UNION OF INDIA AND ORS. versus ARUN KUMAR ROY

KHALID, J. This appeal by Special Leave is directed against the Judgment rendered by a Division Bench of the Calcutta High Court on 7 .12.1981, setting aside, in appeal, the Judgment of a learned Single Judge. The Union of India and its Officers are the appellants. The facts in brief, necessary to underst811d the dispute involved in the case are as follows:

p. 139

The respondent joined the post of Stores Offi.cer in the Department of the Zoological Survey of India on July 30, 1975. He was placed on probation for two years. Before the expiry of the period of probation of two years he received 'a Memo dated July 25, 1977, from the Senior Administrative Officer, Zoological Survey of India, informing him that the Government had decided to extend his period of probation as Stores Officer by. one year more from July 30, 1977. July 27, 1978, the Dy. Secretary of the Government of India co1m1nicated to him an Order of the President of India by which he was inf onned that the President had terminated his service as a Stores Officer with effect from the afternoon of 29th July, lq78. This communication further stated that the respondent would be entitled to claim a sum equal to the amount of his pay plus allowances in lieu of one month's notice at the same rates at which he was drawing them immediately before the termination of his service. The appellant challenged this Order by filing Writ Petition No. 385 of 1981, before the Calcutta High Court. The main contention raised by him in ,the Writ Petition was that the Order of termination was bad since a sum equivalent to his pay plus allowances for the notice-period was not paid to him alongwith the notice as required under the terms of his appointment letter. The learned Single Judge who heard the Writ Petition declined relief to the respondent and dismissed the Writ Petition. Aggrieved by the said Judgment the respondent filed an appeal. The Division Bench agreed with the respondent's case that the termination order was bad inas111.1ch as the full amount of salary and allowances for the notice period was not paid to him at the time of termination of his service and so holding set aside the Judgment of the Single Judge and allowed the appeal and quashed the Order of termination and gave liberty to the Government to terminate his service in accordance with the terms of his appOintment. Hence the appeal. - The main question debated at the Bar by the respective counsel is whether in the case of the respondent it was incumbent upon the Authorities to pay notice salary alongwith the termination notice or whether it was sufficient if he was informed that he was entitled to such salary on his termination. A resolution of this dispute depends upon consideration of the nature and terms of his appointment. To appreciate this, it is necessary to look into the Order of appointment and relevant ·points of law governing the terms of service.

pp. 139–140

The respondent's counsel strongly pleaded that he was appointed to a substantive post since he was placed on probation. If his appointment was purely temporary it was not necessary to.place him on probation. The case of the appellant on the other hand was that the Order of appointment its elf indicated that the respondent was appointed as a temporary hand and that he did not become a regular hand simply because he was put on probation. The termination in this case took place before the expiry of the extended period of probation which the authority concerned was entitled to do under the relevant rules.

p. 140, margin B

may, in passing,· indicate as to what the case of the respondent before the High Court. According to him after he took charge of the post of Stores Officer in the Department of Zoological Survey of India he found certain irregularities in the Stores, specifically in the item of rectified spirit. According to him he brought such irregularities to the notice of his superior officer. He incurred, as consequences, the displeasure of the Officer senior to him which resulted in the order of termination of his service during the period of probation. Even so we would like to make it clear that neither before the learned Single Judge nor before the Division Bench did the petitioner plead any case of malafides. Nor did he do so before us.

p. 140, margin D

The respondent appeared in person before us. We find .from the records that he argued his case before the High Court also. ·we felt sympathetic towards him and therefore suggested to the appellants' counsel to tell the appellants to accommodate him in some place lest he, a youngma.n, should waste his life without any employment. The learned Counsel for the appellants could not give ua any assurance but undertook to convey our suggestions to the authorities concerned.

