# Mahesh Kumar v. State of U.P. & Anr

- **Citation:** (2024) 4 ILRA 403
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-06
- **Case number:** Writ A No. 13670 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahesh-kumar-v-state-of-u-p-anr-51818
- **Pages:** 6

## Headnote

Civil law - U.P. Municipalities Act, 1916 -
Uttar
Pradesh
Government
Servant
Conduct
Rules,
1956
-
Rule
5
-
Contractual Employment - Termination of
Service - Election Candidature - Principles
of
Natural
Justice
-
Article
226
Jurisdiction
The petitioner, Mahesh Kumar, a contractual
Safai Karmchari with Nagar Palika Parishad,
Modi Nagar, challenged the termination of his
services vide order dated 29.04.2023 by the
Executive Officer, citing his candidature for the
Chairman's post in the 2023 Nagar Palika
elections as a violation of service conditions
under the U.P. Government Servant Conduct
Rules, 1956. The petitioner claimed he had
obtained a No Objection Certificate (NOC) and
leave, and argued the termination was arbitrary,
lacking
an
opportunity
for
hearing.
The
respondents contended the appointment was
purely contractual, no NOC was issued for
contesting elections, and the petitioner was
warned against violating Rule 5. Held: (1) The
petition was dismissed. (2) The petitioner, as a
contractual employee, had no lien on the post,
and his service was governed solely by the
contract, not the U.P. Municipalities Act, 1916,
or the Rules of 1956. (3) The termination did
not violate Article 14 or 16, as it arose from a
non-statutory contract, and disputes regarding
contract breaches were outside Article 226
jurisdiction, per St. of U.P. Vs Kaushal Kishore
Shukla. (4) The petitioner's claim of an NOC was
incorrect, as he was explicitly warned against
contesting elections. (5) No opportunity for
hearing was required, as the termination was
not punitive but based on contract terms. (6)
The petitioner was granted liberty to raise an
industrial dispute under the U.P. Industrial
Disputes Act, 1947.

List of Cases cited:

## Text

4 All. Mahesh Kumar Vs. State of U.P. & Anr.
403
----------
(2024) 4 ILRA 403
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.03.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ A No. 13670 of 2023

Mahesh Kumar ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Harish Chandra

Counsel for the Respondents:
C.S.C., Sri Manu Saxena, Sri Radhamani
Saxena

Civil law - U.P. Municipalities Act, 1916 -
Uttar
Pradesh
Government
Servant
Conduct
Rules,
1956
-
Rule
5
-
Contractual Employment - Termination of
Service - Election Candidature - Principles
of
Natural
Justice
-
Article
226
Jurisdiction
The petitioner, Mahesh Kumar, a contractual
Safai Karmchari with Nagar Palika Parishad,
Modi Nagar, challenged the termination of his
services vide order dated 29.04.2023 by the
Executive Officer, citing his candidature for the
Chairman's post in the 2023 Nagar Palika
elections as a violation of service conditions
under the U.P. Government Servant Conduct
Rules, 1956. The petitioner claimed he had
obtained a No Objection Certificate (NOC) and
leave, and argued the termination was arbitrary,
lacking
an
opportunity
for
hearing.
The
respondents contended the appointment was
purely contractual, no NOC was issued for
contesting elections, and the petitioner was
warned against violating Rule 5. Held: (1) The
petition was dismissed. (2) The petitioner, as a
contractual employee, had no lien on the post,
and his service was governed solely by the
contract, not the U.P. Municipalities Act, 1916,
or the Rules of 1956. (3) The termination did
not violate Article 14 or 16, as it arose from a
non-statutory contract, and disputes regarding
contract breaches were outside Article 226
jurisdiction, per St. of U.P. Vs Kaushal Kishore
Shukla. (4) The petitioner's claim of an NOC was
incorrect, as he was explicitly warned against
contesting elections. (5) No opportunity for
hearing was required, as the termination was
not punitive but based on contract terms. (6)
The petitioner was granted liberty to raise an
industrial dispute under the U.P. Industrial
Disputes Act, 1947.

