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1983 (8) TMI 315
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....ted in this notification that "the appointments are temporary for the present, but likely to be made permanent". The petitioner applied for the post of Lecturer in Hindi in pursuance of this notification and he was appointed. He joined the post on 12-5-1966. 3. On 23-9-1967 the Union Public Service Commission advertised ten posts of Lecturers in various subjects including Hindi and Gujarati for the said College. In this advertisement it was stated that the posts were temporary "but likely to continue indefinitely and be made permanent eventually". Though the petitioner was already serving as Lecturer in Hindi, he applied for the posts of Lecturer in Hindi and Lecturer in Gujarati in response of this advertisement. The Union Public Service Commission selected him for the post of Lecturer in Gujarati and recommended his name to the Government of Goa, Daman and Diu (hereinafter referred to as "the fourth respondent"). On 1-4-1968 the fourth respondent by its memorandum offered the said temporary post of Lecturer in Gujarati to the petitioner on certain terms specified in para 2 therein, which are as follows: (i) The post in temporary but likely to be made permanent. In the....
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.... of seven Lecturers in the said College, who appear to have been appointed at or about the time when the petitioner was appointed at or about the time when the petitioner was appointed to the effect that they had satisfactorily completed the period of probation for two years on the dates mentioned against their names. The petitioner was not one of these Lecturers. The petitioner, therefore, made several representations to the authorities concerned between 19-4-1974 and 17-5-1976 requesting them to issue a similar certificate with regard to him. However, there was no response from the authorities to these presentations. 6. In the meanwhile the Government of India (hereinafter referred to as "the fifth respondent") under its letter dated 18-7-1974 addressed to the fourth respondent converted ten posts of Lecturers in the said College into permanent posts. These ten posts of Lecturers included the post of Lecturer in Gujarati held by the petitioners. 7. On 5-6-1976 an order came to be passed under which the service of the petitioner was purported to be terminated in pursuance of the proviso to sub-rule (1) of Rule 5 of the Temporary Service Rules. This order is in the following ....
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.... order of termination of his service had been made because of some animus and ill-will which the first respondent bore against the petitioner and that is why he has been impleaded in the petition. In the petition as filed originally the petitioners based his challenge on several grounds. Later on he amended the petition introducing dated 5-6-1976 and elaborating those which he had already taken. Though appearance was put on behalf of all the respondents, a return has been filed only by the first respondent in reply to the petition as originally filed and as amended. The petitioner has filed a lengthy rejoinder. Suffice it to say at this stage that inspite of specific averments being made which required reply from the fourth respondent, no return has been filed on his behalf. 10. Though the said order of termination is assailed in the petition on numerous grounds, the petitioner who argued his own case before us very ably being himself as Advocate by now, has confined his submissions to a few grounds only. We shall deal with them one by one. 11. The petitioner firstly contended that though the order dated 10-7-1958 under which he was appointed as the Lecturer in Gujarati in pu....
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....mission indicated that the period of probation for the post advertised therein would be of two years. The order dated 10-7-1968 merely stated that the petitioner was "temporarily appointed as Lecturer in Gujarati". This order if strictly construed would meant that the petitioner was not required to be as probation. It is true that Clause 3 of this order states that the appointment was subject to the rules and regulations laid down by the Government from time to time. However, we are told that no rules governing the recruitment of Lecturers had been made till the time of this appointment and thus the question that the candidate would be on probation on his initial appointment could not have arisen because of such rules. We have also not been shown any other rules and regulations under which a candidate entering the service of the fourth respondent was required to be on probation at the inception of his service. Hence it would have been logical to conclude that the petitioner was not supposed to be controversy on this count has been set at rest because the first respondent in his first return has admitted that the appointment of the petitioner on selection through the Union Public Se....
