V.S. Deshpande, J.
1. The legality of the termination of the temporary employment of the petitioner by one month's notice dated 29-7-1967 (Annexure H to the writ petition) is challenged in this writ petition as being contrary to Art. 311(2) of the Constitution under the following circumstances.
Recruitment of the Central Reserve Police Force is made by the Central Government under the Central Reserve Police Force Act, 1949 (hereinafter called the Act) and the Central Reserve Police Force Rules, 1955 framed there under (hereinafter called the Rules). Under Rule 16 all members of the Force shall be enrolled for a period of three years. At the end of the period, those not given substantive status or not declared as quasi-permanent shall continue as temporary employees liable to be discharged on one month's notice. Rule 108 is as follows:
'108 Probation and confirmation -
(1) The selected candidate shall be appointed or promoted to a superior post in the Force on probation for a period of two years.
(2) On the completion of the period of probation, the candidates shall, if considered fit for permanent appointment be confirmed in their appointments subject to the availability of substantive vacancies in permanent post.
(3) The Government may extend the period of two years specified in subrule (1).
(4) If on the expiration of the period of probation referred to in sub-rule (1) or of any extension thereof under sub-rule (3), as the case may be, the Government are of the opinion that a candidate is not fit for permanent appointment, or if at any time during such period of probation or extension they are satisfied that he will not be fit for permanent appointment on the expiration of such period of probation or extension, they may discharge him or pass such orders as they think fit.
(5) Where no action is taken by Government under sub-rule (2) or (3) or (4), the period after the prescribed period of probation shall be treated as an engagement from month to month terminable on either side on the expiration of one calendar month's notice in writing.
(6) A probationer may be required to pass such tests as may be prescribed including a test in Hindi before confirmation.
(7) On promotion to a superior post in the Force, the officiating service in that post or an equivalent post previously rendered may be allowed to count towards the probationary period at the discretion of the controlling authority'.
2. An offer of appointment was made to the petitioner by Under Secretary, Ministry of Home Affairs on 22-4-1963 (Annexure A to the writ petition) and the petitioner was appointed by the Secretary, Ministry of Home Affairs on 30th May 1963 (Annexure R/B to the written statement) as the Deputy Superintendent of Police (Company Commanders) in the Central Reserve Police in a temporary capacity. The work of the petitioner received unfavorable comments on 21-4-1965, 8-6-1965, 2-4-1966, 3-5-1966 and 20-5-1966.
3. The petitioner was posted as Quarter Master, 14th Battalion, Central Reserve Police, Ajmer by the Inspector General of Police, Central Reserve Police, in the first week of December 1966. The Deputy Inspector General of Police, Central Reserve Police, Ajmer (Respondent No. 3) requested the Inspector General of Police not to post the petitioner to Ajmer as the Deputy Inspector General of Police was not satisfied with the previous work of the petitioner and was not willing to take him as Quarter Master. The Inspector General of Police, however, did not change his orders and the petitioner was posted as a Quarter Master at Ajmer. The Deputy Inspector General of Police (Respondent NO. 3) inspected the work of the petitioner as a Quarter Master and commented very unfavorably on his work in a memorandum dated 26-3-1967 addressed to the Inspector General of Police. An extract of this memorandum was communicated to the petitioner who offered his Explanationn to the Inspector General of Police. An unfavorable assessment of the work of the petitioner for the year 1966-67 by the Inspector General of Police was communicated to him on 12-6-1967 (Annexure D to the writ petition) and was replied to by the petitioner on 4-7-1967. On 29-7-1967, the services of the petitioner was terminated by one month's notice which was as follows:
'Under Rule 108 (5) of the Central Reserve Police Force Rules, 1955, the President hereby gives notice to Shri. R.C. Roy, Deputy Superintendent of Police (Quarter Master), 14th Battalion, Central Reserve Police Ajmer, that his services shall stand terminated with effect from the date of expiry of a period of one month from the date on which this notice is served on or, as the case may be, tendered to him.