p. 140, margin F

Now, . coming to the merits of the case the Order of appointment of the respondent is produced as Annexure-A. This shows that he was appointed on a temporary basis. It is made clear therein that though the post is temporary, it is likely to continue indefinitely, that the appointment wili be liable to be terminated at any time on one month's not:ice given by either side, thus he will be on probation for a period of two years which may be extended, if necessary, and that the other conditions of service will be governed by the orders and rules in force from time to time. Clause 2(ii) of, the Order of appointment is important. It reads:

pp. 140–141, margin G

"The appointing authority, however, reserves the right of terminat!ng services of the appointee forthwith or befor the expiry of stipulated period of notice by making payment to him of a sum equivalent to the pay and allCMances for the period of

p. 141, margin B

notice or the unexpired portion thereof."

p. 141, margin C

The Order of termination dated 27th July, 1978, which is produced as Annexure-B, reads as follows:

p. 141, margin C

"In pursuance of the provisions contained in para 2(ii) and (iii) of this Department's C.M. No. F.1-19/71-Sur. 3 dated the 9th July, 1975 regarding appointment to the post of Stores Officer in the Zoological Survey of India, the President of India hereby terminates with effect from the afternoon of 29th July, 1978, before the expiry of extended period of probation the services of Shri Arun Kumar Roy, Stores Officer, Zoological Survey of India, Calcutta 2"d directs that be shall be entitled to claim a sum equivalent to the amount of his pay plus allawances in lieu of one 111lllth of notice at the same rates at which be was drawing them :Immediately before the termination of his services.

p. 141, margin D

By Order and in the name of the President."

p. 141, margin F

The learned Single Judge who heard the Writ Petition, held that the appellant was a temporary Government servant and that he was governed by Rule 5(1) of the Central Civil Service (Temporary Service) rules, 1965. Rule 5(1 )(b) as amended, provided in its proviso that on termination of, a temporary Government servant, one month's notice has to be given and that he shall be entitled to claim a sum equivalent to the pay and allowances for the period of his notice at the same rate at which he was drawing them immediately. The learned Single Judge held that the order of termination was valid. The Division Bench, disagreeing with the learned Single Judge held that the Order of termination was bad since one month's salary and allowances was not paid or tendered to the appellant alongwith the notice. This is the only question that falls to be .decided in this appeal.

pp. 141–142, margin F

It is not disputed that the salary and allowances for one month in lieu of notice was not paid or tendered to the appellant simultaneously with the termination of his service. What is the. legal consequence? To answer this question it is necessary to refer to rule 5(l)(b) of the Central Civil Service (Temporary Service) Rules, 1965. Rule 5(1) in its amended form reads as follows:

p. 142, margin B

"5(l)(a) The services of a temporary Govt. servant who is not in quasi permanent service shall be liable to termination at any time by a notice in writing given either by the Government servant to the appointing authority to the Government servant; (b) The period of such notice shall be one month, provided that the services of any such Govt. servant may be terminated forthwith and on such termination, the Govt. servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing them immediately before the termination of his services, or as the case may be, for period by which such notice falls

p. 142, margin C

short. of one month."

p. 142, margin E

The proviso to Rule 5(l)(b), before it was amended, provided for the simultaneous payment of pay and allowances alongwith the order of termination. The amendment of the proviso to Rule 5(l)(b) was made in 1971 with retrospective effect from May 1, 1965. It is necessary to note that the appellant was appointed to the post of Stores Officer on July 30, 1975, that is after the amended rules came into force.

p. 142, margin F

The learned Single Judge relied upon the amended proviso to Rule 5(l)(b) of the rules and held that though the pay and allowances was not paid or tendered simultaneously with the service of the order of termination, the same did not vitiate the termination of the appellant's service. It was this find~ ing that was successfully challenged before the Division Bench by the respondent.

pp. 142–143, margin G

The Division Bench addressed itself to the question whether the amended provisions of the proviso to Rule S(l)(b) applied to the case of the respondent or not. In coming to the conclusion that the order of termination was bad, the Division Bench relied upon the terms contained in the order of appointment in the Notification dated 26.8.1967 which clarified the operation of Rule 5 of the rules.

