Union of India & Ors Vs. Arun
Kumar Roy [1986] INSC 7 (23 January 1986)
KHALID, V. (J) KHALID, V. (J) SEN, A.P. (J)
CITATION: 1986 AIR 737 1986 SCR (1) 136 1986
SCC (1) 675 1986 SCALE (1)88
CITATOR INFO:
R 1986 SC 999 (13,16,17)
ACT:
Service Law - Termination of service during
the period of probation - Whether it was incumbant upon the Authorities to pay
notice salary along with the termination notice- Effect of the amended Rule
5(1)(b) of the Central Civil Services (Temporary Service) Rules, 1965 - Notification
cannot over-ride statutory rules made governing service conditions - Whether
the terms embodied in the order of appointment should govern the service
conditions of employees appointment should govern the service conditions of
employees in Government service - Constitution of India, 1950, Article 309.
HEADNOTE:
The Respondent was appointed as a Stores
Officer in the Department of Zoological Survey of India on July 30, 1975.
He was placed on probation for two years. By
a Memo dated July 25, 1977, his period of probation was extended by another
year. During this extended period of probation, by an order dated July 27,
1978, his services were terminated with effect from the afternoon of July 29,
1978. The communication stated that the respondent would be entitled to claim a
sum equal to the amount of his pay plus allowances in lieu of one month's
notice at the same rates at which he was drawing them immediately before the
termination of his service.
The respondent challenged this order by
filing writ petition No. 385/1981 before the Calcutta High Court. The learned
Single Judge dismissed the petition holding that the order of termination was
valid, inasmuch as the respondent was a temporary Government servant governed
by the amended Rule 5(1)(b) of the Central Civil Services (Temporary Service)
Rules, 1965. However, in appeal, the Division Bench of that Court addressed
itself to the question whether the amended provisions of the proviso to Rule
5(1)(b) applied to the case of the respondent or not. It came to the conclusion
that the order of termination was bad relying upon the terms contained in the
order of appointment and the Notification dated 26.8.1967 which clarified the
operation of Rule 5 of the Civil 137 Service Rules. The Division Bench held
that the said Notification excluded the operation of Rule 5(1) including the
proviso thereto and that the terms of appointment clearly indicated that his
services could be terminated only if the salary and allowance for one month
were either paid or tendered along with the order of termination. Hence the
appeal by special leave.
Allowing the appeal, the Court ^
HELD: 1. A Notification has no statutory
force. It cannot override rules statutorily made governing the conditions of
service of the employees. The Notification is dated 26.8.67. Rule 5(1)(b) of
the Central Civil Service (Temporary Service) Rules, 1965 was amended in 1971
with retrospective effect from May 1, 1965. The rule was necessarily to govern
the service conditions and not the notification. Therefore, the reliance by the
High Court on the Notification in preference to the rules is misplaced.
Even if strict adherence to the notification
is to be made, it has to be noted that it only states that "it would be
desirable to terminate the services of probation................". In
other words this notification does not make it obligatory for tender or payment
of salary alongwith the order of termination. [145 A-B; 144 G-H]
2. As per Rule 5(1)(b) of the Central Civil
Service (Temporary Service) Rules, 1965, the payment of notice salary is not a
pre-requisite for termination. The payment can be made after the order of
termination is served on the employee. Since the Rule was amended in 1971 with
retrospective effect from May 1, 1965 it is only the amended Rule 5(1)(b) which
applies in this case inasmuch as the respondent was appointed on July 30, 1975.
[144 F-G] Raj Kumar v. Union of India, [1975] 3 S.C.R. 963 referred to.
3.1 The terms and conditions of service of an
employee under the Government who enters service on a contract, will once he is
appointed, be governed by the rules governing his service conditions. It will
not be permissible thereafter for him to rely upon the terms of contract which
are not in consonance with the rules governing the service. It is well settled
that a Government servant whose appointment though originates in a contract,
acquires a status and that the powers of the 138 Government under Article 309
to make rules, to regulate the service conditions of its employees are very
wide and unfettered. These powers can be exercised unilaterally without the
consent of the employees concerned. Therefore, it cannot be contended that in
the case of employees under the Government, the terms of the contract of
appointment should prevail over the rules governing their service conditions.