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....circular styles as Indian Police Service (Probation) Rules, 1954. General instruction, issued on 16-3-1973. The relevant portion from this circular is extracted in para 3 of the judgment of learned Single Judge of the Gujarat High Court in Akailesh Chandra's case cited (supra). This is also evident from the word "suggested" used in the recommendation extracted above. With respect, therefore, we are unable to agree with the learned Single Judge of the Delhi High Court in his view that the said memorandum of the Government of India contains "instructions" which are "of a binding nature and have the force of law". It is not the case of the petitioner that Clause (viii) of the said memorandum had been adopted by the fourth respondent in respect of the service controlled by it or for the matter of that by the Ministry of Education of the Government of India. It is, therefore, not possible to uphold the contention of the petitioner that the period of his probation could not have been extended beyond four years. 14. The Supreme Court has consistently held that when a first appointment or promotion is made on probation for a specific period and the employee is allowed to continue in....
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....of the period of probation. The terms on which he had been appointed as reproduced in para 3 above would also show that no such undertaking had been given to the petitioner by the fourth respondent. In this situation, therefore, the rule which has been laid down by the Supreme Court would apply and it has to be held that the petitioner continued to be on probation till his service was terminated by the impugned order. 15. As said above the petitioner relies for his proposition on the decisions mentioned in para 11 above. In State of Punjab v. Dharamsingh, cited (supra) the Supreme Court was called upon to construe the provision contained in sub-rule (3) of Rule 6 of the Punjab Educational Service (Provincialised Cadre) Class III Rules, 1961, which is in the following terms. "6(3) On the completion of the period of probation the authority competent to make appointment may confirm the member in his appointment or if his work or conduct during the period of probation has been in his opinion unsatisfactory he may dispense with his services or may extent his period of probation by such period as he may deem fit or revert him to his former post if he was promoted from some lo....
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.... the assumption that there was a prohibition for extension of the period of probation beyond double the normal period contained in the said memorandum of the Government of India dated 15-4-1959. as we have pointed out in para 13 above, this assumption is not correct and hence this decision would also be of no avail to the petitioner. 18. The case of Akailesh Chandra v. Union of India was decide on the basis of the specific instructions contained in the Indian Police Service (Probation) Rules, 19564 read with instructions issued by the Government of Indian in its circular letter dated 16-3-1973 which, as we have pointed out in para 13 above, adopted the recommendations of the Government of India contained in its memorandum dated 15-4-1959. Since this case can be distinguished on facts in the present case the petitioner cannot draw any assistance from it. 19. However, we may proceed on the assumption that the period of probation was not extended and could not have been extended beyond the period of four years as contended by the petitioner and then see what would be the effect thereof on the tenure of the petitioner's service. The question then would be if on the expiry of ....
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....ment servant unless he gets that capacity either under some rule or he is declared or appointed by the Government as a permanent Government servant. This rule has been followed by it in State of Uttar Pradesh v. Nand Kishore, A.I.R. 19771 Supreme Court 1267. 22. Any argument that in the event of the post being made permanent the petitioner would automatically be confirmed in it is ruled out by what he was told in the terms of appointment as extracted in para 3 above. He was specifically informed that in the event of the post becoming permanent, his claim for permanent absorption would be considered in accordance with the Rules in force. There is thus no promise that the petitioner would be confirmed ipso facto on the post being made permanent. As been above the petitioner has not pointed out any provision in any rule or regulation under which he could be said to be absorbed permanently in the post when it was made permanent. In our view, therefore, looked at from any angle it is not possible to say that the petitioner was, on the date when his service was terminated, a confirmed employee and hence his service could not be terminated under the Temporary Service Rules. 23. As a....
