Habitual absenteeism amounts to gross violation of discipline and dismissal of such an employee from service should not be treated to be harsh. Santosh Kumar Khare Versus State Of U.P.Through Secy. [WRIT – A No. – 3365 of 2001]
1. The petitioner had filed the writ petition (WRIT – A No. – 3365 of 2001) for quashing of the order dated 21st May, 2001 passed by the President, Zila Panchayat, Shravasti terminating the services of the petitioner as well as notice dated 14th June, 2001, which was published in the newspaper stating therein that the petitioner was given three months’ salary vide Cheque No.0089351 dated 21st May 2001 for an amount of Rs.9,657/-, which the petitioner refused to accept and thus the petitioner was informed to take three months’ salary from the office of Zila Panchayat, Shravasti.
The petitioner has also filed the writ petition (WRIT-A No.4524 of 1998) for quashing of the orders dated 04th August, 1998, 15th July, 1998 and 22nd October, 1997 passed by Adhyaksh, Zila Pachayat, Bahraich, Apar Mukhya Adhikari, Zila Panchayat, Bahraich and Apar Mukhya Adhikari, Zila Panchayat, Bahraich respectively.
A prayer has also been made by the petitioner in Writ A No.3826 of 1997 for quashing of the order dated 24th April, 1997 passed by Apar Mukhya Adhikari, Zila Panchayat, Bahraich whereby the petitioner was given charge of Audit and Antyodaya Clerk and work of Accountant was given to one Gopal Narayan Srivastava.
2. The petitioner was initially appointed as Clerk in the erstwhile District Board, Bahraich, now named as Zila Panchayat, Bahraich with effect from 22nd October, 1975. The petitioner has claimed in the writ petition that he was promoted to the post of Accounts Clerk with effect from 2nd March, 1997 and, thereafter with effect from 19th September, 1978, he was further promoted to the post of Assistant Accountant and on 13th November, 1990 he was made In-charge Accountant.
3. On 26th February, 1991, he was promoted to the post of Accountant but was paid salary of the post of Accountant (Unqualified).
4. It appears that the State Government had disapproved the proposal for regular appointment of the petitioner on the post of Accountant vide order dated 17th March, 1997 on the ground that petitioner’s promotions to the post of Assistant Accountant and, thereafter to the post of Accountant (Unqualified), were against the service rules. The petitioner was not being paid salary to the post of Accountant. The petitioner was suspended and, he filed a Writ Petition No.4900 (SS) of 1994 challenging his suspension order dated 4th July, 1994. The petitioner also claimed relief for payment of salary to the post of Accountant (Unqualified).
5. This Court vide judgment and order dated 7th October, 1994 finally disposed of the said writ petition with a direction that the charge-sheet should be submitted within a period of six weeks from the date of the order and departmental enquiry against the petitioner should get concluded within four months thereafter and, in case the respondents failed to comply with the aforesaid directions, suspension order dated 4th July, 1994 would stand revoked automatically.
6. In respect of petitioner’s prayer for payment of salary to the post of Accountant (Unqualified), a direction was issued to him to move a representation to this respect before the concerned authority, which would dispose of the same within a period of two months from the date of presentation of the order.
7. It appears that the then President of the District Panchayat wrote to the Government on 10th September, 1996 recommending payment of salary to the petitioner for the post of Accountant and, it was further requested that the petitioner should be granted exemption under Rule 27(3) of the U.P. Zila Panchayat Service Rules, 1970 (hereinafter referred to as ‘Rules, 1970’).
8. A new District namely Shravasti was carved out from District Bahraich vide Government Order dated 28th June, 1997 and, the staff of the Zila Panchayat was bifurcated into two Zila panchayats. The petitioner was transferred to newly created Zila Panchayat, Shravasti vide order dated 22nd October, 1997 by the Additional Chief Executive Officer, Zila Panchayat, Bahraich. However, vide Office Memorandum dated 15th June, 1998, the petitioner was shown to have been allotted District Panchayat, Shravasti and his post was mentioned as Clerk Grade-I. One Shri Surendra Kumar Dubey working as Assistant Accountant in District Panchayat Bahraich was transferred to District Panchayat, Shravasti for execution of the work of Accountant as there was no qualified Accountant posted at newly created Zila Panchayat, Shravasti.
