IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL [Court’s order whether the case is approved for reporting or not under Chapter VIII Rule 32 (2) (b)] Description of the case Writ Petition No. 1834 (S/S) of 2003 (Old No. 1527/1991) Govind Lal -----Petitioner Versus Principal, Government Inter College, Lamgondi, District Chamoli & Anr. -----Respondents Approved for reporting ______________________ Not approved for reporting Date of Decision: June 1, 2007 Initial of Judge ____________ ____________ IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1834 (S/S) of 2003 (Old No. 1527/1991) Govind Lal, aged about 29 years, S/o Late Sri Badru Lal R/o Village and post-Lamgondi, Tehsil-Ukimath District-Chamoli, Garhwal -----Petitioner Versus 1. Principal, Government Inter College, Lamgondi, District Chamoli 2. State of U.P. through Secretary Education Department --------Respondents Hon’ble M.M. Ghildiyal, J. Heard Sri S.K. Posti, learned counsel for the petitioner and Sri Paras Tripathi, learned Standing Counsel State of Uttarakhand for the respondents. By means of this writ petition, the petitioner has prayed for the following reliefs: 1. Issue a writ, order or direction in the nature of mandamus commanding the opposite party to allow the petitioner to continue on the post of Paricharak. 2. To declare the Section 5-B of U.P. Public Services Tribunal Act as ultra vires. 3. Issue any other suitable writ, order or direction as deems fit and proper in the interest of justice. 4. Cost of the writ petition be awarded in favour of the petitioner. During the course of argument, learned counsel for the petitioner has submitted that he does not want to press relief no. 2 and the same may be treated as deleted. The prayer is allowed. Now the writ petition is confined only to relief no. 1. The stand of the petitioner is that he was appointed as Peon in Government Inter College, Lambgondi, District Chamoli (Now District Rudra Prayag) on a leave vacancy fell vacant because of one Sri Paimaisy Lal had gone on leave w.e.f. 25.01.1989. Since Sri Paimaisy Lal was selected as Lekhpal and he resigned from the post of Peon in the institution in the month of December 1990, the leave vacancy against which the petitioner was appointed became clear vacancy. The appointment of the petitioner was initially approved by the then District Inspector of Schools and since the vacancy became permanent, he continued to work on the said post. All of sudden, in the month of February 1991, the Principal of the institution asked the petitioner not to come in the institution. No order of termination was passed by the Principal of the institution and as such there was no occasion to accord approval of District Inspector of Schools for termination of services of the petitioner. In fact, there was no termination order and the petitioner was orally asked by the Principal no to come to the institution. Counter affidavit has been filed by the respondents, wherein it is stated that the appointing authority for the post of Peon in an institution is the District Inspector of Schools. However, the Principal may make stop-gap-arrangement by making temporary appointment and for which the approval of the District Inspector of Schools is required. Since the petitioner was appointed by the Principal as a stop-gap-arrangement, no regular appointment could have been granted to the petitioner by the principal. The petitioner was appointed by the Principal on compassionate ground and was allowed to continue till 31.10.1990. Thereafter, the services of the petitioner were orally terminated in view of the letter issued by the District Inspector of Schools on 12.10.1990 to all the Head of the Institutions not to make appointment on the post of Peon or to make any appointment without approval of District Inspector of Schools. It will not be out of place to mention here that by the aforesaid order dated 12.10.1990, the District Inspector of Schools, Chamoli has directed the Principals of all the institutions not to make stop-gap- arrangement to the candidate of general category. The stand of the respondents, that the petitioner was not permitted to continue on the post in pursuance of aforesaid order dated 12.10.1990, is against the spirit of the order of District Inspector of Schools as according to the order, the Principals were directed not to make appointment on stop-gap-arrangement to the candidates of general category and since the petitioner is a candidate of scheduled caste category, this order was not applicable at all for the termination of the petitioner’s services. Further there is no order of termination of petitioner’s service, who was working against the clear vacancy and has served the department for about 22 months. Aggrieved with the oral termination order, the petitioner filed the present writ petition in the year 1991 and the Hon’ble Allahabad High Court on 19.03.1991 passed an order that in the meantime, if there was no order in writing terminating the services of the petitioner and the services have been terminated by an oral order, as alleged in the petition, the petitioner will be allowed to continue in service. In the counter affidavit, filed by the respondents, it is nowhere stated that any termination order was ever passed terminating the services of the petitioner, thus, it is clear that the services of the petitioner were terminated by an oral order as alleged in the writ petition. Further the stand of the respondents in the counter affidavit is that the oral termination order was passed in view of the letter dated 12.10.1990 passed by the District Inspector of School, is also not justifiable as by the aforesaid order, the appointment on the post of clerks and peon in the institution was restrained by the District Inspector of Schools in respect of general category, whereas it is an admitted fact that the petitioner is a scheduled cast candidate and as such this order of District Inspector of Schools was not applicable in the case of the petitioner. It is further stated in the counter affidavit that till date, no resignation has been submitted by Sri Paimaisy Lal. It is a clear case of the petitioner as well as in the rejoinder affidavit it is stated that Sri Paimaisy Lal was selected as Lekhpal in the Revenue department and he has joined on the post of Lekhpal. After submitting resignation in the institution, there is no lien of Sri Paimaisy Lal on the post of peon in the institution. It is also stated in the counter affidavit filed by the respondents that the termination order was passed on 31.07.1990 by the Principal, however, the said termination order was cancelled on the same date by the Principal because of local pressure and on compassionate ground, thereafter, the petitioner was permitted to continue and no termination order has been passed. The petitioner continued on the post till February 1991 when he was orally asked by the Principal not to come to the institution without any termination order. It is admitted fact that no termination order has been passed in respect of the petitioner and as such there was no occasion to give opportunity to him before asking him not to come to the institution after serving the institution for 22 months. The action of the respondents is arbitrary and is not sustainable in the eyes of law. On the basis of stay order granted by the Hon’ble Allahabad High Court, dated 19.3.1991, the petitioner is continuing in the service, however, he has not been paid salary for the period of two months, i.e., January and February 1991. Since there is no order of termination of petitioner’s services, after serving the department for about 22 months, without giving him opportunity of hearing he was asked orally by the Principal not to come to the institution w.e.f. February 1991, the action of the respondents is arbitrary and is not sustainable in the eyes of law. For the reasons recorded above, the writ petition is allowed. The petitioner’s services cannot be terminated orally until or unless an order is passed by the respondents terminating the services of the petitioner in accordance with law. No order as to costs. All the pending applications stand disposed of. (M.M. Ghildiyal, J.) June 1, 2007 VKS