1. O. J. Cs. 172, 189, 192, 255 and 256 of 1955 were heard together and will be dealt with in one judgment.
2. These are petitions under Article 226 of the Constitution by some of the Ex-Forest Gate Keepers ofKhalllikote Estate whose services were terminated by the Anchal Adhikary of Kudala by his Memo No. C. 1.70/55 dated the 20th June 1955.
3. The facts which are clear from the papers filed by the petitioners and from the counter-affidavit filed by the State of Orissa are as follows. When Khallikote Estate was in the possession of the previous proprietor of that Estate, the petitioners were working as Forest Gate-Keepers within the Estate, and they were remunerated on a commission basis.
The forests of the said Estate, though private forests, were brought within the scope of Sections 26 and 32 of the Madras Forest Act 1882 (Madras Act V of 1882) by Notification No. 246, dated the 24th June 1932 of the then Government of Madras. When the Estate was taken over by the Government of Orissa under the Estates Abolition Act on the 1st June, 1953, the petitioners and other Forest Gate-Keepers of the Estate were retained in service on the same terms as before, that is to say, their remuneration was fixed on a commission basis. The order passed in respect of Bhagaban Patnaik (O. J. C. 172 of 1955) may be taken as typical and is quoted below:
'Ref: J.5 No. 7031/53 dated 22-2-55.
Office of the Collector of Ganjam, Chatrapur.
Sub: Forest-Kudla Anchal-Appointment of Gate-Keepers of Kudala and Kalimaghi Shri Bhagaban Patnaik of Kudala is appointed as Gate-Keeper of Kudala Forest Gate on commission basis. He is to relieve Shri R.S. Narayanarao, the present gate-keeper, Kudala.
(2) On being relieved by Shri Patnaik Shri R.S. Narayanarao is appointed as Gate-Keeper, Kalimeghi Forest Gate of Kudala Anchal, which is being run departmentally at present. '
By order of the Colletor.
Sd/-X X X X X X
District Anchal Forest Officer. ...Forest Gate-Keeper, Kudala.'
It appears, however, that the Government were seriously thinking of reorganizing the Forest Administration in the Estate, by dispensing with the services of Gate-Keepers remunerated on a commission basis and appointing in their place regular, salaried staff run by a Department of Government. After some correspondence the Board of Revenue by their letter No. 4155 E. A. dated the 10th June 1955 issued the following instructions to the Collector of Ganjam:
'Board of Revenue, Orissa.
No. 4155/E. A.
Shri B. Das, B. Sc.,
Secretary, Board of Revenue, Orissa,
The Collector of Ganjam.
Dated Cuttack; the 10th June. 1955.
Ref: Your letter Ref, J. No. 7031/53, dated 16-5-56.
Sub: Management of Forest Gates.
I am directed to say that Government have been pleased to approve of your proposal to reduce the number of forest gates in the district of Ganjam to 50, to be located at the places suggested by you. Government are, however, not in favour of any partial change in the system of management of gates and have, therefore, been pleased to order that all these gates should be run departmentally by the staff, to be appointed,Instead of putting certain gates to auction as suggested by you.
The gate-keeper will draw their pay in the scale of Rs. 21-1/2-29 plus a dearness allowance of Rs. 5/-each a month. If some gates are not likely to fetch sufficient income, the gate-keepers may be appointed in a lower scale of pay which may be got approved by the Board. These orders should be given effect to from the next fasli year, i.e., from the 1st July, 1955.
Sd/- B. Das.
The changes made were therefore two-fold:
(i) All forest-gates should be run departmentally by regular, salaried staff to be appointed by the Collector, and (ii) The number of forest gates in the district of Ganjam should be reduced to 50. Apparently the reduction in the number was the direct result of appointing wholetime salaried staff in place of the staff remunerated on a commission basis which was prevalent during the time of the proprietor and which was continued after the Estate was taken over. In pursuance of the aforesaid instructions of the Board of Revenue the Anchal Adhikary, Kudala, issued the following letter to the petitioners terminating their services:
'Ref: C-1-70/55 dated 20-6-1955.
Officer of the Anchal Adhikary, Kudala.
Sub: Establishment-Forests-Kudala Anchal.
Appointment of paid gate-keepers-Abolition of commissioned gate-keepers.
Ref: No. 4155. E. A/IX-EA-99/54 dated 10-6-55, of the Board of Revenue, Orissa, to the Collector of Ganjam Chatrapur, copy communicated with No. 4156/EA, to the Anchal Adhikary, Kudala.
Collector's Ref. J-5-7031/53 dated 20-6-55.
