1. The petitioner Shri Prafulla Chandra Bhowmik, who held the rank of senior clerk in the Relief and Rehabilitation Department and whose service was terminated by the second respondent, the Director of the said Department by the notice Annexure 5 dated 821959, has filed the petition praying for the issue of a Writ to quash the said order of termination.
(2) The petitioner belonged to East Bengal which is now East Pakistan and he was in Military service as a civilian clerk and he was discharged on 3181947 (Annexure 6). Subsequently he was employed temporarily in the Civil Supply Department of Tripura (Annexures 7 and H) and after that temporary employment ceased, he was appointed by the Chief Commissioner, Tripura, as clerk in the Relief and Rehabilitation Department in the grade Rs. 50575/ on 181951 (Annexure 1). His pay in that scale was raised to Rs. 75/ with effect from 9101951 (Annexure 2). Later he was appointed to the post of Assistant Supervisor, which is an upper division post, from 2541953 on a pay of Rs. 80/ on the scale Rs. 804100/ (Annexure 3). Again, by Annexure 4 dated 14101958 he was promoted by the Director of the Department as senior clerk in the scale Rs. 1305180/. Thus the petitioner was in continuous service in the Department from 181951 and from the post of lower division clerk he became an Assistant Supervisor which is an upper division post and again was promoted as senior clerk and he continued as senior clerk until 8259.
On that date, the order Annexure H was passed by the Director of the Department stating that the conduct of the petitioner was found suspicious in 1954 in connection with certain C. I. sheets, that in July, 1958 he was found to have prepared a wrong bill for Rs. 250/ for payment to a Contractor to whom only Rs. 15/10/ was really due and that further he was suspected to be connected with the missing of two files relating to the fixation of the price of cement, that for the said reasons, declaration cannot be issued under Rule 3 of the Central Civil Services (Temporary Service) Rules, 1949 for the petitioner''s employment in a quasipermanent capacity, that though the charges cannot be specifically proved against him, he was an undesirable element and should be weeded out and that therefore notice of termination of service under Rule 5 of the Central Civil Services (Temporary Service) Rules, 1949 should be issued. On the same date, the notice Annexure 5 was issued to him stating that his service will be terminated with effect from the date of expiry of one calendar month from the date of service of the order on him. The petitioner! filed various appeals to the Secretary, Tripura Administration, Relief and Rehabilitation Department, to the Chief Secretary of the Tripura Administration and to the Chief Commissioner but did not get any relief. Thereafter he filed the present Writ application in this Court.
(3) The petitioner''s main contention is that, by his long continuous service from 181951, he had acquired the status of quasipermanency under Rule 3 of Central Civil Services (Temporary Service) Rules, 1949 (hereinafter to be called the Temporary Service Rules), that his services cannot, therefore, be terminated under Rule 5 of the said Rules, that in any case, as he was originally appointed by the Chief Commissioner of Tripura, the Director of Rehabilitation had no authority to terminate his service, that as the termination of his service amounted to dismissal or removal, he was entitled to the protection of Article 311(2) of the Constitution, and that as the said protection was denied to him before the termination, the order of) termination was illegal and should be set aside.
(4) For the respondents, it was pointed out that the petitioner was only a temporary servant, that the Department of Relief and Rehabilitation itself being a temporary Department the petitioner can only be a temporary servant, that though the petitioner has been in continuous Government service for more than 3 years, no declaration under. Rule 3 of the Temporary Service Rules was issued in respect of the petitioner by the appointing authority after being satisfied as to his suitability for such employment in respect of age, qualifications, work and character and that therefore the '' petitioner has not achieved the status of quasipermanency, that as he was a mere temporary servant who was not in quasipermanent service, his service was liable to termination under Rule 5 of the'' Temporary Services Rules, that the Director of Rehabilitation was the appointing authority for Class III and Class IV employees of his Department and he was therefore the appointing authority to issue the notice of termination under Rule 5, that therefore the notice Annexure 5 issued to the petitioner terminating his service was quite valid, that the said termination did not amount to dismissal or removal attracting the provisions of Article 311(2) of the Constitution and that therefore the petitioner was not entitled to any remedy in this Writ.
