STATE OF U.P. AND ANR. versus BRIJ NATH MISRA

A

B

STATE OF U.P. AND ANR. v. BRIJ NATH MISRA

MARCH 27, 1997

[K. RAMASWAMY AND G.B. PATTANAIK, JJ.]

U.P. Regularisation 011 Ad hoc Appointment ( 011 posts within the pur

view of Public Sen'ice Commission) Rules, 1979 : Rules 4(3) and 8.

C

Se1vice lai<r-Ad hoc appoi11tment-Regularisation-Respo11de11t ap- pointed 011 ad hoc basis-U11autho1ised absence from duty--H e was pennitted to resume duty 011 his fumishing fitness ce1tificate with a condition that his unauthorised absence from ditty was treated as a break in se1vice--Co111mittee constituted under the Rules considered the case of respondent and found him D unfit for regulmisation-Acc;ordingly his appointment was tenninated-Wlit filed by respondent challenging tennination-High Coit11 held that subsequent appointment was a fresh appointment and, there[ ore, the tennination was bad in lai<.--Appeal against tlte order of High Cowt-Held subsequent appoint ment was not an order of fresh appointment but a pennission granted to the respondent to resume duty-On his so jointing duty his ad hoc appoilltment E got revived subject to treating the period of unauthorised absence from duty as break in service-'-17wugh there was break in service, it cannot be co11- sidered to be a fresh appointment-Order of ten11i11atio11 held governed by Rule 8 of the Rules-17ie view of the High Court was, therefore, clearly illegal.

F

G

H

Dayal Saran Sanan v. Union of India, [1980] 3 SCC 25 and Shiv

Shm1kar & Anr. v. Union of India & Ors., [1985] 2 SCC 30, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2709 of

1997.

From the Judgment and Order dated 6.8.93 of the Allahabad High

Court in W.P. 1126 of 1991.

Rakesh Dwivedi, Additional Advocate General and Irshad Ahmad

for the Appellant.

P.D. Sharma for the Respondent. 394

STATE v. B.N. MISRA

The following Order of the Court was delivered :

395

A

Leave granted.

This appeal by special leave arises from the judgment of the Al lahabad High Court, Lucknow Bench made on August 6, 1993 in Writ Petition No. 1126 of 1991.

B

The admitted position is that the respondent was appointed as an Ayurvedic Medical Officer on ad hoc basis by proceedings dated October 11, 1983 in the pay scale of Rs. 850-1720. He remained unauthorisedly absent from duty for 5 years. Thereafter, on an application made by him C on April, 14, 1989, he was informed by the Government Order No. 5133 dated September 8, 1989 that he was permitted to resume duty on his furnishing fitness certificate with a condition that his unauthorised absence from duty was treated as as break in service. On so furnishing the certifi cate, he resumed duty. Subsequently, the Selection Committee was con stituted under Rule 4(3) of tlie U.P. Regularisation of Ad Hoc D Appointment (on posts within the purview of Public Service Commission) Rules 1979 (for short, the 'Rules'), Subsequently, the Rules came to be amended. Rule 4 postulates that any parson who was directly appointed on ad hoc basis before January 1, 1977 and is continuing in service as such on · the date of the commencement of the Rules, which came into force on May

14, 1979, would .be regularised subject to the condition mentioned there- E under. Rule 8 provides that "the services of a person, appointed on ad hoc basis who is not found suitable or whose case is not covered by Rule 4(i) shall be terminated forthwith and, on such termination, he shall be entitled to receive one month's pay". The case of the respondent was placed before the Committee on January 22, 1991 and he was found to be unfit for F regularisation. Accordingly, his appointment came to be terminated. It was challenged in the High Court in the above writ petition and the High Court has stated that the appointment dated September 8, 1989 was a fresh appointment and, therefore, the termination was bad in law. Thus, this appeal by special leave.

G

The question is : whether the view taken by the High Court is correct? It is seen that the Order dated September 8, 1989 clearly mentions that the respondent was permitted to resume duty subject to production of medical fitness certificate, his unauthorised absence from duty resulted in break in service. Thus, it could be seen that the Order dated September 8, H

396

SUPREME COURT REPORTS

[1997] 3 S.C.R.

A 1989 is not an order of fresh appointment but a permission granted to the respondent to resume duty as A yurvedic Medical Officer. In furtherance thereof, on production of the medical certificate, he did join duty. On his so joining duty, his right to the post dated back and flowed from his initial appointment, namely, October 13, 1983. In other words, his ad hoc appoint- B ment got revived subject to treating the period of unauthorised absence from duty as break in service. Though there is break in service, it cannot be considered to be a fresh appointment as was held by this Court in Dayal Saran Sanan v. Union of India, [1980] 2 SCC 25 and Shiv Shankar & Anr. v. Union of India & Ors., [1985] 2 SCC 30.

C

D

In view of the fact that the Committee duly Constituted under the Rules had considered the case of the respondent and found him not fit to be regularised, the order of termination is governed by Rule 8 of the Rules. As a consequence, the question of conducting as enquiry or giving an opportunity to the respondent before termination of the service does not arise. The view of the High Court, therefore, is clearly illegal.

The appeal is accordingly allowed and the writ petition stands dis

missed but, in the circumstances, without costs.

T.N.A.

Appeal allowed.