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2006 DIGILAW 134 (RAJ)

Rewat Singh v. Union of India

2006-01-12

BHAGABATI PRASAD BANERJEE, S.N.JHA

body2006
Judgment 1. The petitioner has approached to this Court for quashing the order of the Central Administrative Tribunal, Jodhpur Bench, Jodhpur dated 27.08.1998 in O.A. No. 394/1996, dismissing his application under Section 19 of the Administrative Tribunals Act, 1985. He had moved to the Tribunal for quashing of the order dated 30.11.1996 by which his services were terminated. 2. The case of the petitioner is that he was appointed as civil mess waiter by the Respondent No. 2 and on 012.1994 he joined the duty in pursuant to the appointment on the same day. It may be mentioned here that according to the petitioner the appointment order was taken back by Respondent No. 2 i.e., Officer Commanding, Headquarter Station, 4th Independent Armoured Brigade. It is not necessary to go into the question as the case of the petitioner regarding his appointment is not disputed by the respondents. The case of the respondents is that sanction for appointment on the post of Mess waiter besides two other posts was granted by the Army Head Quarter vide letter No. 15978/ ILC/ REL/VOL II org 4 (Civ) dated 011.1994. The appointment was to be made in terms of circular dated 112.1979 Para 2 whereof provides that civilian personel can be employed in lieu of combatants, whenever essential, as temporary expedient, till such time as the latter become available. Para 5 of the circular lays down the guidelines in terms of which civilians in lieu of combatants can be employed only when an establishment goes below 95% of its authorized strength. In terms of Cause (c) of Para 5 such employment cannot continue beyond period of two years. According to the respondent, the services of the petitioner were thus terminated in the light of the said circular/ instructions. 3. Counsel for the petitioner submitted that the impugned order does not indicate that the services have been terminated in terms of circular dated 112.1996. It was stated that the petitioner was earlier served show cause notice and if the services of the petitioner were dispensed with on account of any misconduct, he should have been given opportunity of hearing which was not done in the instant case and, therefore, the order is violative of the rules of natural justice. It was stated that the petitioner was earlier served show cause notice and if the services of the petitioner were dispensed with on account of any misconduct, he should have been given opportunity of hearing which was not done in the instant case and, therefore, the order is violative of the rules of natural justice. 4.The respondents have brought on record the communication from the Army Head Quarter dated 011.1994 (Supra), releasing one vacancy each on the post of mess waiter, safai wala and cook. The order clearly stated that the vacancies were being released in lieu of combatants for direct recruitment through employment exchange. The appointment of the petitioner came soon thereafter on 7/12.1994. Apparently this was pursuant to the said order of the Army Head Quarter. The employment of civilians in lieu of combatants and the manner of appointment and service conditions of the appointee are laid down in circular dated 112.1979. It may be useful to extract the relevant paragraphs relating the nature of appointment of the petitioner:- "2. In accordance with the above quoted Army, Instructions, civilians personnel can be employed in lieu of combatants, whenever essential, as temporary expedient till such time as the latter become available. This measure is resorted to only when the respective Record Officers or Centres certify that on account of the non-availability of combatant personnel. It is not possible for them to fill the vacancies. 3. As a result of a study conducted in the recent past, it has been found that a large number of civilians, although employed in lieu of combatants only as a temporary measure, have been controlled in service for long periods ranging upto 10 to 15 years and even more. It appears that either a proper watch over the filling of the vacancies is not being kept or combatant personel are not posted to units/establishments in the order of the occurrence of the vacancies. 4 …….. 5. With a view to obviating the necessity of employment of civilians in lieu of combatants for long periods, it has been decided that the following measures will be adopted by all concerned with immediate effect:- .(a) The civilians in lieu of combatants will be employed only when an establishment goes below 95% of its authorised strength. 4 …….. 5. With a view to obviating the necessity of employment of civilians in lieu of combatants for long periods, it has been decided that the following measures will be adopted by all concerned with immediate effect:- .(a) The civilians in lieu of combatants will be employed only when an establishment goes below 95% of its authorised strength. Actual recruitment will be carried out after obtaining a certificate from the concerned Centre or Records that the combatants required cannot be posted and that no surplus of such personnel exists in any unit. In the case of units and establishments not dependent on a particular Centre, however, the prior approval of the authority responsible for the provision of personnel will be obtained. .(b) …….. .(c) Civiliansin lieu of combatants will be initially employed for a period of one year only with a clear stipulation that their services will be terminated if a combatant become available earlier and that there is no likelihood of the appointment continuing for a long period. After completion of one year service, extention of service by another year in two spells of upto six months each could be granted to them after issue of certificate of non-availability of a combatant by the Commandant Centre/Record Office concerned. Under no circumstances, civilians employed in lieu of combatants will be allowed to continue in service beyond a period of 2 years. On completion of one year and 11 months service, they will be served with one months notice of termination of service and their particulars reposted for adjustment under SAO R/S. 76. ………. ……….. ……….. 5. On a plain reading, it is manifest that appointment of civilians can be made in an army establishment only in lieu of combatant for brief period is not exceeding two years. Having been appointed on 7/12.1994, the petitioner could not have continued beyond two years. Termination being in terms of circular and not punitive in nature, the submissions of the Counsel regarding giving opportunity of hearing to him or violation of the rules of natural justice are totally misconceived. 6. In the facts and circumstances, we are satisfied that the Tribunal rightly declined to interfere in the matter and no interference by this Court is called for. 7. The writ petition stands dismissed.