(5) The petitioner himself admits that he was a temporary Government Servant. This fact also cannot be denied as the Department in which he was employed was itself a temporary Department. It is seen from Annexure 5 that the notice terminating his service was specifically given under Rule 5 of the Temporary Service Rules. Rule 5 says that the service of a temporary Government servant who is not in quasipermanent 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. Thus unless the petitioner is able to show that he is in quasipermanent service, the notice Annexure 5 has to be accepted as a valid notice given under Rule 5. The petitioner claims to have acquired the status of quasipermanency. How a temporary Government servant can acquire the status of quasipermanency is provided under Rule 3 of the said Rules which is as follows:
Rule 3. A Government servant shall be deemed to be in quasipermanent 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 his suitability in respect of age, qualifications, work and character, for employment in a quasipermanent capacity, has issued a declaration to that effect, in accordance with such instructions as the Governor General may issue from time to time.
(6) It will be seen from the said rule that two conditions are required to achieve quasipermanency. The first condition is that he must have been in continuous Government service for more than 3 years. To be eligible to be considered for quasipermanency, this three years continuous service is essential. The petitioner has satisfied this condition and he was eligible to be considered for quasipermanency. But that alone is not sufficient. The further essential condition is that the appointing authority being satisfied as to the Government servant''s suitability in respect of age, qualifications, work and character for employment in a quasipermanent capacity has issued a declaration to that effect. Rule 4 further provides that the declaration issued under Rule 3 shall specify the particular post or the particular grade of posts within a cadre, in respect of which it is issued, and the date from which it takes effect. Thus in the case of the petitioner any such declaration must state in respect of which post held by him, the declaration is issued and the date from which it has to take effect. The petitioner had occupied the post of lower division clerk, of Assistant Supervisor or upper division clerk and of senior clerk. So the declaration has to specify in respect of which post, the declaration is issued. It is admitted that no such declaration at all was issued in the case of the petitioner. This second essential condition is thus wanting in the case of the petitioner and unless, that condition is satisfied, the petitioner cannot be said to have become a quasipermanent Government servant.
(7) The argument advanced for the petitioner was that it was not his fault that no such declaration was issued in his case in spite of his continuous service of more than 7 years and that if the appointing authority willfully or negligently fails to issue such a declaration, the petitioner''s rights should not be affected thereby, that he had pointed this out in his appeal to the Secretary, Tripura Administration, Rehabilitation Department dated 231959 (Annexure 7) by stating that by his continuous employment he had automatically become a quasipermanent servant, that it was for this Court to see whether the petitioner has achieved quasipermanency even though the declaration was not issued in his case for reasons best known to the appointing authority and that this Court had before it all the materials to decide whether the petitioner has become a quasipermanent servant on the date of the termination of his service. I am afraid, I cannot accept this argument. The declaration has to be issued by the appointing authority. Before the declaration is issued, it is the appointing authority who has to be satisfied as to the suitability for quasipermanent service in respect of age, qualifications, work and character. This Court cannot, therefore, take the place of the appointing authority and, in a petition like this, go into the question of the suitability of the petitioner in regard to age, qualifications, work and character or say that the appointing authority was either negligent or was guided by ulterior motives in not issuing the declaration.
This Court can only go into the question whether under Rule 3, he has achieved quasipermanency and it cannot go into the further question why I no declaration was issued by the appointing authority, even though the petitioner had put in more than 7 years of continuous service. That the declaration referred to in Rule 3(ii) of the Temporary Service Rules has to be issued for a Government (servant to attain the status of quasipermanency is clear from the very definition of the term ''quasipermanent service'' in Rule 2(b) of the said Rules, where quasipermanent service has been defined as temporary service commencing from the date on which a declaration issued under Rule 3 takes effect. The said declaration not having been issued, the petitioner has not attained quasipermanency and his service can be terminated under Rule 5.
