for the petitioner at some length and have perused the record and the order of the Single Bench of C.W.P. No. 8469 of 2006 -6- this Court dated 28-09-2005. Since, the petitioner was a temporary employee and had no right to the post, his services were terminated for want of vacancy. He had earned “Average Report” for the year 1999-2000 and thereafter, throughout had earned “Below Average Report”. Various Officers have made a complaint against his work and highlighted his shortcoming, as not only that he is incompetent but also mischievous and is in the habit of making false complaints against the Judicial Officers. It is also on the record that in the previous enquiry, he did not join and was proceeded against ex-parte but it was thought fit to set aside the enquiry and allow him to join the enquiry proceedings. Thereafter, it was again found that his work and conduct was unsatisfactory. The petitioner has no right to the post, therefore, he cannot claim that he should have been given appointment at the time of re-appointment of other employees, who were also rendered surplus earlier because, there is no such complaint against them therefore he cannot claim parity with them. So far as the question of enquiry report, etc., is concerned, which has been highlighted by the counsel for the petitioner that the same was not supplied to him, that has no relevance at this stage, because of the reason that no punishment has been awarded and the enquiry report has not been made the sole basis of termination of his services. In fact, his service was dispensed with on 28-02-2004, vide Annexure P-14, due to the withdrawal of the Court. The petitioner has claimed right to be re-appointed on the ground of “last come first go” which in our view, is not made out as he was temporary employee and had no right to the post. Therefore, he cannot claim to have been discriminated. We are fully agree with the order passed by the Single C.W.P. No. 8469 of 2006 -7- Bench of this Court dated 28-09-2005, dismissing the appeal and as such, the present writ petition, which is totally devoid of any merit, is dismissed in-limine without any order as to costs. Dismissed. (RAKESH KUMAR JAIN) Judge (MEHTAB S. GILL) Judge 04-03-2008 gurpreet