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2015 DIGILAW 656 (JK)

Gulzar Ahmad Sheikh v. Union of India

2015-12-11

HASNAIN MASSODI

body2015
JUDGMENT : Hasnain Massodi, J. 1. Petitioners aggrieved with orders dated 18.05.2004 whereby their service has been terminated w.e.f. the date of expiry of period of one month from the date termination order was individually served, have come up with the writ petition on hand. They seek quashment of orders individually issued in their name on the grounds urged in the writ petition. They further seek a writ of prohibition restraining respondents from terminating their service. Facts lie in a narrow compass and may be given a closer look, in the first instance. Petitioners vide order dated 19.09.2001 were temporarily appointed as Conservancy Safaiwalas in the pay scale of Rs. 2550-55-2660-3200 in the respondent Department against vacancies sanctioned for CIF(V) C/o. 56 APO. Their appointment followed selection by the competent authority. The respondents issued individual appointment letters in favour of petitioners, though with identical contents. It would be advantageous to reproduce appointment letter. "1. The competent authority is pleased to select and appoint you as Temporary Consy Safaiwala in the pay scale of Rs. 2550-55-2660-60-3200 plus allied pay and allowances at Ad-hoc Station Headquarter Khreauh against the vacancies sanctioned for CIF (V) C/o. 56 APO. 2. Please note that: (a) You will be on probation for a period of two years from the date of your appointment against the said post. (b) All India Services liability as applicable to you. (c) The post is temporary but likely to continue till further orders. 3. In case offer for appointment is acceptable to you please report to SSO Ad-hoc Stn HQ Khreuth C/o. APO 56 on or before 30 Sept. 2001 failing you candidature may not be considered thereafter. 4. Before joining to Ad-hoc Stn HQ Khreih the following documents will be produced to them: (a) Character verification report from Tehsildar SHO Police as provisional. (b) Medical fitness certificate from Chief Medical Officer (Inclosed) (c) This appointment letter as an auth. (d) You will not be entitled for any (TA/DA). Sd/- (Amarjit Singh) Maj SSO For Cdr" 2. Petitioners soon after receipt of appointment letters reported to the concerned office, and began discharging duty assigned to them. The respondent No. 2 on 18.5.2004 vide communication impugned in the petition terminated petitioners service w.e.f. the date of expiry of one month from the date of service of the communication or from the date it was tendered to the petitioners. Petitioners soon after receipt of appointment letters reported to the concerned office, and began discharging duty assigned to them. The respondent No. 2 on 18.5.2004 vide communication impugned in the petition terminated petitioners service w.e.f. the date of expiry of one month from the date of service of the communication or from the date it was tendered to the petitioners. Like the appointment letter dated 19.09.2001 termination notices were individually served on the petitioners. 3. Petitioners' case is that they having completed period of probation in terms of appointment letter dated 19.09.2001, it was not open to the respondents to terminate their service without affording them an opportunity to put forth their stand against action proposed to be taken by the respondent No. 2. It is pleaded that petitioners after successful completion of the probation period, had a right to continue unless disciplinary action was taken against them in accordance with procedure prescribed under law and constitutional and statutory safeguards guaranteed to them were adhered to. The termination orders according to the petitioners, having been issued in gross violation of the rules are liable, to be set-aside. 4. Respondents resist the writ petition on the grounds that none of the petitioners rights is violated by respondent No. 2 while issuing termination notices in question and the writ petition, therefore, is liable to be dismissed as not maintainable. Respondents dispute all the averments made in the petition and insist that the petitioners are not entitled to relief sought. While admitting that petitioners were appointed as Conservancy Safaiwalas, it is pleaded that as entire Board proceedings leading to appointment of petitioners, were annulled by the General Officer Command. In Chief, Northern Command on the grounds of malpractices and irregularities, petitioners service were terminated vide notices impugned in the writ petition. 5. It is further pleaded that the Court of Enquiry was ordered well before petitioners completed their probation, to investigate into the malpractices in the selection process conducted by the Board of Officers and malpractices were detected by the Court of Enquiry, whereafter Board proceedings were annulled. Respondents fairly admit that conduct of petitioners was not under investigation before Court of Enquiry; that the conduct of the officers who selected petitioners was examined and found not satisfactory. Respondents fairly admit that conduct of petitioners was not under investigation before Court of Enquiry; that the conduct of the officers who selected petitioners was examined and found not satisfactory. It is stated that having regard to the status of the petitioners, it was open to the respondent No. 1 to issue termination notices impugned in petition in terms of Rule 5(1) Central Service (Temporary Service) 1965. It is denied that petitioners had a right to appear before the Court of Enquiry, to put forth their stand or to be offered an opportunity of being heard before their service were terminated. Respondents refute the plea that the termination notices were issued in contravention of rules and were liable to be set aside. 