Raj Kumar vs U.P. Public Services Tribunal (I) and Others

R.H. Zaidi, J.—Petitioner, by means of this petition under Article 226 of the Constitution of India, prays for a writ, order or direction in the nature of certiorari quashing the judgment and order dated 20.4.1983. whereby the claim petition of the Petitioner was rejected by the U.P. Public Service Tribunal (I), Lucknow and the order dated 23.1.1978, whereby the services of the Petitioner were terminated by the Director of Education, U.P. Allahabad, in exercise of power under U.P. Temporary Government Servants (Termination of Service) Rule, 1975.

In brief the relevant facts of the case are that it was in the year 1967 that the Petitioner was appointed as a typist in the U.P. Board of Technical Education, Lucknow and was later on confirmed on the said post. Thereafter, he was promoted to the post of Junior Assistant on regular and permanent basis. The post of Senior Assistant (Confidential) in U.P. Board of High School and Intermediate Education fell vacant. The Petitioner applied for the appointment on the said post and appeared in the competitive examination in which he was selected for appointment on the said post. The Petitioner was appointed as Senior Assistant (Confidential) in the office of Respondent No. 3 against the reserved vacancy for the Scheduled Caste which was a clear and substantive vacancy on probation of 2 years. The Petitioner joined the post of Senior Assistant (Confidential) on 9.3.1977. It is claimed that the service record of the Petitioner was unblemished and he performed his duties honestly and with sincerity, to the satisfaction of his superior officers. It is, however, alleged that one Shri K. C. Sharma, Section Incharge of Section No. 2, bore ill will and animosity towards the Petitioner about which the Petitioner also complained to the competent authority; but the Petitioner, at the instance of Shri K. C. Sharma, was transferred to Section No. 6 from Section No. 2. On 15.10.1977 Shri K. C. Sharma was manhandled by some other persons but the Petitioner was falsely implicated in the criminal case u/s 332, I. P. C. It is alleged that it was at the instance of Shri K. C. Sharma that a notice dated 25.1.1978 was got published in the newspaper whereby the services of the Petitioner were purported to have been terminated in exercise of power under U.P. Temporary Government Servants (Termination of Services) Rules, 1975, although the said rules had no application in the present case. The Petitioner filed a claim petition before the Respondent No. 1 pleading that the Petitioner was a Permanent Government Servant and not a temporary employee. The Respondent No. 2, therefore, had no jurisdiction to terminate the services of the Petitioner without following the procedure prescribed under the law. The claim petition filed by the Petitioner was contested by the Respondents pleading that Rule 55 of C. C. A. Rules was not applicable in the present case and that services of the Petitioner were terminated in accordance with law. The claim petition filed by the Petitioner was ultimately dismissed by the Respondent No. 1. The Petitioner, thereafter, approached this Court and filed the present petition.

The writ petition was filed and admitted in 1983; notices meant for Respondents were served upon learned standing counsel; but till date no counter-affidavit has been filed. However, pleadings of parties filed before U.P. Public Service Tribunal are on the record.

I have heard learned Counsel for the Petitioner, learned standing counsel and also perused the record.

Learned Counsel for the Petitioner vehemently urged that the provisions of U.P. Government Temporary Servants [Termination of Service) Rules, 1975 for short ''the Rules'' had absolutely no application to the facts of the present case. The Respondent No. 2, therefore, had no jurisdiction to terminate the services of the Petitioner in exercise of power conferred upon it under the said rules. It was urged that in accordance with the provisions of C. C. A. Rules, it was obligatory upon the Respondent No. 2 to supply to the Petitioner the complaint, if any, made against him and to afford an opportunity to the Petitioner to explain his case before passing the order of termination.

Reliance in support of the said submission was placed by the learned Counsel for the Petitioner on the decision in Dr. Mrs. Sumati P. Shere Vs. Union of India (UOI) and Others, .

On the other hand learned Counsel appearing for the contesting Respondents supported the validity of the impugned orders. It was contended that the Respondent No. 2 had the Jurisdiction to terminate the services of the Petitioner during the period of probation in exercise of power under the Rules. The status of the Petitioner was that of a temporary Government employee, as till impugned order was passed, his services were admittedly not confirmed.

I have considered the submissions made by the learned Counsel for the parties.

It is not disputed that the services of a Temporary Government Servant can be dispensed with in accordance with the provisions of Rules. Learned Counsel for the Petitioner urged that the Petitioner was a probationer and not a purely Temporary Government Servant. Therefore, it will have to see if there is any difference between status of a probationer and a Temporary Government Servant and as to whether the services of a probationer could be terminated in exercise of powers under the Rules.

Sub-rule (5) of Rule 55 of U.P. C. C. A. Rules provides as under:

This rule shall also not apply where it is proposed to terminate the employment of either a Temporary Government Servant or of a probationer whether during or at the end of the period of probation. In such cases, a simple notice of termination, which, in the case of a Temporary Government Servant, must conform to the conditions of his service, will be sufficient.

It is evident from the aforesaid rule that the procedure prescribed under Rule 55 for taking action against a Government Servant will not apply if the services of a Temporary Government Servant or of a probationer are proposed to be terminated either during or at the end of the period of probation and simply a notice of termination is required to be given in accordance with the provisions of the Rules.

The controversy referred to above has been subject-matter of several decisions of the Apex Court of the country and the same was resolved.

