Karnataka High Court
Mr P Barman vs Union Of India on 24 May, 2021
Author: M.Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24th DAY OF MAY, 2021
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.22927/2019 (S - RES)
C/W
WRIT PETITION No.27055/2018 (S - RES)
WRIT PETITION No.36546/2018 (S - RES)
WRIT PETITION No.16440/2019 (S - RES)
WRIT PETITION No.22920/2019 (S - RES)
IN WRIT PETITION No.22927/2019
BETWEEN
1. MR.P.BARMAN
SON OF KHAGANDRA NATH BARMAN
AGED ABOUT 44 YEARS,
RESIDING AT NO.4,
1ST MAIN ROAD, 1ST CROSS,
VINAYAKA NAGAR,
BENGALURU - 560 063.
2. MR. E. NARAYANA RAO
SON OF APPANNA,
AGED ABOUT 46 YEARS,
RESIDING AT NO.6-12,
SANAPALAVANIPETA,
FAREEDPETA, ETCHERIA
SRIKAKULAM,
ANDRA PRADESH - 532 410.
2
3. MR. V. REBIN
SON OF VELAYATHAPERMAL
AGED ABOUT 37 YEARS,
RESIDING AT: 88A
SHIVA KRUPA, KATTIGENAHALLI,
BENGALURU NORTH, A.F.STATION
YELAHANKA, BENGALURU - 560 063.
4. MR. RAVI KUMAR
SON OF ERANNA
AGED ABOUT 30 YEARS
RESIDING AT: BSF CAMPUS
BSF IT YELAHANKA,
BENGALURU NORTH, A.F. STATION,
YELAHANKA, BENGALURU - 560 063.
5. MR. S. RAJESH
SON OF M. SAGAR,
AGED ABOUT 32 YEARS,
RESIDING AT: POLUR,
INDIRA NAGAR,
TIRUVANAMALAI,
TAMIL NADU - 606 803.
... PETITIONERS
(BY SRI NISHANTH A.V., ADVOCATE (PHYSICAL HEARING))
AND
1. UNION OF INDIA
MINISTRY OF HOME AFFAIRS,
NORTH BLOCK,
NEW DELHI - 110 001
REPRESENTED BY
HOME SECRETARY.
3
2. THE DIRECTOR GENERAL
BORDER SECURITY FORCE, NO.10,
CGO COMPLEX, LODHI ROAD,
NEW DELHI - 110 001.
3. THE INSPECTOR GENERAL (ADM.)
BORDER SECURITY FORCE, NO.10,
CGO COMPLEX, LODHI ROAD,
NEW DELHI - 110 001.
4. THE DEPUTY INSPECTOR GENERAL (ADM.)
BORDER SECURITY FORCE, NO.10,
CGO COMPLEX, LODHI ROAD,
NEW DELHI - 110 003.
5. STATE OF KARNATAKA
DEPARTMENT OF TECHNICAL EDUCATION,
TANTRIKA SHIKSHANA BHAVANA,
PALACE ROAD, BENGALURU - 560 001
REPRESENTED BY ITS DIRECTOR.
6. ALL INDIA COUNCIL FOR TECHNICAL
EDUCATION
NELSON MANDELA MARG
VASANT KUNJ, NEW DELHI - 110 070
REPRESNETED BY ITS CHAIRMAN.
7. THE CHAIRMAN / INSPECTOR GENERAL
LOCAL MANAGEMENT COMMITTEE
BORDER SECURITY FORCE, INSTITUTE OF
TECHNOLOGY, STC
BORDER SECURITY FORCE CAMPUS,
YELAHANKA,
BENGALURU - 560 063.
8. BORDER SECURITY FORCE INSTITUTE OF
TECHNOLOGY
STC, BORDER SECURITY FORCE
4
CAMPUS, YELAHANKA,
REPRESENTED BY ITS
ADMINISTRATIVE OFFICER.
... RESPONDENTS
(BY SRI M.B.NARGUND, ADDITIONAL SOLICITOR
GENERAL A/W. SRI MADHUKAR DESHPANDE,
CENTRAL GOVERNMENT COUNCEL FOR R1 TO R4,
R7 AND R8 (PHYSICAL HEARING);
SMT.A.R.SHARADAMBA, ADDITIONAL GOVERNMENT
ADVOCATE FOR R5 (PHYSICAL HEARING))
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
a) QUASH THE ORDER DTD 05.03.2019 PASSED BY THE
R-3 VIDE ANNX-L; b) DIRECT THE R-2, 4 AND 8
INSTITUTION TO CONTINUE WITH SERVICES OF THE
PETITIONERS ETC.
IN WRIT PETITION No.27055/2018
BETWEEN
1. SMT. SUSHEELA N.,
D/O SRI NARAYANA REDDY,
AGED ABOUT 52 YEARS,
WORKING AS INSTRUCTOR,
BORDER SECURITY FORCE,
INSTITUTE OF TECHNOLOGY,
STC COMAPUS, YELAHANKA,
BENGALURU - 560 094.
2. SMT.PUSHPA B.P.,
D/O SRI B.C.POOVAIAH,
AGED ABOUT 43 YEARS,
WORKING AS INSTRUCTOR,
BORDER SECURITY FORCE,
INSTITUTE OF TECHNOLOGY,
STC COAMPUS, YELAHANKA,
BENGALURU - 560 094.
5
3. SMT.S.SHANAZ
D/O SRI SULTAN ABBAS,
AGED ABOUT 42 YEARS,
WORKING AS INSTRUCTOR,
BORDER SECURITY FORCE,
INSTITUTE OF TECHNOLOGY,
STC CAMPUS, YELAHANKA,
BENGALURU - 560 094.
... PETITIONERS
(BY SRI VIJAYAKUMAR, ADVOCATE (PHYSICAL HEARING))
AND
1. THE UNION OF INDIA
THROUGH SECRETARY,
MINISTRY OF HOME AFFAIRS,
NORTH BLOCK, NEW DELHI - 110 001.
2. THE DIRECTOR GENERAL
BORDER SECURITY FORCE,
NO.10, CGO COMPLEX,
LODHI ROAD, NEW DELHI - 110 001.
