Dharmendra Kumar vs Union Of India & Ors
2022 Latest Caselaw 7351 Cal

    10                   IN THE HIGH COURT AT CALCUTTA
04.11.2022              CONSTITUTIONAL WRIT JURISDICTION
  sb
   Ct 550                       APPELLATE SIDE
                                 WPA 6810 of 2011

                                 Dharmendra Kumar
                                          Vs.
                                 Union of India & Ors.

                         Mr. Sk. Mujibar Rahman
                                     ... For the petitioner.

                         Mr. Arijit Majumder
                                      ... For the respondents.

Pursuant to a direction passed by this Court on 23rd

August, 2022, an authenticated copy of an affidavit-in-

opposition filed in Court today by Mr. Majumder learned

advocate, representing the respondents be kept with the

record.

The present application has been filed inter alia

challenging an order of termination dated 11th March,

2009 passed by the Commandant, 178 BN, CRPF. The

petitioner's case proceeded on the premise that the

petitioner had been appointed in the post of Safai

Karmachari in the CRPF on temporary basis. Drawing

attention of this Court to the letter of appointment

annexed at page 18 of the writ application dated 28th

June, 2006, Mr. Rahman learned advocate, appearing in

support of the aforesaid application submits that the

petitioner had been appointed in the post of Safai

Karmachari, on the terms and conditions as set forth in

the aforesaid letter of appointment. It is submitted that

the petitioner's services were to be governed by the CRPF

Act of 1949 (hereinafter referred to as the "said Act") and

the CRPF Rules 1955 (hereinafter referred to as the said

1955 Rules). It would appear from the letter of

appointment, that the initial appointment was for a period

of two years and the appointing authority was well within

its authority to terminate the employment by issuing one-

month's notice during the aforesaid initial period of

appointment. It is submitted that the petitioner having

successfully completed the two years period, could not

have been dismissed from services without compliance of

provisions of the said Act and Rules framed thereunder.

In the present case the respondents have adopted a policy

of hire and fire. No enquiry had been conducted against

the petitioner, prior to his termination from service. The

action of the respondents smacks of mala fide, the same

should be set aside and writ petitioner should be

reinstated in service. By placing reliance on the judgment

delivered in the case of Barun Bandyopadhyay vs. Union

of India, reported in 2010 (1) CHN, 349 Mr. Rahaman

submits that the provisions of Central Civil Services

(Temporary Service) Rules, 1965 (hereinafter referred to

the said 1965 Rules) could not have been invoked by the

respondents to terminate the petitioner from service

without holding a proper enquiry. It is submitted that the

petitioner also enjoys protection of Article 311(2) of the

Constitution of India and as such, could not have been

terminated by the respondents by adopting a policy of hire

and fire.

Per contra, Mr. Majumder learned advocate,

representing the respondents submits that the writ

petitioner had been appointed as Safai Karmachari and

was on probation when the order of termination was

served on the petitioner. Drawing attention of this Court

to the order of termination dated 11th March, 2009 it is

submitted that such an order has been issued by invoking

the powers under sub-rule (1) of Rule 5 of the said 1965

Rules.

He then refers to Rule 108 of the said 1955 Rules

and submits that it is well within the authority of the

employer to extend the period of probation. It is only on

successful completion of probationary period including the

extension, if any, that an employee may be granted a

permanent appointment. Mr. Majumder further submits

that prior to confirming the appointment it is well within

the authority of the employer to consider, whether the

work done by the employee during the probation period is

satisfactory or whether he is suitable for the post. The

employer while evaluating the suitability of an employee

can certainly conclude that the employee concerned is not

suitable for the post and prior to confirming such person,

may terminate the employment by issuing a notice under

sub-rule (1) of Rule 5 of the said 1965 Rules. In the

present case it is submitted that the petitioner's services

had not been confirmed. The petitioner did not possess a

valid educational certificate and for such reason his

services was terminated. There is no irregularity on the

part of the respondents in terminating the services of the

petitioner by issuing a notice of termination under sub-

rule (1) of Rule 5 of the said 1965 Rules. To corroborate

his stand, he places reliance on the authenticated copy of

the affidavit filed in Court today. In support of the

aforesaid contention Mr. Majumder, places reliance on the

judgment delivered in the case of Shamsher Singh and

Ors. Vs. State of Punjab, reported in (1974) 2 SCC 831.