9. After the Government disapproved petitioner’s appointment and promotion to the post of Assistant Accountant vide order dated 17th March, 1997, the petitioner was given charge of Audit and Antyodaya Clerk and work of Accountant was given to one Gopal Narayan Srivastava which had been challenged by the petitioner in Writ Petition No.3826(SS) of 1997.
10. This Court vide interim order dated 08.10.1998 passed in Writ Petition No.4524(SS) of 1998 provided that in the garb of transferring the petitioner from Bahraich to Shravasti, the petitioner should not be reduced in rank and should be permitted to work as Accountant (Unqualified), if he was legally entitled for the same.
Order Dated 08.10.1998 is reproduced hereunder:-
“Notice on behalf of respondent No.1 has been accepted by learned Standing Counsel. Notices on behalf of respondents No.2 to 7 have been accepted by Mr.M.A. Siddiqui, Advocate. They pray for and are granted two weeks time to file counter affidavit. The petitioner will have one week thereafter to file rejoinder affidavit. Issue notice to respondent No.8 returnable at an early date. List thereafter, alongwith record of W.P. No.3826(SS) of 1997.
In the meanwhile it is ordered that in the order of transfer from Bahraich to Shravasti, the petitioner shall not be reduced in rank and, shall be permitted to work as Accountant (Unqualified), if he is legally entitled for the same.”
11. After this Court passed interim order dated 8th October, 1998, order dated 6th February, 1999 was passed by the President District Panchayat, Shravasti relieving him from Shravasti as he was not doing his duties.
12. The petitioner thereafter amended the Writ Petition No.4524(SS) of 1998 to impugn the order dated 17th March, 1997 passed by the State Government disapproving the promotion of the petitioner to the post of Assistant Accountant. This court, vide order dated 3rd November, 1999 passed in the said writ petition, on the basis of consession given by the counsel appearing on behalf of the Zila Panchayat, Bahraich, as an interim measure, provided that the petitioner should be allowed to work as Accountant (Unqualified) and be paid salary for the said post.
Order dated 3rd November, 1999 reads as under:-
“Counter affidavit has been filed on behalf of the opposite parties No. 2 to 4 by Sri R.K. Srivastava, holding brief of Sri N.A. Siddiqui, Sri Anil Tewari put in appearance on behalf of respondent No.8 and and files his power. It be placed on record.
Learned counsel for the opposite parties may file counter affidavit within a period of three weeks. Learned counsel for the petitioner may file rejoinder affidavit to the counter affidavit filed on behalf of the opposite parties No.2 to 4 within the same period.
List this petition after expiry of four weeks.
In the meantime, in view of the Government Order dated 09.06.1997 wherein it has been provided that no appointment should be made in future on the posts which are declared unuseful and that the persons/employees working on the said posts be adjusted on the equivalent posts and further in view of the specific statement made by the learned counsel appearing on behalf of Zila Panchayat, Bahraich, has no objection, in case the petitioner is allowed to continue as unqualified accountant and paid salary accordingly, I provide as an interim measure that the petitioner should be allowed to work as unqualified accountant and be paid salary on the said post.
This order has been passed keeping in mind the order passed on 8.10.1990 in the presence of learned counsel for the parties.”
13. The petitioner alleged that despite the aforesaid order dated 3rd November, 1999 passed by this Court in the Writ Petition No.4524(SS) of 1998, he was neither allowed to work on the post of Accountant (Unqualified) nor paid salary, despite various requests having been made by him for compliance of the order dated 3rd November, 1999.
14. The petitioner thereafter filed a Contempt Petition No.857 (C) of 2000 alleging non-compliance of the interim order dated 3th November, 1999 by the concerned authorities. Thereafter, the petitioner also moved a clarification/modification application in Writ Petition No.4524 (SS) of 1998 seeking clarification/modification of the order dated 3rd November, 1999.
15. Zila Panchayat, Shravasti under the signature of its Apar Mukhya Adhikari issued a notice dated 30th September, 2000 through publication in local newspaper, Hindustan dated 7th October, 2000 requiring the petitioner to show cause as to why, he was not attending the office of Zila Panchayat, Shravasti as Clerk.