6. Petitioners in their rejoinder affidavit reiterate that they having successfully completed the probation in terms of appointment letters, it was not open to the respondents to terminate their services, that too without affording them an opportunity to project their stand. They insist that they on the date termination notices were issued, had already acquired status of permanent employees and they are clothed with the rights available under rules to a permanent employee. It is stated that as the petitioners were not associated with the Court of Enquiry they were kept in dark about its proceedings and could not be visited with adverse consequence pursuant to an Enquiry conducted at their back. Respondents are said to have failed to indicate with sufficient clarity "pervasive irregularities" allegedly come across in their selection. Petitioners maintain that respondents were under an obligation to offer petitioners an opportunity to explain their stand before their services were terminated. It is stated that petitioners were selected in accordance with rules and selection could not be annulled three years after it was made and acted upon. 7. I have gone through the pleadings as also record made available by the Ld. ASGI. I have heard Ld. Counsel for the parties at length. 8. The facts are not in dispute. It is admitted by the respondents that petitioners were appointed as temporary Conservancy Safaiwalas vide order dated 19.09.2001 in the respondent department on the terms and conditions laid down in their letters of appointment. ASGI. I have heard Ld. Counsel for the parties at length. 8. The facts are not in dispute. It is admitted by the respondents that petitioners were appointed as temporary Conservancy Safaiwalas vide order dated 19.09.2001 in the respondent department on the terms and conditions laid down in their letters of appointment. It is also not denied that petitioners were terminated vide order dated 18.05.2004 and the termination notices were triggered by findings recorded by the Court of Enquiry asked to look into the malpractices allegedly committed by the Board of Officers while making promotions in the Department and selecting petitioners as temporary Conservancy Safaiwalas. Respondents fairly concede that nothing was alleged against the petitioners and malpractices brought to the notice of General officer Commander in Chief, Northern Command, pertained to the members of Board of Officers. 9. We need not dilate on factual matrix of the controversy. What is required to be considered and determined is whether petitioners, in facts and circumstances of the case and rules occupying the field, had a right to be heard before their services were terminated. A closer look on termination notices impugned herein, would reveal that respondent No. 2 has pressed into service Sub-Rule 1, Rule 5 Central Services (Temporary Service) 1965. Reliance is placed on aforementioned rule, on assumption that petitioners notwithstanding successful completion of their probation, were in temporary service of the respondent Department and therefore their service could be terminated in accordance with sub-rule (1) Rule 5 Central Services (Temporary Service) 1965. The nature of the malpractice allegedly detected and petitioners role in the malpractice found by the Court of Enquiry, would also be of some relevance while an effort is made to find answer to the issue identified above. 10. Learned ASGI insists that having regard to the status of the petitioners, they had no right to be afforded an opportunity before termination notices were issued. It is argued that as impugned orders are not stigmatic in character, notice was not required to be issued to the petitioners to show cause against the proposed action. Reliance is placed on Champaklal Chimanlal Shah v. Union of India, Union of India and Ors. v. Sukhen Chandra Das, 2008 (17) SCC 125. It is argued that as impugned orders are not stigmatic in character, notice was not required to be issued to the petitioners to show cause against the proposed action. Reliance is placed on Champaklal Chimanlal Shah v. Union of India, Union of India and Ors. v. Sukhen Chandra Das, 2008 (17) SCC 125. Learned ASGI to buttress his argument that in case of large scale malpractices, it would be permissible to terminate services of all the candidates, appointed pursuant to such selection process, seeks to draw support from law laid down in Union of India v. O. Chakradhar 2002 Legal Eagle (SO) 207. Mr. Makroo, learned ASGI insists that the respondents in view of irregularities reported were justified in terminating the appointees. 11. The first and foremost question to be answered is one relating to the status of the petitioners. The petitioners as already stated were appointed as Conservancy Safaiwalas in the pay scale of Rs. 2550-55-2660-3200 on 19th September 2001. The petitioners were to remain on probation for the period of two years from the date of their appointment against the post. The period of probation therefore ended on 19th September 2003. It is nobody's case that petitioners period of probation was extended beyond 19th September 2003, or that anything adverse was reported against them as would lead to the conclusion that they had not satisfactorily completed period of probation. It is admitted case of respondents that petitioners' service career has been free from any blemish. 