By Order and in the name of the President
Sd/- T.P. Issar,
Deputy Secretary to Govt.
traveling Allowance is payable to a member of the Central Reserve Police Force on discharge according to Rule 20 which is as follows:
'20 traveling allowances admissible to men discharged otherwise than at their own request - Any member of the Force discharged otherwise than at his own request shall be entitled to a free railway pass of the class to which he is entitled under the rules applicable to servants of the Central Government to the railway station nearest to his home. In the case of a member of the Force discharged for inefficiency the grant of the concession shall be subject to the condition that the Commandant is satisfied that the inefficiency is not due to willful negligence. This concession shall not be admissible to a person discharged for misconduct.' The traveling allowances was refused to the petitioner by letter dated 16th September 1967 which is as follows: 'Under provision of Rule 20, Shri. Roy not repeat not granted (.) due to discharge being for inefficiency resulting from willful negligence'.
4. The various grounds of challenge to the legality of the termination of the services of the petitioner stated in the original petition and in the additional grounds were summarised by Shri. Chatterjee, learned counsel for the petitioner, in his argument as follows:
I. The memorandum dated 26-3-1967 by the Respondent No. 3 against the petitioner made grave allegations and was malicious and false on the face of it.
II. The termination of the service of the petitioner was not a discharge simplicities but was founded on the memorandum dated 26-3-1967.
III. The letter dated 16-9-1967 admitted that the termination was for inefficiency resulting from willful negligence.
IV. The termination of the petitioner's services involved the following evil consequences, namely.
(a) forfeiture of traveling allowances under rule 20
(b) denial of fair opportunity to be considered fro confirmation on objective appraisal of the record of service and Rule 108.
(c) allegation of willful negligence against the petitioner as reason for his discharge being on the record of the Government would affect the petitioner's future prospects of employment, and
(d) the termination of his services attaches a stigma of willful negligence to the petitioner.
V. Sub-rule (5) of R. 108 conflicts with sub-rule (2) thereof and gives arbitrary power to the Government to assurance that his post would continue indefinitely and he would be considered for confirmation) to a casual month to month employee.
VI. Rule 108 (2) read with R. 108 (4) gave the Government sufficient power to confirm an employee even after the expiry of the period of probation or the extension thereof. This obligation of the Government however disappears. if the employee is to become a casual employee under Rule 108 (5).
VII. The termination of the petitioner's services should be construed as a dismissal or removal under Art. 310 of the Constitution. This power of the President cannot be delegated and, thereforee, the order of termination which is not passed by the President personally is void though expressed to be in the name of the President and is not protected by Art 77(2) of the Constitution.
5. The defense to the main petition was that the termination of the services of the petitioner was valid under R. 108 (5).The request of the petitioner for the grant of traveling allowance was decided in accordance with R. 20. But this decision was not material to the validity of the earlier order by which the services of the petitioner had been terminated. No separate reply was filed to the additional grounds raised by the petitioner at the threshold of the oral argument.
6. In substance, the order of discharge is attacked by the petitioner on three grounds, namely:-
(1) It is contrary to Aft, 311 (2) of the Constitution;
(2) It is void as it is not made or signed by the President personally; and
(3) Sub-rule (5) of R. 108 is invalid as being contrary to the rest of R. 108.
7. Ground No. 1 : The Services of a temporary Government servant can be terminated by the Government in two entirely distinct and different ways. On the one hand, such a Government servant holds office during the pleasure of the President. On a subjective assessment of his work, the Government may either decide to keep him in service or dispense with his services. Rule 108 (5) were dispensed with was a part of the service contract and conditions of the petitioner. The termination of the petitioner's services there under is, thereforee, complete in itself. It is not followed by any other consequences except the simple way available to the Government to terminate the services of a temporary Government servant.