16. In response to the said notice, the petitioner had submitted a reply dated 9th October, 2000 stating that the petitioner stood already relieved from Zila Panchayat, Shravasti. In pursuance to the order dated 6th February, 1999, the petitioner has submitted his joining at Zila Panchayat, Bahraich on 10th February, 1999. Thereafter, impugned notice/order dated 14th June, 2000 had been published in Rashtriya Sahara newspaper dated 16th June, 2001 by Apar Mukhya Adhikari, Zila Panchayat, Shravasti stating therein that the petitioner’s services have been terminated vide order dated 21st May, 2001 by the President, Zila Panchayat, Shravasti.
17. Learned counsel appearing for the petitioner has submitted that after this Court passed interim order dated 8th October, 1998 in the Writ Petition No.4524(SS) of 1998 to the extent that in the garb of transfer of the petitioner from Bahraich to Shravasti, the petitioner should not be reduced in rank and should be permitted to work as Accountant (Unqualified), if he was legally entitled to for the same. The petitioner was relieved by the Apar Mukhya Adhikari, Zila Panchayat, Shravasti on 6th February, 1999 and repatriated to Zila Panchayat, Bahraich and, thereafter the petitioner had given his joining at Zila Panchayat, Bahraich on 10th February, 1999. In view of the aforesaid fact the petitioner could not be said to be an employee of Zila Panchayat, Shravasti and, therefore, the order passed by Zila Panchayat, Shravasti dated 21st May, 2001 terminating his services is without jurisdiction, illegal and arbitrary.
18. It has been further submitted that in view of the interim order dated 3rd November, 1999 passed in Writ Petition No.4524(SS) of 1998, the petitioner ought to have been allowed to continue as Accountant (Unqualified) in Zila Panchayat, Bahraich and be paid salary accordingly. Therefore, issuance of notice to the petitioner and impugned termination order were illegal being in the teeth of directions issued by this Court vide order dated 3rd November, 1999.
19. It has been further submitted that the petitioner was promoted to the post of Accountant and not Accountant (Unqualified). There was only one sanctioned post of Accountant in Zila Panchayat, Bahraich. There was no post of Accountant (Unqualified) in the Zila Panchayat. It has been further submitted that in view of the Government Order dated 9th June, 1997, no such post of Accountant (Unqualified) would exist in the establishment of Zila Panchayat, Shravasti.
20. Learned counsel for the petitioner has submitted that since the petitioner was discharging the duties and responsibilities of Accountant, he should be allowed the scale of pay as admissible to an Accountant as non-payment of salary of the post for which he had been discharging duties would be unjust. To support this contention he has placed reliance on the judgment of the Supreme Court in the case of State of Punjab vs B.K. Dhir, (2017) 9 SCC 337 after taking survey of its earlier judgments and orders rendered in State of Punjab vs Dharam Pal, (2017) 9 SCC 395; P. Grover vs. State of Haryana (1983) 4 SCC 291; and Secy.-cum-Chief Engineer vs. Hari Om Sharma, (1998) 5 SCC 87, where it was held that a person working on officiating basis is entitled to salary of the post on which he is allowed to work on officiating basis. Para 5 and 6 of the aforesaid judgment are reproduced hereunder-
“5. This Court today in State of Punjab v. Dharam Pal [State of Punjab v. Dharam Pal, (2017) 9 SCC 395] after referring to the authorities in P. Grover v. State of Haryana [P. Grover v. State of Haryana, (1983) 4 SCC 291 : 1983 SCC (L&S) 525 : AIR 1983 SC 1060] and Secy.-cum-Chief Engineer v. Hari Om Sharma [Secy.-cum-Chief Engineer v. Hari Om Sharma, (1998) 5 SCC 87 : 1998 SCC (L&S) 1273] and appreciating the similar factual matrix has held thus: (Dharam Pal case [State of Punjab v. Dharam Pal, (2017) 9 SCC 395] , SCC p. 403, para 22)
“22. In the instant case, the Rules do not prohibit grant of pay scale. The decision of the High Court granting the benefit gets support from the principles laid down in P. Grover [P. Grover v. State of Haryana, (1983) 4 SCC 291 : 1983 SCC (L&S) 525 : AIR 1983 SC 1060] and Hari Om Sharma [Secy.-cum-Chief Engineer v. Hari Om Sharma, (1998) 5 SCC 87 : 1998 SCC (L&S) 1273] . As far as the authority in A. Francis [A. Francis v. Metropolitan Transport Corpn. Ltd., (2014) 13 SCC 283 : (2015) 1 SCC (L&S) 376] is concerned, we would like to observe that the said case has to rest on its own facts. We may clearly state that by an incorporation in the order or merely by giving an undertaking in all circumstances would not debar an employee to claim the benefits of the officiating position. We are disposed to think that the controversy is covered by the ratio laid down in Hari Om Sharma [Secy.-cum-Chief Engineer v. Hari Om Sharma, (1998) 5 SCC 87 : 1998 SCC (L&S) 1273] and resultantly we hold that the view expressed by the High Court is absolutely impeccable.”