List of Cases cited:

1. St. of U.P. & anr. Vs Kaushal Kishore Shukla,
(1991) 1 SCC 691;

2. Parshotam Lal Dhingra Vs U.O.I., AIR 1958
SC 36;

3. St. of Orissa Vs Ram Narayan Dass, (1961) 1
SCR 606; R.C. Lacy Vs St. of Bihar, C.A. No.
590/62 (SC);

4. Champaklal Chimanlal Shah Vs U.O.I., (1964)
5 SCR 190;

5. Jagdish Mitter Vs U.O.I., AIR 1964 SC 449;

6. A.G. Benjamin Vs U.O.I., (1967) 1 LLJ 718;

7. Shamsher Singh Vs St. of Punjab, (1974) 2
SCC 831;

8. St. of Punjab Vs Sukh Raj Bahadur, (1968) 3
SCR 234.

(Delivered by Hon'ble J.J. Munir, J.)

1. The petitioner, a Safai Karmchari,
engaged on contract by the Nagar Palika
Parishad, Modi Nagar, Ghaziabad, assails
the order dated 29.04.2023, determining the
contract and in consequence terminating his
services. The order aforesaid has been
passed by the Executive Officer, Nagar
Palika Parishad, Modi Nagar, Ghaziabad,
and, shall hereinafter be referred to as the
'impugned order'.
404 INDIAN LAW REPORTS ALLAHABAD SERIES

2. The petitioner was appointed on the
basis of a contract as a Safai Karmi
(Sweeper) with the Nagar Palika Parishad,
Modi Nagar, Ghaziabad, in terms of a letter
of appointment dated 25.07.2006. The
letter of appointment was issued by the
Executive Officer, Nagar Palika Parishad,
Modi Nagar, Ghaziabad (for short, 'the Nagar
Palika'). The appointment as aforesaid was
made in terms of Government Orders dated
26.08.2005 and 09.05.2006, after selection by
a selection committee, constituted for the
purpose
by
the
District
Magistrate,
Ghaziabad. The letter of appointment says
that the petitioner was appointed on contract
as a Safai Karmi on a pay of Rs.2130/-. It
was made explicit that the appointment is
entirely contractual and made subject to the
condition that in case the candidate's work is
not found satisfactory, his appointment would
be terminated.

3. It is the petitioner's case that though
appointed as a Safai Karmi on contract basis,
the Nagar Palika have assigned him the duties
of a driver. The petitioner has been paid
salary of a safai karmi on contract basis. A
pay slip relating to the petitioner has been
annexed as Annexure No.2 to the writ
petition, which shows that it relates to the
month of September, 2021. Reference to this
pay slip would be made later in this
judgment. The petitioner acknowledges the
fact that though he is working on the post of
a Safai Karmi since 25.07.2006, he has not
been confirmed or regularized in service. It
is averred in the writ petition that the letter
of appointment shows that the petitioner's
services can be terminated if his work is
not found satisfactory. It appears that the
elections to the Nagar Palika were notified
and the petitioner staked his candidature for
the post of the Chairman of the Nagar
Palika Parishad. He made an application,
seeking sanction of leave from 15.04.2023
to 26.04.2023, in order to enable him to
contest the said elections. It is the
petitioner's case that since there was a
condition to submit a No Objection
Certificate, he secured one from the
Tehsildar, Tehsil Modi Nagar (Ghaziabad)
and duly submitted it. It is the petitioner's
further case that a 'no dues certificate' was
secured on 18.04.2023, also from the
Tehsildar, showing that there were no dues
against the petitioner for the year 2022-23.
After all formalities were completed, the
petitioner contested the elections to the post
of the Chairman, Nagar Palika, but lost at
the hustings. On 29.04.2023, the Executive
Officer of the Nagar Palika terminated the
petitioner's services on ground that he had
contested elections to the office of the
President of the Nagar Palika in the
elections of 2023, which was in violation of
the service conditions under the Uttar
Pradesh Municipalities Act, 1916 (for
short, 'the Act'). It was mentioned that the
petitioner's contract was being determined
on that ground. The petitioner moved an
application on 26.05.2023 to revoke the
order of his termination from service,
addressed
to
the
Executive
Officer.
Nothing came out of it. Accordingly, this
writ petition has been instituted by the
petitioner, assailing the order impugned.

