SANT LAL Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) The petitioner was selected as a Male Social Worker, Senior Grade in the Health Department, Government of Uttar Pradesh and appointed on 1-9-1962 by the Joint Director Medical Health, Government of Uttar Pradesh. His services were terminated on 27-2-1976 by the District Magistrate. The order terminating his services was challenged by the petitioner by way of a reference under S. 4 of the U. P. State Public Services Tribunal Act.. The Service Tribunal dismissed the petition by order dated 7-9-1976 which has now been impugned.

(2.) Counsel for the petitioner raised a number of: arguments, but as we are inclined to agree with one of them, it is not necessary to refer to the others. It was contended by the petitioner's counsel that as the petitioner had been appointed by the Joint Director Medical Health, his services could not be terminated by the District. Magistrate. The State of Uttar Pradesh has framed the U. P. Temporary Government Servants (Termination of Services) Rules, 1975. This Rule applies to all persons holding a civil post in connection with the affairs of the U. P. Government, and who do not hold a lien on any permanent post under the Government of Uttar Pradesh. It is not disputed that although the petitioner has put in a number of years service, his status is that of a temporary servant. Rule 3 which empowers the appointing authority to terminate the services of a temporary servant runs as under :

(3.) However, the alternative contention that as the petitioner was appointed by the Joint Director Medical Health, his services, in view of R. 3, could be terminated only by that officer, merits acceptance. No definition of the words "appointing authority" has been given in the Rules. This being so, the term "appointing authority" has to be understood in its plain and natural meaning, namely, the authority which appointed the employee (SeeOm Prakash V/s. Union of India, 1975 AIR(SC) 1265) It cannot be disputed that the authority which appointed the petitioner was the Joint Director Medical Health, and not District Magistrate. The Service Tribunal has given a finding that subsequent to the framing of the Rule conferring powers on the District Magistrate to appoint Health Assistants the services of all the employees appointed by the Joint Director of Medical Health were terminated by the District Magistrate and a fresh order was passed reappointing them. If this finding were based on some material on the record, it would not have been possible to accept this alternative contention too. However, it appears that the finding is based on no material on the record. A supplementary affidavit was filed by the petitioner wherein in para. 3, it was stated that there was no material on the record in support of this finding, and that the petitioner's services were however terminated and he was not reappointed by the District Magistrate. A reply to this is contained in para. 19 of the counter-affidavit admitting the fact that the petitioner was not given a fresh appointment. In view of this admission, and in the absence of any specific denial in the counter-affidavit that there was no material on the record in support of the finding given by the Tribunal, we have to hold that this finding is based on no material and as such is of no consequence, and cannot be trated as a finding of fact. In view of this, the conclusion is irresistible that the services of the petitioner were terminated in contravention of Rule 3, and as such the order cannot be sustained. Sri A. P. Singh appearing on behalf of the respondents drew our attention to a decision of the Supreme Court in the case of Tara Ohand Khattri V/s. Municipal Corporation of Delhi, 1977 1 SCC 472 and urged that as the power of making appointments had been subsequently conferred on the District Magistrate, the impugned order was valid. The decision relied upon is hardly appropriate to the controversy in the present case. In the case cited, the Commissioner was, under the Rules the appointing authority. The Rules, however, empowered the Commissioner to delegate that power. The Commissioner delegated the power of appointment to the Deputy Commissioner. The employee concerned was appointed by the Deputy Commissioner and thereafter dismissed by him. The order of dismissal was upheld by the Supreme Court on the consideration that the appointing authority being the Deputy Commissioner, he could also dismiss the employee concerned. In the present case, the appointing authority was the Joint Director of the Medical Health. No powers were conferred on him to delegate that function to another. The subsequent order of the Government made the District Magistrate, the appointing authority for Health Assistants, and effected a change in the appointing authority. Thus so far as old employees were concerned, the situation remained unaltered. This being so, the decision relied upon by the Standing Counsel is of no avail. Our attention was drawn to a decision of a learned single Judge in Ram Ujagir Chaudhary V/s. State,1976 2 AllLR 568decided on 27-2-1976 in which a contrary view has been taken. The same learned Judge took the view that we are taking in the case of Lalman v. State of U. P., (Writ Petn. No. 4152 of 1975) (All). We have already indicated the reasons for holding that the appointing authority, for the purposes of R. 3, is the authority which appointed the employee, and not one on whom the power has been conferred subsequently. The view taken by the learned single Judge in the case of Lalman V/s. State, (Writ Petn. No. 4152 of 1975) (All) appears to be correct, and with respect we are not able to agree with the view taken in the case of Ram Ujagir Chaudhary V/s. State .