3. THE INSPECTOR GENERAL (ADM-V)
BORDER SECURITY FORCE,
C G O COMPLEX, LODHI ROAD,
NEW DELHI - 110 001.
4. THE DEPUTY INSPECTOR GENERAL
STC, BORDER SECURITY FORCE,
AFS, YELAHANKA POST,
BENGALURU - 560 063.
5. THE CHAIRMAN
LOCAL MANAGEMENT COMMITTEE,
BORDER SECURITY FORCE,
INSTITUTE OF TECHNOLOGY, STC,
6
BORDER SECURITY FORCE CAMPUS,
YELAHANKA, BENGALURU - 560 063.
6. THE PRINCIPAL
BSF, IT STC,
BORDER SECURITY FORCE CAMPUS,
YELAHANKA, BENGALURU - 560 063.
... RESPONDENTS
(BY SRI M.B.NARGUND, ADDITIONAL SOLICITOR
GENERAL A/W SRI ADITYA SINGH, CENTRAL
GOVERNMENT COUNSEL FOR R1 TO R5;
R6 SERVED AND UNREPRESENTED))
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
CALL FOR THE RECORDS RELATING TO ISSUE OF THE
IMPUGNED NOTICE OF TERMINATION OF SERVICE DTD:
28.5.2018 PASSED BY THE R-5 TO THE PETITIONERS VIDE
ANNEXURES - L, M, N AND AFTER PERUSAL SET ASIDE
THE SAME; TO CONTINUE THE SERVICES OF THE
PETITIONERS IN THE R-6 INSTITUTE EITHER AS
INSTRUCTOR OR AGAINST POSTS TO WHICH THEY ARE
QUALIFIED AND ELIGIBLE TO BE APPOINTED /
CONTINUED TILL THEY ATTAIN THE AGE OF
SUPERANNUTION AND GRANT THEM ALL
CONSEQUENTIAL BENEFITS THAT THEY ARE ENTITLED
TO.
IN WRIT PETITION No.36546/2018
BETWEEN
MRS. SUDHA RANI
W/O SRI CHENNAKESWARA,
AGED ABOUT 43 YEARS,
LAB ATTENDANT/CP
7
BSF IT STC CAMPUS, YELAHANKA,
BENGALURU - 560 063.
... PETITIONER
(BY SRI B.S.JEEVAN KUMAR, ADVOCATE)
AND
1. UNION OF INDIA
THROUGH ITS SECRETARY,
MINISTRY OF HOME AFFAIRS,
NORTH BLOCK, NEW DELHI - 110 001.
2. THE DIRECTOR GENERAL
BORDER SECURITY FORCE,
NO.10, CGO COMPLEX,
LODHI ROAD, NEW DELHI - 110 003.
3. THE INSPECTOR GENERAL (ADM.)
BORDER SECURITY FORCE EDUCATION
FUND SOCIETY, CGO COMPLEX,
LODHI ROAD, NEW DELHI - 110 003.
4. THE CENTRAL COMMITTEE
BSF EDUCATION FUND SOCIETY,
CGO COMPLEX, LODHI ROAD,
NEW DELHI - 110 003.
5. THE CHAIRMAN
LOCAL MANAGEMENT COMMITTEE,
BORDER SECURITY FORCE INSTITUTE
OF TECHNOLOGY,
BSF-STC, MINISTRY OF HOME AFFAIRS,
YELAHANKA, BENGALURU - 560 063.
6. THE COMMANDANT
BSF-STC CAMPUS,
YELAHANKA,
BENGALURU - 560 063.
8
7. BORDER SECURITY FORCE
INSTITUTE TECHNOLOGY
REPRESENTED BY ITS PRINCIPAL,
STC BSF CAMPUS, YELAHANKA,
BENGALURU - 560 063.
... RESPONDENTS
(BY SRI M.B.NARGUND, ADDITIONAL SOLICITOR
GENERAL A/W SRI ADITYA SINGH,
CENTRAL GOVERNMENT COUNSEL FOR R1 TO R7)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE NOTICE OF TERMINATION DATED 28.05.2018
VIDE ANNEXURE-A ISSUED BY THE 5TH RESPONDENT
TERMINATING THE SERVICES OF THE PETITIONER AT
THE RESPONDENT NO.7 INSTITUTION ETC.
IN WRIT PETITION No.16440/2019
BETWEEN
1. MR. B.ANIL KUMAR
SON OF B.CHANNA SHETTY,
AGED ABOUT 53 YEARS,
RESIDING AT TYPE 4, OFFICERS LANE
STC, B.S.F. CAMPUS,
YELAHANKA, A.F.STATION
BENGALURU - 560 063.
2. MR.SHREEDHARA.N
SON OF KRISHNAYYA.N
AGED ABOUT 51 YEARS,
RESIDING AT NO.53,
BAGALUR MAIN ROAD,
NEAR REVA UNIVERSITY
DURGAMBHA LAYOUT,
KATTIGENAHALLI,
9
BENGALURU NORTH
BENGALURU - 560 064.
3. MR.NAGARAJU.B.P.
SON OF PUTTANNAYYACHAR,
AGED ABOUT 53 YEARS,
RESIDING AT NO.48, 7TH CROSS,
8TH MAIN, NEXT TO RELIANCE TOWER,
COFFEE BOARD LAYOUT HEBBAL,
KEMPAPURA, BENGLAURU - 560 024.
4. MR.MADHU GOPINATH
SON OF V.GOPINATH,
AGED ABOUT 46 YEARS,
RESIDING AT: FLAT NO.F101
SHRIRAM SAHANA COMPLEX,
OPP. BMSIT COLLEGE,
YELAHANKA,
DODDABALLAPUR ROAD,
BENGALURU - 560 064.
5. MRS.V.JAYANTHI VENKATESH
WIFE OF S.MANOHAR NAIDU,
AGED ABOUT 51 YEARS,
RESIDING AT NO.16,
MADHU KRISHNA NILAYA, 1ST MAIN,
GANGAMMA TEMPLE STREET,
BEHIND CHURCH, GANGANAGAR,
R.T.NAGAR, BENGALURU - 560 032.
