(1.) The learned counsel for the respondent does not wish to file an objection to the application made for condonation of delay in preferring the appeal. We have considered the averments made in the application for condonation of delay in preferring the appeal and, being satisfied with the reasons furnished therein, allow the application and thereby condone the delay in preferring the appeal.
Special Appeal No. 32 of 2012
(2.) 62 years have since passed from the date of adoption of the Constitution of India, but it is surprising that the State Government is still giving employment to people to work as sweeper because the State Government and its Department, which is the appellant before us, are continuing to insist that a number of government employees shall still work as sweeper. Thus the present dispute has cropped up. The fact remains that without being a regular employee of the appellants, the respondent - writ petitioner was working in the appellant Department as a Sweeper. While he was thus working, an advertisement was published on 27th September, 2007, indicating that 29 Class IV posts are lying vacant, which may be supplied. It was indicated in the advertisement that out of those 29 posts, 17 posts are for Messengers. Later on, a corrigendum was published, where it was stated that the said advertisement really meant for supplying 29 Class IV vacancies. Although it was not stated in the corrigendum that bifurcation of 29 posts, as was advertised, was incorrect, but an impression was given that all those 29 posts being Class IV posts, people to be engaged in those posts will be asked to discharge duties attached to Class IV posts. It was not indicated in the advertisement or in the corrigendum what are the nature of duties a Class IV employee is required to discharge, although in the advertisement some indication to that effect was given, namely that of messenger, mali, etc. There was no indication that such duties included duty to sweep. It is surprising that in the counter affidavit filed to the writ petition, the appellants had contended, by placing reliance upon the departmental structure, that some of the Class IV employees are required to work as sweepers. In the advertisement dated 29th September, 2007, it was not held out that a Class IV employee to be engaged by the State would be required to sweep the dirt of other employees of the State. The corrigendum also did not indicate the same. The structure on which reliance was placed was never advertised, nor anyone in the world was informed by the State that a Class IV employee, employed by the State Government would be asked to clean the dirt created by the superior officers working in the Department of the State. Because the advertisement called for the respondees to the advertisement to submit their experience certificate, if any, and, because the respondent - writ petitioner had indicated by submitting experience certificate that he has earned experience as a sweeper, it was felt by the appellants that the respondent - petitioner best suited to do sweeping of dirt created by the officers manning the appellant Department and controlling its affairs. In other words, they thought that since the respondent - petitioner has already swept the dirt of others, why not he should be made to do so in future also. He was thus entrusted the duty of sweeping. Respondent - petitioner, having had responded to the advertisement for being appointed as Messenger, resented and made representations. That annoyed the superior officers in the Department. Consequently, the respondent - petitioner was removed from his services in purported exercise of the powers under the U.P. Temporary Government Servant (Termination of service) Rules, 1975. In the writ petition the removal was challenged. The learned Single Judge noted the definition of temporary service in respect whereof the said Rules were applicable and, came to the conclusion that the said Rules were not applicable to the service in which the respondent - petitioner was appointed. In the appeal, there is no challenge to the said finding. It is, however, the contention in the appeal, that there was nothing wrong on the part of the appellants in asking the respondent - petitioner to remain engaged in sweeping work. If sweeping is such an indispensable work and, if Class IV employees engaged by the appellant Department are required to discharge all work which a Class IV is required to discharge and, if sweeping was one of those work, was it not obligatory on the part of the appellants to ensure that each Class IV employee, on rotational basis, discharges sweeping work? A look at the Constitution would demonstrate that it had been the endeavour of the new State to do away such work and in any event not insist upon people doing such work to continue to do the same for eternity. It was unjust and improper on the part of the appellants to ask the respondent - petitioner to continue to discharge sweeping duty for he had discharged such duty before his appointment.
(3.) It is contended that the respondent / petitioner remained absent unauthorisedly for a substantial period of time, and accordingly, the appellants should be given liberty to initiate appropriate disciplinary proceedings against the petitioner. We are making no observation in that regard, and expressly do not give any liberty to initiate any such proceedings. In the event, as advised, the appellants initiate such proceedings, it shall be deemed that the proceedings so initiated is founded on the decision taken by the appellants and, accordingly, result thereof would be as is acceptable in law. With the observation as above, we dismiss the appeal.;