Akshay Kumar Mukharji vs Union of India (UOI)

Anil K. Sen, J.—In this appeal the Appellant challenges the judgment and order passed by a learned single Judge of this Court in a writ proceeding which was registered as Civil Rule No. 4321 (W) of 1970. In that proceeding the Appellant unsuccessfully challenged an order of termination of his service under Rule 5(1) of the Central Civil Services (Temporary Service) Rules, 1965 (hereinafter referred to as the said Rules), dated June 24, 1970, passed by the Director of Field Publicity, Government of India.

The Appellant''s case shortly was that the Director of Field Publicity by an order dated November 3, 1965, appointed him to the post of Field Publicity Officer in the Five Year Plan Publicity Mobile Unit under the Directorate of Publicity in the Ministry of Information and Broadcasting, Government of India. Though the post to which he was appointed was temporary, it was likely to continue and on the terms of his appointment he was to serve a trial period of 2 years from the date of his appointment. He joined the post on such appointment on November 8, 1965 and completed successfully two years period of trial on November 8, 1967 and was allowed to continue in the post until July 6, 1970, when he was served with the impugned order of termination dated June 24, 1970. The order recited:

In pursuance of Sub-rule (1) of Rule 5 of the Central Services (Temporary Service) Rules, 1965, I hereby give notice '' to Shri A.K. Mukherjee, Field Publicity Officer, Barrackpore, that his services shall stand terminated with effect from the date of expiry of a period of one month from the date on which this notice is served on or, as the case may be, tendered to him.

The main ground on which the Appellant challenged the aforesaid order of termination in his writ petition was to the effect that he having completed more than 3 years'' service had acquired or was legally entitled to acquire quasi-permanent status under Rule 3 of the Rules, as aforesaid, so that there could be no termination of his service under Rule 5 thereof. It was claimed that such termination was illegal and without jurisdiction and was violative of the Appellant''s rights guaranteed by Articles 14, 16 and 311 of the Constitution. According to the Appellant, further, even if he had not acquired the quasi-permanent status, since an obligation arose in law upon the Respondents to give him such a status there arose an equity in his favour on which he could rest his claim.

The Respondents contested the said writ petition by filing an affidavit-in-opposition. According to the Respondents, the Appellant was given a temporary appointment subject to a specific condition, namely, that he would have to get himself selected by the Union Public Service Commission before (he could be absorbed since the post being a Class II non-gazetted post, approval of the Union Public Service Commission was a necessary pre-requisite. The Appellant, according to the Respondents, appeared at the test held by the Union Public Service Commission but failed to qualify and as such, the Union Public Service Commission could not recommend his case for absorption. The Government having relaxed the condition of age in respect of departmental candidates the Appellant was given a second chance of qualifying himself through the Union Public Service Commission, but unfortunately even in the test held in April 1969, he failed and as such, his services were terminated by the order impugned. The Respondents strongly disputed the Appellant''s claim that he had either acquired the quasi-permanent status or was in any way legally entitled to such a status. On the other hand, it was claimed by the Respondents that the Appellant having failed to qualify himself before the Union Public Service Commission cannot claim to have successfully completed the period of trial and when admittedly he was holding a temporary post for which he could not qualify his services were rightly terminated under Rule 5 of the Rules, as aforesaid. There was an affidavit-in-reply filed on behalf of the Appellant wherein the Appellant could not deny the fact that he had twice failed in the qualifying test held by the Union Public Service Commission once in December 1965 and again in April 1969. Nonetheless, in this affidavit the Appellant reaffirmed his claim as made in the writ petition and for the first time threw out a suggestion that two of his colleagues, namely, Miss S. Dutta and Mr. B. Upadhyay similarly appointed and under similar circumstances having been absorbed he could not have been denied the same benefit.

At the trial before the learned single Judge, the counsel for the Appellant pressed the points as made out in the writ petition. The learned Judge, however, overruled the claim so made. According to the learned Judge, the Appellant cannot claim to have acquired the quasi-permanent status until there is a declaration made under Rule 3 and no such declaration having been made the Appellant continued to be a temporary servant whose services could be terminated lawfully in accordance with Rule 5. A point of discrimination was sought to be raised before the learned Judge in the trial Court, but that was overruled on the ground that such a case was not founded on facts pleaded in the writ petition. The writ petition thus failed before the learned trial Judge who by his judgment and order dated March 30, 1977, dismissed the same and the present appeal has been preferred therefrom.