In Parshotam Lal Dhingra Vs. Union of India (UOI), , it was ruled as under:

When a servant has right to a post or to a rank either under the terms of the contract of employment express or implied, or under the rules governing the conditions of his service, the termination of the service of such a servant or his reduction to a lower post is by itself and prima facie a punishment, for it operates as a forfeiture of his right to hold that post or that rank and to get the emoluments and other benefits attached thereto. But if the servant has no right to the post, as where he is appointed to a post, permanent or temporary either on probation or on an officiating basis anal whose temporary service has not ripened into a quasi permanent service as defined in the Temporary Service Rules, the termination of his employment does not deprive him of any right and cannot, therefore, by itself be a punishment. One test for determining whether the termination of the service of a Government servant is by way of punishment is to ascertain whether the servant, but for such termination, had the right to hold the post. If he had a right to the post as in the three cases hereinbefore mentioned, the termination of his service will by itself be a punishment and he will be entitled to the protection of Article 311. In other words and broadly speaking, Article 311(2) will apply to these cases where the Government servant, had he been employed by a private employer, will be entitled to maintain an action for wrongful dismissal, removal or reduction in rank. To put it in another way, if the Government has, by contract, express or implied, or, under the rules, the right to terminate the employment at any time, then such termination in the manner provided by the contract or the rules, is, prima facie and per se, not a punishment and does not attract the provisions of Article 311.

(Emphasis supplied)

In the The State of Bihar Vs. Gopi Kishore Prasad, , it was held that although termination of service of a person holding a post of probation cannot be said to deprive him of any right to the post and is no punishment.

In I.N. Saksena v. State of M.P. AIR 1987 SC 1264, it was ruled that where there are no express words in the order itself which would throw any stigma on the Government servant, Court cannot delve into Secretariate files to discover whether some kind of stigma can be inferred on such research.

In Samsher Singh Vs. State of Punjab and Another, , a Constitution Bench consisting of seven Hon''ble Judges ruled as under:

An order terminating the services of a temporary servant or probationer under the Rules of Employment and without anything more will not attract. Article 311 where a departmental enquiry is contemplated and if an enquiry is not in fact proceeded with Article 311 will not be attracted unless it can be shown that the order though unexceptionable in form is made following a report based on misconduct.

He was a temporary hand and had no right to the post. It is also not denied that both under the contract of service and the service rules governing the Respondent, the State had a right to terminate his services by giving him one month'' notice. The order to which exception is taken is ex facie an order of termination of service simpliciter. It does not cast any stigma on the Respondent nor does it visit him with evil consequences, nor is it founded on misconduct. In the circumstances, the Respondent could not invite the Court to go into the motive behind the order and claim the protection of Article 311(2) of the Constitution.

In the case of State of Maharashtra v. Veerappa R. Saboti AIR 1980 SC 42, the Supreme Court was pleased to observe as under:

Ordinarily and generally the rule laid down in most of the cases by this Court is that you have to look to the order on the face of it and find whether it casts any stigma on the Government servant. In such a case there is no presumption that the order is arbitrary or mala fide unless a very strong case is made out and proved by the Government servant who challenges such an order.

Again the matter came up for consideration before a Constitution Bench of the Supreme Court in the case of Oil and Natural Gas Commission and Others Vs. Dr. Md. S. Iskender Ali, , after reviewing the all the aforesaid cases, it was ruled as under:

Applying the principles enunciated by this Court in various cases to the facts of the present case, the position is that the order impugned is prima facie an order of termination simpliciter without involving, any stigma. The order does not in any way involve any evil consequences and is an order of discharge simpliciter of the Respondent who was a probationer and had no right to the service. The Respondent has not been able to make out any strong case for this Court to delve into the documents, materials in order to determine a case of victimisation or one of punishment.

In the present case, the impugned order of termination is also an order of termination simpliciter without casting any stigma. The said order does not in any way involve any evil consequences and is an order of discharge simpliciter of the Respondents, who was a probationer and had no right to the services. So far as the decision in Dr. Mrs. Sumati P. Shere Vs. Union of India (UOI) and Others, , is concerned, it was a case of an ad hoc employee.

Under the facts and circumstances of that case, the Apex Court was pleased to observe as under:

It is not the case of the Respondents that a regular candidate selected by the Public Service Commission has been posted in her place. Therefore, in the normal course, she would have continued till a select candidate replaced her. The Respondents, however, have taken the stand that they were not satisfied with the performance of the Appellant. But it appears that at no time she was informed about her deficiencies. The order of termination came like a bolt from the blue.

However, when the attention of the Supreme Court was drawn to some of the aforesaid decisions, in paragraph No. 7 of the judgment it was observed as under:

There cannot be any dispute about this proposition. We are not laying down the rule that there should be a regular enquiry in this case. All that we wish to state is that if she is to be discontinued, it is propter and necessary that she should be told in advance that her work and performance are not up to the mark.

The aforesaid decision was, thus, rendered by the Supreme Court and in exercise of its inherent power under Article 142 of the Constitution of India and does not come within the purview and scope of Article 141 of the Constitution of India. Therefore, the Petitioner is not entitled to any benefit on the basis of the said authority.

In view of the aforesaid discussions, the U.P. Public Service Tribunal did not commit any error of law in rejecting the claim petition of the Petitioner. The orders impugned in the present petition are quite valid and do not call for interference by this Court under Article 226 of the Constitution of India.

The writ petition falls and is dismissed but without any order as to costs.