@JUDGMENTTAG-ORDER
Pratyush Kumar, J.@mdash1. Special Appeal No. 526 of 2014 has been filed by Smt. Suman Shukla assailing the judgment and order dated 21st August, 2014 passed in Writ Petition No. 3064 (S/S) of 1996 (Anoop Kumar Shukla since deceased through his legal representative v. State of U.P. and others), Special Appeal No. 529 of 2014, filed by Smt. Suman Shukla, is directed against the judgment and order dated 21st August, 2014 passed in Writ Petition No. 5876 (S/S) of 2008 (Smt. Suman Shukla v. State of U.P. and others)
2. Both the Special Appeals have a common factual matrix, therefore, we are disposing of these appeals by a common judgment and order.
3. Anoop Kumar Shukla husband of Smt. Suman Shukla filed writ petition No. 3064 (S/S) of 1996 praying therein to issue writ in the nature of certiorari quashing the impugned order dated 29th May, 1996 passed by the Respondent No. 5 whereby his service as temporary Lekhpal was terminated and further for issue of writ in the nature of mandamus commanding the respondents to allow him to continue his service as Lekhpal and pay him admissible wages. Main grounds of the writ petition are that Anoop Kumar Shukla (since deceased) was duly qualified to be Lekhpal. His service was regulated under the Lekhpal Service Rules, 1958. He joined his service on 15th January, 1996 and worked upto April, 1996. Without providing opportunity of hearing by the impugned order his service was terminated though persons qualifying after him are continuing in service.
4. On behalf of the respondents counter affidavit was filed whereby averments made in the writ petition were denied and it has been stated that Anoop Kumar Shukla on the basis of forged certificate got the appointment, when verified that his certificate was found forged. After paying him one month''s salary his temporary service was terminated.
5. Under interim order dated 11th June, 1996 Anoop Kumar Shukla continued to work as Lekhpal and during the pendency of the writ petition he died on 22nd August, 2007. After his death Smt. Shuman Shukla got herself substituted as legal representative and after hearing the arguments by the impugned judgment and order writ petition was dismissed. In the impugned judgment it has been held that termination order is ex-facie termination simplicitor. It has been further held that subsequent averments made in the counter affidavit would not make the impugned termination order stigmatic. Feeling aggrieved, Smt. Suman Shukla has filed Special Appeal No. 526 of 2014.
6. The other Writ Petition No. 5876 (S/S) of 2008 has been filed by Smt. Suman Shukla seeking her appointment under the U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 (hereinafter referred as ''Dying-in-Harness Rules'' on the ground that her husband Anoop Kumar Shukla died while he was in service. On behalf of the respondents counter affidavit was filed whereby averments made in the supporting affidavit were denied and it has been stated that Late Anoop Kumar Shukla on the basis of forged Lekhpal training certificate procured appointment. His temporary service was terminated under the U.P. Temporary Government Servants Rules, Termination of Service 1976. He was working under the interim order passed by this Court. No right has accrued to the petitioner for appointment under the Dying in Harness Rules. On behalf of the petitioner a rejoinder affidavit was filed. After hearing counsel for the parties by the impugned judgment and order writ petition was dismissed for the reason that order of termination dated 29th May, 1996 has been upheld by this Court passed in Writ Petition No. 3064 (S/S) of 1996. In this light he could not be said to be died in harness entitling the petitioner to claim a compassionate appointment.
7. Sri Sanjay Mishra, learned counsel for the appellant has submitted in support of the grounds taken in Special Appeal No. 526 of 2014 that in the impugned judgment it has not been considered that the persons who obtained training certificate of Lekhpal subsequent to late Sri Anoop Kumar Shukla were allowed to work which reflects discrimination on the part of the respondents. He has further submitted that termination order dated 29th May, 1996 was passed without giving opportunity of show cause to the husband of the appellant, therefore, termination order is violative of rules of natural justice. He has further submitted that from the averments made in the counter affidavit it is clear that late Sri Anoop Kumar Shukla was found guilty of using forged certificate though he was not given any opportunity to establish his bonafide.
8. In reference to grounds taken in Special Appeal No. 529 of 2014 the learned counsel for the appellant has submitted that on the date of his death i.e. 22nd August, 2007 late Sri Anoop Kumar Shukla was serving as Lekhpal. The appellant being dependent is entitled for compassionate appointment under the relevant rules. Her writ petition has been erroneously dismissed.
9. On behalf of the respondents these arguments have been repelled and argued that service of late Sri Anoop Kumar Shukla was terminated by order of termination simplicitor. It is not violative of Article 311 (2) of the Constitution of India. U.P. Temporary Government Servants (Termination of Service) Rules 1975 empower the State to terminate the service of temporary government servant after giving notice of one month or pay of one month in lieu of notice. According to the learned counsel the persons who had obtained training certificate of Lekhpal subsequent to late Sri Anoop Kumar Shukla have been continued in service because their certificates were found genuine whereas certificate of Sri Anoop Kumar Shukla was found forged.
10. On behalf of the State it has also been submitted that service of late Sri Anoop Kumar Shukla was validly terminated on 29th May, 1996. Writ challenging that order has been dismissed, interim order dated 11th June, 1996 stands merged with the final order and the appellant does not remain entitled for considering her for the compassionate appointment.