(8) That the declaration is essential for quasipermanency has been held in the decision of the Calcutta High Court, Purnanando Patra v. Collector of Central Excise, Calcutta, AIR I960 Cal 314. The same view has been taken in the decision of the Bombay High Court "B. M. Pandit v. Union of India", AIR 1962 Bom 45. In the latter decision the matter was exhaustively dealt with after a consideration of the various rules in the Temporary Service Rules. It would appear that the copy of the Temporary Service Rules produced before the Bombay High Court did not have the conjunction "and" between (i) and (ii) of R. 3 and a question arose whether 3(i) or 3(ii) will be sufficient to attain quasipermanency and it was held that even though the conjunction "and" was, not there, both the conditions in Rule 3(i) and 3(ii) will have to be fulfilled before quasipermanency can be attained. The difficulty arose because m the publication of the Temporary Service Rules in the Gazette of India, the conjunction "and" was not there. But in other copies issued by the Government including the Brochure on Central Civil Services (Temporary Service) Rules, 1949 printed by the Government of India Press, New Delhi produced before me, the .conjunction "and" is. there.
It would appear that in the Supreme Court case "Parshotam Lal Dhingra v. Union of India", AIR 1958 SC 36, the Temporary Service Rules produced before the Supreme Court did not have the conjunction "and" and hence an obiter dictum was. made in the said decision to indicate that one or the other condition under Rule 3 was sufficient for quasipermanency. This observation of the Supreme Court was considered in the above Calcutta and Bombay decisions and the Calcutta decision did not follow the said observation but preferred a later ruling of the Supreme, Court "K. S. Srinivasan v. Union of India", AIR 1958 SC 419 in which the said Rule 3 was quoted with the conjunction "and" between subrules (i) and (ii) of Rule 3. Whether the conjunction "and" is there! or not, it is clear now as stated in the Bombay decision that it is essential from the very definition of ''quasipermanent service'' in Rule 2(b) of the; Temporary Service Rules that the declaration mu$4'' be issued to obtain quasipermanency.
(9) My attention was drawn to the fact that as late as 13101958 the petitioner was promoted by the Director of the Department as senior clerk and from this it was argued that the Director would not have promoted him as senior clerk if he was not satisfied about his work and character. My attention was further drawn to the various Government of India notifications compiled in the Brochure on Central Civil Services (Temporary Service) Rules, 1949, published by the Government of India, Ministry of Home Affairs and in particular to paragraphs 17 and 18 in F. General under Rule 3 at page 18. The said paragraphs deal with two official memorandum of the Ministry of Home Affairs and are as follows:
M. H. A. O. M. No: 78/152/57TS, dt. 301257.
(17) Cases of all persons who become eligible for quasipermanency certificates in any year should be considered as soon after the 1st July of that year as possible and finalised without any avoidable delay. It is particularly desirable that the cases of persons eligible for quasipermanency, who are likely to be retrenched or superannuated should be dealt with on a high priority basis so that the issue of quasipermanency certificates in their case takes place before their retrenchment or superannuation. as the case may be.
M. H. A. O. M. No. 7/136/58TS, dt. 31058.
(18) If a temporary Government servant is found Unsuitable for quasipermanency, the fact should be /communicated to him officially, so that he may improve his work and conduct before his case comes next for consideration.
(10) My attention was also drawn to R. 3(ii) itself which showed that the declaration under the said rule had to be issued in accordance with such instructions as the GovernorGeneral may issue from time to time and hence, it was stated that the appointing authority must have due regard to; the above official memoranda in deciding whether quasipermanent status should be given or not. It was pointed out that Annexure H, the order passed by the Director of Rehabilitation to issue notice of termination showed that the declaration cannot be issued under Rule 3 for employment in quasipermanent capacity on account of certain bad work of the petitioner pointed out in the order and that in such cases, the appointing authority should have followed the official memorandum cited above and if the petitioner was found unsuitable for quasipermanency the fact should have been communicated to him officially, so that he may improve his work and conduct before his case came again for consideration and that this official memorandums was not followed by the appointing authority, in straightaway giving notice of termination. It was strenuously urged that without giving any opportunity to the petitioner certain alleged bad work on. the part of the petitioner in 1954 and 1958 was suddenly resuscitated on 821959 by the Director of the Department for the purpose of issuing the notice of termination to him, without realising that even after the socalled bad work he had been promoted by the very Director as senior clerk and that this clearly showed the malafides of the Director.
