Delhi High Court
Vishal Ahmad vs Union Of India & Ors on 8 July, 2019
$~48
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 8.07.2019
% W.P.(C.) No. 7182/2019
VISHAL AHMAD ..... Petitioner
Through: Mr. Ankur Chhibber, Mr. Yogesh
Kuamr Mathur and Mr. Harkesh,
Advocates.
Versus
UNION OF INDIA & ORS. .....Respondents
Through: Mr. Subhash Gosai and Mr. Amit Kr.
Dogra and Mr. Tushar Malik,
Advocates for R-1 to 5.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MR. JUSTICE RAJNISH BHATNAGAR
VIPIN SANGHI, J. (ORAL)
W.P.(C.) No.7182/2019
1. The petitioner has preferred the present writ petition to assail the
orders dated 31.01.2019 and 18.4.2019 issued by the respondents. He also
seeks a direction to the respondents to consider the petitioner‟s case, like
others, who had been cleared despite having failed in one paper in the
examination conducted by the respondents.
2. The petitioner was appointed to the post of ASI/technical in the CRPF
on 22.3.2017. After the petitioner cleared the initial written examination
and training, he was sent for further training at Ranchi on 24.5.2017 where
he underwent a rigorous training course for a period of 33 weeks BRT
Course Sl. No. 41 w.e.f 1.1.2018 to 18.8.2018 at CTC(T & IT), CRPF,
Ranchi (Jharkhand). In the examination held at the end of the course, he
was declared „fail‟ in Radio Theory Part-I and II. As per instructions, he
was permitted to be retained at CTC (T & IT), CRPF, Ranchi for further
three months training and for providing extra Special Classes/Coaching to
re-appear in the final test in the failed subjects. Accordingly, he re-appeared
in the final re-test of failed subjects held at CTC (T & IT) CRPF, Ranchi
w.e.f 31.12.2018 to 1.1.2019 after completing three months coaching
classes. Unfortunately for the petitioner, he again failed in Radio Theory
Part II examination. Accordingly, his services were terminated in
accordance with para 2.15 (A), (vi) of Chapter-II of Training Manual. The
petitioner preferred an appeal against his termination which too was rejected
by the second impugned order dated 18.4.2019.
3. The submission of Mr. Chhibber, counsel for the petitioner is that in
the initial examination, as many as 68 persons had failed in one paper and,
despite their failing in one paper, they were cleared. However, 14
candidates, including the petitioner, who had failed in two papers, were
given further coaching and were required to re-appear in the re-examination.
As aforesaid, the petitioner cleared one of the papers in the re-examination.
Ld. counsel submits that the petitioner was, therefore, at par with the 68
persons who had failed in one paper and were still cleared.
4. The further submission of Ld. counsel for the petitioner is that the
petitioner should have been discharged, and not terminated, in terms of the
Establishment Manual of the CRPF. In this regard our attention has been
drawn to Clause (vi) of the said Manual which reads as follows:-
"(vi) Basic Radio Technician (C)/Basic Radio Mechanic course
The course is meant for the directly appointed ASIs(Tech). Failures
during final test of the course will be retained at the CTC(T) upto a further
period of 3 months for training and all facilities provided. Candidates should
be retested by a prescribed board of officers, those fail again for the second
time will be discharged and case is to be submitted to the Directorate
Communication by the Principal, CTC(T) after satisfying himself that the
candidates is not likely to make up the grade."
5. Lastly, he has argued that since one month‟s salary was not paid to the
petitioner, his termination under Rule 5 Central Civil Service (Temporary
Service) Rule is bad. He submits that the payment of one month‟s salary is
a pre-requisite to such termination.
6. We have heard the submissions of counsel for the petitioner and
perused the record and do not find any merit in the submissions. Firstly, the
petitioner cannot claim parity with the 68 other persons who had failed in
one paper in the first instance. This is because, the petitioner had failed in
two papers in said examination, and he was, alongwith the others, sent for
further coaching in special classes for a period of three months and re-tested.
Despite the special efforts put in by the respondents, the petitioner again
failed in one of the two papers. Therefore, in our view there is no parity
between the case of the petitioner and those of the 68 candidates who-in the
first round, failed in one paper.
7. The petitioner was a probationer and during the period of his
probation, on account of his poor performance, the respondents were entitled
to terminate his services by resorting to Rule 5 of the Central Civil Service
(Temporary Service) Rule 1965. The submission of counsel for the
petitioner is that this termination (not discharge as prescribed in the Manual)
would be a bar to his future employment in government service. We do not
agree with this submission of the counsel, since the order dated 9.1.2019 is
non-stigmatic.
8. We do not find any merit in the last submission as well. Firstly we
observe that office order was issued on 9.1.2019 and the termination was
made effective from 31.1.2019. Even otherwise, we find that office order
dated 9.1.2019 states that the petitioner would be entitled to draw pay for the
month February 2019, in view of the one month‟s notice period. Merely
because the said amount may not have been actually paid or released to the
petitioner, or may not have been accepted by the petitioner, the notice of
termination is not vitiated. That right of the petitioner is still preserved.
Learned counsel for the respondents states that the said amount shall be
released to the petitioner within one month.
9. Dismissed.
VIPIN SANGHI, J.
RAJNISH BHATNAGAR, J.
JULY 08, 2019
ib/jitender