6. The learned counsel for the State of Punjab referring to the Punjab Civil Services Rules (for short “the Rules”), urged that the respondent was not eligible to hold the post. Be it noted, the said stand was not taken before the High Court and, in any case, we are disposed to think that when the respondent had worked in the officiating post and had been granted the benefits by the High Court, he should be extended the said benefits. Had there been a contest on the score of eligibility of the respondent, possibly the matter would have been different. That not being the fact situation, we are not inclined to interfere with the order passed by the High Court.”
21. Learned counsel for the petitioner submits that a post which is not interchangeable with other post or posts constitutes a separate cadre. In support of his contention he has placed reliance on the judgment of the Supreme Court in the case of State of Karnataka & Ors vs K.Govindappa & Anr : (2009) 1 SCC 1. Relevant paras of the aforesaid judgment are reproduced hereunder:-
“20. We have carefully considered the submissions made on behalf of the respective parties and the decisions cited by learned counsel in support thereof. In dealing with the issue raised in this appeal, it has to be kept in mind that some of the earlier decisions in Madhav case [(1997) 2 SCC 332 : 1997 SCC (L&S) 503] , in Suresh Chandra v. J.B. Agarwal [(1997) 5 SCC 363 : 1997 SCC (L&S) 1146] and Post Graduate Institute of Medical Education & Research v. K.L. Narasimhan [(1997) 6 SCC 283 : 1997 SCC (L&S) 1449] , in which reservation by rotation even in respect of a single post had been approved, was subsequently overruled in the Constitution Bench decision in Post Graduate Institute of Medical Education & Research v. Faculty Assn. [(1998) 4 SCC 1 : 1998 SCC (L&S) 961] and it was held that in no case could reservation be made applicable in respect of a single post. The Constitution Bench approved the views expressed in Chakradhar Paswan (Dr.) case [(1988) 2 SCC 214 : 1988 SCC (L&S) 516 : (1988) 7 ATC 104] following those expressed by the earlier Constitution Bench in Arati Ray Choudhury case [(1974) 1 SCC 87 : 1974 SCC (L&S) 73] . In view of the above, the only question which we are called upon to consider is whether the High Court was right in treating the post of Lecturer in History in Respondent 2 college as a single isolated post forming a separate cadre in itself and not part of the cadre of Lecturers comprising all the different disciplines taught in the college.
22. While there can be no difference of opinion that the expressions “cadre”, “post” and “service” cannot be equated with each other, at the same time the submission that single and isolated posts in respect of different disciplines cannot exist as a separate cadre cannot be accepted. In order to apply the rule of reservation within a cadre, there has to be plurality of posts. Since there is no scope of interchangeability of posts in the different disciplines, each single post in a particular discipline has to be treated as a single post for the purpose of reservation within the meaning of Article 16(4) of the Constitution. In the absence of duality of posts, if the rule of reservation is to be applied, it will offend the constitutional bar against 100% reservation as envisaged in Article 16(1) of the Constitution.