The Learned Counsel for the Appellant has first contended before us that in the facts and circumstances it must be held that the Appellant had only fulfilled all the requirements for obtaining the quasi-permanent status under Rule 3 of the said Rules and as such, he must be deemed in law to have acquired such a status so that his services could not be terminated under Rule 5(1) of the said Rules. According to the Learned Counsel, the Appellant was put on trial for two years and it is apparent that he successfully completed the trial when he was allowed to continue and that only establishes the fact of his suitability and the satisfaction of the appointing authority as regards the quality of his work, conduct and character. The Appellant having served for more than 3 years in such circumstances he duly fulfilled all the requirements of Rule 3 so that the Court must hold that he acquired quasi-permanent status in law. The fact that no declaration was made by the appointing authority is inconsequential when Rule 3 casts a mandatory obligation upon the appointing authority to make such a declaration when the requirements of the Rule had been duly fulfilled by the Appellant. Alternatively, it was contended by the Learned Counsel that even if no such declaration was made when the Appellant was legally entitled to such a declaration in his favour, he is entitled to relief in equity and the appointing authority could not have lawfully terminated his service under Rule 5 by withholding a declaration which the Appellant was legally entitled to. The second point raised by the Learned Counsel for the Appellant is one of discrimination. According to the Learned Counsel, when two of the Appellant''s colleagues similarly situated were absorbed denying the same to the Appellant would be clearly violative of Articles 14 and 16. The necessary facts having been pleaded at least in the affidavit-in-reply, according to the Learned Counsel, the learned Judge in the trial Court should not have overruled the point particularly on the basis of an oral statement by the Learned Counsel for the Respondents not supported by any pleading.

The appeal is being contested by the Respondents.

On the pleadings of the parties, it appears to us that there is no dispute about certain basic facts. The Appellant was offered a temporary post on November 3, 1965. One of the terms of such appointment was:

This appointment does not give a claim on the Central Information Service and the candidate will have to be got selected by the Union Public Service Commission if he is to be absorbed in the Service.

The other term material for our consideration of such appointment was:

He will be on trial for a period of two years from the date of appointment which may be extended or curtailed at the discretion of the appointing authority.

Being appointed on such terms, the Appellant rendered a little less than 5 years'' service before his services were terminated by the impugned order of termination made by the appointing authority under Rule 5 of the said Rules. It was so terminated as the Appellant failed to qualify himself twice in the test held by the Union Public Service Commission and thus failed to get himself selected by the said Commission. According to the Learned Counsel for the Appellant, such failure is inconsequential and is wholly extraneous as a consideration for determining the Appellant''s eligibility to acquire the quasi-permanent status under r. 3 of the said Rules. The said Rule provides:

When a Government servant shall be deemed to be quasi-permanent. A Government servant shall be deemed to be in quasi-permanent service

(i) if he has been in continuous temporary service for more than three years; and

(ii) if the appointing authority, being satisfied, having regard to the quality of his work, conduct and character, as to his suitability for employment in quasi-permanent capacity under the Government of India, has made a declaration to that effect.

According to the Learned Counsel for the Appellant, in order to acquire the quasi-permanent status three things are necessary, namely, (i) that the Government servant must render 3 years'' continuous temporary service, (ii) must satisfy the appointing authority as to his suitability but that satisfaction is to be arrived at having regard to the quality of his work, conduct and character and (iii) he obtains a declaration to that effect from the appointing authority. According to the Learned Counsel for the Appellant, though the appointing authority is vested with the discretion to make the declaration, such discretion is not absolute but must be guided by the two other elements, namely, fulfilment of 3 years'' temporary service and proof of suitability having regard to the quality of his work, conduct and character. According to him, it is not the case of the Respondents that the Appellant had failed to fulfil either of these two conditions. Therefore, this Court must either hold that the Appellant had already acquired the quasi-permanent status under Rule 3 or in the alternative he being legally entitled to such a status it would not be lawful for the appointing authority to terminate his service under Rule 5 by failing to make a declaration which he is otherwise obliged to under Rule 3 of the said Rules.

