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2016 DIGILAW 940 (HP)

Guman Singh v. Union of India

2016-05-26

MANSOOR AHMAD MIR, SANDEEP SHARMA

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JUDGMENT : Mansoor Ahmad Mir, Chief Justice. By the medium of this writ petition, the writ petitioner has sought quashment of order, dated 15th March, 2011, made by the Central Administrative Tribunal Chandigarh Bench (Circuit at Shimla) (for short “CAT”) in Original Applications No. 272HP of 2010 and 570HP2010, titled as Ramesh Kumar versus Union of India & others and Guman Singh versus Union of India & others, respectively (Annexure P1) so far as it relates to Original Application No. 570HP2010 (for short “the impugned order”) and also the termination order, dated 5th July, 2010 (Annexure A1) on the grounds taken in the memo of the writ petition. Brief facts: 2. Writ petitioner came to be appointed against the post of Gramin Dak Sevak Mail Deliverer (for short “GDSMD” at Shivpur Post Office, Sangrah, vide order, dated 28th July, 2008 (Annexure A2), on contract basis with the stipulation that his services could be terminated at any time under the Gramin Dak Sevaks (Conduct and Employment) Rules, 2001 (for short “the Rules”). The said order contains the terms and conditions, the writ petitioner had been given an option to accept the same, which he accepted without any murmur. 3. His engagement/appointment came to be questioned by one Ramesh Kumar by the medium of Original Application No. 272HP of 2010, titled as Ramesh Kumar versus Union of India and others before the CAT. During the pendency of the said Original Application, the respondents conducted inquiry and terminated the services of the writ petitioner as per the mandate of Rule 8 of the Rules vide order, dated 5th July, 2010 (Annexure A1), which reads as under : “Notice of termination of service issued under Rule 8 of GDS (Conduct and Employment) Rules, 2001 In pursuance of Rule 8 (1) and (2) of the GDS (Conduct and Employment) Rules, 2001, I Ranjan Kumar, Inspector Post Offices, Solan Sub Division, Saproon Solan 173211 hereby give notice to Sh. Guman Singh GDSMD, Shivpur Via Sangrah that his services shall stand terminated with effect from the date of expiry of a period of one month from the date on which this notice is served on or, as the case may be, tendered to him.” 4. Guman Singh GDSMD, Shivpur Via Sangrah that his services shall stand terminated with effect from the date of expiry of a period of one month from the date on which this notice is served on or, as the case may be, tendered to him.” 4. Writ petitioner-Guman Singh assailed the said order of termination before the CAT by the medium of Original Application No. 570HP of 2010 without arraying Ramesh Kumar as a party in the array of respondents. Both the Original Applications were clubbed and heard together. 5. The respondents contested both the Original Applications on the grounds taken in the respective memo of objections. 6. The Original Application of Ramesh Kumar came to be disposed of vide the impugned order with the observations that the entire selection process was cancelled and resultantly, the selection and appointment of Guman Singh came to be quashed, thus, there was no occasion for directing the respondents to appoint Ramesh Kumar. CAT upheld the termination order and dismissed the Original Application filed by the writ petitioner-Guman Singh. 7. Ramesh Kumar has not questioned the impugned order, but writ petitioner-Guman Singh has questioned the same by this medium of the writ petition in hand. 8. The respondents have filed reply and have given details what were the reasons for passing the termination order (Annexure A1). It is apt to reproduce para 2 of the reply on merits herein: “Para No. 2: That the contents of this para are admitted to the extent that Respondent No. 4 i.e. appointing authority while making recruitment to the post of Gramin Dak Sewak MD Shivpur deviated from the set procedure prescribed by the D.O.P. through letter No. 194/ 97ED & Trg. Dated 19.8.1998 (Copy annexed as Annexure R3). The vacancy was notified to Sub Employment Exchange Sangrah on 29.4.2008 and open notice was issued on 4.7.2008 whereas it was to be issued simultaneously. Besides this, in letter to Employment Exchange dated 29.4.2008 the essential qualification was prescribed as 8th pass and it was mentioned that the selection is basis on marks obtained in the Eighth or equivalent examination, when other essential conditions are fulfilled. No weightage would be given for higher qualification. On the contrary, in notice issued on 4.7.2008 it has been mentioned that selection is made on the basis of marks obtained by the candidate in the eighth or equivalent examination. No weightage would be given for higher qualification. On the contrary, in notice issued on 4.7.2008 it has been mentioned that selection is made on the basis of marks obtained by the candidate in the eighth or equivalent examination. Higher educational qualification will be considered. Consequent upon these anomalies the case was reviewed by the next higher authority i.e. Superintendent of Post Offices Solan and the appointing authority was directed accordingly to terminate services of petitioner. 