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Shakuntla Chopra Vs. Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtDelhi High Court
Decided On
Case NumberCivil Writ Petition No. 3876 of 1982
Judge
Reported in1983(5)DRJ210
ActsCentral Civil Service (Temporary Service) Rules, 1965 - Rule 3
AppellantShakuntla Chopra
RespondentUnion of India and ors.
Advocates: M.L. Bhargav,; D.P. Wadhawa,; R.K. Anand and;
Cases Referred(Roshan Lal Tandon v. Union of India
Excerpt:
.....revoked by the government on 13-10-1982 without giving any reasons.; that quasi-permanency is a status. the service of the petitioner was governed by statutory rules. before the said status and interest of the petitioner could be affected, she must have been given an opportunity of being heard.; that even on facts disclosed there was no justification for revoking the quasi-permanency declaration. the order dated 13-18-79 set aside. - - and (ii) if the appointing authority, being satisfied, having regard to the quality of his work, conduct and character, as to his suitability for employment in a quasi-permanent capacity under the government of india, has made a declaration to that effect. if the actings here complained of are a nullity, as i hold them to be, the petitioner has a..........of a person is his legal position or condition. for example, marriage is a status. celibacy is a status. quasi-permanency is a status. in public employment the status of permanency means that the holder of the office enjoys a security of tenure. he holds a public position fortified by statute. it is not a question of private employment to be answered solely by private law on the terms of a mere contract of employment. it is a statutory employment. the statutory rules confer on the petitioner a status. her status is supported by statute. she holds an office or status which is capable of protection. (see mulloch v. aberdeen corp. (1971) 1 w.l.r. 1578). the government employment is a matter of status. 'the legal position of a government servant is more of status than of contract.' 'in.....
Judgment:

Avadh Behari Rohatgi, J.

(1) The petitioner, Smt. Shakuntla Chopra, is working as a Stenographer Grade Iii in the Principal Accounts Office of the Ministry of Commerce, New Delhi. She has been working there for the last six years or so. In 1982, the Assistant Controller of Accounts by letter dated 5th October, 1982 required her to appear at a special examination which was going to be held on 12th December, 1982 for the purpose of regularising her in service. She declined to appear at the examination. Her case is that she is not covered by the scheme which was devised in 1982 by the Department of Personnel and Administrative Reforms.

(2) A large number of lower division clerks were working in various offices of the Government but they had not been drafted in the Central Secretariat Clerical Services. So a request was made by these people who were ad hoc appointees for their regularisation in the service in view of the fact that they had rendered a number of years service and had become overage to appear at any competitive examination. The Department of Personnel considered this request sympathetically and devised the method of holding a special qualifying examination to determine the eligibility of these persons to become regular members of the Central Secretariat Civil Service. The same thing was done for various Stenographers who had been appointed on an ad hoc basis through the Employment Exchange. In order to become members of the Central Secretariat Stenographers Service (C.S.S.S), they were required to appear at this special examination on 12th December, 1982.

(3) The Assistant Controller of Accounts thought that the petitioner was an ad hoc appointee and had been recruited through Employment Exchange and thereforee in order to be eligible for C.S.S.S. she must appear at the special examination. But, as I have said, the petitioner refused to appear at the examination because she said that she was not governed by the scheme which I have outlined above. The Assistant Controller then by his letter dated 10-11-1982 threatened her that if she does not appear at the special qualifyins; examination 'her services are liable to be terminated now under the provisions of C.C.S.(T.S.) Rules, 1965'. The petitioner, thereforee, brought this writ petition on 1-12-1982 questioning the legality of the decision of the Government in compelling her to appear at the special qualifying examination and the decision that she was an ad hoc appointee whose services were to be regularised in accordance with the memoranda of the Government of India dated 7th August, 1982 and 21st August, 1982, which contain the scheme of qualifying special examination.

(4) The petitioner's case is that she got an offer of a temporary post of Stenographer in the scale of Rs. 330-560 on 19-11-1976 in the Principal Accounts Office of the Ministry of Commerce. This offer she accepted on 20th November, 1976. She was given the following appointment letter :-

'CONSEQUENT upon her having joined as a temporary Stenographer Gr. Ill, Miss Shakuntala Arora has been appointed as 'Stenographer Gr. Iii in the scale of Rs. 330-10-380-EB-12-500-EB-15- 560 w.e.f. 30-10-1976 (FN) on a purely temporary basis.' So she continued in service from 30th October, 1976. On 15th June, 1977, she qualified some shorthand tests. She was at once given an advance increment. Instead of Rs. 330.00 she started getting Rs. 340.00 right from 30th of October, 1976.

