- (1.) The petitioner was appointed on 4th May, 1991 on daily wage basis for a period of 30 days. Subsequently, the Deputy Director of Administration directed the Secretary, Mandi Samity, Bareilly to appoint the petitioner as Typist on a consolidated pay of Rs. 1200/- p.m. and accorded sanction for payment of salary for the period July, 1991 till November, 1991. Subsequently by an order dated 31st March, 1992, sanction for payment of salary of Rs.1200/- p.m. was accorded for the post held by the petitioner. By an order dated 4th September, 1992, the petitioner's service was terminated. This order was challenged by the petitioner in writ petition No. 4155 of 1993 since been dismissed by an order dated 3rd Feb., 1993 with the observation that if any vacancy arises, the petitioner shall be given preference in appointment when such appointment is made by the respondents, provided the petitioner fulfils the qualification. Pursuant to the said judgement, the petitioner had made an application on 6th April, 1993 and continued to submit successive application on 10th June, 1994 2nd October, 1995 and 6th January, 1996 and thereafter, on 23rd November, 1996. By an order dated 1st January 1997, the Additional Director, Administration sent an communication to the Deputy Director, (Administration) Mandi Parishad, Bareilly to the effect that in the event the post of Accounts Clerk falls vacant, the petitioner's case may be considered for appointment in terms of the order passed by this Court being the order dated 3rd February, 1993. By his order dated 20th January, 1997, the Deputy Director (Administration) had issued an appointment letter to the petitioner seeking to appoint him on probation against a substantive vacancy. After the period of probation was over, on the recommendation of the Deputy Director (Administration) though, however, the petitioner has not been able to produce any order of confirmation. At this stage, the petitioner's service has been terminated by orders dated 12th March, 1999 contained in Annexure I and II respectively to the writ petition. These two orders have since been challenged by Mr. Mahesh Gauram, learned counsel for the petitioner in this writ petition.
(2.) Mr. Gautam submits that since the petitioner has been appointed against a substantive vacancy on regular basis, his service could not be terminated under the U.P. Temporary Government Servants ( Termination of Service ) Rules, 1975 as has been sought to be done in terms of the order of termination contained in Annexure 1 since the said Rules don not apply in the case of the petitioner, who is not a Government servant. He then contends that the petitioner is governed by the U.P. Agriculture Produce Market Committee ( Centralised Service) Regulation 1984 and is not a workman within the meaning of Industrial Disputes Act and as such, his service could not be retrenched in terms of Section 6 - H of the Industrial Disputes Act as has been sought to be done by virtue of Annexure II to the writ petition. He then contends that in fact the termination is a penalty in disguise, which can only be done in accordance with the regulations, which provided for holding of an inquiry and giving of an opportunity. In case the order of termination is a cancellation of the appointment even then the principles of natural justice and equity requires giving of an opportunity to the petitioner. He then contends that since the petitioner was governed by the 1984 Regulations, his service could have been terminated on under the provisions of the said Regulations and his service could not have been dispensed with otherwise. He had also contended that a person cannot be a government servant and a workman under the Industrial Disputes Act simultaneously. Therefore, there is an inherent contradiction in the two orders. Inasmuch by the first order the petitioners has been treated to be a government servant while applying 1975 Rules and at the same time by the second order, he is treated as a workman. He had also relied on a few decisions, of which a reference shall be made at appropriate state. Mr. Gautam had also relied on Regulation 22 of the 1984 Regulations to contend that after the probation period was over, the petitioner shall be deemed to have been confirmed, provided he had satisfactorily completed the probation period. Therefore, by virtue of Regulation 22, the petitioner has been deemed to be confirmed in his service On these grounds, Mr. Gautam submits that the impugned orders contained in Annexure 1 and 2 to the writ petition should be quashed.
(3.) Mr. B.D. Mandhyan, learned counsel for the respondents on the other hand contends that the petitioner was not regularly appointed according to the provisions contained in the Regulations, which requires publication of advertisement as well as seeking of names from the Employment Exchange. Since the petitioner was not engaged pursuant to the said Regulations, he cannot cLalm to be governed by the said Regulations. According to him, the petitioner having been appointed de hors the Rules, he cannot cLalm any legal right to the post even if he is given appointment on a substantive vacancy or a post. By virtue of the petitioner's appointment on probation on completion of satisfactory probation period, the petitioner cannot cLalm any right to the post since he was appointed de horse the Regulations. Unless the petitioner has a legal right to establish by invoking writ jurisdiction, he cannot get any benefit out of such termination or service. By virtue of orders dated 12th March, 1999, there cannot be said to be any infirmity. He tries to expLaln the said two orders that the second order is an order by which the petitioner's service was terminated and the first order is only a simple communication of the same order, which is being clarified by the second order. He further contends that the petitioner's service could be dispensed with without the said order because he cannot establish any right to the post by virtue of his alleged appointment. He further contends that the High Court had never directed in the order dated 3rd Feb.,1993 that the petitioners should be given appointment directly. Inasmuch it was only a preference to be given to the petitioner in case the recruitment is made against any vacancy , which imply that recruitment is to be made directly and the other thing being equal, the petitioner is entitled to a preference. He also relies on a number of decisions, where such questions have been gone into. Reference shall be made to those decisions at appropriate stage. Mr. Madhyan on these grounds contends that the writ petition should be dismissed.;