- (1.) Heard the learned Counsel for the parties.
(2.) The controversy involved in these writ petitions is covered by the judgment Ajay Kumar Sharma v. State Government of U.P.,2000 1 ESC 291 in which it has been held that the services of a peon appointed temporarily under Dying in Harness Rule cannot be terminated under the provisions of U.P. Temporary Government Employees (Termination of Service) Rules, 1975, since the appointment under Dying in Harness Rule should not be temporary or ad hoc. It has further been held that passing of termination order against such an employee is unjustified and violative of principle of natural justice.
(3.) I. The Court in paras 7 and 8 of the judgment in Ajay Kumar Sharma's case has held a under : "The impugned order shows that the Authority passing the impugned order has relied upon the provision of U.P.. Temporary Government Employees (Termination of Service) Rules, 1975. As stated above and not disputed on behalf of the respondent the impugned order of termination could not be passed under aforesaid Rules in the facts of the instant case in as such as of the petitioner is so to be treated as permanent . Further, the counter affidavit (pars 8) shows that the termination of the petitioner cannot be justified on the ground that it casts stigma, if the veil is lifted and the true nature of the termination is being ascertained. It is well settled now that the Court can always x-ray the facts and find out the correct nature of the termination order and if it is found that it is penal in nature, the same cannot be sustained if passed in violation of principle of natural justice or the relevant Rules requiring opportunity of hearing or termination is punishment to the delinquent employee. In view of the above, impugned order dated 7.7.1997 (annexure 5) passed by the respondent No.3 (District Development Officer, Haridwar), is hereby set aside, the respondents are directed to ignore the impugned order as being ab-intio, treat the petitioner in service continuously and pay salary as well as arrears as may be due in accordance with law giving benefit of increment etc. within two (sic) on the receipt of a certified copy of this judgment and continue to pay (sic) salary month by month as is being paid to other similarly (sic) employee in the department. It is further made clear that if any person has been appointed on the post held by the petitioner, he shall not be thrown on street and will be adjusted in accordance with law. If there is no post, a supernumerary post shall be sanctioned to safeguard the interest of a person who is not before this Court.";