8. On the other hand, the Government may intend to dismiss or remove a Government servant from his missal or removal lies in the punishment which is imposed thereby. The consequences of such dismissal or removal may be the forfeiture of service benefits already obtained and a positive bar for future employment under the Government. It is because of the punitive nature of the dismissal or removal that Art. 311(2) of the Constitution is attracted. No such person can be dismissed or removed except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges and until he is given a reasonable opportunity of making representation against the penality proposed to be imposed on him. It is this language of Art. 311(2) which is the key to the distinction between these two modes of termination of service. There can be no dismissal or removal of a person unless he has done something culpable. The framing of charges means that he has done something wrong with which he can be charges. It also shows that such charges are capable of being inquired into and decided objectively. A finding of guilty on such charges is followed by penalty. All this is contrasted with the first way which consists of a simple termination of services.
8-A. It is well-established that it is in the absolute discretion of the Government to adopt one of the above two alternatives. The Government servant has o right that a departmental inquiry must be held and he must be given an opportunity of being heard against any reasons which the Government may have for terminating his services. For, it is the essence of a service contract that the Government may dispense with the services of a temporary Government servant without having to assign any reasons for doing so or without being called upon to justify it. This is in contrast with an ordinary contract in which the Court has to decide which party has committed a breach. To succeed in his first ground of attack, thereforee, the petitioner must show that the termination of his services amounted to a dismissal or removal within the meaning of Art 311(2). As the actual order of discharge does not say so and does not impose any punishment on him, the burden of proof is on him to show that it amounts to dismissal or removal. Of course the form of the Order is not decisive and the petitioner is entitled to show that the real intention of the Government is to dismiss or remove him by way of punishment. But what is relevant is the intention of the Government in passing the order, namely, whether the Government simply intends to terminate the services or whether it intends to punish the petitioner. Such intention is to be distinguished from 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'. For, the Government always has some motive or reason of its action. It does not terminate the services of a temporary Government servant while keeping other temporary Government servants in service without any rhyme or reason. It is because it is not satisfied with the work of a particular Government servant that it dispenses with his services. This is why, as pointed out by the Constitution Bench in Champaklal Chimanlal Shah v. The Union of India, : (1964)ILLJ752SC . such action of the Government is not discriminatory and contrary to Art 16 of the Constitution. As pointed out at p. 264 (of SCR) = (at p. 1961 of AIR) of the same decision,
'even though misconduct, negligence, inefficiency 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 wholly irrelevant'.
The mere fact that there were allegations against the Government servant concerned which could from the basis of a departmental inquiry does not require the Government to hold one. The Government can say that it does not wish to harm the Government servant concerned by imposing a punishment on him but wants to take the line of least resistance by simply discharging him. The Government servant cannot complain if the Government does so.
9. The following decisions support the above legal position. In State of Orissa v. Ram Narayan Das, : (1961)ILLJ552SC a service rule required opportunity to show cause being given to a probationer before the termination of his services simplicter by way of discharge. Giving of such opportunity, thereforee, did not attract Art 311(2). In A.G. Benjamin v. Union of India, 1967 Serv Lr 185 a proposed departmental inquiry was dropped frankly because 'it would take a much longer time and we are not sure whether after going through all formalities we will be able to deal with the accused in the way he deserved' Even then the Supreme Court held that the discharge did not amount to a dismissal or removal by way of punishment. In Union of India v. R.S. Dhaba, 1960 Serv Lr 442 AIR 1969 Nsc 21 the discharge of Shri Dhaba was motivated by several complaint which has been made against him. But the order in itself did not say so and contained no stigma against him. It was, thereforee, upheld as not being by way of punishment. In State of Punjab v. Sukh Raj Bhadur, : (1970)ILLJ373SC charges were framed and communicated to the Government servant but the departmental inquiry was not pursued. Instead, the Government adopted the alternative way of simply terminating the services of Sukh Raj Bahadur. Such termination was held not amounting to a dismissal or removal.