The Board of Revenue have decided to change the existing system of continuing commissoined gatekeepers in Kudala Anchal, & to run the gates depart-mentally. The number of existing forest gates is also ordered to be reduced.
Hence, with effect from the 1st July 1955 you are hereby ordered to cease from the post of commissioned gate-keepers and hand over the gate records, with cash, etc., in the Anchal Forest Office, Kudala, before the 30th June, 1955.
Anchal Adhikary, Kudala.'
4. From the affidavit of the Special Officer, Revenue Department, it further appears that many of these forest gate-keepers were re-absorbed as salaried staff by a process of selection. The petitioners, however, were not re-absorbed because the appointing authority thought that they were not qualified to hold the post of salaried gate-keepers of the Forest Department.
5. Mr. H. Mohapatra, on behalf of the petitioners, urged that they were holders of 'civil posts' within the meaning of Article 311 of the Constitution and that the order terminating their services, when construed along with the affidavit filed on behalf of Government to the effect that they were not selected for the posts of salaried gate-keeper because they were not qualified for those posts, would show that they have been 'removed from service' on the ground of inefficiency without being given an opportunityto show cause against their removal, as required by the aforesaid Article. In support of this argument he relied on the case reported in Fakir Chandra v. S. Chakravarti 58 Cal WN 336: (AIR 1954 Cal 566) (A).
6. On the other hand, the Advocate-General contended that Article 311 of the Constitution would not apply because (i) the petitioners, being remunerated on a commission basis were not holders of 'civil posts' within the meaning of that Article and (ii) in any view, their services were terminated not by way of punishment but solely because of the re-organization of the Forest administration and the consequent reduction in the number of gate-keepers by way of retrenchment.
7. For the purpose of disposing of these applications it is unnecessary to consider whether the rights conferred by Article 311 of the Constitution would be available to those servants of Government who are remunerated- on a commission basis. Assuming that the Article would apply to that class of Government servants, the main question for consideration is whether the petitioners' services were terminated by way of punishment so as to require compliance with the provisions of that Article.
Mr. Mohapatra fairly conceded that unless the termination of the services amounted to punishment he could not invoke the provisions of that Article. He however, urged that though in the order terminating the services of the petitioners it was not stated that such termination was due to their inefficiency, yet in the affidavit subsequently filed on behalf of the State, this fact was clearly admitted, and that, consequently, they should be held to have removed from service by way of punishment.
8. I am however, unable to accept this argument. The order of the Anchal Adhikary of Kudala dated the 20th June, 1955, terminating the services of these gate-keepers is very clear, and admits of no ambiguity or doubt whatsoever. It says that the services of the gate-keepers would not be required from the 1st July 1955 because (i) the Board of Revenue had decided to change the existing system of continuing gate-keepers on a commission basis and run the gates departmentally, and (ii) the number of forest gates was also ordered to be reduced.
The letter of the Board of Revenue dated 10th June, 1955, which has been quoted above, would fully support the reasons given by the Anchal Adhikary for dispensing with the services of the petitioners. It is always open to Government to recognise any Department, to reduce the number of posts in that Department, and to dispense with the services of its employees as a result of such reorganization.
Doubtless, if those employees had been appointed substantively to some posts, Government would be compelled to provide them with alternative employment of an equally remunerative character. But where such employees were not holding substantive appointments, there is no legal obligation on the part of Government to provide them with alternative jobs when their existing posts are retrenched.
It is not stated in any of the petitions that these petitioners were appointed substantively to the posts of forest gate-keepers, after the estate was taken over by Government. Nor was it stated in the appointment orders issued to the petitioners that they were absorbed on a permanent basis. Hence, there can beno legal obligation of providing them with alternative jobs.
9. It is true that in filling up the posts of salaried gate-keepers the selection was made from amongst the gate-keepers remunerated on a commission basis and those who were considered suitable were selected. The petitioners were not selected because the competent authority thought that they were not qualified for the post. But the refusal of the competent authority to select them for the new posts would not, in the circumstances of this case, amount to termination of their services by way of punishment.
The selection became a necessity because of the retrenchment in the number of posts of forest gatekeepers and it was open to that authority in making such selection, to refuse to appoint any one who, according to him, was not qualified for the new post
10. I would, therefore, hold that there has been no infringement of the provisions of Article 311 of the Constitution, so as to justify our interference under Article 226. It is doubtless a matter for serious concern of Government whether these employees should be suddenly turned out of employment due to reorganization and retrenchment, and whether it will not be possible to fix them up in some other equivalent jobs.
This however, is a matter for the petitioners to represent before Government in the usual way, but an application under Article 226 is clearly misconceived.
11. The petitions are therefore rejected, but there will be no order for costs.
12. I agree.