- (1.) D. K. Seth, J. By means of order dated 22nd March, 1986 which is Annexure 5 to the writ petition, the petitioner's service was terminated under the U. P. Temporary Employees Termination of Service Rules, 1975, on the ground that the petitioner was a temporary employee and his service was no longer required.
(2.) MR. B. P. Saxena, learned counsel for the petitioner raised two questions namely: (1) The petitioner having been ap pointed by the Judge Revision, Sales Tax, U. P. his service could not be terminated by the Commissioner Sales Tax. (2) The termination order was an order passed on malice as against the petitioner in colourable exercise of power. While elaborating his submission, Mr. Saxena contends that in 1972, the ser vice of the petitioner was terminated by the Assistant Commissioner, Sales Tax, which was ultimately challenged in writ proceed ings being Civil Misc. Writ Petition No. 876 of 1977 wherein it was held that the Assis tant Commissioner (Judicial) Sales Tax could not terminate the service of the petitioner in absence of any authority vested in him. By reason of the order passed in the said writ petition, the order passed by the Tribunal refusing the petitioner's claim against the impugned order of termination was set aside. The said order was ultimately affirmed even upto the Hon'ble Supreme Court. Thereafter, the petitioner was reinstated in service. The petitioner filed an Execution Application being No. 1 of 1985 before the Munsif, Illrd Court, Gorakhpur and claimed a sum of Rs. 1, 50, 000/ -. On account of this execution proceeding, the petitioner's services were terminated though the same was purported to be dressed up as a termination simpliciter without any stigma. Since the question has already been decided that the Assistant Commissioner has no authority to ter minate the petitioner's service, therefore, the service of the petitioner could not be terminated by the Commissioner. Relying on the statement made in the counter af fidavit, Mr. Saxena contends that though by order dated 10th March, 1969, the Assistant Commissioner (Judicial) was given the authority to terminate but the same does not empower the Commissioner to ter minate the service of the petitioner as has been done in the present case. Therefore, the Commissioner has no jurisdiction or authority or competence to terminate the service of the petitioner. On these two grounds, the learned counsel assails the order contained in Annexure '5' to this peti tion. Mr. R. K. Srivastava, learned stand ing counsel, on the other hand, contends that the Commissioner being an authority superior than the Assistant Commissioner is competent to terminate the service of the petitioner. He secondly contends that there was no malice. The termination was effected simply because the petitioner's service was no longer required since he was a temporary employee.
(3.) THE fact remains that the petitioner was appointed as Temporary Ahalmad on 18th July 1962 and his service is being ter minated on the ground that he is a tem porary employee and that his service is not required in the year 1986, namely, after 24 years immediately after the petitioner had initiated execution proceedings being Ex ecution No. 1 of 1985 aforesaid. So far as the question of competence of the Commis sioner is concerned, as contended by Mr. B. P. Saxena is wholly without any substance. THE notification dated 10th March, 1969 which is Annexure 'ca-1' is not a delegation of power to a particular authority retaining the power with the original authority. On the other hand, the same is an amendment in the Rules being U. P. Sales-Tax Organisa tion Appointment Authority Rules, 1969. By virtue of the said amendment made in the Rules, the Appointing Authorities have been designated and prescribed. According to the said Rules, admittedly, the Assistant Commissioner is the Appointing Authority since the petitioner was in the scale of Rs. 100-180 as specified in the said Rules. THErefore, the Assistant Commissioner being the Appointing Authority was com petent to terminate the service of the petitioner. Admittedly the Commissioner is an authorityhigher than the Assistant Com missioner. THErefore, the order of termina tion issued by the commissioner cannot be questioned on the ground that he was not competent. Inasmuch as it is a settled prin ciple of law that no officer subordinate to the Appointing Authority or lower in rank could terminate the service of an incum bent, but such order can very well be passed by an officer superior to the Appointing Authority. THErefore, on that score, the contention of Mr. R. K. Saxena, learned Standing Counsel, has much force. THEre fore, the point raised by Mr. B. P. Saxena about the competence of the Commissioner in issuing the order of termination cannot be sustained. So far as the next question as raised by Mr. B. P. Saxena is concerned, as observed earlier, the service of the petitioner was sought to be terminated after long 24 years only on the ground that he was holding a temporary post. It is really a matter of great dissatisfaction that a person has not been regularised or confirmed even after he has put in 24 years of. service. Be that as it may, only on the ground that the service is no longer required, the service of a person is being terminated after 24 years of service who has fought a successful battle against the respondents since 1972 against his ear lier termination effected in 1972 only when he had initiated the execution proceedings and claimed service benefits. Whether the petitioner is eligible to make a claim or not, that was a subject-matter to be decided in the said proceedings. The very initiation there of cannot be a ground for termination of service though it has not been specified in the said order as to what was the reason that impelled the respondents to terminate the service of the petitioner. It is also not the case that the post was abolished or that there was any surplus staff. In case there was surplus staff, then again the principle of 'last come first go' is to be followed. Admittedly the petitioner having put in 24 years of ser vice, he cannot be thrown out on the said principle, unless it is definitely shown by the respondents that it was so done correctly. On the facts disclosed, it appears that the termination of the petitioner's service has been dressed innocuously as a termination simpliciter, but removing the veil behind the facts in the backdrop of the facts of the present case, it prima facie appears that there are every reason to believe that the termination was the result of some other consideration resulting from the grim battle fought by the petitioner all these years cul minated in the claim put fourth in Execu tion Application No. 1 of 1985 aforesaid. The fact of malice writ large on the facts of the case disclosed in the present case that resulted in the termination of petitioner's service.;