6. MRS.JAISY JOHNSON
WIFE OF K.A.JOHNSON
AGED ABOUT 54 YEARS,
RESIDING AT: NO.610, 10TH 'A' MAIN
FACING RAJEEV GANDHI PARK,
A SECTOR, YELAHANKA NEW TOWN,
BENGALURU NORTH, YELAHANKA
BENGALURU - 560 064.
10
7. MR.S.NATARAJAN
SON OF SENGOTTAIYAN A.,
AGED ABOUT 53 YEARS,
RESIDING AT NO.162, B3 BLOCK,
KENDRIYAVIHAR,
YELAHANKA, BENGALURU NORTH,
BENGALURU - 560 064.
8. MRS.USHA SHAJAN C.,
WIFE OF S.I.SHAJAN,
AGED ABOUT 52 YEARS,
RESIDING AT NO.260, 1ST 'A' MAIN
ROAD, SFS-407, KHB YELAHANKA
NEW TOWN, BENGALURU NORTH,
BENGALURU - 560 064.
9. MR.ASWATHA REDDY N.,
SON OF NARASIMHAPPA O.,
AGED ABOUT 54 YEARS,
RESIDING AT: MUDUGERE,
HALE UPPARAHALLI,
HALEUPPARAHALLI,
GAURIBIDANUR, CHIKKABALLAPUR,
KARNATAKA - 561 210.
10. MRS.SHAHAZAMA SIDDIQA
WIFE OF REHAN PASHA,
AGED ABOUT 43 YEARS,
RESIDING AT NO.1181/B,
4TH CROSS, TRIVENI ROAD,
NEAR IYENGAR BAKERY,
YESWANTHPUR, BENGALURU NORTH,
BENGALURU - 560 022.
11. MRS.SADGUNA CHANDRAKALA
WIFE OF T.V.SREERAMA REDDY,
AGED ABOUT 51 YEARS,
RESIDING AT: NO.36, 2ND MAIN,
HEBBAL BINNY MILL ROAD,
GANGANAGAR EXTENSION,
11
R.T.NAGAR, BENGALURU NORTH
BENGALURU - 560 032.
12. MRS.POORNIMA B.,
WIFE OF DR.DHANANJAYA M.V.,
AGED ABOUT 41 YEARS,
RESIDING AT NO.24
1ST MAIN ROAD, SAMBHRAM COLLEGE,
BEST COUNTY-3,
BENGALURU NORTH, VIDYARANYAPURA,
BENGALURU - 560 097.
13. MRS.RAMALAKSHMI SINGANAMALA
WIFE OF K.NANDA KISHORE,
AGED ABOUT 35 YEARS,
RESIDING AT NO.28/1, GROUND FLOOR,
NANDA GOKULA NILAYA,
OPP. JAKKUR AERODRUM,
YASODHA NAGAR, YELAHANKA,
BENGALURU - 560 064.
14. MRS.VANI.U
WIFE OF P.MURALI,
AGED ABOUT 46 YEARS,
RESIDING AT: NO.A2,
SHREYA APARTMENTS, 6TH CROSS,
ATHMANANDA COLONY, SULTANPALYA,
R.T.NAGAR, BENGALURU NORTH,
BENGALURU - 560 032.
15. MR.G.C.PUTTASWAMY
SON OF CHOWDAIAH,
AGED ABOUT 52 YEARS,
RESIDING AT NO.843, 12TH CROSS,
3RD MAIN, OPP. GOVERNMENT SCHOOL,
CHANDRALAYOUT,
NAGARABAVI 1ST STAGE,
BENGALURU - 560 072.
12
16. SMT.S.PADMA PRIYA
WIFE OF M.SATHYAN,
AGED ABOUT 42 YEARS,
RESIDING AT: NO.3, SRI VARI NILAYAM,
24TH 'A' CROSS, 1ST MAIN ROAD,
MARUTHI NAGAR, YELAHANKA
BENGALURU - 560 064.
17. MR.RAMESH KUMAR S.,
SON OF C.SAKTHIVEL,
AGED ABOUT 30 YEARS,
RESIDING AT: C/O PARVATHINATHAN,
ILLAM, PONNANDI NAGAR, FIRST STREET,
MUTHIANPURAM,
BEHIND KARUPPA SWAMY TEMPLE,
MULLAKADU, THOOTHUKKUDI,
TAMIL NADU - 628 005.
18. MRS.PREETHA SIVAN
WIFE OF S.K.PILLAI,
AGED ABOUT 44 YEARS,
RESIDING AT: QUARTERS 2 TYPE,
2 STC CAMPUS, A.F.S. YELAHANKA,
BENGALURU - 560 063.
19. MR.M.Y.KUNJUMON
SON OF O.YOHANAN,
AGED ABOUT 48 YEARS,
RESIDING AT: D 10, KOGILU LAYOUT,
SRINIVASAPURA,
NEAR SHIRDI SAI BABA TEMPLE,
BENGALURU NORTH, YELAHANKA
BENGLAURU - 560 064.
20. MR.MURTHY.H.S.
SON OF SEENAPPA,
AGED ABOUT 39 YEARS,
RESIDING AT: E-244,
KEMPANNA HOUSE, B.B.ROAD,
13
MAHESHWARI NAGAR,
YELAHANKA, BENGALURU - 560 064.
21. MR.R.BALAMURUGAN
SON OF MR.V.RAMASWAMY,
RESIDING AT: 931, CHAMUNDI NAGAR,
MAIN ROAD, CHOLOANAYAKANAHALLI,
MADESHWARA L/O, BENGALURU - 32.
22. MR.K.PRASANNA KUMAR
SON OF K.APPUKUTTAN PILLAI,
AGED ABOUT 47 YEARS,
RESIDING AT NO.120, 1ST MAIN,
2ND CROSS, NEAR VINAYAKA TEMPLE,
VINAYAKA NAGAR, BENGALURU NORTH
A.F.STATION, YELAHANKA,
BENGALURU - 560 063.