4. Parties have exchanged affidavits.

5. Heard Mr. Harish Chandra, learned
Counsel for the petitioner, Ms. Amrita
Singh, learned Additional Chief Standing
Counsel on behalf of respondent No.1 and
Mr. Radhamani Saxena, Advocate holding
brief of Mr. Manu Saxena, learned Counsel
appearing on behalf of the Nagar Palika.

6. The learned Counsel for the
petitioner submits that the petitioner is a
low paid employee of the Nagar Palika and
4 All. Mahesh Kumar Vs. State of U.P. & Anr.
405
applied for a no objection certificate (NOC)
to contest the elections and also sought
leave for the purpose. He was granted an
NOC and leave by the Executive Officer.
Therefore, it is no longer open to the
Executive Officer to terminate his services
on ground that he contested elections to
the office of the Chairman. It is submitted
that the petitioner has no knowledge about
the provisions of the Act nor was he
informed about its prohibitory provisions
at the time when a no objection certificate
and leave without pay was granted. It is
urged
that
the
impugned
order
is,
therefore, manifestly illegal and arbitrary.
It is also argued that no opportunity of
hearing or showing cause has been given
to
the
petitioner
before
the
order
terminating his services was passed.

7. Mr. Radhamani Saxena and Ms.
Amrita Singh, on the other hand, have
submitted in one voice that the petitioner's
appointment was entirely contractual. He
does not hold lien on any post. His
services have been determined in terms of
the contract as his act in running for the
elections to the office of the Chairman of
the Nagar Palika is not only prohibited
under the Uttar Pradesh Government
Servant Conduct Rules, 1956 (for short,
'the Rules of 1956') vide Rule 5, but also
constitutes an act that may be viewed by
the Nagar Palika as one which renders the
petitioner's
work
and
conduct
unsatisfactory, entitling the Nagar Palika
to terminate the contract. It is particularly
emphasized by the learned Counsel for the
Nagar Palika that a no objection was never
given to the petitioner, entitling him to
contest elections for the post of Chairman
of the Nagar Palika. Instead, an order dated
26.04.2023 was passed, informing the
petitioner with reference to his application
dated
26.04.2023
that
contesting
an
election to any Local Body or the
Legislative Assembly is prohibited for a
government servant by virtue of Rule 5 of
the Rules of 1956. The petitioner was
particularly informed that he may not do
any act which may constitute violation of
the Rules of 1956, else action would be
taken against him, in accordance with the
Act. The aforesaid notice, a photostat copy
of which is annexed as Annexure No.CA-1
to the counter affidavit, shows on its face
an endorsement made by the concerned
peon or employee of the Nagar Palika, who
went to deliver it to the petitioner, which
reads:

"पढ़कर लेने से इन्कार सकया"

Sd/- illegible."

8. It is submitted, therefore, that it
cannot be said by the petitioner that he had
no knowledge of the prohibition. In fact,
the petitioner was informed by the
Executive Officer of the Nagar Palika that
he was not permitted to run for elections to
the office that he wanted to. The learned
Counsel for the Nagar Palika, particularly,
says
that
a
no
objection
certificate
permitting
the
petitioner
to
contest
elections was never issued by the Executive
Officer of the Nagar Palika. It is also
pointed out that the NOC, referred to by the
petitioner in paragraph No.19 of the writ
petition, was a certificate by the Executive
Officer of the Nagar Palika about the
petitioner not being obliged to the Nagar
Palika on account of any outstandings in
their
favour.
The
learned
Counsel,
therefore, submits that the petitioner
contested elections to the office of the
Chairman of the Nagar Palika not only
without permission of the Executive
Officer, but in the face of a memo inviting
his attention to the Rules of 1956 that
prohibited him from doing so.
406 INDIAN LAW REPORTS ALLAHABAD SERIES

9. The learned Counsel for the
petitioner in his rejoinder submits of that
the edifice of the respondents' action is
essentially flawed, because the Rules of
1956 do not apply to the petitioner as he
was a contractual employee, and the order
impugned has been passed in contravention
of the terms of his contract. It is
emphasized that the only condition, on the
foot of which the petitioner's service can be
terminated, is unsatisfactory work, which is
not the respondents' case at all.

