Commandant,
11th Battalion Vs. B. Shankar Naik [2003] Insc 251 (25 April 2003)
Shivaraj
V. Patil & Arijit Pasayat.
[With
Civil Appeal Nos. 3619, 3620, 4949, 7206-7209, 7080, 7395 and 7394 of 2000]
ARIJIT PASAYAT,J.
These
appeals involve common point of dispute and, therefore, are disposed of by this
judgment, which shall govern each one of them.
The
appeals are directed against judgments of the Andhra Pradesh High Court in
several writ petitions by which judgments of the Andhra Pradesh Administrative
Tribunal (in short the 'Tribunal') were set aside. A batch of 32 original
applications was disposed of by a common order. The applicants in some of those
moved the High Court as Tribunal had rejected their applications. They are
respondents in Civil Appeals 3618, 3619, 3620, 7206 to 7209, 7080, 7394 and
7395/2000. Six others had filed a joint petition before the Tribunal. They are
respondents in Civil Appeal No.4949/2000.
Factual
position is almost undisputed and needs to be noted in brief:
The
respondents in these appeals were appointed as Constables along with several
others, total number being 732. They were placed on probation for a period of
three years and were also required to undergo training in the A.P. Police Recruits School under Rule 11(a) of the A.P. Police
Subordinate Service Rules (in short the 'Special Rules').
One of
the conditions stipulated in the appointment order is that they should pass the
language test within a period of probation and in case of failure they shall be
discharged from the service. This is in terms of Rule 13-A (a)(i) of the A.P. State and
Sub-ordinate Service Rules, 1962 (in short 'the General Rules'). The selected
candidates were sent for training to the Police Recruits School and after completion of the training, they were to be
posted at different places to work as Constables. In the appointment order it
was clearly indicated that they should undergo ten months basic training. Their
services were terminated under Rule 16(f)(i) of the A.P. State and
Sub-ordinate Service Rules, 1996 (in short 'the New General Rules') on the
ground that they had failed to pass the prescribed test within the prescribed
period of probation. Said orders of termination were challenged on the ground
that said Rules were not applicable to them as they had passed the SSC
examination with Telugu as medium of instruction. They were exempted from
passing the language test under Rule 14 and as such the orders of discharge
were bad. As this plea was not accepted, the respondents moved applications before
the Tribunal. The basic question raised was whether the applicants were
required to pass the language test prescribed under Rule 13-A(a)(ii) of the
General rules.
Reference
was made to Rule 14 of the said rules to claim the exemption. The Tribunal upheld
the order of dismissal taking note of the stand pressed into services by the
State and its functionaries that they had not successfully completed the
training. Reference was made to paragraph 10 of the manual for A.P. Recruits School and held that in view of the
mandatory requirement of taking training in the recruits schools as laid sown
under Rule 11 and 2(a) of the Special Rules, there was a requirement to
successfully complete the training as the Constables, who were trainees. Their
dismissal was claimed to be in order. It was held by the Tribunal that the
syllabus prescribed in the manual for the police recruits assumes a mandatory
character and the prescriptions in the syllabus under the manual have to be
followed and rightly, therefore, the orders of discharge were passed. Orders of
the Tribunal were challenged before the Andhra Pradesh High Court which by the
consolidated impugned orders held that the orders of dismissal were not
tenable, since the concerned Constables had passed SSC examination in Telugu
medium with Telugu as one of the subjects. Therefore, they were entitled to
exemption and the order of discharge was bad. It was held that the order of
appointment did not refer to any other test in which the selected recruits were
required to come out successful and, therefore, the orders of discharge were
bad.
In
support of the appeals, learned counsel for the appellant submitted that the
approach of the High Court is erroneous. The orders of discharge were passed on
several grounds. Firstly, non-passing the language test and secondly
non-success in the training. Even if it is conceded that the recruits were
exempted from passing the language test because of the applicable rules, yet it
cannot be lost sight of that the very purpose of undergoing training is to
successfully complete it. If one does not successfully complete the training,
there is no scope for seeking continuance. Statutorily such prescriptions were
imposed.
In
response, learned counsel for the respondents submitted that the appointment
orders only referred to the period of probation and the language test. There
was no requirement about coming out successful in the training.
That
being so, according to him, High Court was justified in setting aside the order
of discharge.
The
specimen copy of an order of appointment was placed on record. This clearly
stipulates, as noted supra, "They should undertake ten months basic
training, commencing from 1.11.1994". Obviously, the training which is
given cannot be rendered purposeless. If the contention of the respondents is
accepted, it would mean that the training was intended to be a meaningless and
purposeless exercise without having any relevance. This certainly cannot be the
intention. A person who is sent for training is required to be comprehended as
to what is the effect of the training.
If
after completion of the training, it is found by the authorities that the
trainee has not succeeded in the test conducted after training, the inevitable
conclusion is that he has not undertaken training successfully. It has to be
construed that the requirements stipulated in the appointment orders were not
fully complied with. When the recruit was to undertake ten months basic
training, it obviously means successful completion of the training.
Undisputedly
the same has not been done. The authorities were justified in passing the order
of discharge. This position gets crystal clear when some of the relevant
provisions are considered.
Rule
11(a) of the Special Rules reads as follows:
"Probationers
shall undergo training and examination as within the period of their probation
and course of training and their pay during the training period shall be the
basic pay of the post plus usual allowances admissible at the time of training.
Probationers
Course of training xx xx xx
4.
Constables other If appointed otherwise (i) Band Constables, by transfer from
the Reserve Constables, A.P. Special Police Buglers and Bellow Training for a
period Boys (Category-5 of of not less than six Class I) and Cagegory-2 months
in a Police of Class IV). Recruit School or in any of the A.P. Special
Police Battalions." Rule 16(f)(i) and 17(5) of the New General Rules read
as follows:
"16(f)(i):
If within the period of probation a candidate fails to pass such tests or
acquire such qualifications as may be prescribed in these rules or in the
special rules, the appointing authority shall, by order, discharge him from the
service unless the period of probation is extended under the sub rule (b) of
Rule 17 and if within such extended period also, the candidate fails to pass
such tests or acquire such special qualifications, the appointing authority
shall discharge him from service.
17(5):
In the case of any probationer failing to pass the tests or acquire the
prescribed qualifications, the appointing authority may extend his probation to
enable him to pass the prescribed tests or acquire special qualifications, as
the case may be. Such extension by the appointing authority shall not exceed
one year, whether on duty or otherwise in such service, class or
category".
Para 10 of the Manual for Andhra Pradesh
Police Recruits Schools reads as follows:
"10:
Period of training:- Recruit Constables shall undergo training for a period of
six months in a Police Recruits School. A recruit who passes his
examinations should be passed out at the end of six months irrespective of
short leave or sickness, but, if he does not pass his examination, he may be
retained for one more-month, examined again and, if successful, passed out,
with the next batch of recruits. Men failing to pass after the extra months
must discharged." Reference may be made also to Rules 6 and 7 of the A.P.
Special
Armed Police Service Rules (in short 'Armed Police Rules'), which read as
follows:
"Rule
6 Probation: Every person appointed a Category shall, from the date on which he
joins duty, be on probation for a total period of two years on duty within a
continuous period of three years, if recruited direct and for a total period of
one year on duty within a continuous period of two years if recruited by
promotion or by transfer.
Rule 7
Training: (1)A probationer appointed as otherwise than by promotion shall,
within the prescribed period of his probation, undergo training in the Police
Recruits School of a period of not less than six months and thereafter advanced
training for a period not less than four months in the Andhra Pradesh Special
Police battalion, to the satisfaction of the Commandant." Conspectus of
these provisions provides a further basis for the conclusion that successful
completion of the training is an inbuilt requirement for continuance. Para 10 of the Manual also throws beacon light by
providing for extension by one month for a fresh try.
It may
be noted that there is some amount of confusion as to what was the ground for
discharge. While the respondents contend that the same was relatable to non-
passing of the language test, stand of the appellant is that it related also to
failure in passing the test after training. It appears that after the training
the indoor and outdoor activities were assessed and marks were also allotted.
The assessment is clearly permissible and as noted above cannot be isolated
from the requirements of successful completion of the training. This was
highlighted by the appellant before the Tribunal and the High Court.
However,
no other deficiency has been noted by the authorities. What remains is the
failure of respondents to come out successful in the indoor and outdoor subject
tests conducted. While the indoor activities related to tests on various
subjects, outdoor test related to skill in various activities etc.
However,
it does not appear that one month's extension as provided in Para 10 of the
Manual was granted. Interest of justice would be best served if chance in terms
of Para 10 is granted to the respondents. If the respondents come out
successful in the tests to be conducted, their services shall be continued, but
in case of their being failure, orders of discharge will be effective.
However
few facts need to be noted at this stage.
The
original applications filed by the respondents were dismissed by the Tribunal
nearly five years back. This Court stayed operation of the High Court's
judgment which was in favour of the respondents more than three years back. In
other words, the respondents are not in service. If they come out successful in
training pursuant to directions in these appeals, they can only be adjusted if
there are existing vacancies or against the vacancies that may arise till the
end of 2005 in order of seniority-cum-merit inter- se, subject to their
satisfying all other eligibility conditions. In case they are adjusted in the
vacancies as stated above, they shall not be entitled to claim any back wages
or arrears of salary or any other emoluments and the period during which they
were out of service shall not be counted for seniority, however, it shall be
reckoned only for the purpose of pensionary benefits. This order is confined to
the respondents in these appeals only and none else.
The
appeals are accordingly disposed of.
However
few relevant factors need to be noted at this stage.
The
original applications filed by the respondents were dismissed by the Tribunal
nearly five years back. This Court stayed operation of the High Court's
judgment which was in favour of the respondents more than three years back. In
other words, the respondents are not in service. If they come out successful in
training pursuant to directions in these appeals, they can only be adjusted if
there are existing vacancies. In case there are no vacancies, their cases shall
be considered as and when vacancies arise till end of 2006. They shall not be
entitled to any pay or other emoluments for the period commencing from the date
of their removal from service till restoration of service, if any, and the
period shall not count for the purpose of seniority.
It can
only be reckoned for the purpose of computing pension. This order shall operate
only in respect of the respondents in these appeals and none else.
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