10. On the other hand in Madan Gopal v. State of Punjab, : (1964)ILLJ68SC a departmental inquiry was held and yet the words 'termination' was used and, thereforee, the order amounted to a 'dismissal'. In State of Bihar v. Gopi Kishore Prasad, : (1960)ILLJ577SC , the Government seems to have proceeded under Art 311(3) and hence the termination of the services was held to be a punishment and a stigma. In Jagdish Mitter v. The Union of India, : (1964)ILLJ418SC , even the discharge of a temporary Government servant only after a preliminary inquiry and without a formal regular inquiry had to be held to be by way of punishment because the order branded the Government servant are being 'undesirable to be retained in Government service' and so amounted to a stigma and punishment. in State of Bihar v. Shiva Bhikshuk Mishra, 1970 Serv Lr 863 AIR 1971 Nsc 18 the Deputy Inspector General had specifically recommended to the Inspector General that Shri Mishra should be reverted. This recommendation was made after an inquiry into his conduct. It was held, thereforee, that the order of reversion was directly based on the recommendation of the Deputy Inspector General and, thereforee, the reversion was by way of punishment. The fact that the order in itself did not say so could not prevent it from being a punishment. In R. K. Bhatt v. Union of India, 1970 Serv Lr 867 1971 Lab Ic 3 the order purported to be of simple termination of services. Had it been so then Sri Bhatt would have been entitled to priority by the Employment Exchange. This priority was refused to him because the authorities terminating the services informed the Employment Exchange that the real reason for the termination of Shri Bhatt's service was different. Secondly Shri Bhatt had been suspended and denied full pay for sometime before his services were terminated. if the Government intended to terminate his services simplicities it could not have refused to pay him the full pay during the period of suspension. It is for these reasons that the case was remanded for reasons that the case was remanded for further inquiry by the Supreme Court. In Jagdish Prasad Shastri v. State of U.P., 1970 Serv. Lr 938 AIR 1971 Nsc 38 the name of the appellant had been struck off from the list of Panchayat Secretaries eligible for appointment as Panchayat Inspectors without giving him a reasonable opportunity of explaining the allegations which had been made against him which lent support to the claim of the appellant that the said order involved evil consequences and also that it was mala fide. Hence the case was remanded. In Appar Apar Singh v. The State of Punjab, 1971 Serv Lr 71 1971 Ic 1 (SC) the Committee which inquired into the affairs of the college had specifically recommended that the appellant needed 'some exemplary punishment without being called upon to face a regular departmental enquiry'. The Government accepted this recommendation and thereforee, the order of reversion was held to be by way of punishment.
11. On a view of the case-law the following criteria may be offered to distinguish a simple termination of services from a dismissal or removal by way of punishment testing each of them on the facts of the present case.