He submits that the instant application deserves to be

dismissed with costs.

I have heard the submissions made by the

respective advocates, representing the parties and I have

considered the materials on record. I find that the writ

petitioner was offered an employment, in CRPF which he

accepted. The terms of his employment provided that the

petitioner will be appointed as a Safai Karmachari, in

CRPF, for an initial period of two years and that the

employment shall be governed by the provisions of the

said Act and the said 1955 Rules. The same also provided

that the petitioner may be terminated at any time, on one-

month's notice, during the initial two years of service. I

find that the said 1955 Rules have been framed in

exercise of powers conferred under Section 18 of the said

Act. Rule 108 of the said 1955 Rules in general deals with

probation and confirmation. Sub-rule (1) of Rule 108 of

the said 1955 Rules provides that selected candidates

shall be appointed or promoted to a superior post in the

Force on probation for a period of two years. sub-rule (2)

of Rule 108 of the said 1955 Rules provides for

confirmation upon successful completion of probation. I

find that sub-rule (3) of Rule 108 of the said 1955 Rules

provides that the initial period as specified in sub-rule (1)

may be extended. Sub-rule (4) of Rule 108 of the said

1955 Rules provides that if on the expiration of the period

of probation referred to in sub-rule (1) or of any extension

thereof under sub-rule (3), as the case may be, the

government are of the opinion that a candidate is not fit

for permanent appointment, or if at any time during such

period of probation or extension they are satisfied that he

will not be fit for permanent appointment on the

expiration of such period of probation or extension, they

may discharge him or pass such order as they think fit.

Again, sub-rule (5) of Rule 108 of the said 1955 Rules

provides in case where no action is taken by the

Government under sub-rule (2) or (3) or (4), the period

after the prescribed period of probation shall be treated as

an engagement from month to month terminable on either

side on the expiration of one calendar month's notice in

writing.

A perusal of the aforesaid Rule therefore pre-

supposes, a conscious decision to be taken by the

Government/respondents for the purpose of confirming a

candidate or discharging a candidate, followed up by an

order to be passed by the authorities. As such, there

cannot be any automatic confirmation on the expiry of the

initial period of probation or extension, as the case may

be.

In the present case the petitioner has not been able

to demonstrate that his service has been confirmed. At the

same time the respondents have also not been able to

demonstrate that the initial period of probation of the

petitioner had been extended by a further period of one

year. Ordinarily, therefore, the service condition of the

petitioner would be guided by sub-rule (5) of Rule 108 of

the said 1955 Rules and as such the petitioner cannot be

treated as a permanent employee.

I find that the respondents have consciously taken

a decision to terminate the services of the petitioner. A

perusal of the aforesaid order would reveal that the same

has been issued as per the provisions of sub-rule (1) of

Rule 5 of the said 1965 Rules. In such cases, ordinarily,

no interference is called for. In the present case, the

respondents have, however, used an affidavit and in such

affidavit, it has been disclosed that subsequent to the

petitioner submitting his educational certificate, the same

had been scrutinized by the respondents. Upon scrutiny of

such documents, it has been detected that the petitioner

does not posses an educational certificate by a

school/institution which is affiliated with the West Bengal

Education Board. From the disclosures made in the

affidavit-in-opposition it would appear that AVB Junior

High School, having its address Post Durgapur, District -

Bardhaman, is not affiliated with the West Bengal Board

of Secondary Education and that the school had only

applied for affiliation with the West Bengal Board of

Secondary Education. In paragraph 4(b) and 12 of the

affidavit affirmed by Diban Singh Negi, D.I.G.P (Adm.), it

has been asserted, on the basis of the disclosure made by

AVB Junior High School, that the respondents having

scrutinized the matter and found that the writ petitioner

was enlisted in services based on an invalid educational

certificate and the date of birth and the enlistment of the

petitioner in government service being not in order, as per

instruction, the petitioner had been terminated from

service with effect from the date of expiry of one month's

notice dated 11th March, 2009.