11. It is not in dispute that late Sri Anoop Kumar Shukla joined as Lekhpal on 15th January, 1996 and termination order was passed on 29th May, 1996. It is also not disputed that he was a temporary employee on probation. For terminating the service of temporary government servants, the U.P. Temporary Government Servants (Termination of Service) Rules 1975 provide that service of such government servant can be terminated by the Government under Rule 3 of the said Rules. Rule 3 of the said Rules reads as under:
"Rule 3:
"Termination of service- (1) Notwithstanding anything to the contrary in any existing rules or orders on the subject, the services of a Government servant in temporary service shall be liable to termination 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.
(2) The period of notice shall be one month:
Provided that the services of any such Government servant may be terminated forthwith, and on such termination the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances, if any, for the period of the notice or as the case may be, period for which such notice falls short of one month at the same rates at which he was drawing them immediately before the termination of his services:
Provided further that it shall be open to the appointing authority to relieve a Government servant without any notice or accept notice for a shorter period, without requiring the Government servant to pay any penalty in lieu of notice:
Provided also that such notice given by the Government servant against whom a disciplinary proceeding is pending or contemplated shall be effective only if it is accepted by the appointing authority, provided in the case of a contemplated disciplinary proceeding, the Government servant is informed of the non-acceptance of his notice before the expiry of that notice."
12. Proviso to Sub Rule 2 of Rule 3 also dispenses with need for giving one month''s notice on the condition that terminated employee should be paid one month''s amount equal to one month''s salary. Annexure-1 to the supporting affidavit of the writ petition reveals that this requirement was fulfilled by the Respondent No. 5. Therefore, we are of the opinion that services of late Sri Anoop Kumar Shukla as Lekhpal was terminated in accordance with rules vide State of U.P. v. Ashok Kumar , (2005) 13 SCC 652.
13. Second question arises whether the termination order is violative of rules of natural justice?
14. After late Sri Anoop Kumar Shukla joined his service, his supporting certificates were subjected to verification wherein it was found that his training certificate purported to be issued by Lekhpal Training School certifying that he had satisfactorily undergone training thereat was forged one. This scrutiny was not an inquiry. It is a normal procedure adopted by the employer to verify the genuineness of the papers submitted by the employee while entering service. Therefore, late Anoop Kumar Shukla or his legal representative cannot make a complaint that he or she was not provided opportunity to show that certificate in question was not a forged one. It was the discretion of the employer either to hold a departmental enquiry against late Sri Anoop Kumar Shukla or terminate his service on the ground of unsuitability without attaching stigma to him. Respondent No. 5 had chosen to terminate service of late Sri Anoop Kumar Shukla. The employer is entitled to adopt any of the two courses open to him. Invoking similar kind of controversy a writ was heard by Division Bench of this Court and the judgment given by it squarely covers the question raised before us. In the case of Radha Tiwari (Smt.) v. State of U.P. and others , (2003) 1 UPLBEC 395 in para 22 and 23 the Division Bench observed the following:
"22. In the present case what we find is that the impugned order cannot be held to be punitive in nature and further it cannot be taken to be founded on the charges relating to the misconduct. The Hon''ble Apex Court in its decision in the case of Dipti Prakash Banerjee v. Satvendra Nath Bose, National Centre for Basic Sciences, Calcutta, , 1999 (1) SLR 622, had clearly indicated that if the findings were arrived at in an enquiry as to misconduct, behind the back of the Officer or without a regular departmental enquiry, the simple order of termination is to be treated as ''founded'' on the allegations and will be bad. But if the enquiry was not held, no finding were arrived at and the employer was not inclined to conduct an enquiry but, at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad.
23. The Apex Court, while observing so, had referred to its earlier decision in the case of State of Punjab v. Sukh Raj Bahadur, , 1968 (3) SC 234. In that case a charge memo for a regular inquiry had been served, reply given and at that stage itself the proceedings were dropped and a simple termination order was issued. It was held that the order of simple termination was not founded on any findings as to misconduct. Reference was also made to be decision in the case of A.S. Benjamin v. Union of India, Civil Appeal No. 1341 of 1966, decided on 13.12.1966, wherein it was indicated that where a charge memo was issued, an Enquiry Officer was also appointed but before the enquiry could be completed, the proceedings were dropped and a simple order of termination was passed, the reason for dropping the proceedings was that departmental proceeding will take much longer time and we are not sure whether after going through all the foundations, we will be able to deal with the accused in the way he deserves, the termination was upheld."
15. The judgment impugned before us can also not be impeached upon the ground that persons junior to late Sri Anoop Kumar Shukla had continued to work whereas service of late Sri Anoop Kumar Shukla was terminated. It is the specific case of the respondents that late Sri Anoop Kumar Shukla was not found suitable whereas his juniors who continued to serve were holding genuine certificates and they were not found unsuitable. In this way the termination order cannot be said to be discriminatory. Arguments advanced in support of the appeal are without substance and Special Appeal No. 5206 of 1004 being bereft of merit deserves to be dismissed.
16. It is settled law that interim order merges in the final order. Writ Petition challenging the termination order has been dismissed. For this reason no benefit can be conferred on the appellant on the strength of working of late Sri Anoop Kumar Shukla by interim order dated 11th June, 1996. Legal position is that on 22nd August, 2007 when late Sri Anoop Kumar Shukla died he did not remain in service and the appellant cannot claim compassionate appointment on the ground of death of her husband.
17. Writ Petition of the appellant for compassionate appointment has also right to be dismissed. Her appeal is devoid of any merit and deserves to be dismissed.
18. Resultantly Special appeal Nos. 526 of 2014 (Smt. Suman Shukla v. State of U.P. and others) and 529 of 2014 (Smt. Suman Shukla v. State of U.P. and others) are dismissed.
