Orissa Vs. Mohd. Yunus  INSC 362 (17 September 1993)
have heard the counsel on either side. Leave granted.
This appeal arises against the order of the tribunal made in O.A. No. 1005 of
1989 dated March 22,
1993. The respondent
is an ex-serviceman. He applied for recruitment to Orissa Administrative
Service, Class 11. Pending proceedings a direction was given to keep one post
vacant for consideration of the appellant in the event of his succeeding in the
original application. The tribunal allowed the petition and directed to appoint
him in that post. The State is aggrieved against this order. Thus, this appeal
by special leave.
only question that arises for consideration in this appeal is whether the
respondent could be treated on a par with members of the Scheduled Castes and
Scheduled Tribes for lowering the standard for selection by the Public Service
Commission. The tribunal following the judgment of the Full Bench of Punjab and
Haryana High Court in the case of Jagdish Rai v. State of Haryana' directed
that the respondent is entitled to the same benefits. We are unable to agree
with the tribunal and the ratio in the Full Bench judgment. The members of the SCs
and STs have been given benefit by operation of Article 16(4) of the
concession or relaxation in their favour is in compliance of the constitutional
mandate to provide adequate representation of them in any service or posts
under the State. Any other category other than SCs and STs cannot be put on a
par with them in the matters of relaxation of the conditions for recruitment or
other conditions. It is stated by Mr Mehta, learned counsel for the State that
the Commission has put a minimum of 780 marks as qualifying marks for the
general candidates. The respondent admittedly belongs to the general category.
Though three posts have been reserved for ex-servicemen, if a candidate who
belongs to ex-servicemen gets eligibility by securing 780 minimum marks,
irrespective of the fact whether he/they comes by general selection or not, by
virtue of reservation made to the ex-servicemen, he/they + Arising out of SLP
(C) No. 10343 of 1993 1 AIR 1977 P&H 56: 79 Punj LR 1 : 1977 Lab IC 353 56
become eligible for consideration. This relaxation has been made in
contradistinction with other general candidates but for which the respondent
would be ineligible. The fixation of the general standard marks prescribed for
the general candidates would undoubtedly be a handicap to the ex-service personnel
who are made to compete with youngsters after several years of service put in
the defence service. The State Government and the Public Service Commission are
directed to consider the desirability to fix a lesser standard than that of the
general candidates as ex- servicemen have served the nation in its defence and
in the process they may not come on a par with the general candidates.
Therefore, some relaxation in their behalf would be necessary to meet the
exigencies of coping up with the reservation given to them. Otherwise,
reservation would be illusory. The State Government in consultation with the
Public Service Commission would decide this issue within a period of three
months from the date of the receipt of this order and thereafter consider the case
of the respondent accordingly.
appeal is allowed with no order as to costs.
Leave granted. Heard on merits.
appellant was appointed as a Constable in the U.P.
Force on probation in a clear vacancy in December 1986. He was then sent for
training at the Police Training School, Moradabad in January 1987 and had
successfully completed the training course. In December 1990 while the
appellant was + Arising out of SLP (Civil) No. 14711 of 1991 57 posted as a
Constable in Police Station Nangla in District Bijnor, a report was made by the
Station House Officer on December 17, 1990 accusing the appellant of certain
misconduct. The very next day, on December 18, 1990, the appellant was transferred to
the Police Lines. However, without holding any inquiry, on December 19, 1990, the appellant's services were
terminated (Annexure B) by giving him one month's salary in lieu of notice. The
appellant challenged the termination of his services by filing a writ petition
in the Allahabad High Court. That writ petition has been dismissed by the
impugned judgment dated July 20, 1991. Hence this appeal by special leave.
High Court has taken the view that the services of the appellant being merely
temporary, there was no infirmity in the termination of his services in this
manner. Learned counsel for the appellant submitted that the appellant was not
appointed merely temporarily but on probation in a clear vacancy and,
therefore, the procedure for termination of his services would be governed by
Regulation 541 of U.P. Police Regulations; and that the termination having been
made without complying with the requirements of Regulation 541, it was invalid.
In reply, learned counsel for the State merely contended that the appointment
of the appellant was not on probation in a clear vacancy but was temporary
appointment which was not governed by Regulation 541 of the U.P. Police
Regulations. We are satisfied that this appeal has to be allowed.
appellant has expressly asserted that his appointment as a Constable was on
probation in a clear vacancy. On behalf of the State of U.P., there is no
denial of this assertion and no material has been produced by the State to
indicate that the appellant's appointment was not of this nature. There can be
no doubt that the State which is in possession of the entire record was not in
a position to show with reference to the record that the factual position was
different. The failure of the State Government to produce any record in support
of its submission is alone sufficient to reject its submission to this effect.
The case has, therefore, to be examined on the basis that the appellant's
appointment was on probation in a clear vacancy which was governed by
Regulation 541 of the U.P. Police Regulations.
perusal of Regulation 541 shows that an inquiry is contemplated of the kind
mentioned therein before any order of discharge thereunder is made in a case
like the present during the period of probation. Admittedly that procedure was
not adopted in the present case before terminating the appellant's services.
The order of termination is, therefore, obviously invalid.
the result, the appeal is allowed with costs.
the impugned judgment of the High Court is set aside and writ petition filed in
the High Court is allowed, with consequential benefits. The appellant is to get
costs from respondent-State of U.P. The costs are quantified at Rs 5000 (Rupees
Five thousand) only.