24. In our view, the present case falls within the category of single isolated posts within a cadre in respect whereof the rule of reservation is inapplicable and the said principle has been correctly applied by the High Court in the facts of this case. As indicated by the High Court, each discipline which consisted of a single post will have to be dealt with as a separate cadre for the said discipline and in view of the settled law that there can be no reservation in respect of a single post, the appointment of Respondent 1 cannot be faulted. This is particularly so having regard to the fact that the several disciplines are confined to one college alone. That is what distinguishes the facts of this case from those of Arati Ray Choudhury case [(1974) 1 SCC 87 : 1974 SCC (L&S) 73] in which the rule of rotation could be applied on account of the fact that two posts of headmistress were available in two colleges run by the same management. Moreover, in Chakradhar Paswan (Dr.) case [(1988) 2 SCC 214 : 1988 SCC (L&S) 516 : (1988) 7 ATC 104] on which reliance was placed by the High Court it was noticed that while upholding the rule of rotation the Constitution Bench in Arati Ray Choudhury case [(1974) 1 SCC 87 : 1974 SCC (L&S) 73] did not support reservation in a single cadre post.”
22. On the other hand, learned Additional Chief Standing Counsel and counsels representing Zila Panchayat, Bahraich and Shravasti have submitted that the petitioner was initially appointed in the year 1975 on the Post of Clerk Grade-II, however, his services came to be terminated on 23rd February, 1979 on the ground of his unauthorized absence from duties. Thereafter, the petitioner filed a representation on 25th May, 1979 against the order of his termination and on other representation was filed by him on 14th November, 1981 before the Divisional Commissioner. The Divisional Commissioner considering the case of the petitioner sympathetically vide order dated 21st March, 1983 restored the services of the petitioner from the date of his absence from duty, but the petitioner was not paid salary for the period he did not work. The petitioner was never promoted to the post of Assistant Accountant and his claim that he was working from 1978 to 1986 on the post of Assistant Accountant is wholly incorrect and against the record itself.
23. It has been further submitted that the then President of Zila Panchayat vide order dated 26th February, 1991 promoted the petitioner to the post of Accountant (Unqualified) in the pay scale of Rs.975-1660/-, however, this promotion was against the Rules, 1970 and, therefore, the Government vide order dated 17th March, 1997 cancelled his promotion after it was referred to the Government on the ground that the petitioner’s promotion to the post of Accountant (Unqualified) was against the services Rules, 1970. After the Government cancelled the promotion of the petitioner to the post of Accountant (Unqualified) vide order dated 17th March, 1997, Apar Mukhya Adhikari vide order dated 24th April, 1997 promoted the petitioner to the post of Clerk Grade-I in the same pay scale i.e. Rs.975-1660/-. The said order has been challenged by the petitioner by filing Writ Petition No.3826(SS) of 1997, however, no order has been passed in the said petition. It is, therefore, clear that the petitioner was not promoted to the post of Accountant and he was in Clerk grade-I only.
24. Learned counsel has submitted that the promotion of the petitioner to the post of Accountant by the President of Zila Panchayat vide order dated 26th February, 1991 was erroneous on ground of his ineligibility for such promotion under Rules, 1970. The learned counsel has substantiated this contention with the judgment of the Supreme Court in the case of I.C.A.R. and Anr vs T.K. Suryanarayan and Ors (AIR 1997 SC 3108), wherein it has been held that even if any erroneous promotion is given contrary to the Service Rules, an employee cannot base his claim for promotion contrary to the statutory rules.
“8. … Even if in some cases, erroneous promotions had been given contrary to the said Service Rules and consequently such employees have been allowed to enjoy the fruits of improper promotion, an employee cannot base his claim for promotion contrary to the statutory service rules in law courts…”
25. Learned counsel appearing for Zila Panchayat, Bahraich has further submitted that improper promotion of petitioner to the post of Accountant by the President of Zila Panchayat vide order dated 26th February, 1991 was rightly cancelled by the Government vide order dated 17th March, 1997 because of his ineligibility for such promotion under Service Rules, 1970. The counsel has justified cancellation of the promotion by citing the precedent of Ajit Kr. Bhuyan and Ors vs Debajit Das and Ors (AIR 2019 SC 492), where the promotion of the Respondent therein was held to be invalid and based on fraud because he was not even eligible for promotion as per Rules as he had not put in minimum term of five years in service.