(5) The Controller of Accounts found her work satisfactory. On 27th November, 1979, he made her quasi-permanent. This is the office order No. 70 which he issued :-

'IN pursuance of Rule 3 and 5 of the C.C.S. (Temporary Service) Rules, 1965, Controller of Accounts, Principal Accounts Office, Ministry of Commerce and Civil Supplies, New Delhi has been pleased to appoint Smt. Shakuntala Chopra in Quasi-Permanent capacity in the grade of Stenographer Grade Iii w.e.f. 30-10-79) (Forenoon)'.

Though this letter was signed by the Pay & Accounts Officer, it is the order of the Controller himself as is stated in the body of the order. This order was passed under Rule 3 of the C.C.S. (Temporary Service) Rules, 1965. Rule 3 says :-

'3.A Government servant shall be deemed to be in quasi-permanent service :- (i) if he has been in continuous temporary service for more than three years; and (ii) if the appointing authority, being satisfied, having regard to the quality of his work, conduct and character, as to his suitability for employment in a quasi-permanent capacity under the Government of India, has made a declaration to that effect.'

The order dated 27th November, 1979 satisfies both these conditions. Firstly, the petitioner had been in continuous temporary service for more than three years. Secondly, she was found suitable for employment in a 'quasi-permanent capacity'. The Controller, thereforee, made a declaration of quasi-permanency we.f. 30th October, 1979. The declaration confers a statutory status on the petitioner. Her case is founded on this declaration of status. She denies that she was an ad hoc appointee She denies that she was appointed through the Employment Exchange. Her whole case is based on this declaration of quasi-permanency which was made by the appointing authority, namely, the Controller of Accounts. The Controller of Accounts appointed her. The Controller of Accounts gave her this declaration.

(6) The Assistant Controller of Accounts on 13-10-1982 revoked this declaration of quasi-permanency. He gave no reason for this revocation. All that he said was this : -

'THE Office Order No. 70 dated 8th November, 1979 declaring Smt. Shakuntala Chopra, Stenographer Grade Iii (ad hoc) as quasipermanent w.e.f. 30th October, 1979 (EN) is hereby revoked.'

The work 'ad hoc' is a new addition. It does not find any place in Office Order No. 70 dated 27th of November, 1979 which I have quoted above. Not only is this an inaccurate statement of the nature of her appointment, it is also inaccurate as the date of the office order is wrongly given as 8-1 1-79. But date is inconsequential. What is relevant is that on the view that the petitioner was an ad hoc employee, the declaration of quasi-permanency was revoked. The Principal question in this writ petition is whether this revocation is justified. The revocation order alters her status fundamentally. From a quasi-permanent servant it transforms her into an ad-hoc employee. The petitioner, thereforee, prays that this order of revocation should be set aside as it has illegal been made.

(7) The Central question in the case is whether the order dated 27th November, 1979 making the petitioner a quasi-permanent employee was validly revoked. If this order stands and the revocation is illegal, no further question will arise for decision, it is not the case of the Union of India that even those who quasi-permanent were required to appear at the qualifying examination. The special qualifying examination was meant only for the ad- hoc employees who had rendered at least one year's service as on 1-8-1982. The passing of that examination made them eligible to become regular members of the C.S.S.S. But if the petitioner was not an ad-hoc appointee and had attained the status of quasi-permanency before 7th August, 1982 when the office memorandum was issued by the Department of Personnel and Administrative Reforms announcing that the special qualifying examination will be held on 12th December, 1982 nothing else will survive for decision.

(8) This examination was strictly limited to ad-hoc appointees. This was further made clear by the office memorandum dated 21th August) 1982. On the strength of there two office memoranda the petitioner was being compelled to appear at the special examination on pain of termination of her service. The petitioner protested against the order requiring her to appear at the special examination. Her whole case was that she had obtained a declaration in terms of Rule 3 of the C.C.S. Rules as early as 27th November. 1979. If this declaration can not be revoked, it will be conclusive so far as her status is concerned. The truth is that this declaration of quasi-permanency is her defensive armour, a shield of protection. This is the foothold and handhold of her security.

(9) The main ground on which this declaration dated 27th November, 1979 is said to have been revoked is this. In the counter-affidavit it is averred that the appointing authority of Stenographer Grade Iii is the Deputy Secretary to the Government of India under Rule 9(1) of C.C.S.(C&A;) Rules and not the Controller of Accounts. It is solely on this ground that the revocation has been supported.

