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PETITIONER: STATE OF U.P. & ANR.

       Vs.

RESPONDENT: BRIJ NATH MISRA

DATE OF JUDGMENT:       27/03/1997

BENCH: K. RAMASWAMY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      This appeal b y special leave arises from the judgement of the  Allahabad High  Court, Lucknow Bench, made on August 6, 1993 in Writ Petition No.1126 of 1991.      The  admitted  position  is  that  the  respondent  was appointed as an Ayurvedic Medical Officer on ad hoc basis by proceeding 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 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  a  break  in  service.  On  so  furnishing  the certificate, he  resumed duty.  Subsequently, the  Selection Committee was  constituted  under  Rule  4(3)  of  the  U.P. Regularisation of  Ad Hoc  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 person 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 conditions mentioned thereunder. Rule 8  provides that  "that services of a person, appointed on ad  hoc basis who 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  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  fresh appointment and, therefore,  the termination  was bad in law. Thus, this appeal by special leave.      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

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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, 1989 is not an order of fresh appointment but a permission granted to the respondent to resume duty as Ayurvedic  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 appointment  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 vs. Union of India [(1980) 3  SCC 25)  and Shiv Shankar & Anr. Union of India & Ors. [(1985) 2 SCC 30].      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 conduction an enquiry of 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 dismissed but, in the circumstances, without costs.