G. Mehrotra, C.J.
1. The petitioner, who was a lower division clerk In the Incometax Office at Tezpur, has challenged the validity of the order terminating his services passed on 22 December 1961 by the Inspecting Assistant Commissioner of Incometax who bas been imp leaded as opposite party 1 to the petition. The petitioner was employed in the Incometax Department, and acting under Rule 5 of the Central Civil Services (Temporary Service) Rules, 1949, the Inspecting Assistant Commissioner of Inoometax passed an order terminating his services on 22 December 1961 after giving him the required notice. Against this order, the petitioner went up in appeal to the Commissioner of Incometax, which was also rejected.
2. The main ground of attack by the petitioner is that his case is not covered by Rule 5 Inasmuch as he was in quasi-permanent service. It is further urged by Sri Ghose, the learned Counsel for the petitioner, in his argument that though the opposite party 1 is purported to exercise his powers under Rule 6, yet in effect, he has terminated the services of the petitioner on account of inefficiency, and thus the petitioner has been punished and Article 311 of the Constitution is attracted, and as no notice was given to him, and no enquiry was held against him, the order terminating his services is violative of Article 311 of the Constitution.
3. Sri Choudhuri, who appears for the opposite party, has taken a preliminary objection. His first contention is that as the Union of India has been impleaded as an opposite party to this petition and the writ of this Court cannot run to Delhi, this petition should be rejected on that ground. Secondly, he contends that as the petitioner has preferred an appeal to the Central Board of Revenue, and has taken recourse to another alternative remedy available to him, this Court will not exercise its discretion under Article 226 of the Constitution. He has also contended that there is no force in the contention raised by the learned Counsel for the petitioner, that as no relief is asked for against the Union of India, the petition cannot be defeated on the mere ground that the Union of India has been impleaded as an opposite party. As, however, we propose to dispose of this petition on merits, it is not necessary to consider the preliminary objection raised by Sri Choudhurl, and it is not further necessary to examine whether there are any statutory Rules which give the petitioner a right of appeal to the Central Board of Eevenue, and whether in the circumstances of this case, we would or would not exercise our discretionary powers under Article 226 of the Constitution.
4. On merits, the contention of Sri Ghose is twofold. He firstly contends that as the petitioner was in quasi-permanent service, Rule 6 is not attracted in his case. Relevant portion of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1949, hereinafter referred to as the ' Rules,' reads as follows:
5. (a) The service of a temporary Government servant who is not in quasi-permanent service shall be liable to termination at any time by notice in writing given either by the Government servant to the appointing authority., or by the appointing authority to the Government servant.
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Sri Ghose relies upon Rule 3 in support of his contention that the petitioner was in quasi-permanent service. Rule 3 reads as follows:
3. A Government servant shall be deemed to be in quasi-permanent service:
(i) if he has been in continuous Government service for more than three years; and
(ii) if the appointing authority, being satisfied as to his suitability in respect of age, qualifications, work and character, for employment in a quasi-permanent capacity, has issued a declaration to that effect, in accordance with such instructions as the President may Issue from time to time.
Quasi-permanent service has been defined under Rule 2 (b), which reads as follows:
Quasi-permanent service, means temporary service commencing from the date on which a declaration issued under Rule 3 takes effect and consisting of periods of duty and leave (other than extraordinary leave) after that date.
5. Sri Ghose contends that the word ' and ' in Rule 3 really means ' or.' If any of these two conditions are satisfied, an employee will be deemed to be in quasi-permanent service, and as his client has been in continuous Government service for more than three years, he will be deemed to be in quasi-permanent service and Rule 5 will not be attracted. The legislature has used the word 'and' and not 'or' in Rule 3, and unless there is anything in the context to show otherwise, there is no reason why the word 'and' should be read as 'or.' The word has been used conjunctively and unless both these conditions are satisfied, the petitioner cannot be treated to be in quasi-permanent service. Before a person can be in quasi-permanent service, he should be continuously in Government service for more than three years and further that there should be a declaration to that effect by the proper authority. This interpretation is also borne out by the definition of the word ' quasi-permanent service,'
6. If Sri Ghose's contention is accepted, then Clause (ii) of Rule 3 will be cparative only in cases where a person has been in service for less than three years, and Clause (i) will be operative in cases where a person is in continuous Government service for more than three years. This was not the intention of the legislature, as is borne out by the language. In our opinion, therefore, unless a person has fulfilled both the requirements of Rule 3, he cannot be treated to be in quasi-permanent service. There is therefore, no force in the petitioner's contention that Rule 5 is not attracted in his case inasmuch as he was in quasi-permanent service.