(10) This defense is based on false assumptions. The petitioner was given the declaration of quasi-permanency by the Controller of Accounts. Under Rules 3 and 5 of the C.C.S. (Temporary Service) Rules, 1965 he was 'pleased to appoint Smt. Shakuntala Chopra in quasi-permanent capacity in the grade of Stenographer Grade Iii w.e.f. 30th October, 1979 (FN)'. From this order it appears that the Controller of Accounts was the appointing authority of the petitioner. He was, thereforee, competent under Rule 3 to make the declaration of quasi-permanency. The order of revocation was passed by the Assistant Controller of Accounts on 13-10-1982. He had no authority to do so. If the case of the Government is that the appointing authority of the petitioner was the Deputy Secretary, and not the Controller of Accounts, there is no power in the Assistant Controller of Accounts to rescind or revoke the order of the Controller of Accounts.

(11) Assuming for a moment that the Deputy Secretary is the appointing authority, it is only the appointing authority who can make the order under Rule 3 and if it is so, he alone has the power to revoke. The Assistant Controller of Accounts does not come into the picture at all. The Controller of Accounts and the Deputy Secretary are the only contenders for power under Rule 3 as the 'appointing authority' of the petitioner.

(12) On an examination of the relevant rules it appears to me that this order of revocation dated 13-10-1982 must be held to be illegal for a variety of reasons. One is that the Assistant Controller had no power to make it. He cannot rescind the order of the Controller of Accounts. It has not been pleaded in the defense that the order dated 13-10-1982 was passed by or with the concurrence of the Controller of Accounts.

(13) Secondly, there is no provision in the C.C.S. Rules for the revocation of the declaration made by the appointing authority under Rule 3. Once given it cannot be revoked except on the ground that it was obtained by fraud. The question of determining the appointing authority under Rule 3 is essentially for the master. The Government servant is not bothered. He cannot question the authority of the master to appoint him. On a reference to the Central Civil Service (Classification, Control and Appeal) Rules, it appears to me that the provision on which the Government relies has not application. The entry on which reliance is placed reads as under :- - SI. Description No. of service Appointing Authority Authority competent to impose penalties and penalties which Appellate Authority it may, impose (with reference to item numbers in Rule-11) 1. is Central Secretariat Stenographers Service Grade-III Deputy Secretary or Director Cadre Authority Not relevant for our present purpose. The Deputy Secretary will become the 'appointing authority' of the petitioner if it is admitted that the petitioner belongs to the Central Secretariat Stenographers Service Grade III. But that is not the case of the Government. The memoranda of 7th August, 1982 and 21st August, 1982 are based on the assumption that ad-hoc appointees are not members of C.S.S.S. In order to regularise their services and to make them members of C.S.S.S. it was proposed to hold a qualifying special examination. To say that she belongs to C.S.S.S. Grade Iii is a clear admission to petitioner's case. On this footing she must be held to be right. The Deputy Secretary will become the 'appointing authority' if she is held to be a member of the C.S.S.S. already. If she is a member of C.S.S.S. why ask her to appear at the examination, On the Government's own reasoning it appears to me that the Controller of Accour.ts is the 'appointing authority' of the petitioner under Rule 2(iii) of the C.C.S. (C.C. & A.) Rules - '2. In the rules unless the context otherwise requires, (a) 'Appointing authority', in relation to a Government servant means:- (i) the authority empowered to make appointments to the service of which the Government servant is for the time being a member or to the grade of the Service in which the Government servant is for the time being included, or (ii) the authority empowered to make appointments to the post which the government servant for the time being holds, or (iii) the authority which appointed the Government servant to such Service, grade or post, as the case may be, or (iv) where the Government servant having been a permanent member of any other Service or having substantively held any other permanent post, has been in continuous employment of the Government, the authority which appointed him to that service or to any grade in that Service or to that post, whichever authority is the highest authority'. The Government counsel relies on 2(a)(i). The petitioner relies on 2(a)(ii). I have shown the fallacy in the reasoning of the Government. thereforee, the appointing authority in her case under 2(a)(iii) is the authority which appointed to the post. He was the Controller of Accounts. The Controller of Accounts appointed her. The Controller of Accounts granted the declaration in her favor. Nothing more is required. This is a complete answer to the defense raised by the Government against her

(14) Rule 2(a)(iii) lays down a pragmatic test. Find out the authority which appointed the Government servant. That is his appointing authority. Rules 2(a)(iii) does not use the words 'empowered to make' as used in Rule 2(a)(i) and (ii). It is a simple plain test.