23. MR.S.S. INAMDAR
SON OF SAMDANI SAB,
AGED ABOUT 48 YEARS,
RESIDING AT: NO.36, 1ST MAIN ROAD,
1ST CROSS, VINAYAKA NAGAR,
BENGALURU NORTH,
A.F.STATION, YELAHANKA,
BENGALURU - 560 063.
24. MR.S.ASHOK KUMAR
SON OF SUBRAMANYAM,
AGED ABOUT 39 YEARS,
RESIDING AT: NO.87,
SHIVAPURA DWARAKA NAGAR,
BENGALURU
A.F.STATION, YELAHANKA,
BENGALURU - 560 063.
25. MR.ARPUTHA RAJ S.,
SON OF S.SUVIKKIAN,
AGED ABOUT 35 YEARS,
RESIDING AT: 99/1, 2ND MAIN,
14
DWARAKANAGAR,
BENGALURU NORTH, A.F.STATION,
YELAHANKA,
BENGALURU - 560 063.
26. MR.H.R.ANANDA
SON OF LATE RAMAPPA,
AGED ABOUT 49 YEARS,
NO.352, 5TH CROSS, BSK 1ST STAGE,
NEAR BMS COLLEGE,
BENGALURU - 50.
27. MR.SRINIVASA G.R.,
SON OF MR.RAMAKRISHNAIAH,
AGED 45 YEARS,
NO.3, 8TH CROSS, GANGAMMA LAYOUT,
GUDDADAHALLI, BENGALURU - 32.
... PETITIONERS
(BY SRI NISHANTH A.V., ADVOCATE (PHYSICAL HEARING))
AND
1. UNION OF INDIA
MINISTRY OF HOME AFFAIRS,
NORTH BLOCK,
NEW DELHI - 110 001
REPRESENTED BY
HOME SECRETARY.
2. THE DIRECTOR GENERAL
BORDER SECURITY FORCE, NO.10
CGO COMPLEX, LODHI ROAD,
NEW DELHI - 110 001.
3. THE INSPECTOR GENERAL (ADM)
BORDER SECURITY FORCE, NO.10,
CGO COMPLEX, LODHI ROAD,
NEW DELHI - 110 001.
15
4. THE DEPUTY INSPECTOR GENERAL (ADM)
BORDER SECURITY FORCE, NO.10,
CGO COMPLEX, LODHI ROAD,
NEW DELHI - 110 003.
5. STATE OF KARNATAKA
DEPARTMENT OF TECHNICAL EDUCATION,
TANTRIKA SHIKSHANA BHAVANA,
PALACE ROAD, BENGLAURU - 560 001
REPRESENTED BY ITS DIRECTOR.
6. ALL INDIA COUNCIL FOR TECHNICAL EDUCATION
NELSON MANDELA MARG,
VASANT KUNJ, NEW DELHI - 110 070
REPRESENTED BY ITS CHAIRMAN.
7. THE CHAIRMAN/INSPECTOR GENERAL
LOCAL MANAGEMENT COMMITTEE
BORDER SECURITY FORCE, INSTITUTE OF
TECHNOLOGY, STC
BORDER SECURITY FORCE CAMPUS,
YELAHANKA, BENGALURU - 560 063.
8. BORDER SECURITY FORCE INSTITUTE OF
TECHNOLOGY
STC, BORDER SECURITY FORCE
CAMPUS, YELAHANKA,
BENGALURU - 560 063
REPRESENTED BY ITS
ADMINISTRATIVE OFFICER.
... RESPONDENTS
(BY SRI M.B.NARGUND, ADDITIONAL SOLICITOR
GENERAL A/W SRI MADHUKAR DESHPANDE,
CGC FOR R1 TO R4 (PHYSICAL HEARING);
SMT.A.R.SHARADAMBA, AGA FOR R5 (PHYSICAL
HEARING);
SRI G.S.VENKATASUBBA RAO, ADVOCATE FOR R6
(PHYSICAL HEARING);
R7 SERVED AND UNREPRESENTED)
16
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DATED 05.03.2019 PASSED BY THE
R-3 VIDE ANNEXURE-L; DIRECT THE R-2, 4 AND 8
INSTITUTION TO CONTINUE WITH THE SERVICES OF THE
PETITIONERS AND ETC.,
IN WRIT PETITION No.22920/2019
BETWEEN
1. MR. SELVARAJ
SON OF MUNIYAPPAN,
AGED ABOUT 48 YEARS,
RESIDING AT: NO. 6/2,
SEETHARAMA TEMPLE ROAD,
NEAR BAGALURU CROSS, YELAHANKA,
BENGALURU - 560 064.
2. MR. MADHAIAH
SON OF SIDDAPPA,
AGED ABOUT 49 YEARS,
RESIDING AT: NO. 70,
AMBEDKAR NAGAR,
KATTIGENAHALLI, IAF POST,
BENGALURU NORTH,
YELAHANKA, BENGALURU - 560 063.
3. MR.K.DHANA SINGH
SON OF M.KANNAN,
AGED ABOUT 45 YEARS,
RESIDING AT: NO.131
DWARAKA NAGAR,
NEAR SEETHA RAMA TEMPLE,
YELAHANKA,
BENGALURU - 560 064.
17
4. MR. VENUGOPAL S.,
SON OF A. SAMIKANNU,
AGED ABOUT 51 YEARS,
RESIDING AT: NO. 56,
THANTHAIPERIYAR,
TIRUVANNAMALAI,
TAMIL NADU - 606 903.
5. MRS.P.JEGATHEESWARI
WIFE OF V.REBIN,
AGED ABOUT 36 YEARS,
RESIDING AT: 88A,
SHIVAPURA KATTIGENAHALLI,
BENGALURU SOUTH,
A.F.STATION, YELAHANKA,
BENGALURU - 560 063.
6. MR. MURUGAN J.,
SON OF S. JAYARAMAN,
AGED ABOUT 34 YEARS,
RESIDING AT: BSF CAMPUS,
BSF IT, YELAHANKA,
A.F. STATION,
BENGALURU - 560 063.