Relevant part of the aforesaid judgment is extracted hereunder:-
“29. …We are of the opinion that it was virtually a case of fraud, at least on three counts. …Third, the promotion was given when Respondent 1 was not even eligible as per Rules as he had not put in minimum service of five years. Fraud vitiates every action and cannot be kept under the carpet….”
26. The learned counsel has also placed reliance on the judgments of the Supreme Court in Ramakant Shripad Sinai Advalpalkar vs Union of India, 1991 Supp (2) SCC 73; and Institute of Chartered Accountants of India vs J.R. William Singh (2020 SCC OnLine SC 79) to submit that just because an employee is given a temporary charge to carry out duties of a particular post, it does not amount to promotion.
Para 5 of the Ramakant case (supra), lays as follows:
“5. The arrangements contemplated by this order plainly do not amount to a promotion of the appellant to the post of Treasurer. The distinction between a situation where a government servant is promoted to a higher post and one where he is merely asked to discharge the duties of the higher post is too clear to require any reiteration. Asking an officer who substantively holds a lower post merely to discharge the duties of a higher post cannot be treated as a promotion. In such a case he does not get the salary of the higher post; but gets only what in service parlance is called a “charge allowance”. Such situations are contemplated where exigencies of public service necessitate such arrangements and even consideration of seniority do not enter into it. The person continues to hold his substantive lower post and only discharges the duties of the higher post essentially as a stop-gap arrangement.”
27. Whereas, Para 18 of the latter case, Institute of Chartered Accountants of India (supra), states as follows:
“18. Now, so far as the submission on behalf of the respondent that subsequently even the respondent was working as a Section Officer and, therefore, shall be entitled to promotion under the TBPS to the post of Section Officer is concerned, it is required to be noted that as such there was no specific order of promotion promoting the respondent to the post of Section Officer. For some time, the respondent was directed to look after the work of Diary/Dispatch Section. However, his designation came to be continued as Electrician. Merely because an employee is given a temporary charge to do a particular work of a particular post, it cannot be said that in fact he has been promoted to the said post. At this stage, it is required to be noted that subsequently when the respondent was transferred in the year 2005 from Noida Office (Electrician) to Kanpur DCO (Electrician), the respondent opposed the said transfer contending, inter alia, that there is no post of an Electrician at Kanpur and therefore he should be continued at Noida (Electrician). Therefore, even on 04.03.2005, the respondent himself claimed to be the Electrician. Therefore, now it is not open to the respondent that he was already promoted to the post of Section Officer in the year 1996. Therefore also, the High Court has committed a grave error in directing the appellant to promote the respondent to the post of Section Officer under the TBPS. However, at the same time, the respondent shall be entitled to the same salary of Section Officer for the period during which he worked as a Section Officer either on officiating basis and/or he was given the charge, if not paid so far.”
28. After the service Rules, 1970 came into force, the Government issued order dated 08.08.1980 for staffing pattern in Zila Panchayat, post of Accountant (Unqualified) was declared to be surplus. The post of Accountant is to be filled up from the Assistant Accountant who have completed five years’ service on the said post and passed the Accountant examination. It has been further submitted that the petitioner had neither experience of five years on the post of Assistant Accountant nor he had qualified Accountant examination and, therefore, he was not eligible to be promoted to the post of Accountant.
29. In the year 1997, when new District Shravasti was carved out from District Bahraich, staffs and resources of two Zila Panchayats were bifurcated. Bifurcation of the staffs etc., was decided on 15th June, 1998 with the consent and signature of Apar Mukhya Adhikari of both the Zila Panchayats. At that time, the petitioner was working as Clerk Grade I and, he was transferred to Zila Panchayat, Shravasti on the said post. In view of the Government Order dated 25th October, 1997 in case of any dispute in respect of bifurcation of the staffs and resources, opinion of Divisional Commissioner was to be final.