12. It is pertinent to point out that in terms of OM No. F-44/1/59-Ests(A), dated 15-04-1959, "a probationer who is not making satisfactory progress, is to be informed of his shortcomings well before the expiry of the probationary period, so that he can make special efforts for self-improvement. In terms of aforementioned OM, discharge from service for any reasons, including that the performance during probation period has not been satisfactory, being a severe, final and irrevocable step, the probationer is to be given an opportunity to improve before taking drastic step of discharge." In petitioners' case, no shortcoming was reported and "severe final and irrevocable step" as referred to in OM No. F-44/1/59-Ests(A), dated 15-04-1959 (supra) was taken without informing petitioners. In term of aforesaid OM, a final decision as to whether an employee is to be confirmed or his probation extended is to be taken soon after initial period of probation and at the most within six to eight weeks from such date. In the present case, as already stated, no such decision was taken after completion of probationary period, nor within six months thereafter. Petitioners therefore having regard to the order of appointment read with rules, including Conservancy Safaiwalas Staff Recruitment Rules 2003, and guidelines, acquired the status of permanent employee on completion of period of probation. Reference in this regard may be made to case law reported as Dayaram Dayal v. State of M.P. & another (1997) 7 SCC 443 . 13. In view of status acquired by the petitioners, after successful completion of period of probation, it was not open to the respondents to terminate petitioners' service in the mode and manner followed by the respondent. Petitioners because of the status acquired had right to be informed about irregularities, come across in their selection or complaint if any, regarding their conduct, afforded an opportunity to show cause against the proposed action. In Dayaram Dayal's Case (Supra), it has been held that where confirmation in view of contents of the appointment order and rules/guidelines is to be presumed, service of employee cannot be terminated on the ground of his unsatisfactory performance without holding disciplinary inquiry. The termination order in absence of such an inquiry was held to be invalid. 14. Perusal of the record made available by Mr. Makroo, learned ASGI would reveal that the complaints, that triggered action were mostly as regards promotions made and not the recruitment of Conservancy Safaiwalas. It was alleged that one of the members of the Selection Committee was associated with selection process without having any right or having been duly nominated to participate in the selection process. It was nowhere alleged that petitioners had manipulated their selection by using unfair means or that the selection itself was tainted with any malpractices. Petitioners, as admitted by the respondents, did not have any role in the alleged irregularities. The facts of the present case are distinguishable from facts of O. Chakradhar (Supra) case. In the reported case, relied upon by Mr. Petitioners, as admitted by the respondents, did not have any role in the alleged irregularities. The facts of the present case are distinguishable from facts of O. Chakradhar (Supra) case. In the reported case, relied upon by Mr. Makroo, the selection process was investigated by Central Bureau of Investigation (CBI), mischief played found so widespread and all pervasive, making it difficult to pick out the persons who were unlawfully benefited or wrongly deprived of their selection. It was found that in the facts and circumstances of the case, it would not be possible to issue individual show cause notices. It is in the said background, that the termination notice were held to be valid. It would be advantageous to reproduce para 11 and 12 of the Judgment: 11. It is mentioned in the report that huge amount of money was taken for selecting the candidates but none is coming forward to indicate as to who and how much one paid for it for fear of being in trouble. It is further reported that non-official Chairman of the Board made payment of printing of the examination paper etc. not to any firm but to one Gaja Raja Yadav. It may also be mentioned that according to the report a large number of applications were missing and postal orders of the missing applications were encashed and misappropriated and even before the closing date of receiving the applications, it started sending applications to the computer firm for their scrutiny. The C.B.I., has named five persons as accused in the report namely the Chairman of the Railway Recruitment Board, Bangalore, who is a non-official, the Member-Secretary of the Board, an officer of the Railways, one Shri Hanumanth Bhaiya, a Senior Clerk of the Railway Recruitment Board and Gaja Raja Yadav, the private person to whom payment had been made for printing of the question paper etc. 12. As per the report of the CBI whole selection smacks of mala-fide and arbitrariness. All norms are said to have been violated with impunity at each stage viz. right from the stage of entertaining applications, with answer-sheets while in the custody of Cainnai1, in holding typing test, in interview and in 2me end while preparing final result. 