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....aman and Diu" instead of the word "I". In order to support this contention, the petitioner has produced several orders at Annexures Q and T-1. He has also produced copies of notices on annexures R, S and T, which were given by the officers concerned in their name and which according to the petitioner, had been struck down by the courts. The petitioner submits that it was only in this case that a departure is made from the normal practice and the words 'I hereby terminate' have been used instead of the words "The Administrator of Goa, Daman and Diu hereby terminates". Thus according to the petitioner, the impugned order of termination is vitiated because it has been made by an officer who had not appointed him. 25. We do not find any force in this contention. Perusal of the impugned order would show that it has been issued by order in the name of the Administrator of Goa, Daman and Diu, the Under Secretary has signed it in authentication. Hence the order for all practical purposes has been passed by the administrator and not the Under Secretary in his own name. Since the order has been issued in the name of the Administrator, the word "I" occurring therein would mean the ....
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...., the appointing authority would not be in a position to take the benefit of this proviso. The petitioner points out that the said proviso, as it stood before its amendment, enabled the appointing authority to terminate the services of a Government servant "by payment to him of a sum equivalent to the amount of his pay plus allowances" and was similarly worded as term No. (ii) under which he was appointed. Relying on the decision of Supreme Court in Senior Superintendent R.M.S. v. K.V. Gopinath (1972) ILLJ 486 SC he contends that by virtue of the words "by making payment" if the order of termination has to be effective forthwith as in the impugned order, such termination has to be simultaneously with the payment of the sum which is due to him in lieu of notice. In this connection he relies on the decision of the Delhi High Court in Nandkishor Sharma v. Union of India 1977(1)K L L J 430 and the decision of a Division Bench of this Court in Textile Committee v. K.A.Malani 1983 (1) S.L.R. 416. 27. On the other hand Mr. J., Dias the learned Counsel for the respondents submitted that at the time when term No.(ii) was incorporated in the memorandum under which the petitioner was offer....
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....urth respondent offered the post to the petitioner under its said memorandum it had power under rule 5(1) of the Temporary Service Rules to terminate the services of the petitioner forthwith by making payment to him of his pay and allowances for the period of notice. Even in the absence of term No. (ii) the fourth respondent could have terminated the services of the petitioner by making the above said payment to him, had the proviso to the said sub-rule not been amended retrospectively as said above. However, inspite of this power available to the fourth respondent in the said sub-rule it inserted term No. (ii) in the offer of appointment. In doing so it seems that it meant to reserve to itself the power of terminating the services of the petitioner forthwith by making payment to him of the said sum irrespective and independent of the power it had under the said sub-rule. This intention on the part of the fourth respondent has been made clear by the use of the word "other" in term No. (iv). What is meant by term No. (iv) is that the petitioner would be governed by the relevant rules and orders in force from time to time except those which are specifically stated in the said memoran....
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....entical with the facts of the present case. Nandkishore was offered the post of Air-port ticker Clerk on certain terms and conditions which are set out in para 10 of the report and which are similar to terms Nos. (i) and (ii) contained in the memorandum dated 1-4-1968 in the present case. In that case the appointing authority had reserved the right of terminating the services of the appointee forthwith or before the expiry of the stipulated period of notice by making payment to him of the sum equivalent to the pay and allowances for the period of notice or unexpired portion thereof. Nandkishor was appointed to the post on these terms. His service was terminated forthwith on 3-6-1971 without making payment simultaneously of his pay and allowances for the period of notice. He challenged his termination on several grounds including the ground that his services had not been properly terminated because he did receive the salary in lieu of notice at the time when his services were terminated. Now by the time the writ petition came up for hearing before the Delhi High Court the proviso to sub-rule (1) of rule 5 of the temporary Service Rules had been amended retrospectively as above, with....