[146 F-H; 147 A]
3.2 The origin of Government service often
times is contractual. There is always an offer and acceptance thus bringing it
to being a completed contract between the Government and its employees. Public
law governing service conditions thereafter steps into regulate the
relationship between the employer and the employee. His emoluments and other
service conditions are thereafter regulated by the appropriate statutory
authority empowered to do so. Such regulation is permissible in law
unilaterally without reciprocal consent. [147 A-C]
3.3 In this case the mere fact that the
respondent was put on probation does not ipso facto make the appointment any
the less temporary and for that reason his extended probation also. Unless the
respondent makes out a case based on some rules which requires confirmation to
a post on the expiry of the period of probation, he cannot succeed on the mere
ground of his being put on probation for a period of two years or by the fact
that his probation was extended. He cannot rely upon the first clause in the
order of appointment either which states that though the post is temporary it
is likely to continue indefinitely. In any case the order of termination was
served on him before the expiry of the extended period of probation. [144 C-E]
Roshan Lal Tandon v. Union of India, [1968] 1 S.C.R.
185 and State of Jammu & Kashmir v.
Triloki Nath Khosa & Ors., [1974] 1 S.C.R. 771 relied on.
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
1213 of 1982.
From the Judgment and Order dated 7.12.1981
of the Calcutta High Court in Original Order No. 385 of 1981.
R. Tyagarajan, Gopal Subramaniam and Miss A.
Subhashini for the appellants.
Respondent in person.
139 The Judgment of the Court was delivered
by KHALID, J. This appeal by Special Leave is directed against the Judgment
rendered by a Division Bench of the Calcutta High Court on 7.12.1981, setting
aside, in appeal, the Judgment of a learned Single Judge. The Union of India and
its Officers are the appellants. The facts in brief, necessary to understand
the dispute involved in the case are as follows:
The respondent joined the post of Stores
Officer in the Department of the Zoological Survey of India on July 30, 1975.
He was placed on probation for two years. Before the expiry of the period of
probation of two years he received a Memo dated July 25, 1977, from the Senior
Administrative Officer, Zoological Survey of India, informing him that the
Government had decided to extend his period of probation as Stores Officer by
one year more from July 30, 1977. On July 27, 1978, the Dy. Secretary of the
Government of India communicated to him an Order of the President of India by
which he was informed that the President had terminated his service as a Stores
Officer with effect from the afternoon of 29th July, 1978. This communication
further stated that the respondent would be entitled to claim a sum equal to
the amount of his pay plus allowances in lieu of one month's notice at the same
rates at which he was drawing them immediately before the termination of his
service. The appellant challenged this Order by filing Writ Petition No. 385 of
1981, before the Calcutta High Court. The main contention raised by him in the
Writ Petition was that the Order of termination was bad since a sum equivalent
to his pay plus allowances for the notice period was not paid to him along with
the notice as required under the terms of his appointment letter. The learned
Single Judge who heard the Writ Petition declined relief to the respondent and
dismissed the Writ Petition. Aggrieved by the said Judgment the respondent
filed an appeal. The Division Bench agreed with the respondent's case that the
termination order was bad inasmuch as the full amount of salary and allowances
for the notice period was not paid to him at the time of termination of his
service and so holding set aside the Judgment of the Single Judge and allowed
the appeal and quashed the Order of termination and gave liberty to the
Government to terminate his service in accordance with the terms of his
appointment. Hence the appeal.
The main question debated at the Bar by the
respective 140 counsel is whether in the case of the respondent it was
incumbent upon the Authorities to pay notice salary along with the termination
notice or whether it was sufficient if he was informed that he was entitled to
such salary on his termination. A resolution of this dispute depends upon
consideration of the nature and terms of his appointment. To appreciate this,
it is necessary to look into the Order of appointment and relevant points of
law governing the terms of service.
The respondent's counsel strongly pleaded
that he was appointed to a substantive post since he was placed on probation.
If his appointment was purely temporary it was not necessary to place him on
probation. m e case of the appellant on the other hand was that the Order of
appointment itself indicated that the respondent was appointed as a temporary
hand and that he did not become a regular hand simply because he was put on
probation. m e termination in this case took place before the expiry of the
extended period of probation which the authority concerned was entitled to do
under the relevant rules.
We may, in passing, indicate as to what was
the case of the respondent before the High Court. According to him after he
took charge of the post of Stores Officer in the Department of Zoological
Survey of India he found certain irregularities in the Stores, specifically in
the item of rectified spirit. According to him he brought such irregularities
to the notice of his superior officer. He incurred, as consequences, the
displeasure of the Officer senior to him which resulted in the order of
termination of his service during the period of probation. Even so we would
like to make it clear that neither before the learned Single Judge nor before
the Division Bench did the petitioner plead any case of malafides. Nor did he
do so before us.
