Bharat Prasad Tyagi v. Director of Agriculture — 1964 DIGILAW 217 (ALL)

JUDGMENT H.C.P. Tripathi, J. - This writ petition is directed against an order No. B-2968/XIIB-699/1956, dated August 27, 1962, of the State Government, terminating the appointment of the petitioner form the post of Assistant Economic Botanist (Cotton). 2. The petitioner had a brilliant academic career. He passed his B.Sc. Agriculture from the University of Agra and was placed in First Division. He obtained his degree of M.Sc. in Agriculture in First Division and was first in order of merit. He was appointed a Botanical Assistant in Group I of Subordinate Agriculture Service on 1.2.1950, but he was relieved on 3rd July 1950 on account of the termination of the post. He was, however, re-appointed in the same Group on the same service on 25th of July 1950 and was posted as Senior Agriculture Inspector at Lucknow and then was transferred to Bulandshahr. While serving the Department in that capacity, he applied for the post of Assistant Economic Botanist (Cotton) which was advertised by the Public Service Commission in 1957 and was appointed as such by order dated 30th of April 1958 on probation for a period of two years. The petitioner took charge of the office on the 26th of May 1958. His probationary period was extended under subsequent Government orders till 30th September 1962 and the impugned order, as indicated earlier, was passed on August 27, 1962. 3. The petitioner has challenged the validity of the aforesaid order on a variety of grounds. His contention is that it is not a simple order of discharge but one of punishment which has been passed on the basis of adverse entries made by the Economic Botanist against the petitioner in his character roll and as such leaves an indelible stigma affecting his future career, and as no reasonable opportunity of showing cause has been afforded to the petitioner, the impugned order is wholly illegal. 4. Learned counsel for the petitioner has urged that even if the impugned order is treated as an innocuous order discharging the petitioner from service, it is bad in law because the provisions of rule 55(3) of the Civil Services (Classification, Control and Appeal) Rules have been infringed and the petitioner had neither been apprised of the grounds nor given an opportunity to show cause against the order. Learned counsel contends that though in the petition no specific plea has been raised on the basis of infringement of the provisions of the rules, he is entitled to raise the same as it is covered under ground No. C. of the petition which has clearly affirmed that the impugned order was void being in violation of the protection granted under Article 311(2) of the Constitution. 5. In the counter-affidavit filed on behalf of the respondents it has been stated that in accordance with the recommendations of Nalagarh Committee constituted by the Government of India for the purposes of laying down principles and policies with regard to the assessment of research work in the Agriculture Department, the State Government constituted a Board to examine the work and performance of the petitioner. The work and performance of the petitioner was assessed and examined by the Board successively in the years 1960, 1961 and 1962 and its recommendations were that the petitioner was professionally incompetent and in addition he made little efforts to apply himself in the discharge of his duties. The Board was of the view that Sri Tyagi should not be confirmed in U.P. Agricultural Service Class II. It has been further averred that as the State Government was not satisfied with the work and performance of the petitioner who was on probation, "the State Government terminated his services without framing any charges against him. As no charges were framed the petitioner was not given an opportunity of hearing or explanation. 6. Thus it is admitted that the petitioner was not given an opportunity of hearing or explanation before the impugned order was passed. 7. Learned Standing Counsel for the State has urged that as the petitioner was only a probationer in the Uttar Pradesh Agricultural Service Class II, his case is governed by rule 21 of the Rules regulating appointment to and the conditions of service of the United Provinces Agricultural Service, Class II, framed under the Civil Services (Classification, Control and Appeal) Rules, 1930; and as sub-clause (4) of the aforesaid Rules provides that "the Government may, without entitling him to any compensation, dispense with his services after giving him one month's notice......", it was not incumbent on the State Government to afford an opportunity to the petitioner to show cause before discharging the services. Learned counsel contends that rule 55(3) of The Civil Services (Classification, Control and Appeal) Rules is not applicable to the petitioner as special provision has been made for appointment and conditions of employment in Uttar Pradesh Agricultural Service Class II in accordance with rule 3 of the aforesaid Rules. I do not find any substance in these arguments. 8. In the year 1953 a Notification No. 3-227/II-B-53 was published by the Governor of Uttar Pradesh, the relevant portion of which is quoted below: "In Exercise of the powers conferred by the proviso of Article 309 of the Constitution of India, the Governor of Uttar Pradesh is pleased to direct that the following further amendments shall be made in the Civil Services (Classification, Control and Appeal) Rules in their application to the Government servants under his rule-making control. Amendments ........ (3) For rule 55 the following shall be substituted: 9. Without prejudice to the provisions of the Public Servants Inquiries Act, 1850 no order (other than an order based on facts which had led to his conviction in a criminal court or by a court-martial) of dismissal, removal or reduction in rank (which includes reduction to a lower posts or time-scale, or to a lower stage in a time-scale, but excludes the reversion to a lower post of a person who is officiating in a higher post) shall be passed on a person who is member of a Civil Service or holds the civil post under the state unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be reduced in the form of a definite charge or charges which shall be communicated to the person charged and which shall be so clear and precise as to give sufficient indication to the charged Government servant of the facts and circumstances against him. He shall be required within a reasonable time, to put in a written statement of his defence and to state whether he desires to be heard in person. If he so desires, or if the authority concerned so directs an oral inquiry shall be held in respect of such of the allegations as are not admitted. He shall be required within a reasonable time, to put in a written statement of his defence and to state whether he desires to be heard in person. If he so