State Of U.P Thr. Its Secretary . vs Meraj Ahmad

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO 9335 OF 2016

STATE OF U P THR. ITS SECRETARY & ORS ..Appellants

VERSUS

MERAJ AHMAD ..Respondent

JUDGMENT

Dr D Y CHANDRACHUD, J

1 On 8 July, 1983, the respondent was appointed on a temporary basis as a

Livestock Development Assistant by the Deputy Director, Livestock in the State

of U P in the pay scale of Rs 400-10-450-12-474-xxxx-12-570-15-615/-. The

order of appointment stipulated that the services of the respondent could be

terminated with a notice of one month. On 2 April 1984 a First Information Report

was registered against the respondent inter alia under Section 302 of the Penal Signature Not Verified

Code. On 9 April 1984, the Deputy Director in the Animal Husbandry Department Digitally signed by SUKHBIR PAUL KAUR Date: 2017.09.07 13:14:22 PKT Reason:

at Faizabad terminated the services of the respondent. 2

2 The respondent was tried on a charge of murder in the court of the

Additional Sessions Judge, Sultanpur in Sessions Trial 102 of 1984. By a

judgment dated 11 October 1985 the Additional Sessions Judge, Sultanpur

acquitted the respondent and his co-accused by giving them the benefit of doubt.

Following his acquittal, the respondent by a letter dated 7 February 1989 sought

fresh appointment as a Livestock Development Assistant and stated that he shall

make no claim in connection with his prior service. On 17 April 1989, the Deputy

Director, Animal Husbandry, Faizabad appointed the respondent as Livestock

Extension Inspector on the condition that he would not be entitled to the benefit of

his prior service.

3 In the meantime, the respondent had filed a writ petition, W P 8550 of 1987

before the Lucknow Bench of the Allahabad High Court. On 4 September 1998 a

Single Judge of the Allahabad High Court directed that the respondent shall be

taken back in service if the only ground for termination was his being put up for

trial on a charge of murder, provided there was no other impediment in allowing

him to join service.

4. The respondent filed another writ petition (W P (s/s) 5499 of 1999) to seek

the benefit of continuity in service. A counter affidavit was filed in response to the

writ petition by the Veterinary Officer, District Sultanpur stating that the

respondent had been appointed to the post of Livestock Extension Inspector on

his own request, and that he had agreed to forego the benefit of his past 3

employment. A learned Single Judge by a judgment dated 14 May 2013 allowed

the writ petition by setting aside the order of termination dated 9 April 1984. The

Single Judge directed, however, that the respondent would not be entitled to

salary for the period for which he had not worked. The respondent was held to be

entitled to continuity of service. The judgment of the Single Judge was upheld in a

Special Appeal by a Division Bench of the High Court on 18 May 2016.

5 The State of Uttar Pradesh is in appeal against the judgment. Leave was

granted on 16 September 2016 and an interim suspension of the operation of the

judgment of the High Court was ordered. An application for early hearing was filed

on behalf of the respondent. With the consent of the learned counsel appearing

on behalf of the appellants and the respondent, we have taken up the appeal for

final hearing.

6 The submission which has been urged on behalf of the appellants is that

the Division Bench of the High Court has erroneously proceeded on the basis that

the respondent had withdrawn his undertaking, agreeing to forego the benefit of

his past services. It was urged that the respondent, by his unequivocal request

dated 7 February 1989, sought appointment as a fresh candidate. Having been

appointed on that basis, it was not open to the respondent to resile from the

consequence which would emerge from the acceptance of his request. On the

other hand, it was urged on behalf of the respondent that both the learned Single 4

Judge and, in appeal, the Division Bench justifiably granted the benefit of his past

service to the respondent.

7 The original appointment of the respondent as a Livestock Development

Assistant was purely temporary in nature. His services were dispensed with on 9

April 1984, a week after an FIR was lodged against him on 2 April 1984 alleging

his involvement in an offence under Section 302 of the Penal Code. In the

Sessions trial, the respondent was given the benefit of doubt by the Additional

Sessions Judge. After his acquittal on 11 October 1985, the respondent

consciously sought appointment as a fresh candidate and stated that he would

not make any claim in connection with his prior service. It was on that basis that

by a communication dated 17 April 1989, he was appointed as a Livestock

Extension Inspector subject to the specific condition that he would not be entitled

to the benefit of past service. In a writ petition of 1987, the learned Single Judge

directed on 4 September 1998 that if the only ground of termination was that the

respondent had been tried on a charge of murder, he shall be taken back in

service, provided there was no other impediment in allowing him to join service.

The respondent filed another writ petition in 1989. The learned Single Judge was

manifestly in error in entertaining a challenge to the order of termination dated 9

April 1984. Such a challenge was not open to the respondent and could not have

been entertained once he had accepted his termination and sought fresh

appointment on 7 February 1989 by undertaking to give up any claim in

connection with his past service. In the face of the unequivocal undertaking of the

respondent, the learned Single Judge erred in allowing the writ petition and in 5

setting aside the order of termination. The Division Bench, in the special appeal,

was in error in affirming the order of the Single Judge.

8 We accordingly allow the appeal and set aside the judgment of the Division

Bench of the Allahabad High Court dated 18 May 2016. The direction to grant

continuity of service to the respondent from the date of the order of termination

dated 9 April 1984 shall accordingly stand set aside.

9 The appeal is disposed of in the above terms. There shall be no order as to

costs.

...........................................CJI [DIPAK MISRA]

…............................................J [A M KHANWILKAR]

…...........................................J [Dr D Y CHANDRACHUD]

New Delhi;

September 7, 2017 6

ITEM NO.1501 COURT NO.9 SECTION III-A

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Civil Appeal No(s). 9335/2016

STATE OF U.P THR. ITS SECRETARY & ORS. Appellant(s)

VERSUS

MERAJ AHMAD Respondent(s)

(HEARD BY HONBLE THE CHIEF JUSTICE, HONBLE A.M. KHANWILKAR AND HONBLE DR. D.Y. CHANDRACHUD, JJ.)

Date : 07-09-2017 These matters were called on for pronouncement of judgment today.

For Appellant(s) Mr. Samir Ali Khan, AOR

For Respondent(s) Mohd. Parvez Dabas, Adv.

Mr. Uzmi Jamil Husain, Adv.

Mr. Shakil Ahmed Syed, AOR

Hon'ble Dr. Justice D.Y. Chadrachud pronounced the judgment of the Bench presided over by Hon'ble the Chief Justice, Hon'ble Mr. Justice A.M. Khanwilkar and His Lordship.

This appeal is disposed of as allowed in terms of the signed reportable judgment.

(SUKHBIR PAUL KAUR) (S. SIVARAMAKRISHNA) AR CUM PS ASST.REGISTRAR

(Signed reportable judgment is placed on the file)