(1) An order passed on the assessment of the work of a Government servant 'made in the ordinary course of administrative routine' (a pregnant phrase under by Grover, j. in Shiva Bhikshuk Mishra's case, 19709 Serv Lr 863 AIR 1971 Nsc 18 would be regarded as a termination of services simpliciter. The writing of the annual confidence reports on the work of a Government servant is done in the routine course of administration. If the services of a Government servant are terminated as a result of such assessment, this would be in the routine course of administration by way of a discharge simpliciter. If the observations made in such confidential reports are to be regarded as charges to be inquired into in a departmental inquiry according to the provisions of the Art 311(2) of the Constitution then the Government would be prevented from exercising their right under Art 310 and the service rules to simply terminate the services of a Government servant without imposing any punishment on him. This is why the termination of services after a preliminary inquiry into bad confidential reports but without any stigma in the order of termination itself did not attract Art. 311(2) in Ram Gopal Chaturvedi v. State of Madhya Pradesh, : (1970)ILLJ367SC . The fourth proposition laid down at p. 244 of SCR) = fat p. 1095 of AIR) of Sukh Raj Bahadur's case referred to above thereforee is that an order of termination of services is unexceptional form preceded by an inquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service does not attract the operation of Art 311 of the Constitution. The Explanationn obtained from the petitioner R.C. Roy about the adverse remarks in his confidential report cannot be placed higher than such inquiry to ascertain whether he should be retained in service or not. In R.L. Butail v. Union of India, 1970 Ser Lr 226 Air 1971 Lab Ic 2 it was emphasized by the Supreme Court that the adverse entries in a confidential report are based on a general assessment and need not be supported by specific instances. The discharge of R.C. Roy, the petitioner in the present case, falls into this category. The assessment of his work was consistently unfavorable. The inspector General was only the worst of such unfavorable assessments. It is said that the Deputy Inspector General was biased against the petitioner. This contention is based mainly on the fact that the Respondent NO. 3 had tried to persuade the Inspector General of Police not to post the petitioner to Ajmer. But the petitioner himself admits in paragraph (9) of the petition that the Respondent NO. 3 did so because he was the petitioner and was not willing to take him as a Quarter Master under him. An unfavorable observation on the previous work of the petitioner cannot be said to be a bias against him. No personal animus or private enmity is alleged against the Respondent No. 3 by the petitioner. It cannot be said, thereforee, that the Respondent No. 3 was actuated by malice in any of the observations made by him against the work of the petitioner. The memorandum dated 26-3-1967 sent by Respondent NO. 3 to the Inspector General of Police is based on the actual work of the petitioner. It is to be noted that it only recommends that the petitioner be transferred and not that his services should be terminated. Actually the petitioner was transferred from Ajmer as a result of this recommendation. But transfer was not a punishment. The confidential report of the petitioner for the year 1966-67 was written by the Inspector General of Police against whom no malice or mala fides are even suggested. This was communicated to the petitioner on 12-6-1967 (Annexure D to the writ petition). The notice of termination of the petitioner's services dated 29-7-1967 follows this adverse confidential report preceded by numerous other bad confidential reports. In fact all the confidential reports and assessments of his work on record are adverse to the petitioner. The petitioner has not been able to show a single good confidential report obtained by him.
(2) On the other hand, if outside the course of administrative routine some incident takes place or the Government servant concerned is alleged to have committed some culpable wrong calling for an inquiry then the matter falls outside the course of administrative routine. It becomes a specific incident or charge as instanced by the decisions in Shiva Bhikshuk Mishra, 1970 Serv Lr 863 AIR 1971 Nsc 18; Jagdish Prasad Shastri, 1970 Serv Lr 938 AIR 1971 Nsc 38; R.K. Bhatt, 1970 Serv. Lr 867 1971 Lab Ic 3 (SC) and Appar Apar Singh, 1971 Serv Lr 71 1971 Lab Ic 1 (SC) referred to above. No such incident or charge outside the course of administrative routine was held out against the petitioner R./C. Roy. All the adverse comments against him were strictly concerned with his work. There was, thereforee, nothing to be inquired into against him nor could nay departmental inquiry be held. The inefficiency and negligence and the kink in his character were only defects of capacity and suitability the assessment of which could only be subjective. There could be no objective decision on them after the framing of any charges and any inquiry.
(3) If there are any allegations against the Government servant concerned which could become the subject matter of charges and inquiry then the question arises whether these allegations were only a motive or an inducing factor of taking routine administrative action of termination of services simplicities or whether they were the foundation of sunitive action. This is the test laid down in Shiva Bhikshuk Mishra's case 1970 Serv Lr 863 AIR 1971 Nsc 18 after considering the five propositions laid down by the Constitution Bench in Sukh Raj Bahadur's case, : (1970)ILLJ373SC . There were no allegations against the petitioner which could form charges in a departmental inquiry. No question thereforee arises at all of such allegations being the foundation of any punitive action against him. Nor was the action taken against him in any sense punitive. Nor does the recorded anywhere disclose any intention to punish the petitioner.