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....term No. (ii) to terminate the services of the petitioner forthwith by making payment to him of a sum equivalent to pay and allowances for the period of notice. As said above, it is admitted that the petitioner was not paid the said sum simultaneously with the service of the said order on him and was paid much later i.e. on 16-9-1976. The first respondent in para 6 of his supplementary affidavit has tried to explain it by saying that the petitioner who was holding a gazetted post was himself authorised to and had to draw the said pay and allowances for the period of notice and he deliberately failed and neglected to do so, and that is why the amount was given to him by cheque on 16-9-1976, in paras 28-A and 28-B of the rejoinder the petitioner has explained as to why he could not have himself drawn the amount. In short, he submits that on the termination of his service on receipt of the impugned order on 10-6-1976 he ceased to be a gazetted officer with effect from that date and, therefore, he could not have drawn the pay himself from the Treasury for the period from 11-6-1976. There appears to be much substance in this contention of the petitioner. The fact, therefore, remains tha....
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....impugned order. It does not appear to be his case that the first respondent as a result of ill-will and bias persuaded the fourth respondent to make this order. In our opinion, there, the impugned order cannot be quashed on this ground. 35. It is further contended by the petitioner that the impugned order has been made by way of punishment in violation of the provisions of Clause (2) of Article 311 of the Constitution for the alleged misconduct that he used the word "proved liar" in respect of the first respondent, without affording him any reasonable opportunity of being defended. He submitted that the Collector of Daman had held an inquiry with regard to the alleged misconduct and the impugned order was based and founded on the report which the Collector made to the fourth respondent. These contentions are found in grounds Nos. 10 and 16 of the petition. They may be reproduced verbatim in order to properly understand the version of the petitioner. They are as follows : "Ground No. 10 (Violation of Art. 311(2) ) The petitioner says that before passing the impugned order of purported termination, an 'Inquiry' was held against the petitioner at ....
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....words for the Principal) as an act of misconduct on the petitioner's part, and they issued the order of purported termination as and by way of punishment of removal/dismissal, with colourable exercise of power, and 'without considering the petitioner's said Explanation dated 15-9-1975. This act was committed during the period of Emergency, without holding a' Proper Inquiry' as contemplated under the rules, and without affording to the petitioner, a reasonable opportunity to cross-examine, and without issuing him a show cause notice, and then without complying with the requirements of Article 311 of the Constitution of India, they dismissed/ removed the petitioner. In reality and truth, the petitioner says that he had not done anything as a Lecturer in Gujarati, to merit the removal/dismissal. (C) The petitioner, therefore, submits that the impugned order of purported termination Exh. 'P' was on the basis of the alleged misconduct, and on the complaint of the Principal against the petitioner. The petitioner says that the alleged misconduct was the very foundation of the impugned order, and that the failure of the respondents to give any reason fo....
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....scharging a probationer in accordance with the rules applicable to him can be said to be punitive has been considered by the Supreme Court in a number of cases beginning with Purshottam Lal Dhingra v. Union of India (1958) ILLJ 544 SC which as said by Krishna Iyer, J., in Shamsher Singh v. State of Punjab (1974)IILLJ465SC is "the launching pad. "In the words of Krishna Iyer, J., the decision of the Supreme Court in Purshottam Lal Dhingra's case is the Magna Carta of the Indian Civil servant although it has spawned diverse judicial trends, difficult to be disciplined applicable to termination of probation of freshers and of the services of temporary employees into one single simple, practical formula." The elaborate discussion in Purshottam Lal Dhingra's case has reference to all stages of employment in public service including temporary posts, probationers and confirmed officers. In so far as these observations have a bearing on the termination of service or discharge of a probationer, they have been summarised by Singh, C.J., in State of Bihar v. Gopi Kishore, A.I.R. 1960 S C 589 in the following terms : "1. Appointment to a post on probation gives to the person s....
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....t if a right exists under a contract or service rules to terminate the service, the motive operating on the mind of the Government is wholly irrelevant. But if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and violates Article 311 of the Constitution. The learned Chief Justice said that the reasoning why motive is said to be irrelevant is that it inheres in the state of mind, which is not discernible. But on the other hand, if termination is founded on misconduct it is objective and is manifest. These observations of the learned Chief Justice in Purshottam Lal Dhingra's case have been cited with approval by Ray, C.J., in Shamsher Singh v. State of Punjab cited supra. 38. In State of Punjab v. Sukh Raj Bahadur (1970) ILLJ 373 SC, the following propositions on consideration of numerous decisions on the question of termination of service of a temporary Government servant or probationer have been laid down : "1. The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract ....