(11) I am afraid, that these are not arguments which could be urged before this Court in this Writ petition. The Temporary Service Rules themselves contain the remedy for the petitioner if any malafide order of termination of service was passed against the petitioner. Rule 5A shows that the petitioner could have moved the Administrator of Tripura before the expiry of 3 months from the date of notice if there were malafides on the part of the Director and he could have had the case reopened. It is seen from paragraph 11 of the Writ petition that the petitioner filed an appeal to the Administrator (Chief Commissioner) on 851959 which was just after 3 months from the date of the notice. The petitioner should have moved the Administrator earlier under Rule 5A and got his case reopened if he was aggrieved by the order of termination.
There is no use in urging the malafides of the Director before this Court and there is no point in this Court going into the question of such malafides in a Writ application. Reading the Government of India memorandum which is paragraph 18 at page 18 of the Brochure mentioned above and Rule 5 of the Temporary Service Rules together, ''it will be seen that an appointing authority can either communicate to a temporary Government servant that he was found unsuitable for quasipermanency and give him a chance to improve his work and conduct before his case came next for consideration or he can terminate the service under ''Rule 5. If the appointing authority chose the latter course, this Court cannot interfere in Writ; proceedings; It was for the petitioner to have; moved the appropriate authority under Rule 5A on receipt of the notice of termination. If he was not mindful of his rights, this Court cannot help him. After he had put in 3 years continuous service, he could have satisfied the appointing authority regarding his age, qualifications, work and character and prayed for the issue of the declaration mentioned in Rule 3. But if he slept over his rights and the appointing authority acted under the rules which permitted the termination of service and terminated his service, he cannot get any relief from this Court unless he is able to show that the appointing authority has acted against the rules.
(12) The position which existed on the date when the notice of termination was issued to the petitioner was that he had not acquired the status of quasipermanency and so the appointing authority was within his rights in issuing the notice to him. All that this Court can see is whether the .petitioner has acquired the right of quasipermanency and as it is now clear that he had not acquired that right under Rule 3 of the Temporary Service Rules, this Court cannot interfere with the order of termination.
(13) My attention was next drawn to my own decision "Athokpam Mombi Singh v. Officer on Special Duty, Manipur State Transport, Imphal", AIR 1960 Manipur 45. In that case, the Government servant concerned was appointed on probation to a permanent post for a period of six months and after the period of probation, he continued in the said post for more than 3J years and he was allowed to draw many increments thereafter. But no order of confirmation or satisfactory completion of probation was passed. Nor was the probation extended. What was argued in that case was that when a probationer completed the period of probation in the permanent post and no order of confirmation was passed, he would continue in the service after the period of probation and until confirmation only as a temporary government servant and that until the confirmation order was passed, his service could be terminated under Rule 5 of the Temporary Service Rules. That argument was repelled by me and I held that when a person was appointed on probation to a permanent post and completed the period of probation and was not discharged from service and he did not have to pass any departmental tests or satisfy any other conditions before confirmation, his status is not that of a temporary Government servant and that, as held by the Supreme Court in Dhingra''s case, AIR 1958 SC 36, he will get a right to the post and any termination of his service will thereafter attract the provisions of Article 311(2) of the Constitution.
The definition of temporary service in Rule 2(d) of the Temporary Service Rules is "officiating and Substantive service in a temporary post and officiating service in a permanent post under the Government of India". A probationer after completing the period of his probation in a permanent post in which no other Government servant held a lien cannot be said to officiate in that post within the meaning of Fundamental Rule 9(19) and has a right to the post and hence, I held in that case that he was not a temporary Government servant. That decision will not apply to the present case as it is clear that the petitioner''s post was only a temporary post in this temporary Department of Relief and Rehabilitation. As far as the petitioner as concerned, not having attained the status of quasipermanency, his service can be terminated under Rule 5 of the Temporary Service Rules.
