Avanish Vikram Singh v. Secretary, Administrative Reforms, Civil Secretariat U.P., Lucknow and others

5. The termination order was challenged by the petitioner by filing Writ Petition No.4737 (SS) of 2007 in re: Avanish Vikram Singh vs. Secretary, Administrative Reforms, Civil Secretariat U.P., Lucknow and others.

6. The writ Court vide order dated 27.07.2007, a copy of which is Annexure-5 to the petition, quashed the said order on the ground that it is a stigmatic order but directed the respondents to pass a fresh order in accordance with law indicating no stigma against the petitioner.

7. In pursuance thereof, the order impugned dated 30.07.2007 was passed terminating the services of the petitioner with immediate effect.

8. Being aggrieved, the petitioner filed the instant petition.

9. Although the respondents were directed to file a counter affidavit yet no counter affidavit was filed for a long period of time.

10. This resulted in this Court passing an interim order dated

10.11.2009 per which, considering that no counter affidavit has been filed despite lapse of time, the order impugned dated

30.07.2007 was stayed and the petitioner was permitted to discharge his duty with due salary.

11. The petitioner claims that in pursuance of the said stay order he continued to discharge his duties.

12. The writ petition itself was dismissed for non-prosecution by this Court vide order dated 17.12.2015 and the interim order was vacated.

13. An application for recall of the said order was filed within time on 06.01.2016 after serving a copy on the learned counsel appearing for the respondents.

14. The respondents have filed their objections to the aforesaid recall application.

15. This Court vide order dated 21.05.2025 has recalled the order dated 17.12.2015 and has restored the writ petition to its original number.

16. The contention of learned counsel for the petitioner is that with the appointment vide order dated 01.02.2007 and even after the impugned termination order dated 30.07.2007 being passed and it having been stayed he has been in continuous service and his services have only been dispensed with by the respondents vide order dated 14.02.2025, a copy of which has been filed as Annexure CA-7 to the objections to the application for recall, meaning thereby that the petitioner has continued right since his termination order was stayed by this Court in the year 2009 and his services have only been dispensed with in the year 2025 i.e. he has put in a service of almost 16 years as of date.

17. The contention is that considering the long service rendered by the petitioner since the order of termination was stayed by this Court the impugned order merits to be set-aside on this ground alone.

18. On the other hand, Sri Shikhar Anand, learned counsel appearing for respondents No. 2 and 3, has argued that the petitioner was only appointed on a temporary basis in pursuance of the order dated 01.02.2007. As various complaints had been received pertaining to his demanding bribes, his services were terminated by means of a stigmatic order dated

28.06.2007. The said order was set aside by the Writ Court vide order dated 27.07.2007 with a direction to the respondents to pass a fresh order in accordance with law, indicating no stigma. In pursuance thereof, the order impugned dated 30.07.2007 was passed, whereby his services were dispensed with.

19. However, on account of non-filing of the counter affidavit, this Court, vide order dated 10.11.2009, stayed the said termination order and directed the respondents to permit the petitioner to discharge his duty with due salary. In pursuance thereof, the petitioner is continuing in service. The writ petition itself was dismissed for non-prosecution and the interim order vacated on 17.12.2015 however, no information in this regard was given by the petitioner to the respondents, with the result that the petitioner continued to remain in service. It is only subsequent thereto that the respondents received information about the petition having been dismissed for non-prosecution, with the result that the consequential orders dated 14.02.2025 and 17.02.2025 were passed, considering that the Writ Court had dismissed the instant petition for default. However, the order dated 17.02.2025 categorically records that in case this Court passes any order for his reinstatement then the inquiry as was pending against the petitioner would be started.

20. The argument of Sri Anand is that the petitioner does not have any right to the post, having only been appointed on a temporary basis, and thus, merely because the petitioner has continued in service solely on the basis of an interim order granted by this Court, the same would not confer any right upon him to the said post.

21. In this regard, reliance has been placed on the judgment of the Hon'ble Supreme Court in the case of State of Uttar Pradesh and another vs. Kaushal Kishore Shukla - (1991) 1 SCC 691 as well as the judgment of the Hon'ble Supreme Court in the case of State of Uttar Pradesh and others vs. Rekha Rani - (2011) 11 SCC 441.

22. The further argument of Sri Anand is that although the petitioner had filed an application for recall of the order dated

17.12.2015, by which the instant petition had been dismissed for default, no information in this regard had been given by the petitioner to the respondents, with the result that the respondents had no knowledge of the writ petition having been dismissed for default and the interim order having been vacated; which, if it had come to the knowledge of the respondents, then certainly the services of the petitioner would have been dispensed with in December 2015 itself, instead of dispensing with the services in the month of February 2025.

