# Pati Ram Gangwar & another v. State of U.P. and others

- **Citation:** (2009) 3 ILRA 1149
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-12-15
- **Case number:** Civil Misc. Writ Petition No. 52518 of 2009
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pati-ram-gangwar-another-v-state-of-u-p-and-others-41411
- **Pages:** 3

## Headnote

(Termination of Service) Rules 1975Rule 1 (3)-Temporary appointment-not
confirmed-held- no lien-order itself not
punitive in nature-opportunity of hearing
or show cause notice not required.

Held: Para 2

I find no substance in the submission. So
far as the appointment of the petitioners
is concerned, the appointment letter
dated 26.8.2008 (Annexure 1 to the writ
petition) shows that it was purely a
temporary appointment liable to be
terminated at any point of time. Whether
the appointment is made on a permanent
post or temporary post would not be
relevant since the nature of appointment
of the petitioners is purely 'temporary'.
To attract provisions of 1975 Rules, it
would be evident from Rule 1(3) that the
same shall apply to all the persons
holding a civil post in connection with
the affairs of Uttar Pradesh and who are
under
the
rule-making
control
of
Governor, but who do not hold a lien on
a permanent post under the Government
of Uttar Pradesh.
Case law discussed:
AIR 1958 SC 36, AIR 1992 SC 496, JT 1989
(3) SC 430, 2003 (11) SCC 632, W.P.
No.21442 of 2002 decided on 26.5.2006, No.
4467 of 1990 decided on 1.12.2006, 2006
(101) RD 675, 1999 (1) UPLBEC 54.

## Text

3 All] Pati Ram Gangwar and another V. State of U.P. and others
1149
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.12.2009

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 52518 of 2009

Pati Ram Gangwar & another ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Asutosh Shukla

Counsel for the Respondents:
C.S.C.

U.P. Temporary Government Servant
(Termination of Service) Rules 1975Rule 1 (3)-Temporary appointment-not
confirmed-held- no lien-order itself not
punitive in nature-opportunity of hearing
or show cause notice not required.

Held: Para 2

I find no substance in the submission. So
far as the appointment of the petitioners
is concerned, the appointment letter
dated 26.8.2008 (Annexure 1 to the writ
petition) shows that it was purely a
temporary appointment liable to be
terminated at any point of time. Whether
the appointment is made on a permanent
post or temporary post would not be
relevant since the nature of appointment
of the petitioners is purely 'temporary'.
To attract provisions of 1975 Rules, it
would be evident from Rule 1(3) that the
same shall apply to all the persons
holding a civil post in connection with
the affairs of Uttar Pradesh and who are
under
the
rule-making
control
of
Governor, but who do not hold a lien on
a permanent post under the Government
of Uttar Pradesh.
Case law discussed:
AIR 1958 SC 36, AIR 1992 SC 496, JT 1989
(3) SC 430, 2003 (11) SCC 632, W.P.
No.21442 of 2002 decided on 26.5.2006, No.
4467 of 1990 decided on 1.12.2006, 2006
(101) RD 675, 1999 (1) UPLBEC 54.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. The petitioners are aggrieved by
the order of termination dated 5.9.2009
which has been passed in purported
exercise of power under U.P. Temporary
Government Servants (Termination of
Service) Rules, 1975 (hereinafter referred
to as '1975 Rules') and have filed the
present writ petition seeking a writ of
certiorari for quashing the same. It is
submitted
that
though
initially
the
petitioners were sought to be appointed
temporarily but before issuance of the
order of appointment, the posts became
permanent, therefore, the appointment of
the petitioners must be deemed to be
'substantive' and 'permanent' and 1975
Rules would not apply to their case and,
hence, the impugned order is illegal.

2. I find no substance in the
submission. So far as the appointment of
the
petitioners
is
concerned,
the
appointment
letter
dated
26.8.2008
(Annexure 1 to the writ petition) shows
that
it
was
purely
a
temporary
appointment liable to be terminated at any
point of time. Whether the appointment is
made on a permanent post or temporary
post would not be relevant since the
nature of appointment of the petitioners is
purely 'temporary'. To attract provisions
of 1975 Rules, it would be evident from
Rule 1(3) that the same shall apply to all
the persons holding a civil post in
connection with the affairs of Uttar
Pradesh and who are under the rulemaking control of Governor, but who do
not hold a lien on a permanent post under
the Government of Uttar Pradesh.
1150 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
3. In Purshotam Lal Dhingra Vs.
Union of India AIR 1958 SC 36, the
Apex Court said that a person can be said
to acquire a lien on a post only when he
has been confirmed and made permanent
on that post and not earlier. It was also
held that a Government Servant holding a
post 'temporarily' has no right to hold the
said post. The same thing was reiterated
in Triveni Shankar Saxena Vs. State of
U.P. AIR 1992 SC 496.