(14) The next contention was that though Rule 5 may apply to him and his service was purported to be terminated by the notice Annexure 5 under Rule 5, this Court has to see whether it was only a camouflage and whether the real intention was to dismiss him from service and if the real intention was found to be to dismiss him from service, it was pointed out that Article 311 of the Constitution will apply and the order of termination will have to be set aside. My attention was in that connection drawn to Annexure H in which, certain allegations against the petitioner were detailed and it was stated that the allegations cannot be specifically proved but that as he was an undesirable element, he should be weeded out and hence, the termination notice was issued. It was therefore pointed out that the real intention was to dismiss him and not simply to terminate his service. I find himself unable to agree with this argument.
The appointing authority had two courses open before him in respect of a temporary Government servant. He can take action by framing charges and holding an enquiry if his intention was to punish the Government servant or he can take action under Rule 5 of the Temporary Service Rules and terminate his service. It is clear from the order Annexure H itself that there was no intention to punish the petitioner, but only to terminate his service under Rule 5. In Dhingra''s case, AIR 1958 SC 36 the Supreme Court held in paragraph 28 at page 49 that the use of the expression "termination" or "discharge" is not conclusive and that in spite of these innocuous expressions, the Court has to apply the two tests namely, (1) whether the servant had a right to the post or the, rank or (2) whether he has been visited with penal consequences as a result of the termination or discharge. If applying the said two tests, it is found that the real intention was not to terminate or discharge but to dismiss or remove the Government servant, the Court can draw the necessary presumption.
But if we apply the two tests in the present case, there is nothing to indicate that the termination amounted to dismissal or removal. The petitioner admittedly did not have a ''right to the post as he was holding only a temporary post. Nor can it be said that he has been visited with penal consequence by the termination. The penal consequence referred to herein is not the termination itself. The termination itself will be regarded as a penal consequence only if the Government servant had a right to the post and not otherwise. A temporary servant will have to show that the termination visited him with further penal consequences. This has not been shown by the petitioner. I have discussed this matter in detail in my decision "Gopal Chandra Dutta v. Union Territory of Tripura, AIR 1960 Tripura, 31. Thus as Annexure ,H itself shows the intention to terminate his services under Rule 5, we have to accept it and hold that it is only a case of termination and not of dismissal or removal.
(15) Nor is the petitioner''s contention that the Director of the Department cannot terminate his! service, as he was appointed by the Chief Commissioner, valid. Article 311(1) of the Constitution ''will not apply to a case of termination of service of a temporary employee. Rule 5 of the Temporary Service Rules permits the Appointing Authority to terminate such service. The Director of the Department was admittedly the Appointing ''Authority for Class III employees on the relevant date namely 821959. Petitioner was a Class III employee. Hence Annexure 5 is a valid notice.
(16) The petitioner is not therefore entitled to any relief and the Writ application has to be dismissed.
(17) Before I part with this case, it is necessary for me, however, to say that it is indeed a pity that after having put in more than 7 years of continuous service during which he was twice promoted and after having reached the age of 38 when it would be very difficult for the petitioner to get into any Government service, his service should have been terminated in this manner without his being given a chance to obtain quasipermanency as required by the various official memoranda issued ,by the Ministry of Home Affairs. As seen from1 the Brochure on the Temporary Service Rules, M. H. A. O. M. No. 4/49/TS, dated 11749 provides that every temporary employee should be considered for the grant of certificate under R. 3(ii) on three successive occasions, provided that he continues to be eligible and if he fails to secure a certificate on all these occasions, he shall render himself ineligible for further consideration. A person becomes eligible for the grant of a certificate when he has put in 3 years continuous service as temporary Government servant. After the petitioned had put in 3 years of continuous service, it was for the appointing, authority to satisfy himself about the suitability in respect of age, qualifications, work and character for employment of the petitioner in a quasipermanent capacity. The petitioner became thus eligible on 181954 when he had put in 3 years continuous service.
