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2007 DIGILAW 576 (CAL)

SANTOSH ROY v. UNION OF INDIA

2007-07-30

ARUNABHA BASU, PRANAB KUMAR CHATTOPADHYAY

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CHATTOPADHYAY, J. ( 1 ) THIS appeal has been preferred by a Railway officer who had to retire from service without being confirmed inspite of holding several responsible posts in the establishment of the Railways for couple of years. ( 2 ) THE appellant-writ petitioner was initially appointed as an Assistant engineer in the Ministry of Railways and posted as Assistant Engineer (Planning) in Eastern Railway after due selection by the Union Public Service commission. The aforesaid posts as per the advertisement were temporary for a period of two years in the first instance but the same were likely to continue. The terms and conditions for appointment to the aforesaid posts of Assistant engineer have been specifically mentioned in the advertisement for the information of the candidates. The relevant informations regarding the terms and conditions of appointment mentioned in Clauses 5, 7 and 8 of the aforesaid advertisement issued by the Union Public Service Commission are very much relevant and the same are reproduced hereinbelow : "5. Probation :-Six months 7. The posts are non-pensionable. Selected candidates will be eligible for subscribing to Provident Fund after one years' continuous service. But the contribution will be credited with retrospective effect only on confirmation. 8. Candidates will be eligible for being considered for absorption in permanent vacancies at the rate of 6 per year and may be considered for promotion to senior grade post in the scale of Rs. 600-40-1000-50/2-1150 according to the exigencies of service. " ( 3 ) UNDISPUTEDLY, the appellant-writ petitioner held the post of Assistant engineer (Planning) in Eastern Railways on and from 31st December, 1955 to 17th May, 1956. On 18th May, 1956 the said writ petitioner was transferred to the South-Eastern Railway as District Engineer (Construction) and was posted at various places till 1958 in the aforesaid capacity. The authorities thus allowed the appellant-writ petitioner to officiate in the promotional post of District engineer on and from 18th May, 1956. ( 4 ) BETWEEN 1st of April, 1958 to 31 st August, 1960 the said appellant was posted as District Engineer (Vigilance) in South-Eastern Railway. According to the respondents-Railway authorities, in May, 1960 the appellant was considered for permanent absorption in his turn but ultimately not absorbed as he was not found fit by the Union Public Service Commission. ( 4 ) BETWEEN 1st of April, 1958 to 31 st August, 1960 the said appellant was posted as District Engineer (Vigilance) in South-Eastern Railway. According to the respondents-Railway authorities, in May, 1960 the appellant was considered for permanent absorption in his turn but ultimately not absorbed as he was not found fit by the Union Public Service Commission. It has been submitted on behalf of the respondents that the aforesaid permanent absorption in the Railway establishment is dependent upon the fitness of the concerned employee in all respects including the performances as recorded in the confidential report. According to the respondents, the appellant herein did not challenge the aforesaid non-selection/absorption before the appropriate forum and thus remained a temporary employee. ( 5 ) THE appellant retired on 03. 02. 1969 as temporary employee upon completion of 58 years of service from the post which was non-pensionable. It has been alleged on behalf of the appellant-writ petitioner that while holding the post of District Engineer (Vigilance) the said appellant had to investigate into the corrupt practices of officers and contractors engaged in various Railway projects. According to the appellant, several officers of the Railways including the Engineering Chief were suspended on the basis of the reports submitted by the appellant herein. ( 6 ) IT has been specifically urged on behalf of the appellant that because of straight forwardness and effective conducting of the investigation while posted in the Vigilance Department, several superior officers were very much annoyed with the appellant as a result whereof the said appellant was victimised and not confirmed in service. Submissions have also been made on behalf of the appellant that pursuant to the advertisement only 19 candidates including the appellant was finally selected and joined the Railway service. Out of the said 19 candidates, 3 resigned later on and one died. Therefore, only 15 officers ultimately remained in service out of which 14 were duly confirmed. ( 7 ) MR. L. K. Gupta, learned Senior Counsel representing the appellant submits that only the appellant was singled out for being kept temporary by the respondents authorities although the said appellant was first promoted to the higher grade. Due to non-confirmation the appellant became ineligible to receive pensionary benefits although the said appellant served the respondents railways for nearly 14 years before his retirement. ( 8 ) MRS. Due to non-confirmation the appellant became ineligible to receive pensionary benefits although the said appellant served the respondents railways for nearly 14 years before his retirement. ( 8 ) MRS. Bidisha Banerjee, learned Counsel of the Railway authorities submits that the appellant herein had neither opted for pension nor made his contribution towards State Railway Provident Fund. The learned Counsel of the respondents further submits that to qualify for pension a Railway employee is required to put in 10 years of regular service. Mrs. Banerjee also submits that the right to confirmation is available to employees who are regularly appointed against permanent posts and not in respect of the temporary posts like the present one. Mrs. Banerjee, learned Counsel of the respondents-Railway authorities submits that the appointment of the appellant-writ petitioner was against a temporary and