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Satya Ranjan Das Gupta Vs. Postmaster-general, West Bengal Circle, Calcutta and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case No. 367 of 1956
Judge
Reported inAIR1961Cal454
ActsCentral Civil Services (Temporary Service) Rules, 1949 - Rules 2, 3, 5 and 6; ;Constitution of India - Article 311(2)
AppellantSatya Ranjan Das Gupta
RespondentPostmaster-general, West Bengal Circle, Calcutta and ors.
Appellant AdvocateRanjit Kumar Banerjee and ;Chittaranjan Majumdar, Advs.
Respondent AdvocateAmiya Kumar Mookerjee, Adv.
DispositionApplication dismissed
Cases ReferredK.S. Srinivasan v. Union of India
Excerpt:
- .....service) rules, 1949, which reads as follows:- '3. a government servant shall be deemed to be in quasi-permanent service:- (i) if he has been in continuous government service for more than three years, and (ii) if the appointing authority, being satisfied as to suitability in respect of age, qualifications, work and character for employment in a quasi-permanent capacity, has issued a declaration to that effect,' etc. it is contended on behalf of the government that no declaration has been issued in favour of the petitioner. 3. it may be useful to recount shortly the facts on which the petitioner makes his case. according to him, he has been in service for a period of six years when he was discharged. although he was appointed as a temporary clerk and officiating clerk, he says, he.....
Judgment:
ORDER

P.B. Mukharji, J.

1. This is an application by Satya Ranjan Das Gupta under Article 226 of the Constitution challenging his order of discharge from his service as a clerk in the post office. The order of discharge was made on the 9th January, 1953, in the following terms:-

'Sri Satya Ranjan Das Gupta, Temporaryclerk, Nadia Division and Offg. clerk, Purbasthali is discharged from service with immediate effect. He should be given one month's pay in lieu of onemonth's notice.'

This order was signed by the Superintendent ofPost Offices, Nadia Division.

2. The petitioner challenges this order under Article 311 of the Constitution on the ground that he has been removed without a reasonable opportunity of showing cause against such removal. The defence is that the discharge in this case was not by way of punishment but under the terms and conditions of temporary service. On behalf of the Government, reliance is placed on Rule 3 of the Central Civil Services (Temporary Service) Rules, 1949, which reads as follows:-

'3. A Government servant shall be deemed to be in quasi-permanent service:-

(i) If he has been in continuous Government service for more than three years, and

(ii) if the appointing authority, being satisfied as to suitability in respect of age, qualifications, work and character for employment in a quasi-permanent capacity, has issued a declaration to that effect,' etc.

It is contended on behalf of the Government that no declaration has been issued in favour of the petitioner.

3. It may be useful to recount shortly the facts on which the petitioner makes his case. According to him, he has been in service for a period of six years when he was discharged. Although he was appointed as a temporary clerk and officiating clerk, he says, he was on the 9th March, 1951, asked to appear before the Civil Surgeon Nadia to obtain a certificate of medical fitness with a view to issuing a declaration of quasi-permanent appointment, but that declaration was never issued. In fact, he was never declared to belong to the quasi-permanent service. His grievance is that although he passed the medical examination, he was not declared quasi-permanent, although others who passed such medical examination had been so declared. It is however, not admitted that declarations have been issued in favour of all the candidates who passed the medical examinations.

4. These are the only facts relevant for the purposes of this application. Mr. Banerjee, learned Advocate on behalf of the petitioner, submits that any Government servant who has put in more than three years, as the petitioner, is entitled, as of right, to have his service declared quasi-permanent. For this purpose, he relied on the observations of the Supreme Court in the case of Parshotam Lal Dhingra v. Union of India, : (1958)ILLJ544SC , where, on the report of the judgment as appealing, the word 'or'' instead of 'and' is used. Therefore, Mr. Banerjee argues that the conditions under Rule 3, which I have quoted fully above are not conjunctivebut disjunctive. His argument is that a Government servant will be entitled to have his service regarded as 'quasi-permanent service' either when he has put in more than three years' service or when there is a declaration made in his favour. I am entirely unable to accept that contention, I shall state my reasons briefly.

5. The Government publication of Rule 3 of the Central Civil Services (Temporary Service) Rules, 1949, makes it clear beyond all doubt that the word used in the rule is not 'or' but 'and'. The observations in Dhingra's case, : (1958)ILLJ544SC were not declaration of the law on the point but were being given merely as illustration. There is no doubt that the rule is misquoted there. Rule 3 of the Central Civil Services (Temporary Service) Rules, 1949, is correctly quoted in a subsequent decision of the Supreme Court in the case of K.S. Srinivasan v. Union of India, : [1958]1SCR1295 . Secondly, the definition in Rule 2(b) of 'quasi-permanent service' in the Central Civil Services (Temporary Service) Rules, 1949, says-

' 'quasi-permanent service'' means temporary service commencing from the date on which a declaration issued under Rule 3 takes effect and consisting of periods of duty and leave (other than extra-ordinary leave) after that date;'

The definition makes it abundantly clear that the expression, 'quasi-permanent service' depends on the declaration and not on the length of three years' service alone. In issuing the declaration under Rule 3 (ii), the appointing authority has to be satisfied as to the suitability in respect of age, qualification, work and character of the Candidate for employment in a quasi-permanent capacity. This declaration does not follow, as a matyer of course, in the case of every Government servant who has completed three years' service. The whole contention of the petitioner is that he is in quasi-permanent service and, therefore, under Rule 6, his service can only be terminated

'in the same circumstances and in the same manner as a Government servant in a permanent service'.

On the facts, I am bound to hold that the petitioner does not belong to any quasi-permanent service, because there is no declaration in his favour to that effect under Rule 3(ii) of the Central Civil Services (Temporary Service) Rules, 1949.

6. On that fact, It must follow that the petitioner cannot contend that there has been any punishment by his discharge so as to attract the provision of reasonable opportunity of showing cause against such discharge under Article 311(2) of the Constitution. The reason is that the conditions of temporary service, to which the petitioner belongs, make it dear that the discharge in the present case was in accordance with the terms and: conditions of such service. Rules 5 (a) and (b) of the Central Civil Services (Temporary Service) Rules, 1949, provide as follows:-

'5. (a) The service of a temporary Government servant who is not in quasi-permanent service shall be liable to termination at any time by notice in writing given either by the Government servant to the appointing authority, or by the appointing authority to the Government servant.

(b) The period of such notice shall be one month, unless otherwise agreed to by the Government and by the Government servant.' This condition, as contained in this rule, has been satisfied in the present case. The Supreme Court in Dhingra's case : (1958)ILLJ544SC of the report which I have quoted dearly observed:- 'To put it in another way, if the Government has, by contract, express or implied, or, under the rules, the right to terminate the employment at any time, then such termination in the manner provided by the contract or the rules is, prima facie and per se, not a punishment and does not attract the provisions of Article 311.'

Of the same view, is the other decision of the Supreme Court in Srimvasau's case, : [1958]1SCR1295 which also I have quoted before.

7. It is, therefore, clear that under Rule 5, the petitioner, as a temporary Government servant, has been duly discharged under his terms and conditions of service and he cannot invoke the requirement of reasonable opportunity to show cause under Article 311 of the Constitution.

8. I, therefore, discharge the Rule and dismiss this application.

9. There will be no order as to costs.


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