But the appointing authority does not appear to have moved in the matter to satisfy himself on those matters. But the very fact that the petitioner was promoted first in 1953 as an upper division clerk and again in 1958 as senior clerk is an ''indication that at that time the appointing authority was satisfied about his work and character. Otherwise, he would not have been promoted. .What remained was to be satisfied about his age and qualifications. No attempt however appears to have been made regarding his age and qualifications until his services were terminated. The termination was not on the ground of age or lack of qualifications, but because the appointing :authority was not satisfied about his work and character M.H.A.O.M. No. 78/152/57TS, dated 301257 provided that cases of all persons who tome eligible for quasipermanency certificates in y year should be considered as soon after the f. of July of that year as possible and finalised without any avoidable delay. This memorandum the Government of India also does not appear have been applied in the case of the petitioner. (18) M.H.A.O.M. No. 1/49TS, dated 10649 read with M.H.A.O.M. No. 41/42/60Ests(C) dated 2860 shows that a register of Temporary Employees has to be prepared containing a table of contents in the form specified in Annexure I and a statement of establishment should be prepared by the appointing authority concerned in the form specified in Annexure II and forwarded to the controlling authority by the 15th of March and 15th of September every year. These are intended for the Controlling authority to see whether action has been taken for quasipermanency in accordance with the official memoranda. I called for these statements of establishments and 1 was informed that no such statements have been sent by this Department to the Controlling authority. 1 also found that the Register of Temporary Employees kept in this office is not in accordance with Annexure I and entries are either made in a haphazard manner or not at all. Again M. H. A. O. M. No. 78/152/57TS, dated 301257 directed that cases of all persons who become eligible for quasipermanency certificates for any year should be considered as soon after the 1st of July of that year as possible and finalised without any avoidable delay. In the case of the petitioner, this matter should have been considered soon after 1st of July, J958 after the issue of the said memorandum by the Ministry of Home Affairs. That does not appear to have been done. But still he was found fit for further promotion in October. 1958 and duly promoted showing that his work and character were, as late as October 1958, considered to warrant promotion. What is good for promotion must be satisfactory for issuing quasipermanency certificate also.
(19) M. H. A. O. M. No. 7/136/58TS, dated 31058 provided that if a Government servant was found unsuitable for quasipermanency, the fact should be communicated to him officially, so that he may Improve his work and conduct before his case came next for consideration. This memorandum also does not appear to have been applied in the case of the petitioner before it was decided to terminate his appointment, when the loss of certain dies were discovered in the office which was attributed to the petitioner but without any proof. I may also refer to M.H.A.O.M. No. 55/66/52NGS, dated 22952, which says that in the case of a temporary employee who was eligible and approved for quasipermanency on a particular date, the issue of the certificate should not be withheld, because his work had come to adverse notice subsequently and that in such case, the proper action would be to issue the certificate and take suitable departmental action against him. Unfortunately in the case of the petitioner, the appointing authority made no attempt throughout his 7 and odd years of service to see whether he was fit for quasipermanency.
(20) I cannot help remarking that the petitioner''s case has not been dealt with in accordance with the instructions contained in the various official memoranda issued by the Ministry of Home Affairs and that he has been unfairly treated and has been made to lose his job without his case being considered for quasipermanency and without giving him an opportunity to improve his work and conduct (if they were found bad), as required by the said instructions issued by the Ministry of Home Affairs. It is my duty to draw the attention of the Tripura Administration to Rule 3(ii) of the Temporary Service Rules which specifically provides that the declaration regarding quasipermanency has to be issued in accordance with such instructions as the Governor General may issue from time to time, which is the same as the instructions contained in the official memoranda of the Ministry of Home Affairs. These instructions are intended to improve the conditions of service of the vast number of temporary Government servants and to give them some sort of security of tenure in service and to prevent capricious termination of service by the Appointing Authorities by the application of Rule 5 of the Temporary Service Rules. Though this Court cannot interfere with the termination of service of the petitioner as it has been done in accordance with Rule 5 of the Temporary Service Rules, it has to be pointed out that the instructions contained in the official memoranda of the Ministry of Home Affairs have not been duly followed in the case of the petitioner and he has not been given a chance of obtaining quasipermanency in spite of his 7 and odd years of service. It is hoped that the petitioner''s case will be given due consideration by the Tripura Administration.
(21) In the result therefore, this Writ application is dismissed, but under the circumstances without costs.