The respondent appeared in person before us.
We find from the records that he argued his case before the High Court also. We
felt sympathetic towards him and therefore suggested to the appellants' counsel
to tell the appellants to accommodate him in some place lest he, a youngman,
should waste his life without any employment. The learned Counsel for the
appellants could not give us any assurance but undertook to convey our
suggestions to the authorities concerned.
Now, coming to the merits of the case the
Order of appointment of the respondent is produced as Annexure-A. mis 141 shows
that he was appointed on a temporary basis. It is made clear therein that
though the post is temporary, it is likely to continue indefinitely, that the
appointment will be liable to be terminated at any time on one month's notice
given by either side, thus he will be on probation for a period of two years
which may be extended, if necessary, and that the other conditions of service
will be governed by the orders and rules in force from time to time. Clause
2(ii) of the Order of appointment is important. It reads:
"The appointing authority, however,
reserves the right of terminating services of the appointee forthwith or before
the expiry of stipulated period of notice by making payment to him of a sum
equivalent to the pay and allowances for the period of notice or the unexpired
portion thereof." The Order of termination dated 27th July, 1978, which is
produced as Annexure-B, reads as follows:
"In pursuance of the provisions
contained in para 2(ii) and (iii) of this Department's C.M. No. F.1- 19/73-Sur.
3 dated the 9th July, 1975 regarding appointment to the post of Stores Officer
in the Zoological Survey of India, the President of India hereby terminates
with effect from the afternoon of 29th July, 1978, before the expiry of
extended period of probation the services of Shri Arun Kumar Roy, Stores
Officer, Zoological Survey of India, Calcutta and directs that he shall be
entitled to claim a sum equivalent to the amount of his pay plus allowances in
lieu of one Month of notice at the same rates at which he was drawing them
immediately before the termination of his services.
By Order and in the name of the
President." The learned Single Judge who heard the Writ Petition, held
that the appellant was a temporary Government servant and that he was governed
by Rule 5(1) of the Central Civil Service (Temporary Service) rules, 1965. Rule
5(1)(b) as amended, provided in its proviso that on termination of a temporary
Government servant, one month's notice has to be given and that he shall be
entitled to claim a sum equivalent to the pay and allowances for the period of
his notice at the same rate 142 at which he was drawing them immediately. The
learned Single Judge held that the order of termination was valid. The Division
Bench, disagreeing with the learned Single Judge held that the Order of
termination was bad since one month's salary and allowances was not paid or
tendered to the appellant alongwith the notice. This is the only question that
falls to be decided in this appeal.
It is not disputed that the salary and
allowances for one month in lieu of notice was not paid or tendered to the
appellant simultaneously with the termination of his service. What is the legal
consequence? To answer this question it is necessary to refer to rule 5(1)(b)
of the Central Civil Service (Temporary Service) Rules, 1965. Rule 5(1) in its
amended form reads as follows:
"5(1)(a) The services of a temporary
Govt. servant who is not in quasi permanent service shall be liable to
termination at any time by a notice in writing given either by the Government
servant to the appointing authority to the Government servant;
(b) The period of such notice shall be one
month, provided that the services of any such Govt. servant may be terminated
forthwith and on such termination, the Govt. servant shall be entitled to claim
a sum equivalent to the amount of his pay plus allowances for the period of the
notice at the same rates at which he was drawing them immediately before the
termination of his services, or as the case may be, for period by which such
notice falls short of one month." The proviso to Rule 5(1)(b), before it
was amended, pro vided for the simultaneous payment of pay and allowances along
with the order of termination. The amendment of the proviso to Rule 5(1)(b) was
made in 1971 with retrospective effect from May 1, 1965. It is necessary to
note that the appellant was appointed to the post of Stores Officer on July 30,
1975, that is after the amended rules came into force.
The learned Single Judge relied upon the amended
proviso to Rule 5(1)(b) of the rules and held that though the pay and
allowances was not paid or tendered simultaneously with the service of the
order of termination, the same did not vitiate 143 the termination of the
appellant's service. It was this finding that was successfully challenged
before the Division Bench by the respondent.
The Division Bench addressed itself to the
question whether the amended provisions of the proviso to Rule 5(1)(b) applied
to the case of the respondent or not. In coming to the conclusion that the
order of termination was bad, the Division Bench relied upon the terms
contained in the order of appointment in the Notification dated 26.8.1967 which
clarified the operation of Rule 5 of the rules.
