# Om Prakash v. D.I.O.S., Allahabad and others

- **Citation:** (2006) 1 ILRA 296
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-09-08
- **Case number:** Civil Misc. Writ Petition No. 30541 of 2002
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/om-prakash-v-d-i-o-s-allahabad-and-others-40842
- **Pages:** 5

## Headnote

U.P. Intermediate Education Act-1921Section-16-EE-absorbtion of retrenched
employee-petitioner appointed on the
post of Watchman-under leave gape
arrangement-purely on temporary basisafter joining of permanent incumbentthe services of petition come to an endheld-petitioner
being
temporary
employee without holding permanent
post-not entitled to be absorbed as
retrenched employee.

Held: Para 8 & 12

In my opinion, the petitioner was only a
temporary
employee
and
had
not
become a permanent employee nor was
he
holding
a
permanent
post.
Consequently, the petitioner was not
entitled to be absorbed as a retrenched
employee on a vacant post under Section
16-EE of the Act.

In view of the aforesaid, the petitioner
being appointed on a temporary post had
no right to claim an appointment as a
retrenched employee under Section 16EE of the Act.
Case law discussed:
1992 (Suppl.) (1) SCC-524
1 All] Om Prakash V. D.I.O.S., Allahabad and others
297
1995 (1) SCC-638
J.T. 1996 (8) SC-46

## Text

296 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
referring to the authority given to him in
trial court may be sufficient. However,
filing a fresh Vakalatnama with the memo
of appeal will always be convenient to
facilitate the processing of the appeal by
the office."

4. Sri G.S.D. Misra, learned counsel
for Caveator, undertakes to remove the
defect in the appeal and prays for time for
the purpose.

5. In view of he law laid down by
the Apex court, this Court is of the view
that that some reasonable time may be
granted to the appellants in the appeal
pending before the Appellate authority to
remove the defect.

6. Accordingly, appellants in the
Appeal pending before the Appellate
authority are directed to remove the defect
in the Appeal within three weeks' from
the date of production of a certified copy
of this order. In case defect in the appeal
is removed within three weeks, the appeal
shall be heard and decided in accordance
with law within three months thereafter.

7. In case defect is not removed
within the stipulated time, the appellate
authority shall decide maintainability of
the appeal in accordance with law first.

8. With above directions, writ
petition is disposed of.

Certified copy of this order be issued
to learned counsel for the parties within
48 hours on payment of usual charges.
Petition disposed of.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.09.2005

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 30541 of 2002

Om Prakash

...Petitioner
Versus
District Inspector of School-II,Allahabad
and others

 ...Respondents

Counsel for the Petitioner:
Sri V.K. Srivastava
Sri C.K. Parekh

Counsel for the Respondents:
Smt. Sunita Agarwal
S.C.

U.P. Intermediate Education Act-1921Section-16-EE-absorbtion of retrenched
employee-petitioner appointed on the
post of Watchman-under leave gape
arrangement-purely on temporary basisafter joining of permanent incumbentthe services of petition come to an endheld-petitioner
being
temporary
employee without holding permanent
post-not entitled to be absorbed as
retrenched employee.

Held: Para 8 & 12

In my opinion, the petitioner was only a
temporary
employee
and
had
not
become a permanent employee nor was
he
holding
a
permanent
post.
Consequently, the petitioner was not
entitled to be absorbed as a retrenched
employee on a vacant post under Section
16-EE of the Act.

In view of the aforesaid, the petitioner
being appointed on a temporary post had
no right to claim an appointment as a
retrenched employee under Section 16EE of the Act.
Case law discussed:
1992 (Suppl.) (1) SCC-524
1 All] Om Prakash V. D.I.O.S., Allahabad and others
297
1995 (1) SCC-638
J.T. 1996 (8) SC-46

(Delivered by Hon'ble Tarun Agarwala,J.)

1. The petitioner was issued an
appointment letter dated 10.9.1986 on the
post of a Watchman on a temporary basis
subject to the condition, that in the event
Sri Shambhu Nath Misra joins, the
petitioner's term would come to an end. It
transpires that Shambhu Nath Misra
returned and joined his services on
6.5.1988. Consequently, the appointment
of the petitioner on the post of Watchman
came to an end. It further transpires that
the
Management
issued
another
appointment
letter
dated
8.7.1988
appointing the petitioner to lookafter the
cycle stand. It is alleged that the petitioner
is continuing on this post till date. The
petitioner alleged that from 1988 till the
year 2001, several Class-IV posts fell
vacant in which the petitioner could be
adjusted but the Management, for reasons
best known, did not adjust or regularise
the services of the petitioner. The
petitioner further alleged that even today,
two Class-IV posts are still lying vacant
in which the petitioner could be absorbed.
The stand taken by the petitioner is, that
he is a retrenched employee and is liable
to be absorbed under Section 16-EE of the
U.P. Intermediate Education Act, 1921
(hereinafter referred to as 'the Act').
Consequently, the petitioner has prayed
that a writ of mandamus be issued to the
Principal and the Management of the
respondent Institution to forward his
name for being appointment as a Class-IV
employee against a vacant post.

