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Union of India (Uoi) and ors. Vs. N.P. Sumra and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtGujarat High Court
Decided On
Judge
Reported in(1980)2GLR140
AppellantUnion of India (Uoi) and ors.
RespondentN.P. Sumra and ors.
Excerpt:
- - vakil has raised on behalf of the appellants, we would like to note that respondent no. 2 to 14 were permanent as time-scale clerks and satisfied all the three conditions laid down by rule 13. all of them applied for being recruited to the posts of a telegraphist. they enjoy-exemption from such a requirement. the exemption to which we have referred confers upon the permanent employees of the posts and telegraphs department a right which other candidates do not enjoy. 12. in our opinion, if the rule-making authority did not want them to seek reversion under fundamental rules to their substantive posts after they were appointed as telegraphists, the rule-making authority would have clearly provided for such a situation as they have provided for other situations......upon him by proviso to article 309 of the constitution of india. they are, therefore, statutory rules. rule 13 provides for eligibility of departmental candidates. it reads as follows:a departmental candidate shall be eligible to apply if he satisfies the following conditions, namely:(i) he shall be either permanent or quasi-permanent as clerk; (ii) he shall not have attained the age of thirty years on the first day of january immediately preceding the date of the first issue of advertisement inviting applications; and(iii) he shall have a satisfactory record of service.there is no doubt or dispute about the fact that respondents nos. 2 to 14 were permanent as time-scale clerks and satisfied all the three conditions laid down by rule 13. all of them applied for being recruited to the.....
Judgment:

S.H. Sheth, J.

1. This appeal is directed against the order recorded by the learned single Judge in Special Civil Application No. 1920 of 1974. The facts of the case briefly stated are as under:

2. Respondents Nos. 1 to 14 were originally appointed as clerks in the Posts and Telegraphs Department of the Government of India. They were confirmed as time-scale clerks. Their appointments were made under the Telegraphists (Recruitment and Training) Rules, 1965. Thereafter they expressed their intention to undergo training as Telegraphists. The Department selected them for training them as Telegraphists. After they received the training, they were appointed to officiate as Telegraphists. They have not been confirmed. Respondents Nos. 1 to 9 were appointed to officiate as Telegraphists on 15th March 1967. Respondents Nos. 10 to 12 were appointed to officiate as Telegraphists in 1969 and respondents Nos. 13 and 14 were appointed to officiate as Telegraphists in 1970. On 9th July 1974 they made a representation to the Postmaster General in which they requested for reversion to their substantive posts of time-scale clerks. It appears that they did not make any demand at that time for promotional posts in their parent cadre of time-scale clerks. The Postmaster General rejected their representation. Therefore, they filed the present petition.

3. The petition was heard by the learned single Judge who after having considered the contentions raised by both the sides and after having considered the relevant rules recorded the conclusion that since petitioners Nos. 1 to 14 were holding the substantive posts of time-scale clerks were merely officiating as Telegraphists, they had a lien on their substantive posts and that, therefore, they could claim reversion to their substantive posts. The second factor which weighed with the learned single Judge was that petitioners Nos. 1 to 14 had not made a declaration before they were appointed to officiate as Telegraphists that they would not seek reversion to their parent cadre of time-scale clerks. He, therefore, allowed the petition and issued a writ of mandamus directing the appellants to restrain from confirming petitioners Nos. 1 to 14 against their will in the cadre of Telegraphists. He also directed the appellants to grant the request of the respondents for reversion to their parent cadre and gave certain consequential directions.

4. It is that order which is challenged by the appellants in this appeal.

5. Before we proceed to examine the contention which Mr. Vakil has raised on behalf of the appellants, we would like to note that respondent No. 1 is dead and the cause of action does not survive in his case. Therefore, whatever we say in this appeal applies only to respondents Nos. 2 to 14.

6. The question which has been raised by Mr. Vakil on behalf of the appellants is whether respondents Nos. 2 to 14 have a right to seek reversion to their parent cadre in terms of the rules by which they are governed. We, therefore, turn to the rules. They are called Telegraphists (Recruitment and Training) Rules, 1965. They have been made by the President of India in exercise of power conferred upon him by proviso to Article 309 of the Constitution of India. They are, therefore, statutory rules. Rule 13 provides for eligibility of departmental candidates. It reads as follows:

A departmental candidate shall be eligible to apply if he satisfies the following conditions, namely:

(i) he shall be either permanent or quasi-permanent as clerk; (ii) he shall not have attained the age of thirty years on the first day of January immediately preceding the date of the first issue of advertisement inviting applications; and

(iii) he shall have a satisfactory record of service.

