Decided on December 04,2012

Vikram Singh Negi Appellant
District Magistrate Chamoli Respondents


- (1.) By this writ petition, order of termination of services of petitioner dated 13th September, 2005 and order dated 13th September, 2005 intending to recover the excess payment are challenged. The fact, as it appears from the records, is as follows:- The petitioner was appointed as a Jeep Driver on 8th June, 1999 purely on a temporary basis. The letter of appointment is annexed with the petition as Annexure-1. The aforesaid letter of appointment clearly says that it is purely a temporary appointment, but the regular pay scale was granted. There is no dispute the aforesaid post of Jeep Driver is substantive one but the engagement of the petitioner was temporary. This was the status since beginning. However, in the year 2002, by an order dated 21 st May, 2002, the aforesaid status of the petitioner was sought to be changed to that of daily rated Jeep Driver. The aforesaid order of change of status was challenged alongwith another driver in this Court. In that writ petition not only the order of changing status was challenged but claim for regularization was also made. The said writ petition was filed in the year 2004 being Civil Writ Petition No. 204 of 2004 (S/S). The above writ petition was disposed of by an order of this Court dated 19th March, 2005 and the learned Single Judge of this Court has set aside the order dated 23rd July, 2002 as far as this petitioner is concerned. It appears from the judgment that the issue of regularization was framed but no decision was rendered at all and it was kept at large. Therefore, the petitioner was restored back to the position as he was at the time of initial appointment. Therefore, on fact, without any dispute, the petitioner has been working as temporary driver in the substantive post. After the aforesaid judgment was rendered, the impugned order was issued on September, 2005. This impugned order appears to have been issued in exercise of power of the U.P. Temporary Government Servants (Termination of Service) Rules, 1975. The contention of the petitioner in this regard is that firstly, the aforesaid Rules does not apply, and secondly, the aforesaid impugned order was passed illegally and arbitrarily in order to deprive his right of regularization. This order has been passed in arbitrary exercise of power presumably the respondents was annoyed with the petitioner approaching this Hon'ble Court and since the Hon'ble Court held in his favour and, thereafter, the respondents have terminated the services of the petitioner.
(2.) In the counter affidavit, it has been stated that the whole idea to terminate the services of the petitioner after the earlier judgment was rendered was to fill up post regularly, as such, advertisement was issued. Five candidates participated in the selection process whereas the petitioner did not do so. The five candidates have been appointed.
(3.) Mr. Subhash Upadhayaya, the learned Standing Counsel appearing for the State fairly submits that the post now being occupied by the petitioner is substantive and lying vacant and it was not intended to fill up as the matter was pending before the Court. He also submits that no selectee is waiting to be appointed to this post. Learned counsel for the petitioner submits that the U.P. Temporary Government Servants (Termination of Service) Rules, 1975 has no manner of application as the petitioner was not holding any civil post. On this, I have now been called upon to decide whether the aforesaid Rules applies or not.;

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