p. 143, margin A

The Notification reads as follows:

p. 143, margin B

"Under rule 5 of the Central Civil Services (Temporary Service) Rules,1965, the services of a temporary Government servant, who is not in quasi permanent service can be terminated at any time by a notice in writing given either by the Government servant who is not quasi permanent service to the appointing authority or by the appointing authority to the Government servant. A question has arisen whether this rule should be invoked also iti the case of persons appointed on probation, wherein the appointment letter specific condition regarding termination of service without any notice during or at the end of period of probation (including extended period, if any) has been provided. The position is that the OCS(TS) Rules do not specifically exclude probationers or persons on probation _as such. However, in view of the specific condition regarding termination of service without any notice during or at the ·end of the period of probation (including extended period, if any), it has been decided in consultation with the Ministry of Law, that in cases where such a provision has been specifically made in the letter of appointment it would be desirable to terminate the service of the probationer person on pr:obation in terms of the letter of appointment and not under rule 5(1) of the Central Civil Services (Temporary Services)

p. 143, margin C

Rules, 1965."

p. 143, margin C

The Division Bench relied upon this Notification and held that the said Notification excluded the operation of Rule 5(1)

p. 143, margin C

including the proviso thereto in the case of the petitioner,>. whose service was terminated during the period of probation. The Division Bench did not agree with the contention of the Union of India that the Notification did not apply to the case of the appellant since in its view the terms of appointment clearly indicated that he could be terminated only if the salary and allowances for one month were either paid or tendered alongwith the order of termination.

p. 144, margin A

We find that the approach made by the Division Bench is not correct. would first dispose of the contention raised by the respondent that he was not a temporary hand. The Order of appointment itself makes it clear that he will be on probation for a period of two years which may be extended, if necessary. According to him, a temporary hand is not normally put on probation nor is probation extended in the case of temporary hands. The fact that he was originally put on probation for a period of two years which was extended by one year itself indicates accoroing to him that he is not a temporary hand. This contention need not detain us for long. The appointment order makes it clear that the appointment will be on a temporary basis. The mere fact that he was put on probation does not ipso facto make the appointment any the less temporary and for that reason his extended probation also. Unless the respondent makes out a case based on some rules which requires confirmation to a post on the expiry of the period of probation, he cannot succeed on the mere ground of his being put on probation for a period of two years or by the fact that his probation was extended. He cannot rely upon the first clause in the order of appointment either which states that though the post is temporary it is likely to continue indefinitely. In any case, the order of termination was served; on him before the expiry of the extended period of probation. As already indicated Rule 5(l)(b) of the rules was amended in 1971 with retrospective effect from May 1, 1965, The respondent was appointed on July 30, 1975. The amended rule, therefore, applied in his case. per this Rule, the payment of notice salary was not a pre-requisite for termination. The payment can be made after the order of termination is served on the employee. Reliance by the High Court on the Notl.fication in preference to the rules i.e also misplaced. Even if strict adherence to the notification is to be made, it has to be noted that it only states that ":!-~ would be desirable to terminate the services of probation~ .•.••....•• Thac is, this notification does not malt<! it obligatory for tender or payment of salary alongwith the order of termination.

pp. 144–145, margin B

A notification has no statutory force. It cannot override rules statutorily made governing the conditions of service of the employees; The notification is dated 26.8.1967. Rule 5(l)(b) was amended in 1971 with retrospective effect from May 1, 1965. The rule has necessarily to govern the service conditions and not the notification.

p. 145, margin A

The effect of Rule 5 of the Rules fell· to be considered by this Court in two decisions, viz. Senior Superintendent, R.M.S. v. K.V. Gopinath, fl972] 3 s.c.R. 530 and Raj Kumar v. Union of India, [1975) 3 S.C.R. 963. The respondent relied strongly upon the following ·observations reported in 1972 (3) S.C.R 530 at page 532' " •••••• The proviso to sub-rule (b) however gives the Cove.rnment dn additional right in that it gives an option to the Government not to retain the services of. the employee till the expiry of· the ,period of the notice: if it so chooses to terminate the service at any time it can do so forthwith 'by payment to him of a sum equivalent to the amount of his pay plus allowances for the period of notice at the same rate at which he was drawing them immediately before the termination of his service, or as the case may be, for the period by which such notice falls. short of one month.' At the risk of repetition, we may note that the operative words of the proviso are "the services of any ·such Government servanc may be terminated forthwith by payment." To put the matter in a nut shell, to be effective the termination of service has to be simultaneous with the payment to the employee of whatever is due to him. need not pause to consider the question as to what would be the effect if there was a bona fide mistake as to the amount which is to be paid. The rule does not lend 'itself to the interpretation that the termination of service becomes effective as soon as the order' is served on the Government servant irrespective·of the question as to when the payment due to him is to be made. If that was the intention of the framers of the rule, the proviso ~ould have been differently worded. has often been said that if 'the precise words used are plain and unambiguous, we are bound to construe them in their ordinary sense.' 'and not to limit plain words in Parliament by consideration of policy, policy, as to which minds may differ