7. MR. BHAGIRATH RAM
SON OF BALARAM,
AGED ABOUT 31 YEARS,
RESIDING AT: BSF IT,
STC BSF, A.F. STATION,
YELAHANKA, BENGALURU NORTH,
BENGALURU - 560 063.
... PETITIONERS
(BY SRI NISHANTH A.V., ADVOCATE (PHYSICAL HEARING))
18
AND
1. UNION OF INDIA
MINISTRY OF HOME AFFAIRS,
NORTH BLOCK,
NEW DELHI - 110 001.
REPRESENTED BY HOME SECRETARY.
2. THE DIRECTOR GENERAL
BORDER SECURITY FORCE, NO.10,
CGO COMPLEX, LODHI ROAD,
NEW DELHI - 110 001.
3. THE INSEPCTOR GENERAL (ADM.)
BORDER SECURITY FORCE, NO.10,
CGO COMPLEX, LODHI ROAD,
NEW DELHI - 110 001.
4. THE DEPUTY INSPECTOR GENERAL (ADM.)
BORDER SECURITY FORCE, NO.10,
CGO COMPLEX, LODHI ROAD,
NEW DELHI - 110 003.
5. STATE OF KARNATAKA
DEPARTMENT OF TECHNICAL EDUCATION,
TANTRIKA SHIKSHANA BHAVANA,
PALACE ROAD, BENGALURU - 560 001.
REPRESENTED BY ITS DIRECTOR.
6. ALL INDIA COUNCIL FOR TECHNICAL EDUCATION
NELSON MANDELA MARG,
VASANT KUNJ, NEW DELHI - 110 070.
REPRESENTED BY ITS CHAIRMAN.
7. THE CHAIRMAN / INSPECTOR GENERAL
LOCAL MANAGEMENT COMMITTEE,
BORDER SECURITY FORCE,
INSTITUTE OF TECHNOLOGY, STC,
BORDER SECURITY FORCE CAMPUS,
YELAHANKA, BENGALURU - 560 063.
19
8. BORDER SECURITY FORCE INSTITUTE OF
TECHNOLOGY, STC,
BORDER SECURITY FORCE CAMPUS,
YELAHANKA, BENGALURU - 560 063.
REPRESENTED BY ITS
ADMINISTRATIVE OFFICER.
... RESPONDENTS
(BY SRI M.B.NARGUND, ADDITIONAL SOLICITOR
GENERAL A/W SRI MADHUKAR DESHPANDE,
CENTRAL GOVERNMENT COUNSEL FOR R1 TO R4,
R7 & R8 (PHYSICAL HEARING);
SMT.A.R.SHARADAMBA, ADDITIONAL GOVERNMENT
ADVOCATE FOR R5 (PHYSICAL HEARING))
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DTD: 5.3.2019 PASSED BY THE R-3
VIDE ANNEXURE-L; DIRECT R2, R4 AND R8 INSTITUTION
TO CONTINUE WITH THE SERVICES OF THE PETITIONERS
AND ETC.,
THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 06.02.2021, COMING ON
FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING :-
ORDER
Petitioners in all these petitions seek to challenge
the orders dated 28.05.2018 and 05.03.2019, by which,
the services of the petitioners is dispensed with on
account of closure of the School run by the Border
Security Force, Institute of Technology (hereinafter
referred to as 'the Institute' for short).
2. Sans details, facts germane for consideration of
the lis are as follows:
The petitioners in all these petitions are employees
appointed by the 7th respondent which include both
teaching and non-teaching posts. It is the case of the
petitioners that after following a due process of
selection, the petitioners were appointed on contract
basis on various capacities at the Institute.
3. Brief facts leading to the filing of the present
petitions, as borne out from the pleadings of writ
petition No.16440/2019.
4. Things standing thus, long after the
continuance of the services of the petitioners in the
Institute in various capacities that they were appointed
to, the General Body of the Institute met its 49th General
Body Meeting and considered the aspect as to whether
the Institute should be continued notwithstanding
heavy financial losses that it has incurred. Specific
agenda was placed before the Board that since the
Institutes at Tigri and Bengaluru were running under
huge financial loss. A decision was taken initially
based upon the resolution of the General Body that no
fresh admission to any streams for the academic year
2018- 19 should be done. It was also ordered that
termination notice to all surplus staff of the first year
and the second year of Diploma in both the Institutes at
Tigri and Bengaluru be given by the respective
Chairman of the said Institutes. Calling in question the
orders of termination, the petitioners are before this
Court.
5. This Court while issuing notice to the
respondents by an order dated 26.04.2019, directed the
respondents not to relieve the petitioners from their
services without leave of the Court. On the strength of
the said order, the petitioners are continuing to function
in the capacities that they were appointed to.
6. Heard Sri Nishanth, A.V., learned counsel for
the petitioners, Sri M.B.Nargund, learned Additional
Solicitor General along with Sri Madhukar Deshpande,
learned Central Government Counsel for first to fourth
respondents, Smt. A.R.Sharadamba, learned Additional
Government Advocate for fifth respondent and Sri
G.S.Venkatasubba Rao, learned counsel for sixth
respondent in all the petitions.
7. a) Learned counsel for the petitioners would
submit that the petitioners while being appointed
ranging from 1993 to 2012, they were all appointed
against existing vacancies and all of them have
completed their probation, are confirmed in services and
have been in continuous employment for the last 9 to
25 years. It is the further contention that the Institute
is affiliated to the AICTE and all the appointments are
valid in the eye of law.
7. b) Learned counsel for the petitioners would
further contend that the 49th General Body Meeting had
no quorum to decide the closure and the agenda placed
before the Governing Body was with regard to the
closure of the Institute at Tigri and not the Institute at
Bengaluru, and he would submit that it is without the
approval of the AICTE.
8. On the other hand, learned Additional Solicitor
General appearing on behalf of the respondent - Union
of India would submit that the writ petitions are not
maintainable as the 7th respondent is registered under
the Societies Registration Act, 1860, against which no
writ petition would lie as it is not a State under Article
12 of the Constitution of India.