30. Vide Government Order dated 9th June, 1997 staffing pattern in Zila Panchayats was reworked and in the said Government Order, post of Accountant (Unqualified) was found to be superfluous. It has been further submitted that the petitioner’s transfer from Zila Panchayat, Shravasti to Zila Panchayat, Bahraich by the President of Zila Panchayat, Shravasti on 6th February, 1999 was illegal inasmuch as it was beyond his jurisdiction. In case of one Satya Prakash Singh, who was transferred from Shravasti to Bahraich by the President of Zila Panchayat, Shravasti, this Court directed the Commissioner, Devi Patan Mandal to decide the dispute and the Commissioner vide order dated 2nd September, 1999 made it clear that the President, Zila Panchayat, Shravasti had no power or authority to transfer an employee of Zila Panchayat, Shravasti to Zila Panchayat, Bahraich.
31. It has been further submitted that in pursuance to petitioner’s illegal transfer vide order dated 6th February, 1999 from Zila Panchayat, Shravasti, no order was passed allowing him to join in District Bahraich and without permission of the competent authority, the petitioner made his signature on the joining register forcibly, which was later on cut-off.
32. It has been further submitted that the petitioner was not interested in performing his duties and functions on the post on which he was appointed but he wanted to remain posted at Bahraich and perform the work of Accountant and for which he had filed several litigation. It has been, therefore, submitted that when the petitioner had remained himself absent from duties unauthorizedly, the competent authority had terminated his services after giving three months’ salary in lieu of the notice.
33. To substantiate the aforesaid submissions, learned counsel appearing for respondent Nos.5, 6 and 7 has placed reliance on the judgment of the Supreme Court in the case of L& T Komatsu Ltd versus vs N.Uday Kumar (2008) 1 SCC 224.
34. I have considered the submissions advanced on behalf of learned counsel for the petitioner as well as learned Standing Counsel representing Zila Panchayats and perused the record of the writ petitions.
35. Service conditions of the petitioner are governed under Rules, 1970. Rule 132 of the Rules, 1970 provides that all the employees of the Zila Panchayat barring those comprising the central transferable cadre shall be subject to transfer from one Zila Panchayat to another within the division by the respective Commissioner of the Division. As a result of, bifurcation of District Bahraich, a new district and Zila Panchayat Shravasti were created in the year 1997. The petitioner, who was posted as Clerk Grade-I, was allotted Zila Panchayat, Shrawasti vide order dated 15th June,1998. From District Shrawasti to District Bahraich, only Commissioner could have transfer him back and Zila Panchayat Shravasti had no power or jurisdiction to transfer him back to Zila Panchayat, Bahraich.
36. Be that as it may, the petitioner was not performing the duties and responsibilities of his post at Shravasti and, it appears that out of frustration, the President of Zila Panchayat, Shravasti relieved him from Shravasti and asked him to go back to Zila Panchayat, Bahraich vide order dated 6th February, 1999. This order, however, was cancelled by the Commissioner, Devi Patan, Mandal vide order dated 19th January, 2000. Notice to the petitioner, intimating him about the order dated 19th January, 2000 and for his joining at Shravasti, was sent through registered post and he was required to join by 2nd February, 2000. Apar Mukhya Adhikari, Shravasti on 4th May, 2000 wrote to the Commissioner that the petitioner was not joining on the post of Clerk Grade-I at Shravasti and the Zila Panchayat was not getting the benefit of services of the petitioner. Zila Panchayat, Shravasti again sent him notice through registered post and a copy of the same was also sent to the Commissioner. Post Messenger, Raj Kishore Srivastava went with notice to the petitioner’s residence, however, after reading the notice, he returned it and he refused to join at Shravasti. Show cause notice was issued to him by registered post by Apar Mukhya Adhikari, Shrawasti on 15th September, 2000. Last notice to the petitioner was published in Hindustan daily newspaper on 13th July, 2000. The Commissioner also directed the petitioner to join at Shravasti vide letter dated 23rd October, 2000. Despite several notices and letters asking him to join at Shravasti, the petitioner did not comply the direction issued by the competent authority including the Commissioner and, therefore, on 21st May, 2001, Apar Mukhya Adhikari wrote in his note-sheet recommending petitioner’s termination from services. In view thereof, the President passed the order terminating his services.
