Full Judgment Text
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PETITIONER:
STATE OF U.P. & ANR.
Vs.
RESPONDENT:
BRIJ NATH MISRA
DATE OF JUDGMENT: 27/03/1997
BENCH:
K. RAMASWAMY, G.B. PATTANAIK
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Leave granted.
This appeal b y special leave arises from the judgement
of the Allahabad High Court, Lucknow Bench, made on August
6, 1993 in Writ Petition No.1126 of 1991.
The admitted position is that the respondent was
appointed as an Ayurvedic Medical Officer on ad hoc basis by
proceeding dated October 11, 1983 in the pay scale of
Rs.850-1720/-. He remained unauthorisedly absent from duty
for 5 years. Thereafter, on an application made by him on
April 14, 1989, he was informed by the Government Order
No.5133 dated September 8, 1989 that he was permitted to
resume duty on his furnishing fitness certificate with a
condition that his unauthorised absence from duty was
treated as a break in service. On so furnishing the
certificate, he resumed duty. Subsequently, the Selection
Committee was constituted under Rule 4(3) of the U.P.
Regularisation of Ad Hoc Appointment (on posts within the
purview of Public Service Commission) Rules 1979 (for short,
the ‘Rules’). Subsequently, the Rules came to be amended.
Rule 4 postulates that any person who was directly appointed
on ad hoc basis before January 1, 1977 and is continuing in
service as such on the date of the commencement of the
Rules, which came into force on May 14, 1979, would be
regularised subject to the conditions mentioned thereunder.
Rule 8 provides that "that services of a person, appointed
on ad hoc basis who not found suitable or whose case is not
covered by Rule 4(i) shall be terminated forthwith and on
such termination, he shall be entitled to receive one
month’s pay". The case of the respondent was placed before
the Committee on January 22, 1991 and he was found to be
unfit for regularisation. Accordingly, his appointment came
to be terminated. It was challenged in the High Court in the
above writ petition and the High Court has stated that the
appointment dated September 8, 1989 was fresh appointment
and, therefore, the termination was bad in law. Thus, this
appeal by special leave.
The question is: whether the view taken by the High
Court is correct? It is seen that the Order dated September
8, 1989 clearly mentions that the respondent was permitted
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to resume duty subject to production of medical fitness
certificate, his unauthorised absence from duty resulted in
break in service. Thus, it could be seen that the Order
dated September 8, 1989 is not an order of fresh appointment
but a permission granted to the respondent to resume duty as
Ayurvedic Medical Officer. In furtherance thereof, on
production of the medical certificate, he did join duty. On
his so joining duty, his right to the post dated back and
flowed from his initial appointment, namely, October 13,
1983. In other words, his ad hoc appointment got revived
subject to treating the period of unauthorised absence from
duty as break in service. Though there is break in service,
it cannot be considered to be a fresh appointment as was
held by this Court in Dayal Saran Sanan vs. Union of India
[(1980) 3 SCC 25) and Shiv Shankar & Anr. Union of India &
Ors. [(1985) 2 SCC 30].
In view of the fact that the Committee duly constituted
under the Rules had considered the case of the respondent
and found him not fit to be regularised, the order of
termination is governed by Rule 8 of the Rules. As a
consequence, the question of conduction an enquiry of giving
an opportunity to the respondent before termination of the
service does not arise. The view of the High Court,
therefore, is clearly illegal.
The appeal is accordingly allowed and the writ petition
stands dismissed but, in the circumstances, without costs.