desires, or if the authority concerned so directs an oral inquiry shall be held in respect of such of the allegations as are not admitted. At that inquiry such oral evidence will be heard as the inquiring officer considers necessary. The person charged shall be entitled to cross-examine the witness, to give evidence in person as to have such witness called as he may wish, provided that the officer conducting the inquiry may for sufficient reason to be recorded in writing refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and the statement of the findings and the grounds whereof. The officer conducting the inquiry may also, separately, from these proceedings, make his own recommendations regarding the punishment to be imposed on the charged Government servants. (2) This rule shall not apply where the person concerned has absconded, or where it is for other reason impracticable to communicate with him. All or any of the provisions of the rules may, for sufficient reason to be recorded in writing, be waived, where there is difficulty in observing exactly the requirements of the rule and those requirements can, in the opinion of the inquiring officer, be waived without injustice to the person charged. (3) This rule shall also not apply where it is proposed to terminate the employment of a probationer, whether during or at the end of the period of probation or to dismiss, remove or reduce in rank a temporary Government servant, for any specific fault on account of his unsuitability for the service in such cases. The probationer or temporary Government servant concerned, shall be apprised of the grounds of such proposal, given an opportunity to show cause against the action to be taken against him, and his explanation in this behalf if any, shall be duty considered before orders are passed by the competent authority." 10. It is significant to note that this Notification which has added rule 55 in its present form to the Civil Services Rules does not indicate that it was not to apply to any particular class of Government servants. It is significant to note that this Notification which has added rule 55 in its present form to the Civil Services Rules does not indicate that it was not to apply to any particular class of Government servants. On the other hand, a perusal of the amendments which were incorporated in the Civil Services Rules under the aforesaid notification makes it evidence that they were to govern the cases of all Government servants in respect of disciplinary proceedings being started against them. Rule 3 reads: "These rules shall apply to every person in the whole-time civil employment of a Government in India (other than a person so employed only occasionally or subject to discharge at less than one month's notice) except- (a) persons for whose appointment and conditions of employment special provision is made by or under any law for the time being in force; ......... (c) persons in respect of whose conditions of service, pay and allowances, pension, discipline and conduct or any of them, special provision has been made by agreement entered into before these rules, were made or entered into thereafter in pursuance of the provisions of rule 46; Provided that in respect of any matter not covered by the provisions special to him, his service or his post, these rules shall apply to any persons coming within the scope of exceptions (a) and (c) above to whom but for these exceptions the rules would otherwise apply:" 11. Rules regulating appointment to and the conditions of service of the Uttar Pradesh Agricultural Service, Class II which had been relied upon by the learned Standing Counsel, only provide for the recruitment of the members of the service and lay down their qualifications. It does not make any provision as to how and in what manner disciplinary proceedings can be taken against them. Rule 21 of the aforesaid Agricultural Service Rules only says that the Government may dispense with the services of a probationer after giving him one month's notice without entitling him to any compensation. Therefore, in view of the proviso of rule 3 of the Civil Services, Rules, as quoted above, rule 55 is applicable even to the members of Agricultural Service, Class II. 12. These U.P. Agricultural Service Rules appear to have been framed under the Civil Services (Classification, Control and Appeal) Rules and as such have no statutory force. Therefore, in view of the proviso of rule 3 of the Civil Services, Rules, as quoted above, rule 55 is applicable even to the members of Agricultural Service, Class II. 12. These U.P. Agricultural Service Rules appear to have been framed under the Civil Services (Classification, Control and Appeal) Rules and as such have no statutory force. Rule 21 of these Rules is not inconsistent with Rule 55 of the Civil Services Rules and they can be read together. Even if it is held to be inconsistent with rule 55, it being only in the nature of departmental rules cannot override the provisions of rule 55 which had been made in exercise of the powers conferred by the proviso of Article 309 of the Constitution of India and which are applicable to all Government servants. 13. In the case of Ram Narayan A.I.R. 1961 S.C. 177 who was a Sub-Inspector on probation in the Orissa Police Force and was governed by the provisions of the Police Manual of the Orissa State and was liable to be discharged at any time during the period of his probation under the terms of his appointment, it was observed by the Supreme Court that a probationer can be discharged in the manner provided by Rule 55-B of the Civil Services (Classification, Control and Appeal) Rules and it was held that notice to show cause whether the employment of the respondent should be terminated was, by Rule 55-B made obligatory. Rule 55-B is in identical terms with Sub-Rule (3) of Rule 55 of the aforesaid Rules as applicable to the State of Uttar Pradesh. 14. I have, therefore, no doubt in my mind that Rule 55 of the Civil Services Rules applies with full force in the present case. As the petitioner was neither apprised of the grounds of the termination of his services nor given an opportunity to show cause against the proposed action and his explanation in that behalf was not taken by the respondents before issuing the impugned order, the statutory provisions of Rule 55(3) have been infringed and the order terminating the appointment of the petitioner cannot be sustained in law. 15. 15. In view of the above finding, I do not deem it necessary to discuss the question as to whether the impugned order is only an order of discharge or it amounts to a punishment of the petitioner leaving a stain on his future career. 16. In the result, the petition is allowed with costs. The order No. B-2968/XIIB-699/1956 of the State Government dated August 27, 1962 terminating the appointment of the petitioner from the post of Assistant Economic Botanist (Cotton) is quashed.