9. Learned senior counsel would, without
prejudice to the aforesaid contention would submit that
even on the merit of the matter, the writ petitions would
be liable to be dismissed as the appointment orders
itself indicated that the services of the petitioners was
terminable with serving one month's notice without
assigning any reason. Therefore, in terms of the orders
of appointment, the termination cannot be held as
illegal.
10. I have given my anxious consideration to the
submissions made by the learned counsel for the
parties and perused the material on record in
furtherance whereof the following points:
a. Whether the writ petition is maintainable
against the 7th respondent/Society?
b. Whether the petitioners are entitled to
continue in service despite closure of the
Institution?
RE. POINT NO.1:
11. The 7th respondent - Institute is established,
managed and operated by the Officers of the Border
Security Force on its establishment on and from the
year of its establishment - 1982. The objects and
reasons was to promote the welfare of BSF employees
and their wards by encouraging education in general,
particularly in the field of Science, Medicine and
Technology. The source of income to generate fund in
terms of the Rules of the Administration of the Border
Security Force Education Fund (hereinafter referred to
as 'the Rules' for short), read as follows:
1. Title: - The fund shall be called the
Border Security Force Education Fund.
2. Objects incorporated in the Memorandum
of Association.
3. Source of Income: The fund shall be
generated:
a. By voluntary subscription from
Officers of all ranks available in the
Border Security Force at the rate to be
fixed by from time to time;
b. By voluntary subscription and
donations from persons either that the
Force collected under such restrictions
and conditions of the Central
Government may impose.
c. By grants received from Unit Welfare
Centres and other activities and
d. By grants received from the
Central and State Governments."
Rule 17 of the Rules read as follows:
17. An annual report of the working of the
Fund shall be Government through the
Director General of the Border Security
Force.
Additional Clause:
All the provisions of the Societies Registration Act,
XXI of 1860 (Punjab Amendment Act, 1957), as extended
to the Union Territory of Delhi) will apply to this Society.
Certified that this is the correct copy of the rules
and regulations of the Society."
Two factors emerge from the afore-extracted Rules, one
being the grants for education fund under which the 7th
respondent is created, is received from the hands of the
Central and State Governments. The other being the
annual report of the working of the Fund should be sent
to the Government through the Director General of the
Border Security Force. These clauses lead to an
unmistakable conclusion that the 7th respondent
though is a Society registered under the Society
Registration Act, it is funded and the funds are
controlled either by the Central Government or the State
Government as the case would be. The Officers of the
Border Security Force act as the Secretary of the Fund
and the expenditure of the Fund has to be placed before
the Government. Thus, the Union of India has control
over the 7th respondent - Institute. The Apex Court in
plethora of judgments interpreting the constitution and
the functioning of the Societies of the kind of the 7th
respondent, has held that all of them would be a 'State'
under the Article 12 of the Constitution of India and the
writ in certain circumstances would be maintainable.
12. The argument to the contrary advanced by the
learned Additional Solicitor General is unacceptable in
the light of the narration rendered hereinabove. The
view in this regard of mine is fortified by the judgment
of this Court concerning the very same Institute
rendered way back in the year 1996, in the case of
JITENDRA KUMAR YADAV V. UNION OF INDIA &
OTHERS reported in ILR 1996 KAR 1679, wherein this
Court answering the very question as to whether the 7th
respondent is a 'State' under Article 12 of the
Constitution has held as follows:
"4. This is not a border line case
because the law with regard to Article 12 is
now well settled and to my mind a mere
perusal of the prospectus of the BSF Institute
of Technology will very clearly indicate that it
does come within the overall supervision and
control of the State. For purposes of
ascertaining the term control, it does not
necessarily mean that the Institute has to be
set up by the Government or that it must be
run by one of the Government Departments.
There are numerous instances where the
supervision and control is exercised indirectly
and the present instance is a classic one. The
Governing Council consist of the following
persons:--
Director General, BSF - Chairman IG
(Admn) - Vice Chairman IG (Comn) - Member
IG (Air) - Member F.A - Member Rep of
AICTE/HRD - Member Rep of MHA - Member
Rep of DGCA - Member DD (Admn) - Member
A scrutiny of the Members of the
Governing Council makes it very clear to my
mind that for good reason the Government
itself has constituted this body to exercise
overall control over the Institute because it
caters strictly to the needs of the one sector of
the Armed Forces namely the B.S.F It is for
this reason that the bulk of the finances
required for the running of the Institute come
from the Ministry of Home Affairs and
whether it is called a grant or otherwise the
fact remains that but for this financial lifeline,
that Institute would never have been able to
run. There can be no dispute about the fact
that therefore the total supervision and
control over this Institute vests with the State
and therefore regardless of the legal set up of
the Institute namely that it is registered as a
Society, it would still come within the
definition of Instrumentality of State and the
present petition therefore cannot be rejected
or dismissed on the ground of
maintainability."
It is also germane to notice that on an earlier occasion
when employees of the very same institution had
knocked the doors of this Court in Writ Petition
No.33884 of 1998, this Court though declined to grant
relief but had entertained the writ petition. The said
order passed by the learned single Judge was affirmed
by the Division Bench as well. Above all, the Institution
is imparting education. Under certain circumstances a
writ petition would be maintainable even against a
private educational institution, as imparting education
is a public duty.
13. In view of the preceding analysis, writ against
the 7th respondent cannot but be held maintainable. I
hold point No.1 against the respondents holding that
the writ petitions against the Society/Institution as
maintainable.
RE. POINT NO.2:
14. The petitioners were all appointed in various
capacities by issuance of identical appointment orders,
one of which dated 12.08.2000, reads as follows:
"With reference to your application for the
post of Lecturer in Electronics Department in BSF
IT, it is to inform you that you have been selected
for appointment as Lecturer in Electronics
Department on temporary basis on the following
terms and conditions:
(a) Your appointment will be on probation for 2
years which may be extended where considered
necessary. During the probation, your services
are terminable by serving one month's notice
on either side without any reasons being
assigned thereof. However, after completion of
probation and confirmation, your services are
terminable with three months notice or three
months salary in lieu thereof from either side and
without prejudice to para 9 below. The appointing
authority, however, reserve the right to terminate
your services before expiry of the stipulated period
of notice by making payment of sum to the pay
and allowances for the unexpired portion of notice
by making payment of sum to the pay and
allowances for the unexpired portion of notice
thereof or without any payment for any gross
misconduct so established by the management
including the cases of the type referred in para 10
below.