The Notification reads as follows:
"Under rule 5 of the Central Civil
Services (Temporary Service) Rules,1965, the services of a temporary Government
servant, who is not in quasi permanent service can be terminated at any time by
a notice in writing given either by the Government servant who is not quasi
permanent service to the appointing authority or by the appointing authority to
the Government servant. A question has arisen whether this rule should be
invoked also in the case of persons appointed on probation, wherein the appointment
letter specific condition regarding termination of service without any notice
during or at the end of period of probation (including extended period, if any)
has been provided. The position is that the OCS(TS) Rules do not specifically
exclude probationers or persons on probation as such. However, in view of the
specific condition regarding termination of service without any notice during
or at the end of the period of probation (including extended period, if any),
it has been decided in consultation with the Ministry of Law, that in cases
where such a provision has been specifically made in the letter of appointment
it would be desirable to terminate the service of the probationer person on
probation in terms of the letter of appointment and not under rule 5(1) of the
Central Civil Services (Temporary Services) Rules. 1965." The Division
Bench relied upon this Notification and held that the said Notification
excluded the operation of Rule 5(1) 144 including the proviso thereto in the
case of the petitioner whose service was terminated during the period of
probation.
The Division Bench did not agree with the
contention of the Union of India that the Notification did not apply to the
case of the appellant since in its view the terms of appointment clearly
indicated that he could be terminated only if the salary and allowances for one
month were either paid or tendered along with the order of termination. We find
that the approach made by the Division Bench is not correct.
We would first dispose of the contention
raised by the respondent that he was not a temporary hand. The Order of
appointment itself makes it clear that he will be on probation for a period of
two years which may be extended, if necessary. According to him, a temporary
hand is not normally put on probation nor is probation extended in the case of
temporary hands. The fact that he was originally put on probation for a period
of two years which was extended by one year itself indicates according to him
that he is not a temporary hand. This contention need not detain us for long.
The appointment order makes it clear that the
appointment will be on a temporary basis. The mere fact that he was put on
probation does not ipso facto make the appointment any the less temporary and
for that reason his extended probation also. Unless the respondent makes out a
case based on some rules which requires confirmation to a post on the expiry of
the period of probation, he cannot succeed on the mere ground of his being put
on probation for a period of two years or by the fact that his probation was
extended. He cannot rely upon the first clause in the order of appointment
either which states that though the post is temporary it is likely to continue
indefinitely. In any case, the order of termination was served on him before
the expiry of the extended period of probation. As already indicated Rule
5(1)(b) of the rules was amended in 1971 with retrospective effect from May 1,
1965. The respondent was appointed on July 30, 1975. The amended rule,
therefore, applied in his case. As per this Rule, the payment of notice salary
was not a pre-requisite for termination. The payment can be made after the
order of termination is served on the employee. Reliance by the High Court on
the Notification in preference to the rules i. also misplaced. Even if strict
adherence to the notification is to be made, it has to be noted that it only
states that " - would be desirable to terminate the services of
probation............ ". That is, this 145 notification does not make it
obligatory for tender or payment of salary along with the order of termination.
A notification has no statutory force. It
cannot override rules statutorily made governing the conditions of service of
the employees. The notification is dated 26.8.1967. Rule 5(1)(b) was amended in
1971 with retrospective effect from May 1, 1965. The rule has necessarily to
govern the service conditions and not the notification.
The effect of Rule 5 of the Rules fell to be
considered by this Court in two decisions, viz. Senior superintendent, R.M.S.
v. K.V. Gopinath, [1972] 3 S.C.R. 530 and R. Kumar v.
Union of India, [1975] 3 S.C.R. 963. The
respondent relied strongly upon the following observations reported in 1972 (3)
S.C.R 530 at page 532.
"...... The proviso to sub-rule (b)
however gives the Government an additional right in that it gives an option to
the Government not to retain the services of the employee till the expiry of
the period of the notice: if it so chooses to terminate the service at any time
it can do so forthwith 'by payment to him of a sum equivalent to the amount of
his pay plus allowances for the period of notice at the same rate at which he
was drawing them immediately before the termination of his service, or as the
case may be, for the period by which such notice falls short of one month.' At
the risk of repetition, we may note that the operative words of the proviso are
"the services of any such Government servant may be terminated forthwith
by payment." To put the matter in a nut shell, to be effective the
termination of service has to be simultaneous with the payment to the employee
of whatever is due to him. We need not pause to consider the question as to
what would be the effect if there was a bona fide mistake as to the amount
which is to be paid. The rule does not lend itself to the interpretation that
the termination of service becomes effective as soon as the order is served on
the Government servant irrespective of the question as to when the payment due
to him is to be made. If that was the intention of the framers of the rule, the
proviso would have been differently worded. As has often been said that if 'the
precise words used are plain and unambiguous, we are bound to construe them in
their ordinary 146 sense.' 'and not to limit plain words in an Act of
Parliament by consideration of policy, if it be policy, as to which minds may
differ and as to which decision may vary.' This decision was rendered on
February 18, 1972. It was the validity of an Order dated September 25, 1968,
terminating the respondent therein, that was in question in that case.