10. This Court must note one
submission that was forcefully made by the
learned Counsel for the petitioner and that
was that the petitioner's services could not
be terminated on the basis of a misconduct
in contesting elections, contrary to the
Rules of 1956, without affording him an
opportunity of hearing. In support of this
contention of his, learned Counsel for the
petitioner placed reliance upon the decision
of the Supreme Court in State of U.P. and
another v. Kaushal Kishore Shukla,
(1991) 1 SCC 691. He invited the Court's
attention to the holding of their Lordships
in paragraph No.7 of the report, which
reads:

"7. A temporary government
servant has no right to hold the post, his
services are liable to be terminated by
giving him one month's notice without
assigning any reason either under the terms
of
the
contract
providing
for
such
termination or under the relevant statutory
rules regulating the terms and conditions of
temporary
government
servants.
A
temporary
government
servant
can,
however, be dismissed from service by way
of punishment. Whenever, the competent
authority is satisfied that the work and
conduct of a temporary servant is not
satisfactory or that his continuance in
service is not in public interest on account
of
his
unsuitability,
misconduct
or
inefficiency, it may either terminate his
services in accordance with the terms and
conditions of the service or the relevant
rules or it may decide to take punitive
action against the temporary government
servant. If it decides to take punitive action
it may hold a formal inquiry by framing
charges and giving opportunity to the
government servant in accordance with the
provisions
of
Article
311
of
the
Constitution.
Since,
a
temporary
government servant is also entitled to the
protection of Article 311(2) in the same
manner
as
a
permanent
government
servant, very often, the question arises
whether an order of termination is in
accordance with the contract of service and
relevant rules regulating the temporary
employment or it is by way of punishment.
It is now well settled that the form of the
order is not conclusive and it is open to the
court to determine the true nature of the
order. In Parshotam Lal Dhingra v. Union
of India [1958 SCR 828 : AIR 1958 SC 36
: (1958) 1 LLJ 544] , a Constitution Bench
of this Court held that the mere use of
expressions like 'terminate' or 'discharge'
is not conclusive and in spite of the use of
such expressions, the court may determine
the true nature of the order to ascertain
whether the action taken against the
government servant is punitive in nature.
The court further held that in determining
the true nature of the order the court should
apply two tests namely: (1) whether the
temporary government servant had a right
to the post or the rank or (2) whether he has
been visited with evil consequences; and if
either of the tests is satisfied, it must be
held that the order of termination of a
temporary government servant is by way of
punishment. It must be borne in mind that a
temporary government servant has no right
4 All. Mahesh Kumar Vs. State of U.P. & Anr.
407
to hold the post and termination of such a
government servant does not visit him with
any
evil
consequences.
The
evil
consequences as held in Parshotam Lal
Dhingra case [1958 SCR 828 : AIR 1958 SC
36 : (1958) 1 LLJ 544] do not include the
termination of services of a temporary
government servant in accordance with the
terms and conditions of service. The view
taken by the Constitution Bench in Dhingra
case [1958 SCR 828 : AIR 1958 SC 36 :
(1958) 1 LLJ 544] has been reiterated and
affirmed by the Constitution Bench decisions
of this Court in State of Orissa v. Ram
Narayan Dass [(1961) 1 SCR 606 : AIR 1961
SC 177 : (1961) 1 LLJ 552] ; R.C. Lacy v.
State of Bihar [ C.A. No. 590/62 decided on
October 23, 1963 (SC)] ; Champaklal
Chimanlal Shah v. Union of India [(1964) 5
SCR 190 : AIR 1964 SC 1854 : (1964) 1 LLJ
752] ; Jagdish Mitter v. Union of India [AIR
1964 SC 449 : (1964) 1 LLJ 418 : 1964 Cur
LJ (SC) 66] ; A.G. Benjamin v. Union of
India [(1967) 1 LLJ 718] ; Shamsher Singh v.
State of Punjab [(1974) 2 SCC 831 : 1974
SCC (L&S) 550 : (1975) 1 SCR 814] . These
decisions have been discussed and followed
by a three Judge Bench in State of Punjab v.
Sukh Raj Bahadur [(1968) 3 SCR 234 : AIR
1968 SC 1089 : (1970) 1 LLJ 373 : 1968 Cri
LJ 687]."

11. This Court must say at the outset
that this stand of the petitioner, based on the
principle in Kaushal Kishore Shukla
(supra), about the provision of an opportunity
in case of termination of service, founded on
a charge, is inconsistent with the petitioner's
stand, otherwise taken, that he is not a regular
employee of the Nagar Palika, to whom the
Rules of 1956 or the Act apply.