(b) Scale of Pay: Rs.8000- 275- 13500/-
(c) Dearness Allowance: As applicable to
the Central Govt. employees. Present DA rate is
38% of Basic Pay.
(d) HRA: As admissible under BSF Education
Code
(e) Casual Leave : 08 days in a calendar
year. 2 Restricted holidays in a year will be given.
(f) Earned Leave: 10 days in a calendar
year creditable as under:-
(i) 1st Jan - 05 days for the period from
Jan to Jun ever year.
(ii) 1st July - 05 days for the period from
July to Dec ever year.
2. The appointee shall during the period of
employment unless prevented by ill health
or genuine unavoidable circumstances
deligently and faithfully serve the
organization and devote the whole of his
time, attention and abilities to increase the
standard of the Institute.
3. No TA/DA will be admissible for the first
joining the post of Lecturer in Electronics
Department in BSF IT.
4. you shall not divulge, disclose or make
public any confidential matter relating to the
Institute.
5. Other terms and conditions of service
governing the appointment are as laid down
in the BSF Education Code as amended
from time to time.
6. you shall not engage or associate yourself
partly or fully to any other renumerative
activity.
7. In the case of any dispute or claim against
the BSF Education Fund in respect of ser ice
or any contract arising out of or following
from this offer of appointment, the court at
the station of appointment alone shall have
jurisdiction.
8. You are liable to be transferred to any BSF
School /Institute run by BSF Education
Fund.
9. Education qualification, certificate of date of
birth and medical fitness certificate in
original shall be produced at the time of
joining duty.
10. In case any part or whole of the declaration
made and certificates produced by you are
found at any stage to be false or fabricated,
you will be liable for dismissal from service
without giving any notice or payment of
salary in lieu thereof.
11. You should report for duty at BSF IT,
Yelahanka (AFS), Bangalore - 63 by 6 Aug
2000 failing which the offer of appointment
is likely to be cancelled.
12. You should familarise yourself with relevant
portion of BSF Education Fund Code and
duties and responsibilities at the time of
acceptance of the appointment."
(emphasis added)
Similar to that of the afore-extracted appointment order,
the appointment orders are issued to all the petitioners
right from the year 1982 upto the year 2008. The
petitioners were placed on probation and were
confirmed in their services though every order of
appointment contains the clause that they can be
terminated by serving one month's notice.
15. Similar orders of termination on the strength
of identical appointment orders issued by the Institution
had become subject matter of writ petition in Writ
Petition No.33884 of 1998 and connected cases wherein
this Court considering the fact that the orders of
appointments were pending upon the petitioners,
declined to grant any relief to those petitioners by
observing as follows:
"9. After careful perusal of the
impugned orders passed by respondents,
terminating the services of the petitioners, it is
manifest on the face of the said orders that,
the authorities have made it amply clear that,
the BSF Education Fund being the Apex body
has taken the decision to discontinue the
Aircraft Maintenance Engineering course with
effect from academic year 1998 - 99 on
account of poor response from the candidates
and as a result, it has not been possible to
utilize the services of the petitioners gainfully.
Further it has been spelt out in paragraph 2
of the termination orders in unequivocal terms
that, "the services are terminated with
effect from 1st November 1998 as
approved by competent authority".
Regarding the question as to whether the said
decision is taken in good faith and not as a
mask of some penal action, learned counsel
appearing for petitioners, except making
submission vehemently that the respondents
have not taken any permission from the
competent authority, has not produced any
authenticated document to establish that, the
respondents have not taken any permission
fro the competent authority. As a matter of
fact, in the termination orders, as stated
above, it has been specifically referred in
paragraph 2 "as approved by the
competent authority". Therefore, the
submission made by the learned counsel for
petitioners cannot be accepted. The
respondents 4 and 5 have filed detailed
statement of objections and have stated in
unequivocal terms that, the reason behind the
decision of abolition of posts is only due to
poor response from the students to the AME
course and also due to the fact that those
students who had graduated were finding it
difficult to get jobs and many of the new Air
lines like NEPC and many of the new
promised Aircraft did not come up. Added to
that, for the academic year 1997- 98, out of
ten students who were admitted, four
students withdrew their admission and
remaining six students continued their course,
but, at the end of the academic year, applied
for change of branch and joined the
Electronics and Communication. They have
produced a copy of the communication
allowing the students for such change of
branch dated 15th March 1998. As to
whether the decision taken is in good faith, it
is pertinent to note that, in view of the above
situation, it was decided to start a course in
mechanical subject instead of AME course
vide letter dated 2nd March 1998 and to
examine the feasibility or otherwise of
utilizing the service of these AME staff, a
Board of Officers consisting of two lecturers
and the Administrative Officer was
constituted on 17th August 1998. The said
Board was of the opinion that, the services of
the petitioners cannot be utilized elsewhere
and the proceedings of the board is also
produced along with the statement of
objections. Therefore, there is no doubt
regarding the fact that, every possible effort
was made by authorities to utilize the service
of these petitioners, but, the situation was
beyond their control. The said decision was
taken in view of several factors, including the
financial constraints, maintenance of the staff
members, libraries and more so because of
the poor response from the students for taking
admission to study the said course and more
over, it is the case of respondents that, the
Institute is run under the BSF Education Fund
and does not get any aid fro any quarter. It is
purely an un- aided Institute run on the basis
of limited financial resources collected from
the BSF personnel and as per the norms of
the AICTE. Therefore, I do not find any
justification to hold that, the decision taken
by the competent authority is not in good
faith. The learned counsel for petitioners has
relied upon the decision of the Apex Court in
Ramanatha Pillai's case reported in AIR
1973 SC 2641 to substantiate his stand that
abolition of post should be made after
obtaining approval from the competent
authority and it must be in good faith and not
as a mask of some penal action. There is no
dispute or quarrel regarding the well- settled
law laid down by the Apex Court. But, facts
and circumstances of the said case are
entirely different from the facts and
circumstances of the case on hand.
