PURNANANDA PATRA Vs. COLLECTOR OF CENTRAL EXCISE

JUDGEMENT

(1.) This is an appeal against an order of Bose J. (as he then was) dated 13th August, 1959. The facts of this case are shortly as follows: On the 30th July, 1946 the petitioner was appointed as a temporary Inspector of Central Excise Collectorate, Calcutta. On the 1st May, 1951, an order was made by the Collector of Central Excise, Calcutta and the petitioner was "allowed to cross the probationary stage". A copy of the order is annexure "A" to the petition. This order was passed in respect of several Inspectors and they were all allowed to cross the probationary stage in the time-scale of pay prescribed for Inspectors with effect from the date shown against each name. The date so far as the petitioner is concerned was the 1st January, 1950. All of them were warned that if they failed to pass the departmental examination for Inspector of Central Excise with the next permissible chances occurring thereafter, their increment in the time scale or pay would he stopped until further orders and they would he liable to be discharged or reverted as the case may be. The petitioner accepted this position and appeared at the departmental examination. In the May examination held in the year 1953, the petitioner appeared but failed and his increment was stopped from the 1st August, 1953. The petitioner was on the 9th May, 1954 transferred to Banamalipur. He appears to have been served with a notice about further departmental examination but it is his grievance that he actually received the notice on the 12th May, 1954 for an examination which was to be held on the 13th May, 1954. However he did not appear in that examination or could not appear, and on the 3rd May, 1955 an order was made under Rule 6 of the Central Excise Departmental Examination Rules, 1949 discharging him from service. A copy of tin's is annexure "B" to the peti- tion. We do not find that at that stage he put forward the objection that these Departmental Examination Rules did not apply to him. On the 7th August, 1955 he was re-appointed as a temporary lower division clerk. He accepted the position under protest and on the 7th January, 1956 he was informed that there was no substance in his objections and he had been appointed only on compassionate grounds. On the 28th June, 1956 the petitioner made an application in this High Court in its writ jurisdiction and a rule was issued under Article 226 of the Constitution. In this application the petitioner challenged the order of discharge dated 3rd May, 1955. The Government doubtlessly realised that there was some violation of the rules of natural justice because on the 7th January, 1957 the Government cancelled the order of discharge dated 3rd May, 1956 and the petitioner was re-instated and posted to Kalimpong and thereafter transferred to Kurseong. On the 31st May, 1957 he joined service at Kalimpong and on the 6th and 8th July, 1957 appeared at the departmental examination. He failed in both of them and on the 25th February, 1958 his services were terminated under Rule 5 of the Central Civil Services (Temporary Services) Rules, 1949. It is against this order that the application made in the Court below was directed. The points which were raised in the application were all held against the petitioner and the application was dismissed and the rule discharged. As regards all the reasonings given in the court below we agree. It is therefore not necessary to deal with all the points, because it will be sufficient to deal with the several points that have been argued before us by Mr. Burman. It is not disputed that the petitioner appellant had been appointed under the Central Civil Services (Temporary Services) Rules 1949 as a Government servant in temporary service. The first question that it raised is whether the 1949 Rules applied, because it is stated that the Rules are not retrospective. Upon this point, the learned Judge in the court below has given a very satisfactory answer. Government servants in India, are all subject to the rules made by the appropriate authority, under the rule-making powers given under the Constitution. There is no guarantee that any particular Government servant will continue to enjoy the benefits oi a rule which was in existence when he joined service. On the other hand, he is subject to all rules which may be brought into existence lawfully at any time during his term of service. The word "retrospective cannot properly be applied to the facts of the case. Government servants, being subject to the disability, mentioned above, cannot be heard to say that they will not be governed by the rules which apply to them from time to time, except the rules which were in existence at the time when they joined service. That being so, it is quite clear that the 1949 rules apply to the petitioner. This objection being out of the way, all we are concerned in this case is to find out the provisions of the said rules and apply them to the facts of the case. Under Rule 2 "Government service" means temporary service under the Government of India." 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 extraordinary leave) after that date. "Temporary post" means officiating and substantive service in a temporary post and officiating service in a permanent post under the Government of India. Rule 3 is important and is set out below:

(2.) Rule 6 deals with the method of termination of the services of a Government servant in a quasi-permanent service. Coming back to the facts of this case, we find that the petitioner has been dealt with under Rule 5 and his services have been terminated by giving notice under it and in doing so, reference has been made to the fact that he has not been able to pass his departmental examination as is necessary under the Central Excise Departmental Examinations Rules, 1949. The latter is not a condition imposed by Rule 5. Mr. Burman has not disputed the position that if Rule 5 applied, the power is wide indeed and no reason is to be given, but the notice given under it is sufficient. Mr. Burman however argues that his client having passed the probationary stage had ceased to be in temporary service. In my opinion, that is an untenable position. As has been pointed out above, a person may he said to hold a "temporary post" where he is in substantive service in a temporary post and that is exactly what the petitioner has been doing in this case. There is no material to show that he was ever made permanent, in which case he would be governed by the rules which apply to permanent servants. The mere fact that the petitioner was on probation for some time, does not affect the question. "Probation" merely means that a Government servant is being tested for his efficiency for sometime. That does not make him, upon the termination of the term of probation, a permanent incumbent of a permanent post, although he may, in a sense, be said to have become a permanent incumbent of a temporary post. In that sense the nature of his substantive service has not altered.

(3.) Next, Mr. Burman argues that his client is in a quasi permanent service. As the learned Judge in the court below has pointed out, in order to be in a quasi permanent service, two tests have to be satisfied which are laid down in Rule 3. Mr. Burman tried to argue that these are alternative, but had to agree that the word "or" is not there. In fairness to him, we must point out that he has referred to the Supreme Court decision in P. I,. Dhingra v. Union of India where Das C. J. says as Follows: