State Of U.P And Others v. Mohd. Waqar Hussain And Others

Order

1. This appeal by the State of U.P is directed against the judgment of the High Court of Allahabad (Lucknow Bench) dated 15-12-1992 whereby the High Court dismissed the writ petition filed by the State Government against the order of the Public Services Tribunal dated 9-3-1992. It appears that Respondent 1-employee had joined service as a temporary Assistant Engineer (Civil) on ad hoc basis some time in 1964. The appointment order in terms indicated that the appointment was purely provisional for a period up to August 1965 or till the regularly selected candidates became available, whichever was earlier. In the year 1967, several Assistant Engineers, including Respondent 1, came to be retrenched. On the representation made by the U.P Engineers' Association, Assistant Engineers who were not approved by the State Public Service Commission, were continued on ad hoc basis for two years subject to the Public Service Commission approving them after holding special test. The State Government acceded to this demand and requested the Public Service Commission to conduct a special interview in relation to the unapproved provisional Assistant Engineers by the letter dated 25-6-1968 followed by a letter dated 18-3-1969. A final opportunity was, thus, given to the Assistant Engineers who were in the Department for the last four or five years. Special interviews were held and on the basis of the interviews recommendations were made to the department concerned by the letter of 25-2-1971. In the case of Respondent 1 and five others, the Public Service Commission communicated that they did not meet with their approval. On receipt of this information, in regard to Respondent 1 and three others by the letter dated 9-4-1974, the State Government was left with no alternative but to terminate the services of Respondent 1 with effect from 8-11-1974. Thereupon, the order of termination was put to test by way of a writ petition filed in the High Court of Allahabad. But on the coming into force of the Uttar Pradesh Public Services (Tribunal) Act, 1976, the High Court treated the application as having abated. Thereupon, Respondent 1 filed a petition in the aforesaid tribunal questioning his termination and the tribunal by the order dated 9-3-1992 allowed the petition with full back wages and other consequential benefits. The said order passed by the tribunal was questioned in writ petition before the High Court of Allahabad at Lucknow Bench. The learned Single Judge of the High Court dismissed the writ petition by the order dated 15-12-1992. Hence, this appeal by special leave.

2. Before the tribunal, the order of termination was sought to be supported on three counts viz. (1) that the petition was time-barred; (2) that the services had to be terminated as the State Public Service Commission had found the first respondent unsuitable for continuance; and (3) that the adverse entries were, in fact, communicated, but even if not communicated, that lapse cannot be fatal. The tribunal rejected all the three contentions. In appeal, it appears from the judgment of the High Court, the first contention regarding limitation was not urged whereas on the other two contentions, the High Court agreed with the view expressed by the tribunal. The High Court, therefore, dismissed the appeal.

3. It seems to us that this appeal can be disposed of on the second contention viz., although the department officials concerned were keen to help the first respondent, the first respondent himself was responsible for the termination order. Even at the specially held interview, without being required to go through general competition, Respondent 1 did not impress the State Public Service Commission on all the three occasions. Learned counsel for the State Government, therefore, contended that the first respondent had left the State Government with no alternative but to terminate his services. We see considerable force in this contention. The post of Assistant Engineer (Civil) being a Class II post was within the purview of the State Public Service Commission. Indisputably, the first respondent was appointed without the prior approval of the Public Service Commission on purely temporary basis subject to his being liable to be removed on regular candidates approved by the Public Service Commission becoming available. The order of his appointment is quite clear and unambiguous on this point. It, however, appears that the State Government had employed, like the first respondent, several others without seeking the prior approval of the State Public Service Commission. These ad hoc employees were clamouring through their service association for continuance in the jobs. Even after the State Public Service Commission did not approve the candidates sent to it at the behest of the service association, an arrangement for a special interview of the said ad hoc employees was made in consultation with the Public Service Commission so that such employees may not be required to go through the rigour of an open competitive test. Even though the stringency of selection was, thus, diluted and the State Public Service Commission agreed to grant approval by interviewing the ad hoc employees, unfortunately, the first respondent failed to secure the approval of the Commission even though three opportunities were given. In the circumstances, when the State Public Service Commission did not accord the necessary approval, the services of the first respondent had to be terminated as was done in 1974. In the circumstances, it is difficult to say that the termination was invalid.

4. It clearly emerges from the material on record that the State Government was quite sympathetic to the provisionally appointed Assistant Engineers. It was on account of their sympathy that an arrangement was worked out with the Public Service Commission to interview the candidates with a view to accord approval to their appointments. Even after the Commission agreed to the relaxation, the first respondent could not successfully complete the diluted test and hence, the Commission conveyed its disapproval and consequentially the said respondent's services were terminated in 1974. In the circumstances, we fail to understand how it can be said that the State Government had acted contrary to law or regulations.

5. An attempt was made by learned counsel for Respondent 1 to state that refusal of the State Public Service Commission to accord approval, was on account of the adverse entries made in his confidential records. The facts stated by the parties and as they emerge from the judgment of the tribunal and the court are that the decision of the Commission was largely influenced by the adverse entries made in the confidential records of Respondent 1 which entries were never communicated to the latter. Therefore, the decision of the Commission was clearly tainted and we ought not to rely on it. On the other hand, the learned counsel for the State invited our attention to a decision of this Court reported in Baikuntha Nath Das v. Chief Distt. Medical Officer (1992) 2 SCC 299, (1992) 21 ATC 649 and contended that uncommunicated adverse entries could be relied upon for the limited purpose of assessing the suitability of a candidate. It is not necessary for us to go into this question, for there is nothing on the record of the case to come to the conclusion that the decision of the Public Service Commission was in any manner influenced by the so-called uncommunicated adverse entries. We also need not express any opinion on the factual aspect whether or not these entries were communicated. We have proceeded on the assumption that they were not communicated but unless it is shown that the Commission was influenced by these entries, unless there is reliable material in that behalf on record, it is not possible to infer or conjecture that the Commission was in fact influenced by these entries. In the circumstances, we are of the opinion that the State Government had acted bona fide and without any bias; rather it had a desire to accommodate the ad hoc employees as far as possible but could not help the termination. We, therefore, think that the tribunal as well as the High Court were in error in thinking that the action was influenced by the uncommunicated adverse entries.

6. In view of the above, since we hold that the termination of the service had become unavoidable because the first respondent could not secure approval of the Commission even after the three attempts, we must allow this appeal, set aside the order of the tribunal as well as of the High Court and hold that the termination was legal and valid. Consequentially, the order of reinstatement with full back wages must go. The question of regularisation does not survive. There will, however, be no order as to costs.