23. Another argument is that merely because the petitioner has continued to work up to February 2025, i.e., a period of almost 16 years after the passing of the termination order dated

30.07.2007, the same would not confer any right upon the petitioner to hold the said post.

24. Sri Shikhar Anand has also argued that at the time the petitioner was continuing in service an inquiry had been initiated against him but considering that the interim order passed by the Writ Court had been vacated and petitioner having also been dismissed on 17.12.2025, the services of the petitioner have been dispensed with, while providing that in case he is reinstated in service, then in pursuance of the earlier suspension order dated 13.01.2025, the proceedings would be re-initiated against him.

25. Heard learned counsel for the parties and perused the record.

26. From the arguments as raised by the learned counsels for the contesting parties and perusal of records, it emerges that the petitioner was initially appointed on temporary basis on the post of Ahalmad vide order dated 01.02.2007. His services were terminated by means of a stigmatic order dated 28.06.2007 which was set-aside by the writ Court vide judgment and order dated 27.07.2007 on the ground of it being a stigmatic order but the writ Court directed the respondents to pass a fresh order in accordance with law indicating no stigma against the petitioner. In pursuance thereof, the order impugned dated 30.07.2007 was passed terminating the services of the petitioner.

27.Being aggrieved, the petitioner has filed the instant writ petition and as the respondents failed to file any counter affidavit this Court passed an interim order dated 10.11.2009 per which the order impugned dated 30.07.2007 was stayed and the petitioner was permitted to discharge his duties with due salary. In pursuance thereof, the petitioner continued to work and also drew salary when his services have again been dispensed with vide order dated 14.02.2025 on the ground of the writ petition having been dismissed for non-prosecution on

17.12.2015 and the interim order having been vacated. The writ petition had been restored to its original number vide order dated 21.05.2025.

28.There is no dispute and obviously cannot be any dispute to the petitioner having been appointed on the post in temporary capacity and his services having been dispensed with initially vide order dated 28.06.2007 and thereafter vide order dated

30.07.2007. There is also no dispute to the petitioner continuing in service right since passing of the interim order dated

10.11.2009 till his services were finally dispensed with vide order dated 14.02.2025, considering that the writ petition had been dismissed for non-prosecution vide order dated

17.12.2015.

29. Thus, in effect the petitioner has put in continuous service of about 16 years.

30. At the time of filing of the writ petition, the petitioner was aged about 30 years, the petition was filed in the year 2007 and now would be aged about 48 years.

31. There cannot be any dispute to the proposition of law as laid down by Hon'ble Supreme Court in the cases of Rekha Rani (supra) and Kaushal Kishore Shukla (supra) which pertain to a temporary employee being terminated by a simplicitor order in terms of a contract. However, in the instant case, there is a peculiar fact i.e. the continuous and uninterrupted service of about 16 years of the petitioner which incidentally has been rendered more on account of the fault of the respondents inasmuch as the interim order dated 10.11.2009 was passed on account of non-filing of the counter affidavit by the respondents. Even when the petition was dismissed for non- prosecution on 17.12.2015 and an application dated 06.01.2016 was also filed after serving a copy on the learned counsel appearing for the respondents, the respondent never woke up to the fact of the interim order having been vacated with the dismissal of the writ petition on 17.12.2015 and continued the petitioner in service till passing of the order dated 14.02.2025 i.e. even after dismissal of the writ petition for non-prosecution and vacation of the interim order the petitioner was continued in service for almost 10 years. Thus, it is on account of the fault of the respondents themselves that an interim order was granted and the petitioner continued in service all along i.e. for a period of about 16 years and has also now become over aged for any public appointment.

32. Considering the aforesaid peculiar facts this Court is inclined to exercise power under Article 226 of the Constitution of India and accordingly quashes the order impugned dated

30.07.2007, a copy of which is Annexure-6 to the petition. The orders dated 14.02.2025 and 17.02.2025, which are in consequence of the initial order dated 30.07.2007, also stand set-aside for it is settled proposition of law that where the edifice goes, the superstructure collapses (See: Central Bank of India vs. C. Bernard reported in 1991 (1) SCC 319).