9. The writ petitioner has not filed rejoinder, thus, the averments contained in para 2 of the reply have remained un-rebutted. 10. It is worthwhile to record herein that Guman Singh has not arrayed Ramesh Kumar as a party-respondent in the writ petition, who is a necessary and important party for the reason that he had participated in the selection process, was shown door, Guman Singh was appointed, constraining him to file the Original Application before the CAT. The respondents, after noticing the grievance projected by Ramesh Kumar before the CAT, held the inquiry, came to the conclusion that the entire selection process was mala fide, suffering from procedural irregularities and illegalities, cancelled the same and ordered for fresh selection. Viewed thus, the writ petition suffers from non-joinder of parties and merits to be dismissed only on this count. 11. CAT has rightly upheld the termination order (Annexure A1) and dismissed the Original Application filed by the writ petitioner. The termination order made by the respondents is simpliciter order of termination, is not stigmatic and the order satisfies the contours of Rule 8 of the Rules. 12. The mandate of Rule 8 of the Rules is that the employer is within its powers to terminate the services of an appointee by giving notice of one month within the period of three years service. The termination order (Annexure A1) came to be made within the time frame. 13. The writ petitioner has accepted the terms and conditions, as discussed hereinabove, and one of the conditions was that his services could be terminated at any time as per Rule 8 of the Rules. Thus, the writ petitioner is caught by conduct, acquiescence, estoppel and mandate of Rule 8 of the Rules. 14. 13. The writ petitioner has accepted the terms and conditions, as discussed hereinabove, and one of the conditions was that his services could be terminated at any time as per Rule 8 of the Rules. Thus, the writ petitioner is caught by conduct, acquiescence, estoppel and mandate of Rule 8 of the Rules. 14. Learned counsel for the writ petitioner argued that the order of termination (Annexure A1) has not been made in terms of mandate of Rule 8 of the Rules, but it came to be made in terms of Rule 8 (2), is hit by the doctrine of the principles of natural justice. 15. The argument, though attractive, is devoid of any force for the reason that the foundation of the termination order is that the entire selection process was void ab initio, suffering from irregularities and that was the foundation for cancelling the entire selection process and making the termination order. 16. The termination order was not made on the ground that the work and conduct of the writ petitioner was not satisfactory or on any other ground relating to his conduct. Had it been so, it could have been safely termed as stigmatic and the writ petitioner was to be given an opportunity of being heard. It could have been said and held that the principles of natural justice have been violated. 17. Having said so, there was no need to hear the writ petitioner before making the termination order (Annexure A1). 18. CAT has rightly made the observations in para 7 of the impugned order and held that it cannot be a party to an illegality and upholding such appointment would amount to perpetuation of an illegality, which is not permissible. 19. The said finding also find support by the judgment of the Apex Court rendered in the case titled as Regional Manager, S.B.I. versus Rakesh Kumar Tewari, reported in 2006 AIR SCW 235, wherein it has been held that it would be ironical if the person who has been appointed by flouting of the rules of appointment can rely upon those rules when their services are dispensed with. 20. 20. Applying the test to the instant case, as discussed hereinabove, appointment of the writ petitioner is outcome of irregularities, illegalities, mala fide and violation of the mandate of the Rules, thus, he cannot now be permitted to say that the termination order is not in terms of the Rules. 