- (1.) D. P. Singh, J. Heard Counsel for the parties.
(2.) THIS petition has been filed for quashing the orders dated 8-3-1991 and 9-3-1991 by which the services of the petitioners, who are class IV employees in the Employees State Insurance Hospital, Aligarh were dispensed with. The petitioners allege that in July, 1990 they were appointed on different posts in Class IV on daily wages in the Employees State Insurance Hospital, Aligarh. It is further alleged that the posts were created by the Government vide its G. O. dated 20-3-1989 and, thus, by various orders dated 26-7-1990 issued by the Superintendent, Employees State Insurance Hospital, Aligarh their appointments were regualrized with effect from 1-8-1990. It is further alleged that in pursuance of a letter dated 27-2-1991 issued by Director, Employees State Insurance Scheme, Kanpur to the Senior Medical Superintendent that as there were 13 surplus Class IV employees in Agra Region steps should be taken so that all the 13 surplus employees be accommodated in ESI Hospital at Aligarh. It was also stipulated therein that any Class IV employee who was not been regularly appointed, should be relieved from service. It is alleged that on the basis of this letter the services of the petitioners have been terminated. A counter-affidavit has been filed on behalf of respondent No. 2 wherein it is stated that new posts of Class III and Class IV Employees were created vide G. O. dated 20-3-1989 in consequence of a earlier G. O. dated 29-7-1988 whereby large number of posts of Paramedical Staff and Class III and Class IV posts in the ESI Scheme were declared surplus. The posts which were created by G. O. dated 20-3-1989 were not to be filled up by direct recruitment. It is also asserted that the petitioners were appointed against the rules and they purposely did not file the G. O. alongwith the writ petition. The Superintendent ESI Hospital, Aligarh who had given the appointment letters to the petitioners, Dr. J. L. Bhatia, was facing an enquiry because of the said appointments. It is also alleged that no procedure whatsoever was followed in granting the appointments and it was made in the whimsical manner in unchaste haste by pick and choose method. It is also alleged that persons were appointed to Mechanical and Technical Posts without any qualification. It is thus alleged that the impugned orders need not be interfered under Writ Jurisdiction of this Court.
(3.) IT has been contended by the Counsel for the petitioner that the appointing authority of the petitioners was Medical Superintendent while the termination order has been passed by the Senior Medical Superintendent and, therefore, the order is illegal. In support of his contention, learned Counsel for the petitioner has relied upon a decision of this Court rendered in the case of Surendra Singh v. District Cane Officer, 1992 AWC 874. In Surendra Singh's case the petitioners were appointed following the procedure prescribed under the Service Rules by the District Assistant Registrar Cane Co-operative Societies and their services were terminated by the Secretary of the Society. The Secretary of the Society was admitted a junior person than the District Assistant Registrar and, therefore, set aside the termination order. In the present case, as is evident from the counter-affidavit, the Superintendent without resorting to the powers under the Recruitment Rules issued the appointment letter even though the posts were reserved for surplus employees for whom the said posts were created. The Senior Superintendent exercises the same power as the Superintendent and as such it cannot be said that he did not have the power to terminate the services. Further, the Superintendent having resorted to illegal means by issuing the appointment letter was rightly not trusted by the Senior Official. In any event no prejudice has been caused to the petitioners because in the first place the posts were reserved for surplus staff and the petitioners and absolutely no right or lien over it. Therefore, in my opinion, this contention of the petitioners does not merit acceptance and has to be rejected. Learned Counsel for the petitioner has then urged that once their services were regularized, it could not be terminated without following the due procedure prescribed under the Rules. From the averments in the writ petition, it is apparent that the petitioners were never employed in accordance with the group D Recruitment Rules, 1985 further, perusal of their appointment letter shows that their services were purely temporarily and ad hoc and could be terminated with a month's notice and by the impugned order their services were terminated by following the procedure prescribed under U. P. Temporary Government Servants (Termination of Service) Rules, 1975. Recently the apex Court in the case of Union of India v. A. P. Bajpai, AIR 2003 SC 923, has held that a temporary employee has no right or lien to the post. Thus, this argument of learned Counsel for the petitioner is devoid of any merit.;