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Harcharan Lal Vs. Director, Indian Institute of Sugarcane Research and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtAllahabad High Court
Decided On
Case NumberWrit Petn. No. 255 of 1962
Judge
Reported inAIR1964All379
ActsCentral Civil Service (Temporary) Rules, 1949 - Rules 6, 6(1) and 7; Constitution of India - Article 226(1A); Constitution of India (Fifteenth Amendment) Act, 1963
AppellantHarcharan Lal
RespondentDirector, Indian Institute of Sugarcane Research and anr.
Appellant AdvocateN. Banerji and ;R.C. Sinha, Advs.
Respondent AdvocateStanding Counsel, for Opposite Parties Nos. 1 and 2
DispositionPetition allowed
Excerpt:
.....permanent services passed - no reduction certificate where no reduction certificate existed on the date of termination - held, order must be struck down. - - an appeal filed by the petitioner against the order terminating his services was dismissed on the 3rd of may, 1962. thereafter, the petitioner filed the present writ petition for quashing the order of the termination of his services dated the 17th of february, 1962 and of the rejection of his appeal dated 3rd may, 1962. before me the learned counsel for the petitioner has argued that the order dated the 17th of february, 1962 terminating the services of the petitioner under rule 6 is bad as it does not comply with the conditions laid down therein. it is possible that thetermination order may be passed on one date andthe actual..........the petitioner filed the present writ petition for quashing the order of the termination of his services dated the 17th of february, 1962 and of the rejection of his appeal dated 3rd may, 1962. before me the learned counsel for the petitioner has argued that the order dated the 17th of february, 1962 terminating the services of the petitioner under rule 6 is bad as it does not comply with the conditions laid down therein. sub-rule (1) of rule 6 which is the portion relevant for the purposes of the present case lays down as follows :-- '6. (1) the service of a government servant in a quasi permanent service shall be liable to termination- (i) in the same circumstances and in the same manner as a government servant in permanent service) or (ii) when the appointing authority concerned.....
Judgment:
ORDER

N.U. Beg, J.

1. The petitioner in this writ petition Shri Harcharan Lal was appointed as a Tractor Driver temporarily on the 14th of July 1053 at the-Central Sugarcane Station Lucknow then under the Directorate of Indian Institute of Sugar Technology, situate at Kanpur. On the 1st of January, 1954 the Central Sugarcane Station at Lucknow became a separate department, and came to be known as the Indian Institute of Sugarcane Research under an independent Director. As a result of it, it came directly under the control of the Government of India, Ministry of Food and Agriculture. On the 24th of October, 1960 a declaration was made under Rules 3 and 4 of the Central Civil Services (Temporary Services) Rules, 1949 (hereinafter called the Rules) appointing the petitioner as Tractor Driver in a quasi permanent capacity with effect from the 1st of July, 1959.

On the 6th of April. 1961 a communication was issued by the Under Secretary to the Government of India, Ministry of Food and Agriculture to the Director Indian Institute of Sugarcane Research conveying the sanction of the President to the conversion of one temporary post of tractor driver into a permanent post. It may be mentioned that at that time there were two posts of temporary tractor drivers, one being held by the petitioner and the other being held by one Shri Sarwan Singh. Although Shri Sarwan Singh was junior to the petitioner, he was appointed as a Tractor Driver in a quasi-permanent capacity with effect from the 1st of July, 1958. On the 17th of February, 1962 the Director of Indian Institute of Sugarcane Research passed an order terminating the services of the petitioner with effect from the 28th of February, 1962 under rule 5 of the Rules. A copy of the said order is filed as Annexure 3 with the writ petition. A similar order was passed against the other tractor driver Shri Sarwan Singh on the same date.

On the 20th of February, 1962 the petitioner addressed a letter to the Director, Indian Institute of Sugarcane Research seeking a clarification of the said order. Thereupon, the authorities realised their mistake and passed another order on the 28th February, 1962 by way of corrigendum correcting the previous order of the 17th of February, 1962. This order is Annexure 5 filed with the writ petition. In this order it is stated that the words 'under Rule 5' in the order of the 17th of February, 1962 will be substituted by the words 'under Rule 6'' in the said order. On the same date they issued a Reduction Certificate as required by Clause (ii) of Rule 6 of the said Rules. On the 27th of February, 1962 the order terminating the services of Sarwan Singh was cancelled and he was reinstated. An appeal filed by the petitioner against the order terminating his services was dismissed on the 3rd of May, 1962.