37. This Court had passed a conditional interim order dated 8th October, 1998 in Writ Petition No.4524(SS) of 1998. Since the petitioner did not have prescribed qualification to hold the post of Accountant and, his promotion was made in illegal and arbitrary manner against the mandate of statutory prescription, the petitioner could not have been allowed to work on the post of Accountant in pursuance to the interim order dated 8th October, 1998. After Rules, 1970 came into existence, the post of Accountant (Unqualified) was available to the existing hands only. In future, nobody could have been appointed by promotion or direct recruitment on the said post, therefore, alleged promotion, if any, to the post of Accountant (Unqualified) of the petitioner vide order dated 26th February, 1991 was wholly against the service rules, which was rightly turned down by the Government. This Court vide interim order dated 3rd November, 1999 passed in Writ Petition No.4524(SS) of 1998 stayed the transfer order of the petitioner, however, the same was a conditional one. Once the Commissioner had cancelled the order dated 06th February, 1999 vide his order dated 25th January, 2000, interim order dated 3rd November, 1991 lost its efficacy. This Court has not passed any order on the amendment/modification application of the petitioner till date. There has been no interim order staying the operation of the order dated 25th January, 2000 passed by the Divisional Commissioner.
38. Under Schedule A of Rules, 1970, it is specifically provided that the post of Accountant (Unqualified) would be available to the existing hands and no fresh appointment or promotion could be made as it was letter on declared superfluous by the Government Order dated 9th June, 1997.
39. Post of Accountant is required to be filled up by promotion from amongst Assistant Accountants possessing at least 5 years experience and have qualified Accountant examination. It is not the case of the petitioner that he did possess the requisite qualification for promotion to the post of Accountant and, therefore, claim of the petitioner that he should be treated as Accountant and be paid salary, has no basis and is hereby rejected.
40. An employee cannot remain absent from service on the spacious ground that he has challenged his transfer before the Court. It appears that the petitioner was not serious with his service, duties and responsibilities. He is a habitual absentee. Initially also, he remained absent and for that reason, his services were terminated.
41. The petitioner was not responding to the notices and not coming forward to participate in the disciplinary proceedings. Rule 36 of the Rules, 1970 provides procedure for disciplinary proceedings. However, Rule 36(2) provides that if the disciplinary authority is satisfied that it would not be feasible to follow the procedure prescribed in Sub-Rule 1 for conducting the disciplinary proceedings, then his services can be terminated.
42. The petitioner has abandoned his services and he was obstinate not to join at Shravasti on the post of Clerk Grade-I. The Supreme Court in the case of L&T Komatsu Ltd. v. N. Uday Kumar (supra) has held that habitual absenteeism amounts to gross violation of discipline and dismissal of such an employee from service should not be treated to be harsh and interfered with by the High Court. The Supreme Court after taking survey of several judgments on this point in the said judgment has held that if the absence was intentional, then the Court should not interfere with the order of dismissal.
43. Para 8 of the L&T Komatsu Ltd. v. N. Uday Kumar (supra) which is relevant is extracted hereunder:-
“8. So far as the question whether habitual absentism means the gross violation of discipline, it is relevant to take note of what was stated by this Court in M/s. Burn & Co. Ltd. v. Their Workmen and Ors. [AIR 1959 SC 529] “There should have been an application for leave but Roy thought that he could claim as a matter of right leave of absence though that might be without permission and though there might not be any application for the same. This was gross violation of discipline. Accordingly, if the company had placed him under suspension that was in order. On these findings, it seems to us that the Tribunal erred in holding that it could not endorse the Company’s decision to dispense with the services altogether. In our opinion, when the Tribunal upheld the order of suspension it erred in directing that Roy must be taken back in his previous post of employment on the pay last drawn by him before the order of suspension.”
44. Petitioner’s absence from duty as Clerk Grade-I in District Panchayat Shravasti was deliberate and intentional one. The Divisional Commissioner vide order dated 25th January, 2000 cancelled the order dated 6th February, 1999 passed by the President, District Panchayat Shravasti transferring him to District Panchayat, Bahraich and, therefore, in absence of any order from this Court staying the operation of the order of the Commissioner dated 25th January, 2000, he ought to have joined the post of Clerk Grade-I at Shravasti. However, despite intimation of the order dated 25th January, 2000 and several notices issued to him, he did not join his post intentionally and, thus abandoned his services.
45. In view of the aforesaid discussion, I do not find any merit and substance in these writ petitions, which are hereby dismissed.