Back
2012 Supreme(UK) 275
UTTARAKHAND HIGH COURT
Barin Ghosh and U.C. Dhyani
Writ Petition (S/B) No. 61 of 2009
VINOD KUMAR – Petitioner
Versus
UNION OF INDIA & ORS. – Respondents
Decided on : 04.07.2012
For the Petitioner:Mr. M.C. Pant, Advocate
For the Respondents: Ms. Fareeda Siddiqui, Standing Counsel
Headnote:(A) Central Civil Services (Temporary Services) Rules, 1965 — Provisions — Applicability of — To those who hold a civil post, including all civilians paid from the Defence Services Estimates under the Government of India and who are under the rule-making control of the President — But who do not hold a lien or a suspended lien on any post under the Government of India or any State Government — And certain establishments and categories of people have been kept aside from the said Rules — Held — Neither the people like the petitioner, nor the establishment where the petitioner was appointed, was kept aside from the said Rules — Therefore, petitioner not entitled to make any complaint for non-compliance of the provisions contained in Art. 311 of the Constitution of India. (Para 8)
(B) Central Civil Services (Temporary Services) Rules, 1965, Rule 5 — Provisions — Authority — R. 5 authorises termination of service of a temporary Government servant at any time by notice in writing — And the period of such notice shall be one month — And further that, in lieu of notice, payment of a sum equivalent to amount of pay plus allowances is also permissible — In the instant case, though recourse was taken to the provisions of the Rule 5, Rules 1965, but with a short notice and without payment of equivalent amount of the notice period — No interference with the termination order. (Paras 9 to 11)
¼v½ dsUæh; flfoy lsok ¼vLFkk;h lsok,¡½ fu;e] 1965 & izko/kku & izk;ksT;rk & og yksx tks flfoy in ij gSa vkSj og lHkh Civilians ftUgsa osru Defence Services Estimates rgr Hkkjr ljdkj vkSj oks tks fd jk”Vªifr ds vUrxZr rule-making ds fu;a=.k esa gksa & ijUrq og tks /kkj.kkf/kdkj ;k LFkfxr xzg.kkf/kdkj /kkfjr ugah djrs gSa dksbZ in Hkkjrh; ljdkj ;k jkT; ljdkj esa & dqN LFkkiuk,¡ vkSj yksxksa dks bu fu;eksa ls vyx j[kk x;k & /kkfjr & u rks isVh’kuj tSls yksx u gh oks LFkkiuk,¡ tgk¡ isVh’kuj fu;qDr Fkk dks bu fu;eksa ls vyx j[kk x;k & blfy, isVh’kuj gdnkj ugha dksbZ f’kdk;r djus ds fy, fd izko/kku U/Art. 311 Hkkjrh; lafo/kku dk ikyu ugha fd;k tk jgkA
¼izLrj 8½
¼c½ dsUæh; flfoy lsok ¼vLFkk;h lsok,¡½ fu;e] 1965] fu;e 5 & izko/kku & izkf/kdj.k & fu;e 5 vf/kÑr djrk gS fdlh vLFkk;h ljdkjh deZpkjh dh lsokvksa ds lekIr djus ds fy, fdlh Hkh le; fyf[kr lwpuk nsdj vkSj uksfVl ds ctk; osru lHkh allowances ds lkFk nsdj & izLrqr okn esa fu;e 5 ds izko/kkuksa dk vkJ; fy;k x;k ijUrq cgqr de le; dk uksfVl nsdj cxSj osru fn, & Termination vkns’k esa dksbZ gLr{ksi ughaA
¼izLrj 9 ls 11½
Barin Ghosh, C.J. (Oral)
By a stroke of pen, engagement of the petitioner has been brought to an end. Challenging the said action, petitioner went before the Tribunal and lost.
2. In the present writ petition, it is being contended, that:
(i) according to the appointment letter of the petitioner, his probation period was two years, without any indication that the same may be extended and, accordingly, after expiry of two years, petitioner became an employee of the Union of India and, as such, his engagement/ employment could not be brought to an end without complying with the provisions contained in Article 311 of the Constitution of India;
(ii) assuming the period of probation could be extended, but, of the own showing of the respondents, the same could not be extended beyond double the period of probation, i.e. beyond four years, and since the petitioner was appointed on 14th November, 1998, the termination effected on 20th August, 2004 could not be said to have been effected during the probation period; and
(iii) the order of termination contained stigma.
3. We have read the order of termination with great difficulty since the same is in Hindi and we have found that the averments contained therein cannot be said to contain even a single stigma. A look at the letter would show that the petitioner remained absent without any intimation for a considerable period of time, which resulted in the petitioner being awarded the minimum scale of pay for three years. It was stated that, despite that, frequent absence without intimation continued. It was stated that the petitioner was asked in writing not to do so. It was stated that, despite that, petitioner remained absent without intimation. It was stated that the last absence of the petitioner, which was still continuing, prevented the departmental committee to consider the case of the petitioner to bring the petitioner in the permanent establishment and, consequentially, his services are being terminated. The facts, as depicted in the order, are not in dispute. The facts, as were stated in the order, did not cast any aspersion against the petitioner. In the circumstances, it cannot be said that the order was stigmatic.
4. We think that inasmuch as the appointment letter of the petitioner did not indicate that his period of probation can be extended and inasmuch as Rules governing his service conditions also did not expressly or impliedly authorised the same, the same could not be extended. The respondents, though have contended that they could do so and, for that matter, placed reliance on Chapter 20 to the Establishment and Administration Manual; did not make any endeavour to establish that the directions contained therein had any legal force. In any event, assuming the probation could be extended, the same, according to the own showing of the respondents, could not be extended until the date the services of the petitioner were terminated.
5. Therefore, the conclusion would be that the services of the petitioner were terminated when the petitioner was no longer a probationer.
6. There is no dispute that no steps, as are required to be taken under Article 311 of the Constitution of India, were taken before the order of termination was passed. The question is whether, in such circumstances, can the termination be said to be valid? Article 311 of the Constitution of India applies to a member of a civil service of the Union of India or an All India Service or a civil service of a State or to a person holding a civil post under the Union or a State. The moot question, therefore, was whether the petitioner, at the time of termination of his services, was a member of a civil service of the Union or he was a member of an All India Service or he held a civil post under the Union.
7. As would be evidenced from the appointment letter dated 14th November, 1998, petitioner was appointed as a Cook, Special Grade III in Indian Military Academy, Dehradun. He was, there