Thereafter, the petitioner filed the present writ petition for quashing the order of the termination of his services dated the 17th of February, 1962 and of the rejection of his appeal dated 3rd May, 1962. Before me the learned counsel for the petitioner has argued that the order dated the 17th of February, 1962 terminating the services of the petitioner under Rule 6 is bad as it does not comply with the conditions laid down therein. Sub-rule (1) of Rule 6 which is the portion relevant for the purposes of the present case lays down as follows :--

'6. (1) The service of a Government servant in a quasi permanent service shall be liable to termination-

(i) in the same circumstances and in the same manner as a Government servant in permanent service) or

(ii) when the appointing authority concerned has certified that a reduction has occurred in the number of posts available for Government servants not in permanent service :

Provided that the service of a Government servant in quasi permanent service shall not be liable to termination under Clause (ii) so long as any post of the same grade and under the same appointing authority as the specified post held by him, continues to be held by a Government servant not in permanent or quasi-permanent service :

Provided further that as among Government servants in quasi-permanent service when specified posts are of the same grade and under the same appointing authority, termination of service consequent on reduction of posts shall ordinarily take place, in order of juniority in the list referred to in rule 7.'

2. In the first place, the learned counsel has argued that Clause (ii) of Rule 6 (1) cited above shows that before the services of Government servant in a quasi-permanent services are terminated a reduction certificate should be issued by the appointing authority concerned. In the present case it is admitted on behalf of the opposite parties that the order of the termination of services of the petitioner was passed on the 17th of February, 1962. It is further admitted on behalf of the opposite parties that the reduction certificate required under Clause (ii) of Rule 6 (1) was not issued until the 28th of February, 1962. There is, therefore, no doubt that in the present case no reduction certificate existed on the date when the order of termination of services of the petitioner was passed. Clause (ii) of Rule 6 (1) was, therefore, not complied with. It appears to me that the issue of a reduction certificate is a condition precedent to the order of termination of services according to the above provision of law. The use of the word, 'shall' in the opening portion further indicates that the restriction laid down is of an imperative character. In the circumstances, I am of the opinion, the order of termination of services of the petitioner dated the 17th of February, 1962 cannot stand and must be struck down on this ground.

3. On behalf of the opposite parties, the learned counsel has argued that the services of the petitioner were terminated with effect from the afternoon of 28th February, 1962 and the reduction certificate was issued prior to his handing over the charge in the afternoon of the 28th of February, 1962. This may be so. It appears to me that the date contemplated in Rule 6 is not the date of the handing over of the charge or tbe date from which the services were actually terminated but the date on which the order terminating the services is passed i. e. the date when the services of a Government servant become 'liable to termination.' The words used in the rule refer to the date on which the services become 'liable to termination,' and not the date on which the services are actually made to terminate. In other words it is the date on which the authorities make up their mind to terminate the services of the Government servant that can be said to be the date on which the services of the said Govern-ment servant become 'liable to termination.' The date fixed by the authority terminating the services may be a future date, and the termination order might be made to take effect from that date. In spite of it the date on which the services of the Government servant become 'liable to termination' would be the preceding date on which the authority concerned had made up its mind to terminate the services thereby making his services liable to termination.

4. This construction of the rule appears also to be a reasonable one, bearing in mind the provisions of Clause (i) of Rule 6 (1) of the Rules. Clause (i) shows that the rule making authority intended to place a quasi-permanent Government servant exactly on the same footing as a permanent Government servant in the matter of termination of services. The only exception to this general rule appears to be provided by Clause (ii) in a case where reduction of service has occurred. The intention of the framers of the rule appears to be that before resorting to this exception it must be certain that this recourse has been forced upon them as a result of reduction in posts. The rule makers seem to be rather strict about it as they have further laid down that this satisfaction should exist not only in the mind of the authority, but should be reduced to writing in the form of a certificate. The framers of the rules, therefore, made this provision in this stringent form, and laid down that this certificate should precedeany intention on the part of the appointing authority to render the services of a quasi-permanent Government servant liable to termination.

5. If the contention advanced on behalf of theopposite parties is accepted then unreasonable results are likely to follow. It is possible that thetermination order may be passed on one date andthe actual reduction of services might take placelong after and yet the termination order would beheld to be good even though there was no actualreduction in the posts existing on the date on whichthe order of termination was passed provided thatthe charge was handed over by the servant subsequent to the issue of the reduction certificate. Thiscould not have been the intention of the rule makers,For the above reasons, I am not inclined to acceptthe contention advanced by the learned counsel forthe opposite parties.