non-pensionable post and the said appellant also did not challenge his non-selection to the permanent posts at any point of time. ( 9 ) MRS. Banerjee specifically submits that unless an employee is appointed permanently against regular post, question of confirmation cannot and does not arise and therefore, the respondents authorities rightly refused to confirm the appellant as the said appellant was never appointed against any sanctioned permanent post. The learned Counsel of the Railway authorities also submits that right to pension as per terms of appointment is dependent upon confirmation and, therefore, pension can only be granted to an employee after selection and posting against a regular post. According to the respondents-Railway authorities, appellant herein is not entitled to get pension as he was never absorbed in a permanent vacant post. ( 10 ) AS per the advertisement, the appellant had a right to be considered for absorption in a permanent vacancy. Undisputedly, the said appellant within a few months of his joining as Assistant Engineer was found fit for promotion to the posts of District Engineer, Divisional Engineer/executive Engineer and the respondent authorities allowed the said appellant throughout his career to discharge the duties in the said promotional posts till retirement. No allegation has ever been made against the appellant regarding deficiency and/or incompetency in relation to discharge of his due duties and responsibilities. No allegation has ever been made against the appellant regarding deficiency and/or incompetency in relation to discharge of his due duties and responsibilities. ( 11 ) IN the judgment and order under appeal it has been specifically recorded that the Departmental Promotion Committee considered the confidential records and reports of the different candidates upto 31st March, 1959 and on that basis Departmental Promotion Committee considered some of the candidates fit for confirmation and others including the appellant/writ petitioner not fit to be confirmed at that stage. ( 12 ) IN the said judgment under appeal it has also been recorded that the Departmental Promotion Committee sat on 7th and 27th May, 1960 and considered the writ petitioner's case along with others and ultimately did not find the said writ petitioner fit for confirmation. ( 13 ) UNFORTUNATELY, no records have been produced by the respondents railway authorities before this Court relating to the consideration of the case of the appellant/writ petitioner for confirmation by the Departmental Promotion committee. The learned Counsel of the respondents also did not produce any document wherefrom it would appear that the appropriate authorities upon considering the efficiency and performance of the appellant/writ petitioner came to the conclusion that the said appellant/writ petitioner should not be confirmed while others were duly confirmed. ( 14 ) MOST surprisingly, the respondents Railway authorities almost within a period of six months transferred the appellant/writ petitioner from the post of assistant Engineer (Planning) to the District Engineer (Construction) in South-Eastern Railway which was a promotional post in the senior Grade scale. The period of probation in the case of the appellant is six months only as mentioned in Clause 5 of the information for candidates issued by the Union Public Service commission and no power has been given to any authority to extend the said period of probation. ( 15 ) THE appellant/writ petitioner herein joined the service under the respondents Railway authorities as Assistant Engineer (Planning) in Eastern railway on 31 st December, 1955 and therefore, the period of probation expired after 30th June, 1956 in terms of Clause 5 where the probationary period has been specifically mentioned as six months. ( 15 ) THE appellant/writ petitioner herein joined the service under the respondents Railway authorities as Assistant Engineer (Planning) in Eastern railway on 31 st December, 1955 and therefore, the period of probation expired after 30th June, 1956 in terms of Clause 5 where the probationary period has been specifically mentioned as six months. The respondent authorities transferred the writ petitioner to the promotional post of District Engineer (Construction) in South-Eastern Railways on 18th May, 1956 i. e. even before completion of the probationary period in the post of Assistant Engineer (Planning) which impliedly established the satisfaction of the respondents authorities about the performance and functioning of the appellant/writ petitioner in the post of Assistant Engineer (Planning ). ( 16 ) WITHOUT being satisfied about the performance and functioning of the appellant/writ petitioner in the post of Assistant Engineer (Planning), respondents Railway authorities would not and could not allow the said appellant/writ petitioner to discharge the responsibility in the promotional post of District Engineer (Construction ). Since no power was conferred upon the respondents authorities to extend the period of probation in respect of the assistant Engineers including the appellant/writ petitioner herein and the said appellant/writ petitioner was allowed to continue not only in the post initially held by him but also thereafter in the promotional post even after completion of the maximum period of probation without an expressed order of confirmation, it cannot be held that the said appellant/writ petitioner continued in the service as a probationer by implication. As a matter of fact, in the aforesaid circumstances, Court should draw the inference that the employee who was allowed to continue in the post on completion of maximum period of probation has been confirmed to the said post by implication as has been specifically held by the Constitution Bench of the Hon'ble Supreme Court in the case of state of Punjab v. Dharam Singh reported in AIR 1968 SC 1210 . The relevant paragraph of the aforesaid decision of the Constitution Bench of the Supreme court in the case of State of Punjab v. Dharam