2. On the other hand, the learned
counsel for the respondent nos.3 and 4
submitted,
that
the
petitioner
was
appointed on a temporary basis subject to
certain conditions and was not holding a
permanent post, therefore, the provisions
of Section 16-EE of the Act are not
applicable. Even otherwise, the petitioner
did
not
make
any
application
for
absorption within the stipulated period
under the said provisions and, therefore,
was not entitled for any relief.

3. Heard Sri C.K. Parekh, the
learned counsel for the petitioner, Smt.
Sunita Agarwal, the learned counsel for
respondent nos.3 and 4 and the learned
Standing Counsel for respondent nos.1
and 2.

4. The claim of the petitioner is, that
he is a retrenched employee and that he
can be absorbed in the Institution under
Section 16-EE of the Act. For facility,
Section 16-EE of the Act is quoted
below:-

"16-EE. Absorption of retrenched
employee.-(1) Where any employee of an
institution has been retrenched on or after
July
1,
1974
but
before
the
commencement
of
the
Intermediate
Education (Amendment) Act, 1980, and
such
employee
possesses
minimum
qualifications prescribed therefore on the
date of initial appointment the Regional
Deputy Director of Education shall, on
the application made in this behalf, direct
that subject to the provisions of this
section, such employee be absorbed
against any permanent vacancy occurring
in the same or any other institution situate
in any district within his jurisdiction.

Provided that in the case of an
employee retrenched on or after the date
of such commencement the Regional
Deputy Director of Education may issue
298 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
directions under this section without any
application from the employee concerned.
(2) Every application referred to in
sub-section (1) shall be made within six
months from the date of commencement
of
the
Intermediate
Education
(Amendment)Act, 1980.
(3) Where any direction is issued by
the
Regional
Deputy
Director
of
Education under sub-section (1) the
following
consequences
shall
ensue,
namely:
(i) The Committee of Management of
the institution concerned shall be bound to
comply with every such directions, and
the employee in whose favour such
direction is issued shall be deemed to be
an employee of such institution from the
date of the order of appointment issued by
the Committee to him or from the expiry
of a period of two months from the date
of service of the direction on the
Committee of Management under subsection(1), whichever is earlier.
(ii) The period of substantive service
rendered by such employees in any
institution
before
the
date
of
his
retrenchment shall be counted for the
purposes of his seniority and pension.
(iii) Where the employee concerned fails
to join the post within the time allowed
thereafter, the benefits of this section shall
not be available to him.

(4) Any
person
aggrieved
by
the
direction issued under sub-section(1) may
make a representation to the Director
within one month from the date of service
on him of such direction, and the order of
the Director thereon shall be final.

(5) The provisions of this section shall
have effect notwithstanding anything
contained in any other provisions of this
Act or any other law for the time being in
force.

(6) Nothing in this section shall apply to
an
institution
established
and
administered by a minority referred to in
clause
(1)
of
Article
30
of
the
Constitution of India.

Explanation- For the purposes of this
section-
(a) 'employee' in relation to an institution
means a teacher, head of institution or
other
employee
thereof
holding
a
permanent post on the date immediately
preceding the date of retrenchment;
(b)
'institution'
includes
a
training
institution
recognised
by
the
State
Government or the Director.
(c) 'retrenchment' in relation to an
employee of an institution means the
termination of his services for any reasons
other than resignation, retirement or
removal by way of punishment inflicted
in disciplinary proceedings."

5. From the aforesaid the word
'retrenchment' has been defined under the
explanation which states, that in relation
to
an
employee
of
an
institution,
 retrenchment means the termination of
his services for any reason other than the
resignation, retirement or removal by way
of punishment inflicted in a disciplinary
proceeding. In the present case, the
petitioner was appointed on 10.9.1986
and continued to work till 6.5.1988 when
his services came to an end upon the
joining of Shambhu Nath Misra. Since,
the petitioner does not come under the
exception clause, the petitioner became a
retrenched employee.

6. Sub-clauses (1) and (2) of Section
16-EE of the Act stipulates that every
1 All] Om Prakash V. D.I.O.S., Allahabad and others
299
application for absorption as a retrenched
employee must be made within six
months
from
the
occurrence
of
a
permanent vacancy.

7. The petitioner has alleged that he
made applications on 3.8.1989, 4.9.1991,
7.9.1999 and 8.7.2002 for absorption as a
retrenched employee. From a perusal of
these applications which have been
annexed as Annexures 10, 11, 12 and 13
to the writ petition, it is clear that these
applications have not been made for the
absorption
of
the
petitioner
as
a
retrenched employee under Section 16-EE
of the Act. These applications only
indicates that the petitioner made a
request for being granted wages as
payable to a Government servant. In my
view, these applications, cannot be treated
as an application made under Section 16EE of the Act. Consequently, the
petitioner is not entitled for any relief.