12. As per the report of the CBI whole selection smacks of mala-fide and arbitrariness. All norms are said to have been violated with impunity at each stage viz. right from the stage of entertaining applications, with answer-sheets while in the custody of Cainnai1, in holding typing test, in interview and in 2me end while preparing final result. In such circumstances it may not be possible to pick out or choose any few persons in respect of 3whole alone the selection could be canceled and their services in pursuance thereof could be terminated. The illegality and irregularity are so inter-mixed with the whole process of the selection that it becomes impossible to sort out right from the wrong or vice versa. The result of such a selection cannot be relied or acted upon. It is not a case where a question of misconduct on the part of a candidate is to be gone into but a case where those who conducted the selection have rendered it wholly unacceptable. Guilt of those who have been selected is not the question under consideration but the question is could 4such selection be acted upon in the matter of public employment? We are therefore of the view that it is not one of those cases where it may have been possible to issue any individual notice of misconduct to each selectee and seek his explanation in regard to the large scale widespread and all pervasive illegalities and irregularities committed by those who conducted the selection which may of course possibly be for the benefit of those who have been selected but there may be a few who may have deserved selection otherwise but it is difficult to separate the cases of some of the candidates from 5die rest even if there may be some. The decision in the case of Krishna Yadav (supra) applies to the facts of the present case. The Railway Board's decision to cancel the selection cannot be faulted with. The appeal therefore deserve to be allowed. 15. In the present case, no such allegations are leveled at least as regards role of any of the petitioners in omissions and commission alleged to have been made while making selection for the post of Conservancy Safaiwalas. The CoE report does not point to wide spread and pervasive mischief in making the selection. The case law relied upon by Mr. In the present case, no such allegations are leveled at least as regards role of any of the petitioners in omissions and commission alleged to have been made while making selection for the post of Conservancy Safaiwalas. The CoE report does not point to wide spread and pervasive mischief in making the selection. The case law relied upon by Mr. Makroo therefore would not entitle respondents to avoid an inquiry into the matter, where petitioners would get an opportunity to put forth their stand. 16. The above discussion apart, it equally deserves to be noted that an inquiry into the matter was conducted and results of such inquiry placed before the competent Authority; It is not a case where no inquiry was conducted and petitioners disengaged by termination simpliciter. Had respondents not conducted formal inquiry and for the reasons available, terminated service of petitioners by pressing into service Rule 5(1) Central Civil Services (Temporary Services) Rules 1965, the termination orders would be held valid even in absence of inquiry provided these were simpliciter and not stigmatic in character. However, where an inquiry is conducted, conclusion drawn and termination ordered on the basis of such conclusions, it would not be fair not to associate an, employee irrespective of his status, with such inquiry. In the present case, if the respondents as they fairly concede did not find any unfair role attributable to the petitioners, they could not terminate their service, notwithstanding the language used in the termination order, without hearing them and giving them an opportunity to come up with their stand. 17. Petitioners have been serving as Conservancy Safaiwalas in the respondent Department for more than a decade. Most of them have crossed upper age limit prescribed for entry into government service. The principle of fairness and reasonableness that runs through the right to equality before law, equal protection of law as also equality in matters of employment under Government was attracted and would call for right of being heard to the petitioners. The Apex Court in K.C. Joshi v. Union of India (1985) 3 SCC 153 relied upon by learned counsel for the petitioners, has held that court in appropriate proceedings may go beyond the termination simpliciter to find out whether termination order though styled as "service no more required" to find out whether the termination order is arbitrary or by way of victimization. For the reasons discussed, challenge to Order No. C/o. 56/APO, dated 18-05-2004, is to succeed. The writ petition is accordingly allowed and Order No. C/o. 56/APO, dated 18-05-2004, whereby petitioners are terminated is set aside. The impugned order were stayed on 4th June 2004. Petitioners therefore notwithstanding the impugned order continue to serve respondent Department as Conservancy Safaiwalas and are reported to be so working as on date. Petitioners in wake of quashment of above mentioned orders shall be allowed to continue and grant of benefits if any, accrued to them because of service rendered, is to be considered in accordance with rules. Respondents would be free to initiate any inquiry into the matter, if they so desire and associate petitioners with such inquiry.