SUDHANSHU DHULIA,J. - (1.) HEARD Sri Pradeep Hairiya, learned counsel for the petitioners and Sri N. P. Sah, learned Standing Counsel for the respondents. During the pendency of the writ petition, petitioner no. 1 moved a withdrawal application and therefore as far as petitioner no. 1 is concerned writ petition by petitioner no. 1 stands dismissed. This order is being passed in respect of writ petitioner nos. 2 and 3 only.
(2.) THE petitioners were appointed as Waterman in Home Guards Department in the erstwhile State of Uttar Pradesh in District Nainital. It was a district level cadre appointment. All the same, the petitioners allege that they were appointed on the recommendations of a duly constituted selection committee and thereafter appointment letters were issued to them on 31.8.1988. All the same, vide order dated 27.1.1989 their services were terminated. At the relevant time, not only the petitioners but as many as 19 other persons were also affected by the relevant orders, who consequently approached the Hon'ble High Court of Judicature at Allahabad, challenging the said order dated 27.1.1989. A learned Single Judge of that Court vide order dated 9.4.1991 allowed the writ petition on the ground that principle of natural justice and fair play has been violated, though liberty was granted to the respondents to consider the case of the petitioners in accordance with law after giving them an opportunity of hearing. The order of the learned Single Judge, inter alia, states as follows :- However, this order will not stand in the way of the respondents to enquire into the validity or otherwise of the petitioners' appointment and to enquire into the validity of the constitution of the Selection Committee. If fresh process for termination of the petitioners' services are initiated on the grounds mentioned in paragraph 11 of the counter-affidavit, the respondents shall afford an opportunity to the petitioners of being heard and grant them a right on hearing so as to satisfy the requirement of principle of natural justice. Consequent to that order, the petitioners were given joining on 21.6.1991 and one year later a show-cause notice was slapped on them which stated that since their selection was made by a committee which was not a duly constituted committee why their services be not terminated. Inter alia, the petitioners filed reply to the show-cause notice. However, the respondents were not satisfied with the reply and the services of the petitioners were terminated vide order dated 9.9.1992 which merely stated that since the appointment of the petitioners have not been done by a duly constituted committee, their services are being dispensed with. In its counter affidavit, the State has justified the termination of services of the petitioners although in the termination order no reason for terminating the services of the petitioners has been assigned. In the counter affidavit the State has replied that the selection committee constituted for selection of the petitioner was not a duly constituted selection committee inasmuch as it was in violation of the provision of Rule 16 of Group 'D' Employees Service (U.P.) Rules, 1985. Rule 16 of the said Rules reads as under:- “16. Constitution of Selection Committee.- For the purpose of recruitment to any post, there 3 shall be constituted a Selection Committee as follows:- (1) Appointing Authority (2) An Officer belonging to Scheduled Castes/Scheduled Tribes, nominated by the District Magistrate if the appointing authority does not belong to Scheduled Castes/Scheduled Tribes. If the appointing authority belongs to scheduled Castes/Scheduled Tribes, an officer other than belonging to Scheduled Castes/Scheduled Tribes, Minority Community and Backward Class to be nominated by the District Magistrate. (3) Two officers nominated by the appointing authority, one or whom shall be an officer belonging to Minority Community and the other to Backward Class. If such suitable officers are not available in his department or organization, such officers shall on the request of the appointing authority, be nominated by the District Magistrate and on his failure to do so, by reason of non-availability of suitable officers, such officers shall be nominated by the Divisional Commissioner.]” In other words, the contention of respondent State is that the selection committee which recommended the petitioners for appointment was not having a scheduled caste as a member of Selection Committee and therefore it was not a properly constituted Selection Committee. It was for this reason the services of the petitioners were terminated. Be that as it may, whether a wrong constitution of Selection Committee itself would justify the termination or whether it was merely an irregularity and therefore it was liable to be condoned is one aspect of the matter, which this Court is not inclined to look into presently as the counsel for the petitioner has primarily contended that the petitioners were not in temporary service and in any case their services were not liable to be terminated under the provisions of the U.P. Temporary Government Servants (Termination of Service) Rules, 1975 ( from hereinafter referred to as 1975, Rules). The word “temporary service” is defined in 1975, Rules which reads as under :- 2. Definition. - In these rules “temporary service” means officiating or substantive service on a temporary post, or officiating service on a permanent post under the Uttar Pradesh Government. Now it is an admitted fact that the posts on which the petitioners were appointed were not temporary posts but were substantive posts. Moreover, appointment of the petitioners was not in an officiating capacity but it is the admitted case of the petitioners that it was done after the recommendations made by a duly constituted Selection Committee and after due process was adopted, though it is a different matter that the respondents have stated that constitution of the Selection Committee was improper. The fact of the matter is that neither the appointment of the petitioners was officiating nor the post was temporary. Therefore, the petitioners could not have been said to be in temporary service. As such, terminating the services of the petitioners under the provision of 1975, Rules is patently illegal. The impugned order therefore cannot stand and is liable to be set aside. It is accordingly set aside. Writ petition is allowed. No order as to costs.;