33. Consequences to follow.

34. However, it would be open for the respondents to continue with the inquiry as indicated in the order dated 17.02.2025 and take it to it's logical end. Order Date :- 15.7.2025 A. Katiyar AMIT KATIYAR High Court of Judicature at Allahabad, Lucknow Bench

5. The termination order was challenged by the petitioner by filing Writ Petition No.4737 (SS) of 2007 in re: Avanish Vikram Singh vs. Secretary, Administrative Reforms, Civil Secretariat U.P., Lucknow and others.

6. The writ Court vide order dated 27.07.2007, a copy of which is Annexure-5 to the petition, quashed the said order on the ground that it is a stigmatic order but directed the respondents to pass a fresh order in accordance with law indicating no stigma against the petitioner.

7. In pursuance thereof, the order impugned dated 30.07.2007 was passed terminating the services of the petitioner with immediate effect.

8. Being aggrieved, the petitioner filed the instant petition.

9. Although the respondents were directed to file a counter affidavit yet no counter affidavit was filed for a long period of time.

10. This resulted in this Court passing an interim order dated

10.11.2009 per which, considering that no counter affidavit has been filed despite lapse of time, the order impugned dated

30.07.2007 was stayed and the petitioner was permitted to discharge his duty with due salary.

11. The petitioner claims that in pursuance of the said stay order he continued to discharge his duties.

12. The writ petition itself was dismissed for non-prosecution by this Court vide order dated 17.12.2015 and the interim order was vacated.

13. An application for recall of the said order was filed within time on 06.01.2016 after serving a copy on the learned counsel appearing for the respondents.

14. The respondents have filed their objections to the aforesaid recall application.

15. This Court vide order dated 21.05.2025 has recalled the order dated 17.12.2015 and has restored the writ petition to its original number.

16. The contention of learned counsel for the petitioner is that with the appointment vide order dated 01.02.2007 and even after the impugned termination order dated 30.07.2007 being passed and it having been stayed he has been in continuous service and his services have only been dispensed with by the respondents vide order dated 14.02.2025, a copy of which has been filed as Annexure CA-7 to the objections to the application for recall, meaning thereby that the petitioner has continued right since his termination order was stayed by this Court in the year 2009 and his services have only been dispensed with in the year 2025 i.e. he has put in a service of almost 16 years as of date.

17. The contention is that considering the long service rendered by the petitioner since the order of termination was stayed by this Court the impugned order merits to be set-aside on this ground alone.

18. On the other hand, Sri Shikhar Anand, learned counsel appearing for respondents No. 2 and 3, has argued that the petitioner was only appointed on a temporary basis in pursuance of the order dated 01.02.2007. As various complaints had been received pertaining to his demanding bribes, his services were terminated by means of a stigmatic order dated

28.06.2007. The said order was set aside by the Writ Court vide order dated 27.07.2007 with a direction to the respondents to pass a fresh order in accordance with law, indicating no stigma. In pursuance thereof, the order impugned dated 30.07.2007 was passed, whereby his services were dispensed with.

19. However, on account of non-filing of the counter affidavit, this Court, vide order dated 10.11.2009, stayed the said termination order and directed the respondents to permit the petitioner to discharge his duty with due salary. In pursuance thereof, the petitioner is continuing in service. The writ petition itself was dismissed for non-prosecution and the interim order vacated on 17.12.2015 however, no information in this regard was given by the petitioner to the respondents, with the result that the petitioner continued to remain in service. It is only subsequent thereto that the respondents received information about the petition having been dismissed for non-prosecution, with the result that the consequential orders dated 14.02.2025 and 17.02.2025 were passed, considering that the Writ Court had dismissed the instant petition for default. However, the order dated 17.02.2025 categorically records that in case this Court passes any order for his reinstatement then the inquiry as was pending against the petitioner would be started.

20. The argument of Sri Anand is that the petitioner does not have any right to the post, having only been appointed on a temporary basis, and thus, merely because the petitioner has continued in service solely on the basis of an interim order granted by this Court, the same would not confer any right upon him to the said post.

21. In this regard, reliance has been placed on the judgment of the Hon'ble Supreme Court in the case of State of Uttar Pradesh and another vs. Kaushal Kishore Shukla - (1991) 1 SCC 691 as well as the judgment of the Hon'ble Supreme Court in the case of State of Uttar Pradesh and others vs. Rekha Rani - (2011) 11 SCC 441.

22. The further argument of Sri Anand is that although the petitioner had filed an application for recall of the order dated

17.12.2015, by which the instant petition had been dismissed for default, no information in this regard had been given by the petitioner to the respondents, with the result that the respondents had no knowledge of the writ petition having been dismissed for default and the interim order having been vacated; which, if it had come to the knowledge of the respondents, then certainly the services of the petitioner would have been dispensed with in December 2015 itself, instead of dispensing with the services in the month of February 2025.

