Allahabad HC Quashes Termination of Dental Surgeon, Rules "Absconded" Stigma is Adverse in Nature
Allahabad High Court
Lucknow: The Lucknow Bench of the Allahabad High Court quashed the termination order of a Dental Surgeon, issued by the Uttar Pradesh Department of Medical Health and Child Welfare due to its alleged failure to follow proper protocol. The court deemed the dismissal as 'arbitrary and illegal' directing the state to reinstate the petitioner with all consequential benefits.
The petitioner brought the matter to court after the government issued a termination order in 2021, which alleged that he had "absconded" from duty. He contended that at the time of his recruitment, he was pursuing a Master’s in Dental Surgery (MDS) and had applied for study leave, which was subsequently denied.
While hearing the plea, a Single Bench of Justice Alok Mathur noted, "The order stating that the petitioner had "absconded" from service, due to which the services could not be available to the public at large, clearly casts a stigma upon the petitioner. Any person who is said to have "absconded" meaning thereby he has deliberately fled from his duty without obtaining proper action, reflects adversely on the conduct of any comment servant and hence casting an implication that the petitioner has absconded his cast stigma, and such an importation could not have been levelled without giving him proper opportunity of hearing."
According to the petition, the doctor was appointed as a Dental Surgeon on October 4, 2020, following his successful selection in the recruitment process for 595 posts advertised in 2017.
Before the said advertisement and selection, the petitioner appeared for the MDS exam for postgraduate education in the Speciality of Pedodontics and Preventive Dentistry on 14.12.2018. He was selected for the postgraduate course and took admission to the Government Dental College and Hospital, Nagpur, Maharashtra.
The results of the recruitment for the post of Dental Surgeon under the Medical Health and Child Welfare, UP, were not declared until the petitioner was admitted and joined in 2019 for the postgraduate course. It was only in 2020 that the results were declared, and he was selected for the post.
However, the petitioner applied to the Department of Medical and Health for study leave but was denied. Subsequently, he was absent from his duties, leading to his termination on November 30, 2021, under the Uttar Pradesh Temporary Government Servants (Termination of Service) Rules, 1975.
"The petitioner went to join his services at the place of posting on 30.12.2021, but he was informed that his services had already been terminated by means of the impugned order dated 30.11.2021, however, a perusal of the impugned order indicates that the petitioner had already joined on 10.10.2020 and from the very next date he had proceeded on leave and it is for his unauthorized absence that his services have been terminated under the Uttar Pradesh Temporary Government Servants (Termination of Service) Rules, 1975," noted the plea as reported by Verdictum news.
The petitioner challenged the termination, arguing that his appointment was permanent and not subject to temporary service rules. His counsel further contended that the termination order was stigmatic, as it labelled him as "absconding" without due process, which violated Articles 14 and 16 of the Constitution.
"Considering the arguments of the petitioner that his services could not have been terminated invoking the provisions of Rules of 1975, it is noticed that it was necessary for the respondents to have considered whether the petitioner falls in the definition of ‘temporary service’. To invoke the provisions of Section 2 of the rules of 1975, it was necessary that the services of the government servant should not have been ‘officiating or substantive on temporary post’ or ‘officiating service on permanent post’ under the Uttar Pradesh Government," noted the Bench.
Further, the Bench added, "There is no dispute that the petitioner was substantially appointed on a permanent post and, accordingly, his services were not on a temporary post and clearly he was not on officiating service on a permanent post. Basic ingredients of “temporary service” being absent with regard to the services of the petitioner he could not have been said to be in temporary service and, hence, Section 3 of Rules of 1975 would be inapplicable in the case of the petitioner.
Rule 3 clearly provides that services of the government servant in temporary service are liable to be terminated at any time by notice in writing given either by the government servant to the appointing authority or by the appointing authority to the government servant, hence, it is necessary that the services of such employee have to be ‘temporary service’."
Quashing the termination order issued by the government, the court allowed the petitioner's plea observing that the petitioner did not fall within the definition of ‘temporary service’ and, hence, the order has been passed without jurisdiction. "In the present case no show cause notice nor any opportunity was given to the petitioner, and accordingly such an order casting stigma on him could not have been passed and hence the same is illegal and arbitrary and libel to be set aside." added the Bench.
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