STATE OF U.P. Vs. SUBODH KUMAR GUPTA

JUDGEMENT

(1.) Ref: Order on Special Appeal Defective No. 596 of 2016 This intra court appeal is directed against the judgment and order of the learned Single Judge dated 15.07.2016 whereunder the learned Single Judge has been pleased to hold that the order terminating the services of the petitioner dated 29.11.2012 passed by the District Magistrate under Section 34 of the U.P. Municipalities Act, 1916 (hereinafter referred to as 'Act') was legally not sustainable. It has been recorded that the appointment had been made under Section 17 of the Act with the approval of the Chairman of the Municipal Board and that such appointment could have been cancelled only after following the provisions of the U.P. Municipal Board Servants (Inquiry, Punishment and Termination of Services) Rules, 1960.

(2.) On behalf of the State, it has been contended that the legal principles laid down in the said judgment can hardly be disputed but however one of the grounds raised before the learned Single Judge was that the petitioners were offered appointment without any advertisement in the newspaper and therefore, such appointment was a backdoor entry being hit by the Article 14 of the Contitution of India, such appointment would confer no legal right upon the petitioner to seek protection from this Court under Article 226 of the Contitution of India. It is contended that whatever may be the illegality in the order of the District Magistrate terminating the services of the writ petitioners vide order dated 29.11.2012 this Court under Article 226 of the Contitution of India should not have interfered with such an order, inasmuch as, the order of the District Magistrate dated 29.11.2012, on being set aside would result in continuance of an illegal appointee. This aspect of the matter has escaped attention of the learned Single Judge despite specific objection in that regard having been taken.

(3.) Learned counsel for the respondents in reply supports the judgment and order of learned Single Judge and submits that in the facts of the case having regard to the law which has been laid down in the matter of termination of services of such employees and there being manifest violation of principle of natural justice, the present intra court appeal may not be entertained.