Singh (supra) is set out hereunder: "5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Where, as in the present case, the service rules fix a certain period of time beyond which the probationary period cannot be extended, and an employee appointed or promoted to a post on probation is allowed to continue in that post after completion of the maximum period of probation without an express order of confirmation, he cannot be deemed to continue in that post as a probationer by implication. The reason is that such an implication is negatived by the service rule forbidding extension of the probationary period beyond the maximum period fixed by it. In such a case, it is permissible to draw the inference that the employee allowed to continue in the post on completion of the maximum period of probation has been confirmed in the post by implication. " ( 17 ) FURTHERMORE, in the present case, no provision has been made for holding any test for the purpose of confirmation of the candidates in the post of assistant Engineers nor any specific act is required to be performed by the concerned authority of the respondents before issuing the order of confirmation. Therefore, after expiry of the period of probation the appellant has to be treated as permanent employee of the Railways confirmed in the post of Assistant engineer (Planning) by implication as the said appellant cannot continue in the post as probationer after completion of the maximum period of probation. ( 18 ) FOR the reasons discussed hereinabove, we are of the view that the respondent authority completely lost sight of the fact that all along the appellant/writ petitioner was posted by the respondent authority in higher post which automatically demands higher responsibility. The appellant/writ petitioner was initially appointed as Assistant Engineer (Planning) with probation period for six months and even before completion of his probation period, he was entrusted with higher responsibility by the respondent authority and posted as district Engineer (Construction ). The appellant/writ petitioner was also posted in other superior posts carrying higher responsibility. The appellant/writ petitioner was initially appointed as Assistant Engineer (Planning) with probation period for six months and even before completion of his probation period, he was entrusted with higher responsibility by the respondent authority and posted as district Engineer (Construction ). The appellant/writ petitioner was also posted in other superior posts carrying higher responsibility. No apparent reason is forthcoming as to why the respondent authority denied the appellant/writ petitioner's confirmation in his parent post as Assistant Engineer (Planning)even though he was placed continuously in different posts, all carrying higher responsibilities. Such action on the part of the respondent authority cannot be on proper consideration of record but must have been based on reasons other than on merit and performance of the appellant/writ petitioner. ( 19 ) ACCORDING to the terms of appointment as mentioned in the information for candidates by the Union Public Service Commission being annexure 'a' to the writ petition we find that six candidates would be considered for absorption in the permanent vacancies per year. In the present case, only 15 candidates ultimately remained in the service in 1956 and continued in the post of Assistant Engineer. Therefore, the appellant/writ petitioner could have been absorbed in a permanent vacancy latest by 1958 as first six candidates could have been considered for absorption in permanent vacancies in the year 1956 itself and the 7th to 12th candidates could be absorbed against the permanent vacancies in the year 1957. The balance three candidates including the appellant/writ petitioner could have been absorbed in the permanent vacancies in the year 1958 since no other criteria for confirmation was provided in the terms of appointment apart from completion of the maximum period of probation of six months and absorption against the permanent vacancies at the rate of six persons per year. ( 20 ) IN the aforesaid circumstances, the appellant/writ petitioner should be deemed to be confirmed and absorbed in a permanent vacancy latest by 1958. Therefore, in view of serving the respondents Railways authorities for more than to years after the deemed confirmation due to retirement in the year 1969 the said appellant/writ petitioner is entitled to enjoy the benefit of pension. ( 21 ) THE learned Single Judge in the order under appeal recorded his sympathy for the appellant/writ petitioner but refused to grant any relief which in our view cannot be approved. ( 21 ) THE learned Single Judge in the order under appeal recorded his sympathy for the appellant/writ petitioner but refused to grant any relief which in our view cannot be approved. We, therefore, direct the respondent authorities to treat the appellant/writ petitioner as a confirmed employee absorbed in a permanent vacancy in the year 1958 and also hold that the said appellant is entitled to enjoy the pensionary benefits after retirement from the service in the year 1969. ( 22 ) THE respondent Railway authorities are, therefore, directed to sanction the pensionary benefits to the appellant/writ petitioner herein at the admissible rate from the date of the retirement of the said appellant from service in 1969. The respondent authorities are also directed to calculate the arrear amount due and payable towards the pensionary benefit to the appellant/writ petitioner in terms of this order within a period of four weeks from the date of communication of this order and pay the same to the said appellant/writ petitioner within a period of two weeks thereafter positively. ( 23 ) NEEDLESS to mention that the pensionary benefits for the current months should be paid to the appellant/writ petitioner within two weeks from the date of communication of this order positively. ( 24 ) THIS appeal thus stands allowed. There will, however, be no order as to costs.