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ishwar Singh Vs. the President of District Board, Muzaffarnagar and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 2788 of 1958
Judge
Reported inAIR1961All292
ActsConstitution of India - Articles 226 and 311; Uttar Pradesh District Boards Act, 1922 - Sections 45
Appellantishwar Singh
RespondentThe President of District Board, Muzaffarnagar and ors.
Appellant AdvocateM.H. Beg, Adv.
Respondent AdvocateJaganandan Lal, Adv.
DispositionPetition dismissed
Excerpt:
(i) constitution - termination of services - articles 226 and 311 of constitution of india - employee misrepresented his qualification at the time of joining - employee not qualified for the job - services terminated without show cause notice -- no breach of fundamental right - high court will not interfere on mere technical ground. (ii) service - termination of services - section 45 (b) of u.p. district board act, 1922 - services terminated by vice-president during illness of president - president incapacitated due illness - vice-president can exercise powers and perform functions of president. - - gopi kishore pra-sad, decided by their lordships of the supreme court on the 25th november, 1959. in that case, their lordships had occasion to remark:.....the district board at rs. 40 a month. there had been some proceedings against him to terminate his services twice but he was restored. ultimately by an order dated 8th july, 1957 his services were terminated on the ground that he was not a qualified person to hold the post, as he had not passed the vernacular final examination. in his initial application that he had made for appointment, he had misrepresented that he had passed the vernacular final examination. so far as the fact of his being disqualified is concerned, it is not in dispute. it is not the case of the petitioner that he was fully qualified for the post, but he has taken a technical plea that he had been dismissed by a vice president when he could be dismissed only by the president. 2. it has been held in several cases that.....
Judgment:
ORDER

V.D. Bhargava, J.

1. This is an application under Article 220 of the Constitution filed by Ishwar Singh, who had been appointed as Tax Amin in the District Board of Muzaffarnagar in 1948, with effect from 1st September, 1948. According to him he was a permanent employee of the District Board at Rs. 40 a month. There had been some proceedings against him to terminate his services twice but he was restored. Ultimately by an order dated 8th July, 1957 his services were terminated on the ground that he was not a qualified person to hold the post, as he had not passed the Vernacular Final Examination.

In his initial application that he had made for appointment, he had misrepresented that he had passed the Vernacular Final Examination. So far as the fact of his being disqualified is concerned, it is not in dispute. It is not the case of the petitioner that he was fully qualified for the post, but he has taken a technical plea that he had been dismissed by a Vice President when he could be dismissed only by the President.

2. It has been held in several cases that it is not every technicality in which this Court will interfere in its writ jurisdiction. The petitioner must have some fundamental right in him on which he could press his petition. If the petitioner was not qualified and even if it be accepted for the sake of argument that the termination of his services was made by a person not authorised to terminate, this Court will not interfere on that mere technicalground.

3. Apart from this fact, in the counter affidavit it has been alleged that the petitioner was not a permanent but only a temporary employee and that his services had been terminated by the Vice President, who was acting for the President under Section 45 (b) of the District Boards Act in the absence of the President. The President had got an attack of coronary thrombosis and he was lying ill for several months and during that period the Vice President was acting as President. Section 45 Clause (b) reads as follows :

'The Vice President shall ..... during avacancy in the office of the President or in case of urgent necessity during the temporary absence or incapacity of the President, perform other duties and exercise any other power of the President....'

According to the argument of the learned counsel for the petitioner, Vice President could only act for the President if there was an urgent necessity or vacancy. According to the plain language of the section, there are three contingencies provided in Sub-clause (b). They are: (1) During a vacancy in the Office of the President, (2) in case of urgent necessity during the temporary absence of the President, and (3) during the incapacity of the President.

4. Here the case was incapacity of the President. Argument of the learned counsel for the petitioner was that both the conditions should be present there, i.e. the urgent necessity and the incapacity o the President, before a Vice President would act as President. In my opinion, this contention has no force. If once the President has be- come incapacitated, then, in that case it is not only for urgent work and urgent necessity that he has to act, but that he has to act in every manner as President during the entire period when the President is non-existent because he having been incapacitated for the purpose of the District Board, he would be non-existent. Therefore, the Vice President, in the present case had properly exercised the right of termination of the petitioner's services. The petitioner was only a temporary servant and his services had been terminated under the contract.

5. It has been urged that since proceedings had been taken before, his termination was really a dismissal and behind the back of the President, while terminating his services was his alleged inefficiency or misconduct. In a recent case their Lordships of the Supreme Court had to consider this matter. It was Civil Appeal No. 488 of 1957 : (AIR 1960 SC 689), State of Bihar v. Gopi Kishore Pra-sad, decided by their Lordships of the Supreme Court on the 25th November, 1959. In that case, their Lordships had occasion to remark:

'If the employer simply terminates the services of a probationer without holding an inquiry and without giving him a reasonable chance of showing cause against his removal from service, the probationer civil servant can have no cause of action, even though the real motive behind the removal from service may have been, that his employer thought him to be unsuitable for the post he wastemporarily holding on account of his misconduct, or inefficiency, or some such cause.'

In the present case actually the petitioner's servicewas terminated because he was not qualified. TheState Government had further written to the Dis-trict Board to take action against the petitionerbecause he had made false representation about hisqualifications in the application that he had givenfor appointment. Under the circumstances. I donot think the petitioner is entitled to any relief fromthis Court if his services were terminated with onemonth's notice and if he has not been dismissedox reduced in rank or in any way penalised. Thewrit is accordingly dismissed with costs.


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