23. Another argument is that merely because the petitioner has continued to work up to February 2025, i.e., a period of almost 16 years after the passing of the termination order dated

30.07.2007, the same would not confer any right upon the petitioner to hold the said post.

24. Sri Shikhar Anand has also argued that at the time the petitioner was continuing in service an inquiry had been initiated against him but considering that the interim order passed by the Writ Court had been vacated and petitioner having also been dismissed on 17.12.2025, the services of the petitioner have been dispensed with, while providing that in case he is reinstated in service, then in pursuance of the earlier suspension order dated 13.01.2025, the proceedings would be re-initiated against him.

25. Heard learned counsel for the parties and perused the record.

26. From the arguments as raised by the learned counsels for the contesting parties and perusal of records, it emerges that the petitioner was initially appointed on temporary basis on the post of Ahalmad vide order dated 01.02.2007. His services were terminated by means of a stigmatic order dated 28.06.2007 which was set-aside by the writ Court vide judgment and order dated 27.07.2007 on the ground of it being a stigmatic order but the writ Court directed the respondents to pass a fresh order in accordance with law indicating no stigma against the petitioner. In pursuance thereof, the order impugned dated 30.07.2007 was passed terminating the services of the petitioner.

27.Being aggrieved, the petitioner has filed the instant writ petition and as the respondents failed to file any counter affidavit this Court passed an interim order dated 10.11.2009 per which the order impugned dated 30.07.2007 was stayed and the petitioner was permitted to discharge his duties with due salary. In pursuance thereof, the petitioner continued to work and also drew salary when his services have again been dispensed with vide order dated 14.02.2025 on the ground of the writ petition having been dismissed for non-prosecution on

17.12.2015 and the interim order having been vacated. The writ petition had been restored to its original number vide order dated 21.05.2025.

28.There is no dispute and obviously cannot be any dispute to the petitioner having been appointed on the post in temporary capacity and his services having been dispensed with initially vide order dated 28.06.2007 and thereafter vide order dated

30.07.2007. There is also no dispute to the petitioner continuing in service right since passing of the interim order dated

10.11.2009 till his services were finally dispensed with vide order dated 14.02.2025, considering that the writ petition had been dismissed for non-prosecution vide order dated

17.12.2015.

29. Thus, in effect the petitioner has put in continuous service of about 16 years.

30. At the time of filing of the writ petition, the petitioner was aged about 30 years, the petition was filed in the year 2007 and now would be aged about 48 years.

31. There cannot be any dispute to the proposition of law as laid down by Hon'ble Supreme Court in the cases of Rekha Rani (supra) and Kaushal Kishore Shukla (supra) which pertain to a temporary employee being terminated by a simplicitor order in terms of a contract. However, in the instant case, there is a peculiar fact i.e. the continuous and uninterrupted service of about 16 years of the petitioner which incidentally has been rendered more on account of the fault of the respondents inasmuch as the interim order dated 10.11.2009 was passed on account of non-filing of the counter affidavit by the respondents. Even when the petition was dismissed for non- prosecution on 17.12.2015 and an application dated 06.01.2016 was also filed after serving a copy on the learned counsel appearing for the respondents, the respondent never woke up to the fact of the interim order having been vacated with the dismissal of the writ petition on 17.12.2015 and continued the petitioner in service till passing of the order dated 14.02.2025 i.e. even after dismissal of the writ petition for non-prosecution and vacation of the interim order the petitioner was continued in service for almost 10 years. Thus, it is on account of the fault of the respondents themselves that an interim order was granted and the petitioner continued in service all along i.e. for a period of about 16 years and has also now become over aged for any public appointment.

32. Considering the aforesaid peculiar facts this Court is inclined to exercise power under Article 226 of the Constitution of India and accordingly quashes the order impugned dated

30.07.2007, a copy of which is Annexure-6 to the petition. The orders dated 14.02.2025 and 17.02.2025, which are in consequence of the initial order dated 30.07.2007, also stand set-aside for it is settled proposition of law that where the edifice goes, the superstructure collapses (See: Central Bank of India vs. C. Bernard reported in 1991 (1) SCC 319).

33. Consequences to follow.

34. However, it would be open for the respondents to continue with the inquiry as indicated in the order dated 17.02.2025 and take it to it's logical end. Order Date :- 15.7.2025 A. Katiyar AMIT KATIYAR High Court of Judicature at Allahabad, Lucknow Bench