There is no doubt or dispute about the fact that respondents Nos. 2 to 14 were permanent as time-scale clerks and satisfied all the three conditions laid down by Rule 13. All of them applied for being recruited to the posts of a Telegraphist.

7. Rule 16 which deals with training provides as follows:

All candidates selected for appointment as Telegraphists either by direct recruitment or by departmental recruitment under these rules shall be imparted a course of training. The syllabus and period of training, the examinations to be held during and at the end of the period, the minimum number of qualifying marks for such examinations and other details shall be such as may be laid down by the Director-General from time to time.

(1) Before the commencement of the training referred to in Rule 16, a candidate, other than a permanent official of the Posts and Telegraphs Department, shall be required to enter into an agreement in such form as may be prescribed by the Director-General, to serve the Central Government for a period of five years from the date of his appointment as a Telegraphist. He shall also be required to deposit a sum equivalent to the total amount payable to him as training allowance during the period of training, as security for the due fulfillment of the terms of the agreement.

This rule brings into hold relief one aspect. A person other than a permanent official of the Posts and Telegraphs Department who is selected for being trained as a Telegraphist is required to execute an agreement in the prescribed form undertaking to serve the Government at least for a period of five years from the date of his appointment as a Telegraphist. The second aspect which is brought into bold relief is that he shall deposit a sum equivalent to the total amount payable to him as training allowance during the period of his training. This deposit is intended to secure on his part the due fulfillment of the terms of his agreement. The object underlying this rule is quite clear. The Central Government spends on the technical training of a person who is selected for being appointed as a Telegraphist. After he has successfully undergone the training, he is appointed to officiate as a Telegraphist. If a person who receives training at public expense resigns within a month or two of his being appointed to officiate as a Telegraphist he will cause a sheer waste of public money and deprive the Central Government of his technical services. The Central Government in such a case will have to train other persons and if they also behave in a similar manner, it will lead to recurring waste of public moneys while denying the Central Government the continuous services of the trained Telegraphists. It is on account of this reason that the person who is selected to be appointed as a Telegraphist is required to execute in favour of the Director-General an agreement and is required to deposit a certain amount for the due fulfillment of the terms of the agreement, No such requirement to execute such an agreement and deposit any amount as a security has been laid down in case of permanent officials of the Posts and Telegraphs Department. They enjoy-exemption from such a requirement.

9. Therefore, except in case of permanent officials of the Posts and Telegraphs Department, all that the Central Government expects of a Telegraphist on whose training it has spent public moneys is to serve the Government for a period of five years. He may serve his Government for a longer period. He may resign the job as a Telegraphist after a period of five years and leave the Government. Therefore, in terms of Rule 17 (i), five years' service as a Telegraphist is sufficient to compensate the Central Government for the moneys which they spend on the training of a person for being selected to officiate as a Telegraphist.

10. We now turn to Rule 18 which provides for removal of an unsuitable candidate. It reads as under:

A candidate who is found not suitable at any stage of his training or who fails to secure the minimum qualifying marks at the examination to be held at the end of the training shall be liable to be discharged and the security deposit, if any, furnished by him may be forfeited to the Central Government.

This rule confers upon the Central Government power to order discharge of persons who are found unsuitable at any stage of their training for being appointed to officiate as Telegraphists Rule 19 deals with those who are found successful at the training. Subject to the availability of vacancies, they will be appointed as Telegraphists on trial for a period of two years. If, during the probation period of two years, the performance of a Telegraphist is found unsatisfactory or if it is found that he is not likely to be efficient, then if he is a direct recruit, his services will be terminated forthwith and if he is a departmental candidate, he will be liable to be reverted to the post which he held before his appointment as a Telegraphist. In either case, the Rule enables the Central Government to forfeit the security deposit.