Having carefully considered the contentions thus raised by the Learned Counsel for the Appellant, we are unable to accept the same for two-fold reasons. In the first place, when there had been no declaration under Rule 3 in favour of the Appellant and when the Appellant has not moved this Court for enforcement of his alleged legal right under Rule 3 directly, he cannot collaterally claim such a right in challenging an order made under Rule 5(1) of the said Rules. That apart, in our view, this contention must fail more on its merits. We feel no hesitation in upholding the view of the learned Judge in the trial Court that under Rule 3, a Government servant acquires the quasi-permanent status only on a positive declaration to that effect being made by the appointing authority. When the Rules have left it to the discretion of the appointing authority to be satisfied about the suitability of the Government servant for conferment of such a status, the Court cannot assume unto itself the said authority and in substance make a declaration in favour of the Government servant by holding him to have acquired the quasi-permanent status as claimed by the Appellant before us. But the question still left for our consideration is, could the appointing authority in the present case have refused such a declaration on the ground that the Appellant had failed to qualify himself in the test held by the Union Public Service Commission. On the pleadings, in the present case, it is apparent that the Respondents terminated the services of the Appellant as he failed in such a test and obviously that was also the reason why he was not given the declaration of a quasi-permanent status. At least, no other ground had been pleaded by the Respondents for not giving him the said status. According to the Learned Counsel for the Appellant, when the appointing authority is to satisfy himself as to the Government servant''s suitability for employment in a quasi-permanent capacity only with reference to considerations specified in the Rule itself, namely, quality of his work, conduct and character, nothing else could have been taken into consideration for determination, of such suitability. According to him, therefore, whether the Appellant had failed in the test or not, is a consideration which is wholly extraneous for adjudging the suitability of the Appellant for employment in a quasi-permanent capacity in terms of Rule 3, as aforesaid. We are, however, unable to accept such a construction of Rule 3. In our opinion, the term "having regard to the quality of his work, conduct and character" is not so exhaustive as to exclude from consideration by the appointing; authority the basic eligibility of the Government servant for the post to which being appointed he is to be conferred the quasi-permanent status as in the present case. It is difficult to conceive that if a person is appointed on a term that his disability is to be determined on an eligibility test the mere fact that he has rendered 3 years'' service with satisfactory quality of his work, conduct and character would entitle him to a declaration under Rule 3 even where he has failed in the eligibility test. In our opinion, such eligibility is the basic consideration for appointment to the post and unless the Government servant can claim the post by establishing his eligibility the question of his getting a declaration of quasi-permanency to such post does not arise at all. In this view, the first contention of the Learned Counsel for the Appellant in the two alternative forms must fail and is overruled.

So far as the other point of discrimination is concerned, we are in agreement with the learned Judge in the trial Court that the Appellant not having pleaded the necessary facts in his writ petition cannot rely upon his affidavit-in-reply to support such a case since the Respondents had no right of answer to the affidavit-in-reply. Moreover, even in the affidavit-in-reply what has been alleged is that two of his colleagues--Miss S. Dutta and Mr. B. Upadhyay similarly appointed and under similar circumstances were absorbed in permanent service. It has not been clearly stated that they too failed in the eligibility test and as such, were disapproved by the Union Public Service Commission. In any event, if the Appellant wanted to rely upon such a fact to support the case of discrimination, he should have made out such a case in his writ petition so that the Respondents could plead necessary facts to show how those two officers were absorbed. Moreover, even if we assume all in favour of the Appellant and hold that those two officers were irregularly or illegally absorbed in breach of the eligibility, this Court cannot in the writ jurisdiction enforce any such privilege based on irregularity or illegality in favour of the Appellant on the ground, of discrimination. In this view, the other point raised in support of this appeal also fails.

As both the points raised in support of this appeal fail, the appeal fails and is dismissed. There will be no order as to costs. Let the operation of the order remain stayed for a further period of one month after the Christmas Holidays.

B.C. Ray, J.

I agree.