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.... be of the view that the conduct of the probationer may result in dismissal or removal on an inquiry. But in those cases the authority may not hold an inquiry and may simply discharge the probationer with a view to giving him a chance to make good in other walks of life without a stigma at the time of termination of probation. If on the other hand, the probationer is faced with an enquiry on charges of misconduct or inefficiency or corruption and if his services are terminated without following the provisions of Art. 311(2) he can claim protection. 3. The fact of holding an inquiry is not always conclusive. What is decisive is whether the order is really by way of punishment. If there is an enquiry the facts and circumstances of the case will be looked into in order to find out whether the order is one of dismissal in substance. 4. A preliminary inquiry to satisfy that there was reason to dispense with the services of a temporary employee does not attract Article 311. But a statement in the order of termination that the temporary servant is undesirable imports an element of punishment. 5. If the facts and circumstances of the case indicate that the substa....
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....ry be the Collector as alleged by the petitioner or that even if there was such an inquiry, impugned order passed by it was not founded on the report of the Collector. The silence maintained by the fourth respondent in this respect is eloquent. It would not be unreasonable to hold that the impugned order was preceded by an inquiry by the Collector in respect of the alleged misconduct by the petitioner in using unbecoming language against the first respondent who his superior and that the fourth respondent in terminating the services of the petitioner relied and acted on the report of the Collector. Even though the impugned order is innocuously worded, the facts and circumstances preceding it as alleged and established by the petitioner do necessitate our going behind it. The question, therefore which has to be considered is whether the said inquiry by the Collector and his thereon was merely a motive or was a foundation for the subsequent order of termination. It may be noted that even the first respondent in his affidavit in reply does not deny that he had made a complaint with regard to the alleged misconduct of the petitioner and that the Collector had held an inquiry pursuant t....
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....itution inasmuch as the petitioner had not been given a reasonable opportunity of being defended before the order of termination, which amounted to removal or dismissal, was passed, for this reason also. We find that the impugned order has to be struck down. 41. The next contention of the petitioner is that the impugned order is arbitrary and discriminatory. He puts his case in this respect in ground No. 8 in the following words. "Ground No. 8 (Violation of Articles 14 and 16) 'The petitioner says that in the "Tentative Seniority List' of the Lecturers of the College, he was placed at Serial No. 1; and thereafter in the 'Final Seniority List' he was placed at Serial No. 3; and that there were placed 8 other Lecturers "below the petitioner " from Serial Nos. 4 to 11. He was, thus, undisputedly senior to 8 Lecturers of the college. The respondents purported to terminate only the petitioner's services without assigning any reason, while relating his 8 juniors in service. The petitioner, therefore, submits that the impugned order of purported termination of his service is arbitrary and discriminatory and therefore, is liable to be quashed. Relia....
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....rvices of a temporary Government servant are terminated arbitrarily, and not on the ground of his unsuitability, unsatisfactory conduct or the like which would put him in a class apart from his juniors in the same service, a question of unfair discrimination may arise notwithstanding the facts that in terminating his service, the appointing authority was purporting to act in accordance with the terms of the employment. The following observation in that case are apt and may be reproduced. "Where a charge of unfair discrimination is levelled with specificity, or improper motives are imputed to the authority making the impugned order of termination of the service, it is the duty of the authority to dispel that charge by disclosing to the Court the reason or motive which impelled it to take the impugned action Excepting, perhaps, in cases analogous to those covered by Article 311(2), Proviso (c), the authority cannot withhold such information from the Court on the lame excuse, that the impugned order is purely administrative and not judicial, having been passed in exercise of its administrative discretion under the rules governing the conditions of the service. "The giving of ....