11. Therefore, so far as permanent employees of the Posts and Telegraphs Department are concerned, they are not subjected to the requirement of executing an agreement and making the security deposit prior to the commencement of their training. Secondly, they are liable to be reverted to their substantive posts if they are found unsuitable at any stage of training. Thirdly, they are liable to be reverted to their substantive post even after their appointment as Telegraphists if their performance during the probation period of two years is found unsatisfactory or if it is found that they are not likely to be efficient. The exemption to which we have referred confers upon the permanent employees of the Posts and Telegraphs Department a right which other candidates do not enjoy. The power conferred upon the Central Government to revert them to their substantive posts in two sets of circumstances creates liabilities for them. So far as the Telegraphist selected from amongst the permanent employees of Posts and Telegraph Department are concerned, we do not find anything in these rules to show that they, of their own accord, have a right to demand reversion to their substantive posts. The rules are silent on this aspect. What has appealed to the learned single Judge is that under fundamental rules their lien on their substantive posts does not come to an end until they are confirmed as Telegraphists. Therefore, according to him, as long as they have not been confirmed as Telegraphists, they can exercise the lien and seek reversion to their parent cadre. Secondly, according to the learned single Judge, the very fact that they are not required to execute an agreement such as one which other candidates are required to execute shows that they have a right to go back to their substantive posts at any time before they are confirmed as Telegraphists.

12. In our opinion, if the rule-making authority did not want them to seek reversion under fundamental rules to their substantive posts after they were appointed as Telegraphists, the rule-making authority would have clearly provided for such a situation as they have provided for other situations. Merely because under Rules 18 and 19 liability of being reverted to substantive posts has been created under circumstances specified in those rules, we cannot infer that their right under the fundamental rules to seek reversion to their substantive post is nullified or destroyed. Ordinarily, in respect of the same subject-matter, rights and liability will not simultaneously co-exist for the same man. That does not seem to be the situation in the instant case.

13. The only plausible reason which can support the argument raised on behalf of the appellants that the respondents have no right to seek reversion to their substantive cadre is that they cannot be encouraged to behave in a way which leads to waste of public moneys spent on them for imparting training. Looking to the scheme of the rules, it appears that waste of public moneys is not such an important matter which weighed with the rule-making authority because under Rule 17 other candidates on whom public moneys have been spent for imparting training to them can resign their jobs as Telegraphists after five years' service. It is on the account of this reason that we have stated in the earlier part of this judgment that the rule-making authority thinks that five years' service as a Telegraphists is just and fair compensation for the public moneys spent on the training of such Telegraphists. If a Telegraphist other than a permanent employee of the Posts and Telegraphs Department can with impunity resign his post as a Telegraphist after a period of five years, we see no reason why a permanent employee who has been appointed as a Telegraphist cannot seek reversion to his substantive cadre before he is confirmed as a Telegraphist. The exemption from the requirement of executing an agreement in respect of such candidates (vide Rule 17 (1) fortifies the conclusion which we have reached. This exemption, on the contrary, indicates that it is not necessary for a permanent employee of the Posts and Telegraphs Department who has been appointed to officiate as a Telegraphist even to serve as a Telegraphist for a period of five years. On the strength of this rule, to take the view that he suffers a permanent disability from seeking reversion to his substantive cadre is to rebound to the other extreme. We do not think we shall be fair and just to such Telegraphists if we take this view.

14. In light of the reasons which we have given, we are of the opinion that the substantive part of order made by the learned single Judge suffers from no infirmity and, therefore, deserves to be confirmed.

15. Mr. Vakil who appears on behalf of the appellants has, however, argued that the learned single Judge was in error in giving certain consequential directions suggesting that the respondents who seek reversion to their substantive cadre shall be entitled to claim on reversion promotional posts. We think such a mandatory direction could not have been given by this Court. It is for the department to decide in terms of the rules which hold the field what post or promotional post a petitioner is entitled to claim on reversion from the post of a Telegraphist. We, therefore, modify the direction given by the learned single Judge and state that the respondents who seek reversion to their substantive cadre shall, on reversion, be appointed to those posts to which they are now entitled under the rules holding the field. It would be a matter for the department to decide.

16. Subject to the modifications which we have made in the order recorded by the learned single Judge, the appeal fails and is dismissed with no order as to costs. As far as possible, the departmental authorities shall work out the rights of the respondents seeking reversion within three months.

In light of the view which we have taken, it is not necessary to make any order on Civil Application No. 790 of 1980. We, therefore, make no order thereon.


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