In the backdrop of the disclosure as aforesaid, the

question, that, falls for consideration is whether the Court

can lift the veil of an innocuously worded order of

termination and look into the reasons which prompted the

respondents to terminate the petitioner from services and

consider whether the order of termination carries with

itself a stigma or whether the same is punitive in nature.

Another question also comes up for consideration is

whether, not obtaining an educational certificate from a

recognized institution affiliated with the West Bengal

Board of Secondary Education can be considered by the

respondents while evaluating suitability of the petitioner

to a permanent post.

While dealing with the first question it must be

noted that it is well settled that the Court can certainly lift

the veil, on an innocuously worded order, to look at the

real face of the order and find out whether it is as

innocent as it is worded. The aforesaid proposition finds

support from the judgment delivered in the case of

Chandra Prakash Shahi vs. State of U.P., reported in

AIR 2000 SC 1706, which has been relied on in the

judgment delivered in the case of Barun Bandyopadhyay

(supra).

While considering the second question in light of

the disclosure made by the respondents it would be

relevant to ascertain the terms of employment of the

petitioner. It would appear from the letter of appointment

that the same does not indicate that it would be

mandatory for the petitioner to disclose an educational

certificate from an institution affiliated with the West

Bengal Board of Secondary Education. The letter only

requires disclosure of educational certificate, in the event

the petitioner accepts the offer of employment. It is true,

that it is well within the authority of the employer to

assess the suitability of a candidate, prior to confirmation

and an appropriate educational qualification may also be

a suitable guiding factor and can certainly be considered

by an employer while deciding suitability of such

candidate. Ordinarily, however, a minimum qualification

is provided for and only those candidates who possess

such qualification are offered employment. In the present

case none of the parties have come forward with any

document so as to demonstrate that a Safai Karmachari

mandatorily requires an educational certificate to be

issued by an institution, affiliated with West Bengal Board

of Secondary Education.

In my opinion, unless the respondents had made,

obtaining of an educational certificate from a

school/institution recognized with the West Bengal Board

of Secondary Education, a condition precedent for

applying for the post of Safai Karmachari, the services of

the petitioner could not have been terminated, on the

ground that the school is not recognized.

In the present case the respondents have gone a

step further and have proceeded to terminate the service

of the petitioner, by terming his educational certificate as

invalid. Such a decision in my opinion cannot be taken by

the respondents without affording an opportunity of

hearing to the petitioner. Although, the order of

termination may not be construed in strict since sense as

punitive, the same, however, carries with itself, stigma of

declaring the petitioner's educational qualification as

invalid. In my opinion, therefor, the aforesaid order of

termination prejudicially affects the petitioner and

attaches a stigma. The same cannot be sustained and the

same is accordingly set aside.

However, considering the fact that the services of

petitioner had not been confirmed and the fact that the

petitioner has also not been able to demonstrate that he

was not gainfully employed elsewhere subsequent to his

termination from services, I direct the respondents to

forthwith reinstate the petitioner in service without any

back wages. It shall be open to the respondents to take

appropriate action against the petitioner if so advised,

upon giving an opportunity of hearing to the petitioner.

Considering the fact that the petitioner was out of

service for the last decade. I direct the respondents to

decide on the suitability of the petitioner for permanent

posting, based on the services already rendered by him,

within a period of one month from date. I, however, make

it clear that if confirmed, the petitioner shall be entitled to

all consequential benefits along with notional seniority

and promotion.

With the above directions, the writ application,

being WPA 6801 of 2011 is allowed.

There shall be, however, no order as to costs.

Urgent photostat certified copy of this order, if

applied for, be given to the parties upon compliance of

necessary formalities.

(Raja Basu Chowdhury, J.)