pp. 145–146, margin B

which decision may vary.' This decision was rendered on February 18, 1972. validity of an Order dated September 25, 1968, terminating respondent therein, that was in question in that would like to observe, with respect, that the brought into Rule 5(l)(b) with effect from May escaped the notice of the Bench that decided that error was subsequently corrected by another Bench Court in ~he decision in Rajkumar v. Union of India stating :

p. 146

" ••• The effect of this amendment is that May; 1965 as also on 15.6.1971, the date the appellant's services were terminated it was not obligatory to pay to him a valent to the amount of his pay and allowances the period of the notice at the rate was drawing them immediately before the of the services or as the case may period by which such notice falls Government servant concerned is only claim the sums hereinbefore mentioned. is that the decision of this Court in case (supra) is no longer good law. There doubt that this rule is a valid rule because now well established that rules made proviso to Article 309 of the Constitution

p. 146, margin C

legislative in character retrospectively

p. 146, margin C

The question whether the terms embodied in the appointment should govern the service conditions of in Government service or the rules governing them ope!' question now. It is now well settled that a Government servant whose appointment though originates in acquires a status and thereafter is governed by rules and not by the terms of contract. 'Ille pow~rs Government under Article 309 to make rules, to regulate service conditions of its employees are very wide tered. These powers can be exercised unilaterally consent of the employees concerned. It will, therefore, idle to contend that in the case of employees

p. 146, margin F

u.o.r. v. ARUN KUMAR Government, the terms of the prevail over the rules governing origin of Government service often is always an offer and acceptance, completed contract between the Once appointed, a Government thereafter his position is not appointment. Public law governing into regulate the relationship employee. His emoluments and thereafter regulated by the appropriate empowered to do so. Such regulation unilaterally without reciprocal clear in two Judgments rendered this Court in Roshan Lal Tandon S.C.R. 185 and in State of Janmi Khosa & Ors., [1974] (I) s.c.R.

p. 147

Thus it is clear and not conditions of the service of who enters service on a contract, be governed by the rules governing will not be permissible thereafter terms of contract which are not governing the service.

p. 147, margin C

The powers of the Government under Constitution to make rules regula~ing of the government employees cannot, by any agreement. The respondent either on the terms of the contract which the High Court has relied "'.service the rule of estoppel against

p. 147, margin E

Now, we may usefully advert the Order of appointment. This 0ther conditiqns the relevant rules

p. 147, margin F

time."

p. 147, margin G

This clause was inserted making it clear that the conditions regulated by the rules obtaining the service in question.

p. 147, margin G

The Division Bench of the High Court, in our considered ).. view, erred in relying upon the notification in preference to Rule 5(1 )(b) and to hold that the Order of termination was wrong and in setting aside the Judgment of the learned Single

p. 148

Judge. The Judgment under appeal has, therefore, to be set aside and we do so. The appeal is allowed with no order as to costs.

p. 148

repeat what we have stated above. The respondent has ~ been sent out for reasons which we cannot decide in the

p. 148, margin B

absence of necessary materials. suggested to the learned counsel for the appellants, Mr. fyagarajan, to provide the respondent with some job. The Counsel, in fairness, agreed to consult his clients. Though our Judgment was ready long ago, we gave time to the appellants' Counsel here on three occasions, to explore the possibility of providing some job to the respondent. Nothing tangible has happened. still hope that this young man will provided with some job in the department. S.R. Appeal allowed.

p. 148, margin B