We would like to observe, with respect, that
the amendment brought into Rule 5(1)(b) with effect from May 1, 1965, escaped
the notice of the Bench that decided that case. The error was subsequently corrected
by another Bench of this Court in the decision in Rajkumar v. Union of India
(supra) by stating :
"...The effect of this amendment is that
on 1st May, 1965 as also on 15.6.1971, the date on which the appellant's
services were terminated forthwith it was not obligatory to pay to him a sum
equi- valent to the amount of his pay and allowances for the period of the
notice at the rate at which he was drawing them immediately before the
terminating of the services or as the case may be for the period by which such
notice falls short.
The Government servant concerned is only
entitled to claim the sums hereinbefore mentioned. Its effect is that the
decision of this Court in Gopinath's case (supra) is no longer good law.
There is no doubt that this rule is a valid
rule because it is now well established that rules made under the proviso to
Article 309 of the Constitution are legislative in character
retrospectively....... " The question whether the terms embodied in the
Order of appointment should govern the service conditions of employees in
Government service or the rules governing them is not an open question now. It
is now well settled that a Government servant whose appointment though
originates in a contract, acquires a status and thereafter is governed by his
service rules and not by the terms of contract. The powers of the Government
under Article 309 to make rules, to regulate the service conditions of its
employees are very wide and unfettered. These powers can be exercised
unilaterally without the consent of the employees concerned.
It will, therefore, be idle to contend that
In the case of employees under the 147 Government, the terms of the contract of
appointment should prevail over the rules governing their service conditions.
The origin of Government service often times
is contractual.
There is always an offer and acceptance, thus
bringing it to being a completed contract between the Government and its
employees. Once appointed, a Government servant acquires a status and
thereafter his position is not one governed by the contract of appointment.
Public law governing service conditions steps into regulate the relationship
between the employer and employee. His emoluments and other service conditions
are thereafter regulated by the appropriate statutory authority empowered to do
so. Such regulation is permissible in law unilaterally without reciprocal
consent.
This Court made this clear in two Judgments
rendered by two Constitution Benches of this Court in Roshan Lal Tandon v. Union
of India, [1968] (1) S.C.R. 185 and in State of Jammu & Kashmir v. Triloki
Nath Khosa & Ors., [1974] (1) S.C.R.
771.
Thus it is clear and not open to doubt that
the terms and conditions of the service of an employee under the Government who
enters service on a contract, will once he is appointed, be governed by the
rules governing his service conditions. It will not be permissible thereafter
for him to rely upon the terms of contract which are not in consonance with the
rules governing the service.
The powers of the Government under Art. 309
of the Constitution to make rules regulating the service conditions of the
government employees cannot, in any manner, be fettered by any agreement. The
respondent cannot, therefore, succeed either on the terms of the contract or on
the notification on which the High Court has relied upon. Nor can he press into
service the rule of estoppel against the Government.
Now, we may usefully advert to clause (v) of
para 2 of the Order of appointment. This clause reads as follows:
"Other conditions of service will be
governed by the relevant rules and orders in force from time to time.
This clause was inserted by way of abundant
caution making it clear that the conditions of service will be regulated by the
rules obtaining from time to time regarding the service in question.
148 The Division Bench of the High Court, in
our considered view, erred in relying upon the notification in preference to
Rule 5(1)(b) and to hold that the Order of termination was wrong and in setting
aside the Judgment of the learned Single Judge. The Judgment under appeal has,
therefore, to be set aside and we do so. The appeal is allowed with no order as
to costs .
We repeat what we have stated above. The
respondent has been sent out for reasons which we cannot decide in the absence
of necessary materials. We suggested to the learned counsel for the appellants,
Mr. Tyagarajan, to provide the respondent with some job. The Counsel, in
fairness, agreed to consult his clients. Though our Judgment was ready long
ago, we gave time to the appellants' Counsel here on three occasions, to
explore the possibility of providing some job to the respondent. Nothing
tangible has happened. We still hope that this young man will be provided with
some job in the department.
S.R. Appeal allowed.
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