Rahul Kumar Mishra vs Union Of India And Ors
2010 Latest Caselaw 3223 Del

4
*IN THE HIGH COURT OF DELHI AT NEW DELHI

                       +    W.P.(C)No.12282/2009

                                    Date of Decision : 13th July, 2010
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      RAHUL KUMAR MISHRA                   ..... Petitioner
                   Through : Mr. R.R. Kumar and
                             Mr. Bharat Sangal, Advs.

                       versus

      UNION OF INDIA AND ORS              ..... Respondents
                     Through : Mr. Ankur Chhiber, Adv. for
                               Mr. Mohan Kumar, Adv.

CORAM :-
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE J.R. MIDHA

1.      Whether Reporters of Local papers may                 NO
        be allowed to see the Judgment?

2.      To be referred to the Reporter or not?                NO

3.      Whether the judgment should be                        NO
        reported in the Digest?

GITA MITTAL, J. (Oral)

1. By way of the present writ petition, the petitioner assails

the order dated 16th December, 2008 passed by respondent

No.3 terminating his service and directing that his name be

struck off from the rules of Central Reserve Police Force. The

petitioner also assails the order dated 3rd July, 2009 passed by

respondent No.2 rejecting the appeal of the petitioner assailing

the order of termination.

2. The challenge by the petitioner is premised primarily on

the ground that the same is without any justification and basis

and was passed in gross violation of the principles' of natural

justice. It is contended that the order of termination has been

passed during the currency of the extended training period of

the petitioner even though the petitioner had not been

declared as having been failed.

3. We have heard learned counsel for the respondents and

also examined the records which have been produced before

us. The respondents have pointed out that vide order dated 1 st

March, 2007, the petitioner was appointed to the CRPF to the

post of recruit/driver (RT/DVR) and he joined duty at Gwalior.

He was sent from his posting to Bilaspur on 15th May, 2007 for

training where he was posted with the Second Wing Batch

No.118. The petitioner commenced his eleven week basic

training on 15th November, 2007. The petitioner unfortunately

failed in the PT mid-term test which was held on 1 st February,

2008 in the training resulting in his relegation from Batch

No.118 to Batch No.119 (3rd wing) by an order dated 22nd

February, 2008. During the training period with Batch No.119,

which commenced on 26th February, 2008, the petitioner

remained admitted to the hospital w.e.f. 15th April, 2008 to 9th

June, 2008 (being a total of 56 days) due to a hydrocele. This

necessitated his relegation to Batch No.120 (Zero Week) on

medical grounds vide office order dated 14th June, 2008. When

the petitioner joined Batch No.120 on 23rd June, 2008, he was

unable to successfully complete the PT mid-term test on 20th

October, 2008. The petitioner was declared failed even in the

re-test which was conducted by the respondents. In these

circumstances, he was again relegated from Batch No.120 to

zero week on 15th November, 2008 as he failed in the arms drill

test. It has been pointed out that despite he has been given

extra chances, the petitioner failed in the periodical test as

well.

4. Reliance has been placed on the training manual of the

respondent wherein it has been prescribed that upon failure in

the periodical test, a recruit would be relegated to junior

squads but ordinarily not more than twice during the entire

period of the course. In case, the recruit is relegated for the

third time, the Principal of the training institute is required to

examine him and assess as to whether there was any

possibility of the recruit becoming an efficient member of the

force or otherwise. If the Principal arrives at a conclusion that

the candidate is not likely to achieve the requisite standard, he

is liable to be finally warned in writing of giving special

coaching to come up to the required standards, failing which

the necessary action to terminate his service under the existing

rules on the subject is required to be taken.

5. The petitioner was given extra coaching and the requisite

time to come up to the requisite level. However, he failed to

meet the prescribed standards manifesting his lack of interest

in the training and lack of desire to continue with the basic

training. In these circumstances, as required by the applicable

rules, the respondents had constituted a Board by order dated

12th December, 2008 under the Chairmanship of DIG(P) who

was the Principal of the Recruit Training Centre, Peringome to

examine and take the efficiency test of the petitioner. The

Board also consisted of Shri P. Nagarajan, Commandant, CRPF

as well as Shri Praveen Kumar, Deputy Commandant, CRPF.

This Board examined the petitioner in terms of para 2.15(ix) of

the Training Manual and arrived at a conclusion that the

petitioner was not fit to be continued in the force on account of

his poor physical standard and efficiency and recommended

that the petitioner be terminated from service. The record of

the proceedings of the Board has been placed before us.

6. We find that it is an admitted position that the petitioner

had not been confirmed in service and was still undergoing

training when the impugned order was passed. The

respondents have exercise the power under Rule 5(1) of the

CCS (Temporary Service) Rules, 1965 read with Rule 16(a) of

the CRPF Rules and have passed an order dated 16th

December, 2008 terminating the service of the petitioner

forthwith with the direction that he would be entitled to claim a

sum equivalent to the amount of his pay plus allowances for

the period of one month at the same rates at which he was

drawing the salary immediately before the termination of his

service as he was not found likely to be an efficient member of

the force under these provisions.

7. Rule 16(a) of the Central Reserve Police Force Rules,

1955 entitles the respondents to consider a member of the

force for permanency and also empowers the respondents to

discharge such personnel who are temporary on one month's

notice. So far as the temporary employees are concerned, the

respondents are entitled to exercise powers under the

provisions of the CCS (Temporary Service) Rules, 1965. Rule 5

of the CCS (Temporary Service) Rules provides that the service

of a temporary government servant shall be liable to

termination at any time by a notice in writing given either by

the government servant to the appointing authority or by the

appointing authority to the government servant. Under the

proviso to this Rule, the respondents are enabled to terminate

the service of a temporary employee forthwith whereupon the

government servant is entitled to claim a sum equivalent to the

amount of his pay plus allowances for the period of one month

at the same rates at which he was drawing the salary

immediately before the termination of his service.

8. We may notice that after the termination of his service,

the petitioner had made a representation dated 10th January,

2009 to the Inspector General of Police (Training) which was

forwarded to the Inspector General of Police (Special Sector).

The petitioner also assailed the order dated 16th December,

2008 by way of writ petition being WP(C)No.7628/2009 filed in

this Court. In these proceedings, the writ petition was disposed

of by an order dated 20th March, 2009 directing the

respondents to ensure that the representation of the petitioner

was considered in accordance with law and the order passed

thereon be communicated to the petitioner within a period of

two months. In compliance of this order, the respondents have

passed a detailed order dated 3rd July, 2009 rejecting the

representation of the petitioner. This order also details the

forgoing facts giving an adequate opportunity to the petitioner

to complete his training. The order also notices that whenever

the services of a temporary employee are terminated, then in

the order passed no allegation or reason for termination is

stated as in the instant case.

9. In this background, the contention of the petitioner that

the respondents have proceeded to terminate the services

without any justification is clearly misconceived. The

respondents have exercised power which is vested in them

under the applicable Rules. There is no dispute to the authority

and jurisdiction of the respondent to exercise the powers under

the aforenoticed Rules. The action taken by the respondents

has been initiated under the aforenoticed circumstances placed

before us and which reflects exercise of care and caution by

the respondents. No legal infirmity to the action which has

been taken by the respondents has been pointed out.

10. For all these reasons, we find no merit in this writ petition

which is hereby dismissed.

GITA MITTAL, J

J.R. MIDHA, J JULY 13, 2010/mk