The Allahabad High Court while deciding a case of termination of services of a government employee, said that any person who is said to have “absconded” meaning thereby he has deliberately fled from his duty without obtaining proper action, reflects adversely on the conduct of any servant and hence casting an implication that the petitioner has absconded his duty, and such an importation could not have been levelled without giving him proper opportunity of hearing.
A Single Bench of Justice Alok Mathur passed this order while hearing a petition filed by Dr Prabhanshu Shrivastava.
The petitioner being aggrieved by his order of termination dated 30.11.2021 has approached this court seeking a writ in the nature of Certiorari quashing the said order.
It has been submitted by the counsel for the petitioner that an advertisement was issued on 31.12.2017 for appointment on newly created 595 posts of Dental Surgeon under the Department of Medical Health and Child Welfare, UP. The petitioner being eligible for the said selection applied in the said vacancy. He was successful in the recruitment process and vide order dated 04.10.2020 appointment letter was issued to him on permanent post against the substantial vacancy.
Prior to the said advertisement and selection, the petitioner had appeared for the MDS exam for post-graduate education in the Speciality of Pedodontics and Preventive Dentistry on 14.12.2018 and he was selected in the post-graduate course and had taken admission in the Government Dental College and Hospital, Nagpur, Maharashtra.
The result of the recruitment for the post of Dental Surgeon under the Medical Health and Child Welfare, UP, were not declared till the petitioner was admitted and joined in 2019 for the post-graduate course and it is only in 2020 that the results were declared and he was selected on the post of Dental Surgeon under the Medical Health and Child Welfare, UP.
It is in the aforesaid circumstances that the petitioner made an application to the Department of Medical and Health for grant of study-leave. The respondent did not consider the application for grant of study-leave, consequently, he was constrained to file a Writ, which was disposed of by this court with a direction to the opp. parties to pass appropriate order on the representation of the petitioner, by means of order dated 15.03.2021.
The respondents duly considered the representation of the petitioner and rejected the same on the ground that the petitioner was a Probationer and was not entitled for the study leave. The petitioner being aggrieved by the order of rejection dated 22.07.2021 filed another writ petition before the court, on which notices were issued and it is pending consideration before this court.
It is during pendency of the aforesaid writ petition that on 20.12.2021 the petitioner went to join his services at the place of posting on 30.12.2021, but he was informed that his services had already been terminated by means of the impugned order dated 30.11.2021, however, a perusal of the impugned order indicates that the petitioner had already joined on 10.10.2020 and from the very next date he had proceeded on leave and it is for his unauthorized absence that his services have been terminated under the Uttar Pradesh Temporary Government Servants (Termination of Service) Rules, 1975.
The Court noted that,
The facts are not in dispute inasmuch as the petitioner being a medical graduate had applied for the post of Dental Surgeon, which was advertised by the UP Public Service Commission on 30.12.2017 and he being eligible was duly appointed to the said post by means of order dated 04.10.2020.
It is prior to declaration of the result for appointment as Dental Surgeon that the petitioner had appeared in the Master in Dental Surgeon (MDS) Examination and was successful and was pursuing his post-graduate course in the Government Dental College and Hospital, Nagpur, Maharashtra, when the appointment letter was issued. The petitioner moved the application for grant of study-leave, which was rejected and is presently the subject matter of Writ Petition.
According to the petitioner, when he attempted to join his place of posting on 20.12.2021, he was informed that his services had already been terminated on 30.11.2021.
According to the order dated 30.11.2021 passed by the Secretary, Department of Medical Health and Child Welfare, UP, it is stated that the petitioner was in the cadre of Uttar Pradesh Dental Surgeon and was temporarily employed and that he had absconded from his workplace from 11.10.2020 due to which benefit of his services could not be availed by the Public at large and consequently his services are no longer required and according to the Uttar Pradesh Temporary Government Servants (Termination of Service) Rules, 1975 his services are dispensed with giving him one month’s notice.
The Court observed that,
Considering the arguments of the petitioner that his services could not have been terminated invoking the provisions of Rules of 1975, it is noticed that it was necessary for the respondents to have considered whether the petitioner falls in the definition of ‘temporary service’. To invoke the provisions of Section 2 of the rules of 1975, it was necessary that the services of the government servant should not have been ‘officiating or substantive on temporary post’ or ‘officiating service on permanent post’ under the Uttar Pradesh Government.
There is no dispute that the petitioner was substantially appointed on a permanent post and, accordingly, his services were not on a temporary post and clearly he was not on officiating service on a permanent post. Basic ingredients of “temporary service” being absent with regard to the services of the petitioner he could not have been said to be in temporary service and, hence, Section 3 of Rules of 1975 would be inapplicable in the case of the petitioner.
Rule-3 clearly provides that services of the government servant in temporary service are liable to be terminated at any time by notice in writing given either by the government servant to the appointing authority or by the appointing authority to the government servant, hence, it is necessary that the services of such employee have to be ‘temporary service’.
Accordingly, the court is of the considered view that services of the petitioner did not fall within the definition of ‘temporary service’ and, hence, the impugned order has been passed without jurisdiction, is illegal and arbitrary and liable to be set aside.
Apart from the above, it is further noticed that stigma has been cast upon the petitioner to the extent that he has been held to have absconded from service and due to his absence from service the Public at large has been deprived of his services. This adverse comment upon the petitioner amounts to stigma and accordingly any order passed by the respondents casting stigma on any employee, can be passed only after giving due opportunity of hearing.
Accordingly, applying the tests and laying down the Supreme Court in the aforesaid judgements, the order stating that the petitioner had “absconded” from service, due to which the services could not be available to the public at large, clearly casts stigma upon the petitioner.
“In the case no show cause notice nor any opportunity was given to the petitioner, and accordingly such an order casting stigma on him could not have been passed and hence the same is illegal and arbitrary and libel to be set aside,” the Court also observed while allowing the petition.
The Court quashed the order dated 30.11.2021and directed the petitioner to be reinstated with all consequential benefits from the date of his appointment.