(4) Sometimes an innocuous proceedings against a Government servant may become punitive merely because of stigma cast on him in terminating the services as happened in Jagdish Mitter's case. : (1964)ILLJ418SC . It is vehimently contended by the learned counsel for the petitioner that the denial of the traveling allowance after discharge to the petitioner was on the ground that his discharge was due to inefficiency resulting from willful negligence. The test whether such a stigma vitiates the order of termination of services and makes it void as being an order of dismissal or removal is whether the stigma is contained in the order itself or is at any rate inseparable from the order. If it is the essence of the order then it cannot be removed without the order itself being quashed. This is not so in the present case. The order of termination of the petitioner's services is expressly issued under Rule 108 (5) and does not cost any stigma on him. Under R. 20, traveling allowance to return home after termination of services is available to any person discharged otherwise than at his own request including a person discharged for inefficiency. It is not, however, available to a person discharged for inefficiency due to willful negligence or for misconduct. Whether a person is discharged merely for inefficiency or for inefficiency due to willful negligence is to be determined by the Commandant concerned. The decision of the Commandant under Rule 20 is subsequent to Central Government under Rule 108 (5). The deciding authorities are different as also the occasions and the decisions are also passed on different subjects. The wire received from the office of the Inspector General of Police, New Delhi by the Deputy Inspector General of Police, Ajmer has been forwarded to the petitioner by the Commandant concerned. The statutory authority to grant or withhold the traveling allowance was the Commandant and not the Inspector General of Police or the Deputy Inspector General of Police. The decision was thereforee of the commandant. At any rate it was not of the Central Government which is distance from all these officers. Secondly the decision was wrong. The Commandant could read and construe only the actual order of termination of services. He was not entitled to probe into the confidential reports against the petitioner to find out the motive behind the termination of his services. The Commandant has absolutely no material before him to refuse traveling allowances to the petitioner on the ground that the latter's discharge was due to willful negligence. We, thereforee, quash the communication dated 16-9-1967 from the Commandant to the petitioner refusing grant of traveling allowance to the petitioner. We hold that the petitioner was entitled to the traveling allowance under rule 20. The stigma cast on the petitioner is thus removed without affecting the validity of the order terminating the services.
(5) In determining the intention of the Government in passing the order of discharge, the order itself must be primarily examined. According to the second proposition at page 244 (of SCR) = (at p. 1095 of AIR) of Sukh Raj Bahadur's case as also according to the decision in Jagdish Miter's case : (1964)ILLJ418SC referred to above 'the circumstances preceding or attendant on the order of termination of service have to be examined in each case, the motive behind it being immaterial'. There is nothing in the confidental reports preceding the order of termination of services and in the order of termination itself showing that the petitioner was being punished by any of dismissal or being punished by way of dismissal or removal . Learned counsel for the petitioner, however, contends that the subsequent communication of 16-9-1967 refusing grant of traveling allowance to the petitioner should be construed as disclosing the real intention of the Government in terminating the petitioner's services. In Union Territory of Tripura v. Gopal Chandre Dutta Choudhury, : (1963)IILLJ633SC a police constable was discharged by the Superintendent of Police under Rule 5 of the Central Services (Temporary Service) Rules, 1949 which correspondents to rule 108 (5) in the present case. His appeal to the Chief Commissioner was rejected on the ground that he was an ex-convict for theft. It was argued for him that the subsequent observation of the Chief Commissioner showed the real reason for the termination of his services. As there was nothing on record to show that he was an ex-convict for theft, this contention was repelled by the Supreme Court. At p. 271 (of SCR) = (at p. 604 of AIR) the court also distinguished between the order of termination passed by the order of termination passed by the Superintendent of Police and the later order passed by the Chief Commissioner which were two different authorities. In the present case also the remarks from confidential reports to the petitioner the words 'carelessness and negligence' were used against the petitioner does not mean that his discharge itself was for inefficiency due to willful negligence. Secondly the communication of these adverse remarks was by the Inspector General of Police and the refusal of traveling allowance was by the Inspector General of Police and the refusal of traveling allowance was by the Commandant. Both of them were distinct form the Central Government which terminated the services of the petitioner. This is to be contrasted with R.K. Bhatt's case in which the correspondence allegedly disclosing the real reason for termination of Bhatt's services was by Respondent No. 3 who had himself presumably suspended and presumably later discharged him. In Delhi Transport Undertaking v. Babir Saran Goel, : (1970)IILLJ20SC the respondent was discharged simplicities under regulation 9(b). Sometimes later it was revealed that the real reason for the discharge was the alleged misconduct of the respondent. The High Court held that the order was a mere camouflage for inflicting punishment. But the Supreme Court allowed the appeal against the decision of the High Court on the ground that the misconduct of the respondent could only be a motive for the termination of his services. But the order of termination was not by way of punishment.
