ADITI CHOUDHURY Vs. STATE OF TRIPURA

JUDGEMENT

(1.) In this application under Article 226 of the Constitution of India, the petitioner has prayed for quashing the notification dated 9.10.96 issued by the Special Secretary to the Governor of Tripura terminating her services from the post of comptroller of Household, Governor's Household, Raj Bhawan,with immediate effect and for directing the respondents to declare the petitioner as confirmed in the said post with effect from 3.10.96 on completion of her probation period.

(2.) The relevant facts are that on 1.10.94, the petitioner applied for the post of Comptroller of Household, Governor's House hold, Raj Bhawan, Agartala and on 3.10.94 the Secretary to the Governor of Tripura issued a memorandum offering the post of comptroller of Household to the petitioner and by letter dated 3.10.94 the petitioner accepted the said offer and joined in the post of comptroller of Household. On 21.10.94,the Secretary to the Governor of Tripura issued an order dated 19.10.94 appointing the petitioner as comptroller of Household, Governor's Household. Raj Bhawan. AgartalJa, temporarily with effect from 3.10.94. In the said appointment order it was, inter alia, stated that the petitioner will remain on probation for 2 years with the first probation period being 1 year to be extended by another year of probation thereafter. On 19.11.95, the Special Secretary to the Governor of Tripura issued an order to the effect that the petitioner has successfully completed her first year probation on 2.10.95 and was allowed to continue her Second year probation with effect from 3.10.95. On 9.10.96. the impugned notification was issued wherein it was stated that on completion of the probation period, the case of the petitioner was reviewed and on such review, the competent authority has not been satisfied with the performance of the petitioner. By the said impugned notification dated 9.10.96 the services of the petitioner were terminated with immediate effect. The said impugned notification was followed up by the memorandum dated 10.10.96 sanctioning a months pay in favour of the petitioner with effect from 10.10.96 in lieu of one month's notice. The petitioner then served a notiice dated 11.10.96 to the Special Secretary to the Governor of Tripura, demanding withdrawal of the notification dated 9.10.96 with retrospective effect but the SA & Joint Secretary to the Governor of Tripura, in his communication dated 18.10.96 [informed the petitioner that the impugned notification had been issued in terms of paragraph-2 (ii) of the memorandum dated 3.10.94 of the Governor's Secretariate and as per provisions of Rule 11 (XI) read with item-VII(a) of the Central Civil Service (Classification, Control & Appeal) Rules, 1965 for short " the CCS (CC&A)Rules, 1965). Aggrieved by the said order, the petitioner has moved this court for appropriate reliefs.

(3.) Mr. P.K. Biswas learned counsel for the petitioner, submitted that a reading of the offer of appointment to the petitioner contained in the memorandum dated 3.10.94 would show that the appointment of the petitioner could be terminated at any time by a month's notice by the appointing authority forthwith or before the stipulated period of notice by making payment of sum equivalent to pay and allowances for the period of notice or the unexpired portion thereof. Hence the appointment of the petitioner even though to a temporary post could only be terminated without notice by making payment of sum equivalent to the pay and allowances for the period of notice. According to Mr Biswas, therefore, since the petitioner's services were terminated without a month's notice, such termination could be made by making payment of pay and allowances of one month and not otherwise. But since the pay and allowances for one month was not paid to the ptitioner along with the impugned notification dated 9.10.96, the termination is void and is liable to be quashed. He relied on the well settled principle of law as explained by the Supreme Court in the case of Hukam Chand Shyam - vs-Union of India, AIR 1976 SC 789, that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all, and all other modes of performance are necessarily forbidden. Mr. Biswas also cited the decisions of the Supreme Court in the cases of Senior Superintendent, RMS, Cochin -vs- Gopinath Sorter, AIR 1972 SC 1487, and Raj Kumar- Vs- Union of India, AIR 1975 SC 536, in which the Supreme Court has held that payment of pay plus allowances for the period of notice was a condition of termination of service forthwith under the proviso to Rule 5(1) of the Central Civil Service (Temporary Service) Rules, 1965, and that termination of service without such payment to the employee was liable to be quashed, Mr Biwas also cited the decision of the Supreme Court in the case of Rakesh Kumar Singh -Vs-Committee of Management Rae Bareili, (1996) 8 SCC 595, wherein the Supreme Court has held that where the Rule provides even by implication that payment to the employee of whatever is due to him should be simultaneous with termination of his service then fulfilment of that requirement has to be regarded as a condition precedent to valid termination. Mr Biswas stated that in the present case, para- (2) (ii) of the offer of appointment contained in memorandum dated 3.10.94 clearly stipulates payment of a sum equivalent to pay and allowances for the period of notice as express condition of termination and thus the impugned notification dated 9.10.96 terminating the service of the petitioner without making payment for the notice period was liable to be quashed as per the aforesaid decisions of the Supreme Court. Mr. Biswas further explained that even though the petitioner was on probation for two years, her appointment was not for a period of two years and that the services of the petitioner could only be terminated in accordance with the procedure prescribed in clause-(2) (ii) of the offer of appointment contained hi office memorandum dated 3.10.94 either by serving notice of one month or by making payment of sum equivalent to pay and allowances for the period of notice.