7. The next point urged by Sri Ghose is that though the order purports to be one of termination of service under Rule 5, yet, in fact, It is an order of termination founded upon inefficiency of the petitioner, and thus Article 311 of the Constitution will be attracted in this case. Sri Chcudhuri has replied to this argument firstly on the ground that no such point has been taken in the petition, and, secondly, in the circumstances of this case, it cannot be said that the petitioner has succeeded In proving that the order though purporting to be one of termination of service, in effect it was an order founded upon inefficiency or misconduct. In Para. 7 of the petition, the petitioner has alleged that the petitioner fulfilled all the conditions of eligibility prescribed in the Central Civil Services (Temporary Service) Rules, 1949, and memorandum explanatory thereof for being quasi-permanent within the meaning of the said Rules, and under the provisions of such rules the prescribed authority was bound to decide the eligibility or otherwise of the petitioner for the issue of ' quasi-permanent' declarations after the completion of three years' continuous service by the petitioner and could not keep the matter pending for all these years. It was in reply to this averment that the opposite party 1 in his counter-affidavit has stated that the petitioner's work was not satisfactory all through and be was, as a matter of grace, given opportunities to mend, but in spite of it, he did not improve as a result of which his services had to be terminated ultimately.
8. In Para. 7, the petitioner has laid the foundation for the argument that under Rule 3, Clause (ii), he was eligible to be qualified to be in quasi-permanent service, and the matter should have been disposed of before taking action under Rule 5. In reply to that it was stated that he was not, even on the terms of Rule 3, eligible to be treated as in quasi-permanent service and a declaration granted to him. It was not in reply to any contention of the petitioner that the order was in effect an order founded upon inefficiency that these averments were made. There is no specific allegation in the petition to the effect that the order though purporting to be one for termination of service under Rule 5, is, in effect, founded upon inefficiency, and thus Article 311 of the Constitution is attracted. In Para. 11, it is no doubt mentioned that by an order dated 22 December 1961 the opposite party 1 terminated the services of the petitioner with effect from the date of service of the order on him, purporting to act under Rule 5 of the Central Civil Services (Temporary Service) Rules, 1949, that the petitioner received a copy of the said order forwarded to him only on 29 December 1961; and that the petitioner was not given any opportunity of showing cause before the passing of the aforesaid order dated 22 December 1961 by the opposite party 1. Even if this paragraph can be said to contain an averment to this effect that though the order purports to be one under Rule 5, yet Article 311 of the Constitution is attracted in his case and thus a point has been taken that the order, though couched in the language of one under Rule 5, was in effect founded upon inefficiency, we do not think that the petitioner has succeeded in proving that the order itself wag founded upon inefficiency.
9. As pointed out by their lordships of the Supreme Court in the case of Union Territory of Tripura v. Gopal Chandra Dutta Choudhuri 1963—II L.L.J. 633, the burden of proving the fact that the order though in the language is one terminating the service, it is, in effect, an order founded on inefficiency, lies on the petitioner and thus it was for the petitioner to prove that. There is no clear averment to that effect in the petition. The petitioner has relied upon the averment made by the opposite party 1 in Para. 9 which I have already quoted, which, to our mind, only sets out the motive which might have actuated the authorities to act under Rule 5 for the inefficiency of the petitioner. But that averment does not show that the action of the authority was founded on the ground of inefficiency or misconduct. What is to be ascertained is what was the action founded on, may be that the action which was taken under Rule 5, may have been prompted or actuated by a certain motive. But that does not necessarily mean that the action of terminating the services or dismissing the petitioner was founded on misconduct or inefficiency.
10. In the case of Parshotam Lai Dhingra v. Union of India 1958—I L.L.J. 544, it was observed by their lordships of the Supreme Court as follows :
It is true that the misconduct, negligence, inefficlency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service Rule, nevertheless, if a right exists, under the contract or the rules, to terminate the service, the motive operating on the mind of the Government is, as Chagla, C. J., has said in Shrinivas Ganesh v. Union of India 1957—II L.L.J. 189, wholly irrelevant. In short, if the termination of service is founded on the right flowing from contract or the Bervice rules, then prima facie, the termination is not a punishment and carries with it no evil consequences and be Article 311 is not attracted.
Sri Ghose's contention is that the order only raises that prima facie presumption, but it cannot be said that in every case where the order is there, the Courts cannot go behind the order and cannot and out the real foundation for the exercise of the power of dismissal. But, as we have referred to the observations of the Supreme Court, there may be a motive which actuated the authority to act under the terms of the rules and there may be cases where the order of termination itself may be founded on misconduct or inefficiency. These two oases are different.
11. Same view was again reiterated in the following observations in the case of State of Bihar v. Gopl Kishore Prasad 1960—I L.L.J. 577 at 580:
But if the employer simply terminates the Bervices of a probationer without holding an enquiry and without giving him a reasonable chance of showing cause against his removal from service, probationary civil servant can have no cause of action, even though the real motive behind the removal from service may have been that his employer thought him to be unsuitable for the post he was temporarily holding, on account of his misconduct or inefficiency or some such cause.
12. In any view of the matter, we do not think that the petitioner has succeeded in proving that the order was founded on inefficiency and thus, in effect, it was an order for dismissal though the authorities purported to exercise their power under Rule 5.
13. The petition has thus no force, and it is rejected. But, in the circumstances of the case, we make no order as to costs.