12. Assuming for a moment that the
Rules of 1956 and the Act apply, and the
petitioner's services have been terminated
for his misconduct in contesting elections
without the permission of the Executive
Officer, the principle in Kaushal Kishore
Shukla would not come to the petitioner's
rescue at all. It is so for more than one
reason. The foremost is that the principle in
Kaushal Kishore Shukla has been laid
down in the context of an employee
appointed on ad hoc basis for a fixed period
that was extended from time to time, but
not
a
contractual
employee,
whose
conditions of service were governed by
contract. The law has been laid down on
principles
governing
the
rights
of
temporary government servants, to whom
the Uttar Pradesh Temporary Government
Servants (Termination of Services) Rules,
1975 are applicable. This is certainly not
the case here.

13. The other is that their Lordships in
Kaushal Kishore Shukla held that even a
temporary government servant has no right
to the post and his services can be
terminated by a month's notice without
assigning any reason, either in terms of the
contract or the relevant statutory rules. It is
observed
there
that
a
temporary
government servant also can be dismissed
from service by way of punishment. It is
only if the competent Authority decides to
take punitive action that a formal inquiry
may be held by framing charges and giving
opportunity to the government servant in
accordance with Article 311 of the
Constitution. If the order is punitive in
nature, the government servant is certainly
entitled to opportunity. The Court went into
the question, what order of termination may
be regarded as punitive or stigmatic and
what a termination simpliciter in terms of
the contract or rules means.

14. The twin tests suggested to
determine the nature of the order, if it is
408 INDIAN LAW REPORTS ALLAHABAD SERIES
stigmatic or not is, if the temporary
government servant had a right to the post
or rank, and, secondly, if he has been
visited with 'evil consequences', in the
words of their Lordships. It has been held
that if either of the two conditions exists,
the order of termination relating to a
temporary government servant must be
held penal in nature. It has also been
clarified that termination of services of a
temporary
government
servant
in
accordance with the terms and conditions
of service do not entail evil consequences,
as held by the Constitution Bench in case
of Parshotam Lal Dhingra v. Union of
India, AIR 1958 SC 36.

15. In this case, the petitioner, as
already remarked, is not remotely a
temporary employee. He is an employee,
whose services are entirely contractual.
Once that is the case, even if he has been
selected through some kind of a mechanism
to select under a Government Order and
appointed on contract, he has no right to the
post. There is no lien. In fact, that is
precisely the petitioner's case that the Rules
of 1956 and the Act would not apply to him
because he is not an employee of the Nagar
Palika, governed by those statutes or
statutory rules. His terms of service are
governed by the contract alone.

16. If then that is the case, the
petitioner's rights are governed exclusively
by a contract that does not have any
statutory flavour. It is a purely contractual
appointment accepted by the petitioner
dehors the rules and without a lien on any
post. The issue whether the termination is
in accordance with the contract or contrary
to it in the absence of violation of any
statute or statutory rules, or at least a
statutory contract, is not fit to be
determined by this Court in the exercise of
our writ jurisdiction under Article 226 of
the Constitution.

17. The dispute between the petitioner
and the Nagar Palika arises out of a
contract of service simpliciter, which
cannot be determined in the present
proceedings. The determination of the
petitioner's employment in terms of the
contract of service or in violation thereof,
given the terms of the contract and its
nature, does not involve any arbitrariness,
as may make it fall foul of the petitioner's
right under Article 14 or 16 of the
Constitution.

18. If the petitioner thinks that his
services have been determined in violation
of the contract between him and the Nagar
Palika, or otherwise the Nagar Palika have
indulged in any unfair labour practice in
dispensing with the petitioner's services, it
would be open to the petitioner to raise an
industrial dispute under the Uttar Pradesh
Industrial Disputes Act, 1947. No relief,
however, can be afforded to the petitioner
in the present writ petition.

19. Subject to the above liberty, this
petition fails and is dismissed.

20. There shall be no order as to costs.
----------
(2024) 4 ILRA 408
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.04.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ A No. 13833 of 2023

Akhtari Khatoon ...Petitioner
Versus
State of U.P. & Ors. ...Respondents