(15) There is yet another reason. Quasi-permanency is astatus. It is the next step in the life of a temporary servant. The letter of appointment of the petitioner shows that she was appointed on 'a purely temporary basis.' It is stated in the offer. It is repeated in the letter of appointment. The Temporary Service Rules of 1965 applied to her. Under Rule 3 she will be deemed to be a quasi-permanent employee if the declaration is made in her favor, 'having regard to the quality of her work, conduct and character and suitability as to employment.' Of this the appointing authority is the judge. The Assistant Controller is not the judge. Nor the Deputy Secretary. They go out of the picture. If the appointing authority is the Deputy Secretary as has been contended, the highest that can be argued is that the Deputy Secretary could revoke the order, assuming that there is power to revoke. Or, as I have said, if it has been obtained by fraud the appointing authority may revoke. Now if the appointing authority of the petitioner was the Deputy Secretary, it must be shown that it is he who appointed the petitioner in 1976. At that time the Deputy Secretary was nowhere in the picture. The Principal Accounts Office was under the charge of the Controller of Accounts. He made the appointment. So the argument that the Deputy Secretary is the appointing authority will necessarily break down if we turn to the letter of appointment and the declaration granting quasi-permanent status to the petitioner.

(16) There is still another reason why I must hold that the order of revocation is illegal. Quasi-permanency is a status. Before a person's rights and interests and status are affected, she must be given an opportunity of being heard. The petitioner's appointment is governed by statutory rules. It is not a question of more contract. It is essentially a question of status. No opportunity was given to the petitioner before the order of revocation was passed. This order has adversely affected her. See how far-reaching is the effect of the order dated 13th October, 1982. From quasi-permanency status the petitioner by one stroke of pen was reduced to a mere ad hoc. She was at once put outside the pale of permanency. As ad hoc she can be dismissed with the maximum of ease. Quasi-permanency, on the other hand, means as if she were permanent. It promises a security of tenure. Quasi-permanency is a status analogous to that of permanency. Having given that legal status she cannot be reduced to nothingness. The way she was treated as adhoc shows that her status vanished into thin air and she became dismissible at pleasure. She was reduced to a cipher to all intents and purposes.

(17) If such are the far reaching consequences of an order on the service of a person he must be heard before any action is taken. On this short ground I would set aside the order dated 13th October, 1982. The petitioner has a right and interest to challenge any unlawful act that interferes with her status. If the actings here complained of are a nullity, as I hold them to be, the petitioner has a clear right to have the fact declared by the Court. The action of Assistance Controller of Accounts does not accord with the standards of fairness that should have been observed. The function of the courts is to see that lawful authority is not abused by unfair treatment. The purpose of writ jurisdiction is to ensure that the individual is given a fair treatment by the authority to which he has been subjected. (Chief Constable v. Evans (1982) 3 All E.R. 141 per Lord Hailsham .

(18) Neither principle nor policy would serve to deprive the courts of jurisdiction to control the proceedings of a judicial or quasi-judicial character the outcome of which might affect the rights or liberties or status of a subject. The question of status is of importance in jurisprudence. The status of a person is his legal position or condition. For example, marriage is a status. Celibacy is a status. Quasi-permanency is a status. In public employment the status of permanency means that the holder of the office enjoys a security of tenure. He holds a public position fortified by statute. It is not a question of private employment to be answered solely by private law on the terms of a mere contract of employment. It is a statutory employment. The statutory rules confer on the petitioner a status. Her status is supported by statute. She holds an office or status which is capable of protection. (See Mulloch v. Aberdeen Corp. (1971) 1 W.L.R. 1578). The Government employment is a matter of status. 'The legal position of a Government servant is more of status than of contract.' 'In such contracts as those of service the tendency in modern times is to withdraw the matter more and more from the domain of contract into that of status.' (Roshan Lal Tandon v. Union of India, : (1968)ILLJ576SC . An adverse action affects the life, career, and pension of a Government servant. The principles of natural justice must be observed before an adverse decision, such as revoking quasi-permanency, is taken. This is the sum total of her case.

(19) The result will, thereforee, be that the petitioner continues to be a quasi-permanent employee under Rule 3 of the C.C.S. Rules. She cannot be required to appear at the special qualify ing examination. Nor can her services be terminated on the ground that she has not appeared in the special qualifying examination under the two office memoranda dated 7th August, 1982 and 21st August, 1982.

(20) For these reasons the petitioner succeeds. The writ petition is allowed. The order dated 13th October, 1982 is set aside and quashed. The memorandum dated 10-1 1-1982 containing the threat that 'Petitioner's services are liable to be terminated' is also quashed and set aside. The parties are left to bear their own costs.


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