8. Assuming that these applications
could be treated as applications under
Section 16-EE of the Act, the petitioner
will still not be entitled for any relief.
Explanation
(a)
of
Section
16-EE
stipulates that the employee of an
institution who had worked earlier and
was retrenched must be holding a
permanent post immediately proceeding
the date of retrenchment in order to avail
the benefit of these provisions. From a
perusal of the appointment letter, it is
clear, that the petitioner was appointed on
a temporary basis subject to certain
conditions. In my opinion, the petitioner
was only a temporary employee and had
not become a permanent employee nor
was he holding a permanent post.
Consequently, the petitioner was not
entitled to be absorbed as a retrenched
employee on a vacant post under Section
16-EE of the Act.

9. In Triveni Shanker Saxena vs.
State
of
U.P.
And
others,
1992
Supp.(1)SCC 524, the Supreme Court
held-

"....His
appointment
order
unambiguously shows that it was only a
temporary basis. The appellant has not
shown that he had been confirmed in a
permanent post and that he was holding
that appointment substantively either
immediately or on the termination of a
period so as to make a claim of lien to the
post of Lekhpal by availing the benefit of
Rules 14-A and 14-B of the U.P.
Fundamental Rules. Therefore, as rightly
pointed out by Mr.Yogeshwar Prasad, it
cannot be said that the appellant held the
post
in
a
substantive
capacity
on
permanent basis on the date when he was
appointed as a Consolidator. In the
absence of any such proof on the side of
the appellant, we are constrained to hold
that he was employed as Lekhpal on a
temporary basis and thereafter appeared
before the Selection Board and was
selected de novo as a Consolidator in the
Consolidation Department."

10. In Madhya Pradesh Hasta
Shilpa Vikas Nigam Ltd. vs. Devendra
Kumar Jain and others, (1995) 1 SCC
638, the Supreme Court held-

"....A temporary government servant
does not become a permanent government
servant unless he acquires that capacity by
force of any rule or he is declared or
appointed as a permanent servant...."

11. In The Secretary, Ministry of
Works & Housing Government of
300 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
India & others, JT 1996 (8) SC 46, the
Supreme Court held-

"...Until
the
temporary
service
matures into a permanent, he has no right
to the post."

12. In view of the aforesaid, the
petitioner being appointed on a temporary
post had no right to claim an appointment
as a retrenched employee under Section
16-EE of the Act. Consequently, I do not
find any force in the writ petition and is
dismissed accordingly. However, in the
circumstances of the case, there shall be
no order as to cost.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.02.2006

BEFORE
THE HON'BLE S. RAFAT ALAM, J.
THE HON'BLE SUDHIR AGARWAL, J.

Special Appeal No. 834 of 1998

Om Prakash Pawar

...Petitioner/Appellant
Versus
State of U.P. and another...Respondents

Counsel for the Petitioner:
Sri R.G. Padia
Sri Prakash Padia

Counsel for the Respondents:
Sri M.S. Pipersenia

Constitution of India, Art. 311 (2)-Civil
Services
(classification
Control
and
Appeals
Rules-Rule-55-readwith
Constitution of India, Article 311 (2)
Service
Law-Compulsory
retirementOpportunity
to
show
cause-held-not
required-Since
neither
attaches
any
stigma-nor implies any suggestion of mis
behavior.
Held: Para 7

The contention of the learned counsel for
the appellant that he was not afforded
opportunity which vitiates the order of
compulsory
retirement,
is
entirely
untenable and contrary to decades old
settled
law.
Order
of
compulsory
retirement is not a punishment, since it
neither attaches any stigma nor it
implies any suggestion of misbehaviour.
A similar contention was advanced as
long back as more than 50 years ago in
the case of Shyam Lal vs. State of U.P.,
AIR 1954 SC 369. One of the grounds of
challenge of the order of premature
retirement was that no opportunity or
show
cause
was
afforded
to
the
employee
concerned
against
the
proposed
premature
retirement.
Rejecting
the
said
contention
the
Hon'ble
Apex
Court
held
that
the
compulsory retirement does not amount
to dismissal or removal and, therefore, it
does not attract. Article 311 of the
Constitution or Rule 55 of the Civil
Services
(Classification,
Control
and
Appeal) Rules. It was thus, held that the
order of compulsory retirement cannot
be challenged on the ground that the
employee was not afforded opportunity
of show cause against the action sought
to be taken i.e. compulsory retirement.

AIR 1954 SC-369
AIR 1971 SC-40
AIR 1992 SC-1020
1996 (5) SCC-331
2001 (3) SCC-314
AIR 2003 SC-4303

Constitution of India Art.-14 and 16Compulsory
retirement-Order
based
upon-various adverse entries in respect
of various years-guilty of embezzlementConsidering all materials-Order can not
be termed as arbitrary.

Held: Para 12 and 13

Considering the order of compulsory
retirement passed under Fundamental
Rules 56 the Hon'ble Apex Court in