(6) The forelfurte of services benefits already accrued was laid down by the Supreme Court in Purushottam Lal Dhingra v. Union of India, : (1958)ILLJ544SC as one of the tests to determine if the termination was by way of punishment. Learned counsel for the petitioner argued that in the present case the traveling allowance denied to the petitioner was such an evil consequence of the termination. We do not agree. As already shown above, the grant of traveling allowance is not a part of the order of termination. It is a separate matter to be decided subsequently by a different authority. The order disallowing the traveling allowance was wrong and has been set aside without affecting the validity of the order of termination. The petitioner has thereforee, not forfeited any traveling allowance and this question of any evil consequences following the termination of his service does not arise at all.
(7) Lastly the rule is that the Government has the power to terminate services of temporary Government servants under the rules of service or contract. It is only by way of an exception to this rule that it can be shown that the order was mala fide or by way of camouflage. It is very rarely that the Government can be shown to have committed a fraud on the pour by using it to camouflage a dismissal or removal. The Courts must, thereforee, be on guard in scrutinising any such suggestion of fraud on power and it would be a very rare case indeed in which such an exception could be proved. It is clear to us that the present case is covered by the rule and is not an exception to it. The impugned order being of termination of services simplicities is, thereforee, valid.
12. Ground No. 2:- Reliance was placed by the learned counsel for the petitioner on the recent decision of the Supreme Court in Sardari Lal v. Union of India, Civil Appeal No. 576 of 1969, D/- 21-1-1971 = (reported in : 1971CriLJ25 ) for the proposition that the President was personally bound to pass the order of termination of petitioner's services inasmuch as this power of the President was exercisable under Art. 310 of the Constitution and could not be delegated by him. The order of termination, though expressed to be in the name of the President, was not protected by Art. 77(2) of the Constitution. On a careful construction of the Supreme Court decision this argument is seen to be untenable. The law laid down by the Supreme Court in State of Uttar Pradesh v. Babu Ram Deka v. General Manager, N.E.F. Railways, : (1964)IILLJ467SC and in Sardari Lal's case, : 1971CriLJ25 is that the exercise of the pleasure of the President under Art. 310 is outside the scope of the executive power of the President exercisable under Art 53 of the Constitution. But this did not prevent the Legislature from making the law and the President from making rules under the proviso to Article 309 'prescribing the procedure by which and the authority by whom the said pleasure can be exercised' The Central Reserve Police Force Art, 194 and the Rules framed there under were such a law and rules. The power to appoint the petitioner and to terminate his services was exercisable there under by the Central Government Section 3(8)(b) of the General Clauses Act defines 'Central Government' as the President in relation to anything done or to be done after the commencement of the Constitution. The Central Government is not an individual but an organisation. Whether a function is exercised by the President as the Head of the Union of India or whether a power is vested by the Constitution on the President as such as a persona designate, the procedure for the exercise of the power would be the same, namely either the one prescribed by the Rules of Business framed under Art. 77(3) of the Constitution or under the law and the rules made under the proviso to Art. 309 of the Constitution. When an authorised officer is acting in the name of the Central Government or the President, he is not acting as a delegate. He is merely authenticating the order of the President or the Central Government according to the prescribed procedure. The order is that of the President or of the Central Government according to the prescribed procedure. The order is that of the President or of the Central