21. The Apex Court, while dealing with the case of termination of a probationer, in State Bank of India and Ors. Versus Palak Modi and Anr., reported in 2013 AIR SCW 76, held that no inquiry is required if the services of a probationer are terminated during the period of probation, that too, by simple order of termination, the foundation of which is not relating to misconduct, cannot be said to be punitive in nature or violative of rules of natural justice. It is apt to reproduce para 20 of the judgment herein: “20. The ratio of the above noted judgments is that a probationer has no right to hold the post and his service can be terminated at any time during or at the end of the period of probation on account of general suitability for the post held by him. If the competent authority holds an inquiry for judging the suitability of the probationer or for his further continuance in service or for confirmation and such inquiry is the basis for taking decision to terminate his service, then the action of the competent authority cannot be castigated as punitive. However, if the allegation of misconduct constitutes the foundation of the action taken, the ultimate decision taken by the competent authority can be nullified on the ground of violation of the rules of natural justice.” 22. The Apex Court, in the case titled as Ratnesh Kumar Choudhary versus Indira Gandhi Institute of Medical Sciences, Patna, Bihar and others, reported in AIR 2016 Supreme Court 467, while setting aside the Division Bench judgment of Patna High Court, held that the termination order was made on the basis of misconduct and it was not a termination simpliciter. Further held that the Division Bench has expressed the view that no departmental inquiry was required to be held as it was only an inquiry to find out necessary qualification for the post of Chest Therapist, had the factual score been so, then the findings returned by the Division Bench were legal, but that was not the case. Further held that the Division Bench has expressed the view that no departmental inquiry was required to be held as it was only an inquiry to find out necessary qualification for the post of Chest Therapist, had the factual score been so, then the findings returned by the Division Bench were legal, but that was not the case. It is apt to reproduce relevant portion of para 28 of the judgment herein: “28. …............Thus, by no stretch of imagination it can be accepted that it is termination simpliciter. The Division Bench has expressed the view that no departmental enquiry was required to be held as it was only an enquiry to find out the necessary qualification for the post of Chest Therapist. Had the factual score been so, the said analysis would have been treated as correct, but unfortunately the exposition of factual matrix is absolutely different. Under such circumstances, it is extremely difficult to concur with the view expressed by the Division Bench.” 23. Applying the test, no inquiry was required and there was no need to provide an opportunity of being heard to the writ petitioner. 24. In the case titled as Union of India and others versus Jayakumar Parida, reported in (1996) 1 Supreme Court Cases 441, the Apex Court was dealing with similar nature of case relating to the Rule 6 of the Posts and Telegraphs Extra Departmental Agents (Conduct and Salaries) Rules, 1964, which are pari materia to Rule 8 of the Rules. Their Lordships held that the termination was made within a period of three years, but, was on the basis of material which was adverse to the employee, thus, the department had not only to issue notice, but also to provide opportunity of being heard. 25. Applying the test, the termination is only on the basis of irregularities/illegalities of the selection process and violation of the Rules, not related to the conduct of the writ petitioner in any way. 26. It is worthwhile to mention herein that the averments contained in para 2 of the reply have remained unrebutted, the reasons given have been discussed by the CAT in the impugned order and that was made basis for maintaining and upholding the termination order. 27. Keeping in view the mandate of Rule 8 of the Rules, the respondents have legally and validly made the termination order (Annexure A1). 27. Keeping in view the mandate of Rule 8 of the Rules, the respondents have legally and validly made the termination order (Annexure A1). CAT has also rightly made the impugned order, needs no interference. 28. Viewed thus, the writ petition merits to be dismissed and the impugned order is to be upheld. Accordingly, the impugned order is upheld and the writ petition is dismissed alongwith all pending applications.