4. The word "lien" has been defined
by the Apex Court in Ram Lal Khurana
Vs. State of Punjab & others JT 1989
(3) SC 430 as under:

"Lien is not a word of art. It just
connotes the right of a civil servant to
hold the post substantively to which he is
appointed. Generally when a person with
a lien against a post is appointed
substantively to another post, he acquires
a lien against the latter post. Then the lien
against his previous post automatically
disappears. It is a well accepted principle
of
service
jurisprudence
that
no
Government
servant
can
have
simultaneously two liens against two
posts in two different cadres."
5. In Ali M.K. & others Vs. State
of Kerala & others 2003 (11) SCC 632
again the Apex Court held that it is well
settled position of law that a persons can
be said to acquire a lien on a post only
when he has been confirmed and made
permanent on that post and not earlier.

6. A Division Bench of this Court in
Civil Misc. Writ Petition No.21442 of
2002 (Raj Nath Ram v. State of U.P.
and others) decided on 26.5.2006, in para
15 and 28 of the judgment held that since
the petitioner on the post of Assistant
Employment
Officer
has
not
been
confirmed till he joined the post of
Registrar, he cannot be said to hold a lien
on the post of Assistant Employment
Officer.

7.

Following
the
aforesaid
authorities, a Single Judge of this Court
(Hon'ble Pankaj Mithal, J.) in Civil Misc.
Writ Petition No. 4467 of 1990 (Aizaz
Ahmad Vs. The Principal, Industrial
Training Institute, Bulandshahar &
others) decided on 1.12.2006 has taken
the same view.

8. Counsel for petitioners, at this
stage, sought to argue that it is not the
temporary appointment on a permanent
post which is included within the term
"temporary service" under Rule 2 of 1975
Rules, but it is the officiation on a
permanent post which is mentioned
therein. A similar argument came to be
considered before this Court in Pushkar
Nath Tripathi Vs. State of U.P. &
others 2006 (101) RD 675 wherein this
Court held :

"Reading the word "officiating" in
the light of the above observations as
defined under Fundamental Rule 9 (19)
would mean that if a person is already
appointed to a post on regular basis may
officiate on a higher post where some
person has a lien, but he may also
officiate on a post where no person has a
lien
but
before
officiation,
the
appointment must be in accordance with
Rules. In my view, the word "officiate" in
the aforesaid Government Order is an
appointment made in accordance with
rules after following due procedure, the
appointment is though not "substantive"
or permanent but on officiating basis, i.e,
in the nature of a temporary appointment
but made in accordance with Rules."
3 All] Barkhu Ram V. State of U.P. and others
1151
9. In Kumari Mamta Jauhari Vs.
State of U.P. 1999 (1) UPLBEC 54, a
Full Bench of the Court in para 38 of the
judgment held:

"A Government servant appointed to
hold a post, temporary or substantive, on
temporary basis, acquires no right to or
lien upon the post."

10. It is thus evident that Rule 1 (3)
makes 1975 Rules applicable in the case
of the petitioners which is also covered by
the terms "temporary service" as defined
in Rule 2 of 1975 Rules. I, therefore, find
no reason to interfere with the order
impugned in the writ petition, which is an
order of termination simplicitor showing
ex facie no reason to treat the same to be
penal and hence there was no requirement
of any opportunity or show cause notice
before passing the same. I, therefore, do
not find any merit in this writ petition.
Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.12.2009

BEFORE
THE HON'BLE KRISHNA MURARI, J.

Civil Misc. Writ Petition No. 4831 of 2009

Barkhu Ram

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Vijay Gautam

Counsel for the Respondents:
S.C.

U.P. Police offers of Subordinate Ranks
(Punishment & Appeal) Rules, 1991-Rule
8 (a)(b)-Dismissal Order-dispensing with
holding
enquiry-without
recording
reason of satisfaction-do not satisfy the
test to exercise such power-order not
sustainable.

Held: Para 10

The mere mention of fact that the
petitioner would prove to be danger to
fellow policemen and public life and
property without there being reference
of any material in the order for recording
such
satisfaction
and
there
being
nothing in the counter affidavit to
demonstrate that the petitioner had
become dangerous or caused damage to
the property or indulged into any offence
against any person or the State, the
satisfaction
recorded
by
the
Superintendent of Police, Azamgarh for
invoking Rule 8(2)(b) of Rules of 1991
and dispensing with the disciplinary
inquiry do not satisfy the test of exercise
of such power. The order, therefore,
suffers from gross error of law and
deserves to be set aside.
Case law discussed:
AIR 1985 SC 1416, 2006(1) ESC 374(All) (DB),
2008(3) ADJ 689 (DB), AIR 1991(1) SC 385.
(Delivered by Hon'ble Krishna Murari, J.)

1. Heard Sri Vijay Gautam learned
counsel for the petitioner and learned
Standing
Counsel
for
the
Staterespondents.

2. The petitioner who is constable in
civil police has filed this petition for a
writ of certiorari to quash the order dated
20.8.2008 passed by the Superintendent
of Police, Azamgarh dismissing him from
service exercising powers conferred by
Rule 8(2)(b) of the U.P. Police Officers of
Sub-ordinate
Ranks
(Punishment
&
Appeal) Rules, 1991 (hereinafter referred
to as 'Rules of 1991'). Writ of mandamus
has also been prayed for to command the
respondents to pay all consequential
benefits including arrears of salary. The