6. The second argument of the learned counsel for the petitioner is that there has been no compliance with the condition laid down in the second proviso to Rule 6 (1). This proviso would come into play when there are more than one quasi-permanent Government servants holding similar posts. In such a case according to this proviso the authority concerned will have to apply its mind to the respective claims of the various servants, as the posts having been reduced it would not be possible to appoint all of them. The proviso lays down that the authority concerned should, in order to make up its mind about the actual persons whose services ought to be terminated, look to the list referred to in Rule 7 of the Rules, and should ordinarily follow the rule of juniority in the matter of termination of services, Before, therefore, the authority makes up its mind about the persons whose services ought to be terminated, the list referred to in Rule 7 should be in existence. Sub-rule (2) of Rule 7 provides the method for the preparation of such a list by a committee called the Departmental Promotions Committee.

In the counter-affidavit filed on behalf of the opposite parties it is stated that the Departmental Promotions Committee met on the 27th of February 1962 and drew up the list under rule 7 on that date. It is, therefore, admitted that in the present case the order of termination of services of the petitioner was passed when the list under Rule 7 was not in existence. The obvious purpose of the second proviso is that the authority concerned should have the list before it to enable it to make up its mind as to who are the persons whose services should be terminated. The preparation of the list and a reference to it is required to enable the authorities to act reasonably and with justice and fair play. The list, therefore, is in this proviso made the foundation of action and the basis of the order of termination. Any order of termina-tion of services of a quasi-permanent Government ser-vant at a time when the list is not prepared and is not even in existence cannot stand as the foundation itself would be lacking. The present order of termination of services of the petitioner therefore, suffers from this infirmity as well.

7. The third agrument of the learned counsel for the petitioner was that even supposing there was a case of reduction of posts, the termination of services of both the tractor drivers would be unwarranted. There were only two tractor drivers. Both of them could only be dismissed if there was abolition of all posts. Reduction necessarily implies that at least one post remains. As the services of both the tractor drivers were terminated at the same time, it is not possible to specify which is the one out of the two whose services are to be retained. The order o termination, therefore rests on the presumption of abolition of all posts than on reduction of onepost. It is not necessary for me to decide this point as I am of opinion that this petition should succeed on the first two contentions advanced on behalf of the petitioner.

8. After the argument of the parties were finished in the case and while I was dictating my judgment, the learned counsel for the opposite parties raised another point of a preliminary nature. In the present case the appeal or the petitioner was dismissed by the Under Secretary to the Government of India, Ministry of Food and Agriculture (Department of Agriculture) New Delhi. On behalf of the opposite parties it was argued that the original order of termination of services was merged in the appellate order passed by an authority which was outside the territorial limits of this Court. The petition should, therefore, be dismissed on this ground. This argument might have been acceptable but for the Constitution (Fifteenth Amendment) Act of 1963 which came into force in October, 1963. Section 8 of this Amendment Act introduced Clause (1A) in Article 226 of the Constitution of India and empowered the High Court to exercise its jurisdiction also in relation to the territories within which the cause of action, wholly or in part, arises notwithstanding that the Government concerned is not within the territories within which the said High Court is situate. In the present case, the dismissal of the appeal of the petitioner by the Under Secretary to the Government of India, Ministry of Food and Agriculture (Department of Agriculture) New Delhi provided a subsequent cause of action to the petitioner. This High Court would, therefore, have jurisdiction to entertain the writ petition and set aside the order passed by the appellate authority although the said authority was outside the territorial jurisdiction of the High Court.

9. On behalf of the opposite parties it was argued that the writ petition was filed on the 1st of August 1962. The above amendment, being (sic) retrospective in operation, would not apply to the present case. I am unable to accept this contention. No question of retrospectivity arises in the present case as the amending law relates to the power of the High Court. The relevant date, therefore, would be the date on which the High Court exercises its power to issue the writ and not the date on which the party exercises its right to file a writ petition. On the date on which this Court is exercising the power and is issuing the writ, the amended Act has come into force and the exercise of its enlarged power by the High Court on such a date would be valid and justified by the provisions of law.

10. For the above reasons, I am of opinion that there is force in this writ petition. I, accordingly allow it and quash the order of termination of services of the petitioner dated the 17th of February, 1962 and of the rejection of his appeal dated the 3rd of May, 1962. The petitioner will be entitled to his costs.


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