Government and not of the officer who authenticates it. The legal position in both these respects was discussed and clarified by one of us (Deshpande, J.) in a previsions Division Bench decision of this Court in D.S. Sharma v. Union of India, : AIR1970Delhi250 . This is why the appointment of the petitioner was made by the Ministry of Home Affairs under the signature of an Under Secretary of that Ministry. The order was not signed by the President personally. For the same reason the termination of his services was made by the Central Government in the name of the President of India and the order was authenticated by an Under Secretary. In view of the bar of Art. 77(2) of the Constitution it is not open to this Court to inquire whether the termination was made in fact by the President or not. The decision in Sardari Lal's case, : 1971CriLJ25 was concerned with the satisfaction of the President under Proviso (c) to Art 311(2) of the Constitution. Such satisfaction had to be that of the President alone. Their Lordships did not hold that an ordinary order of termination of services of a temporary Government servant had to be passed personally by the President. We, thereforee, hode that the order of termination was not vitiated and was valid.
13. Ground No. 3: Reading R. 16 with R. 108 it is clear that every member of the Central Reserve Police Force is initially appointed in a temporary capacity. He is considered to be an probation for a period of two years. Under Rule 108 (2) he shall, if considered fit for permanent appointment, be confirmed in the appointment on the completion of probation. The words ' if considered fit' do not mean that the Government must give a decision either way. It may, thereforee, extend his probation under Rule 108 (3). If the Government is satisfied that the officer is not fit for permanent appointment, then it will discharge him under Rule 108 (4) or pass such orders as it thinks fit. but if the Government is not immediately so satisfied it is not required to pass an order of discharge or any other particular order. It may simply continue the officer from month to month under the Rule 108 (5). We, thereforee, see no inconsistency between Rule 108 (5) and the rest of the rule 109. The argument of the learned counsel for the petitioner is that the Government can shirk its duty to consider whether the petitioner is fit for consideration or not under R. 108 (2) because by mere inaction of the Government, the officer comes under Rule 108 (2) because by mere inaction of the Government, the officer comes under Rule 108 (5). He is thus deprived of the right tobe considered for confirmation by the Government under Rule 108 (2). We are unable to agree. Firstly, as stated above, the Government is not required to pass any order of confirmation or to express an opinion that the officer is not fit for confirmation at the end of the two years of probation. This is not because R. 108 (5) helps the inaction of the Government. Even in the absence of Rule 108 (5) the law is well settled that on the failure of the Government to confirm a probationer at the end of the period of probation, the probationer continues as a probationer and is not automatically confirmed unless the rule mandatorily requires the Government not to extend the period of his probation. Secondly there is neither any pleading nor any proof by the petitioner that the Government did not actually consider him for confirmation at the end of the period of his probation. The petitioner is not, thereforee, entitled to assume that the Government did not so consider him and base this argument on such assumption. Further, we are of the view that the Government had the power to confirm the petitioner even after he came to be governed by Rule 108 (5) not having been confirmed under Rule 108 92) and not having been discharged under Rule 108 (4). It cannot be said, thereforee, that the petitioner came to be governed by Rule 108 (5) meant that he could not be considered for confirmation or could not be confirmed by the Government. For these reasons, we see no force in this argument at all and hold Rule 108 (5) as valid.
14. The writ petition is, thereforee, dismissed but without any order as to costs.
15. Writ petition dismissed.