May - High Court of Judicature at Allahabad

2All] Ajay Kumar Sharma V. State Govt. of U.P. and others 21
not be temporary or adhoc as it will
frustrate the very purpose of the rules ‘namely
to save the family from distress’.
6. Ajay Kumar Sharma (petitioner), son of
the deceased employee Shyam Bihari Lal
Sharma, has filed this petition challenging the
validity of the impugned order of termination
of service dated 7.7. 97 passed by the District
Development Officer Haridwar (annexure-5)
to the writ petition.
7. The impugned order shows that the
authority passing the impugned order has
relied upon the provision of U.P. Temporary
Government Employees (Termination of
Service) rules 1975. As stated above and not
disputed on behalf of the respondent, the
impugned order of termination could not be
passed under aforesaid rules in the facts of the
instant case in as much as the petitioner is to
be treated as permanent. Further, the counter
affidavit (para-8) shows that the termination
of the petitioner cannot be justified on the
ground that it cast stigma if the ‘veil’ is lifted
and true nature of the termination is being
ascertained. It is well settled, now that court
can always x-ray the facts and find out the
correct nature of the termination order and if
it is found that it is penal in nature, the same
cannot be sustained if passed in violation of
principle of natural justice or the relevant
rules requiring opportunity of hearing or
termination is or punishment to the delinquent
employee.
8. In view of the above impugned order
dated 7.7.97 (annexure-5) passed by the
respondent no.3 (District Development
Officer, Haridwar) is nearby set-aside, the
respondents are directed to ignore the
impugned order as being ab-initio treat the
petitioner in service continuously and pay
salary as well as arrears as may be due in
accordance with law giving benefit of
increment etc. within two months of the
receipt of a certified copy of this judgement
and continue to pay few salary month by
month as is being paid to other similarly stress
employee in the department. It is further made
clear that it any person has been appointed on
the post held by the petitioner, he shall not be
thrown on street and will be adjusted in
accordance with law. If there is no post a
supernumerary post shall be sanctioned to
safeguard the interest of a person who is not
before this court. This order is passed in
consonance with the order dated 13.8.97
passed by this court on the writ petition which
provided that any appointment made on the
post held by the petitioner shall be subject to
the final result of the writ petition.
9. Petitioner shall be entitled to the salary
only with effect from the date of actual
joining of the duty in pursuance to this
Judgement, copy of this Judgement be filed
before the concerned authorities within six
weeks from today. The question of arrear of
salary for absentee period may be considered
by the authorities in accordance with law,
namely whether he has been employed
gainfully or not during the period in question.
The writ petition stands allowed subject to
the observations made above. No order as to
costs.
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