Therefore, the reliance placed by the learned
counsel from petitioners is not at all
applicable to the facts and circumstances of
the instant cases.
10. Regarding the stand of the learned
counsel for petitioners that, under Article 311
of the Constitution of India, protection of
employment is available to employees
working in Government undertakings, he
relied upon the judgment of the Apex Court in
the case of UPTRON INDIA LTD. VS.
SHAMMI BHAN AND ANOTHER (A.I.R.
1998 SC 1681) and vehemently submitted
that, the termination of services by the
Institute by giving three months' salary in lieu
of three months' notice is not permissible.
The reliance placed by the learned counsel for
petitioners cannot be made applicable to the
facts and circumstances of the case on hand
for the simple reason that, the fact and
circumstances of the case referred is entirely
different and also in view of the fact that, the
subject matter involved in the referred case is
with regard to the permanent status of an
employee, employed by Government or
Government Company or Government
instrumentality or statutory Corporations or
any other "authority", within the meaning of
Article 12 cannot be terminated abruptly and
arbitrarily, either by giving him a month's or
three months' notice or pay in lieu thereof or
even without notice. But, in the instant case,
the Institute is run by the BSF Education
fund, which is purely an unaided Institution
and does not get any aid from any State
Government o from the Central Government.
Therefore, the ratio of law laid down by the
Apex Court in the above referred case is not
at all helpful to petitioners in the instant case
nor the same can be made applicable to the
facts and circumstances of the instant case.
However, there is no second thought
regarding the well settled principles of law
laid down by the Apex Court in the said case.
11. It is significant to note, as rightly
pointed out by the learned counsel appearing
for respondents that, in the case of
KRAJENDRAN AND OTHERS VS. STATE
OF TAMIL NADU AND OTHERS (A.I.R.1982
SC P.1107), when the Apex Court had an
occasion to deal with the question as to
whether Article 311 (2) could be contravened,
if a Government Servant holding a civil post
substantially loses his employment by reason
of abolition of the post held by him, it placed
heavy reliance on the law laid down by it in
the case of SHYAMLAL VS. STATE OF
UTTAR PRADESH (A.I.R. 1954 SC P.369),
wherein it was held thus:
"The abolition of post may have the
consequence of termination of service
of a government servant. Such
termination is not dismissal or
removal within the meaning of
Art.311 of the Constitution. The
opportunity of showing cause against
the proposed penalty of dismissal or
removal does not therefore arise in
the case of abolition of post. The
abolition of post is not a personal
penalty against the government
servant. The abolition of post is an
executive policy decision. Whether
after abolition of the posts, the
post would or could be offered
any employment under the State
would therefore be a matter of
policy decision of the Government
because the abolition of posts
does not confer on the person
holding the abolished post any
right to hold the post." (emphasis
supplied)
After careful perusal of the ratio of law
laid down by the Apex Court, it is crystal
clear that, even if the abolition of post has the
consequence of termination of service of a
government servant, such termination is not
dismissal or removal within the meaning of
Article 311 of the Constitution of India and
the opportunity of showing cause against the
proposed penalty of dismissal or removal
does not therefore arise in the case of
abolition of post. The abolition of post is not a
personal penalty against the Government
Servant. The abolition of post is an
executive policy decision and whether
after abolition of the posts, the
Government Servant could be offered any
employment would therefore be a matter
of policy decision of the Government,
because the abolition of post does not
confer on the person holding the
abolished post any right to hold the post.
Therefore, the said law is directly
applicable to the facts and
circumstances of the instant case.
12. As rightly pointed out by the learned
counsel for respondents 2 to 5, the Apex Court
in the case of STATE OF HARYANA VS. DES
RAJ SANGAR AND ANOTHER (1976) 2 SCR
P.1034 has held as follows:-
"Whether a post should be retained or
abolished is essentially a matter for the
Government to decide. As along as
such decision of the Government is
taken in good faith, the same cannot be
set aside by the Court. It is not open to
the Court to go behind the wisdom of
the decision and substitute its own
opinion for that of the Government on
the point as to whether a post should or
should not be abolished. The decision
to abolish the post should, however, as
already mentioned, be taken in good
faith and be not used as a cloak or
pretence to terminate the services of a
person holding that post. In case it is
found on consideration of the facts of a
case that the abolition of the post was
only a device to terminate the services
of an employee, the abolition of the post
would suffer from a serious infirmity
and would be liable to be set aside.
The termination of a post in good faith
and the consequent termination of the
services of the incumbent of that post
would not attract Article 311. In
M.Ramanatha Pillai Vs. The State of
Kerala and Another Ray C.J. speaking
for the constitution Bench of this Court
observed:
"A post may be abolished in good
faith. The order abolishing the post
may lose its effective character if it is
established to have been made
arbitrarily, malafide or as a mask of
some penal action with the meaning of
article 311 (2)" (emphasis supplied)
Hence, in view of the well settled
principles of law laid down by the Apex Court
and the views expressed by the Hon'ble
Mr.Justice Ray, Chief Justice, while speaking
for the Constitutional Bench, as extracted
above, it is amply clear that, if a post is
abolished in good faith, the order abolishing
the post may lose its effective character if it is
established to have been made arbitrarily,
mala fide or as a mask of some penal action
within the meaning of Article 311 (2) of the
Constitution of India. In the instant case, the
competent authority after thorough evaluation
and after taking into consideration the ground
realities and going to the grass route on the
basis of the report submitted by the
Committee, has taken a decision in the full
wisdom as a matter of policy decision and the
petitioners have no right to hold the abolished
post. Moreover, in the appointment orders
issued to the petitioners, it has been spelt out
in unequivocal terms that, their appointments
are subject to terms and conditions of the
relevant Code, particularly, condition No.3
makes it crystal clear that, the services of the
petitioners may be terminated with three
months' notice or three months' salary in lieu
thereof. When it is established that, the
authorities have taken the decision in good
faith, this Court cannot interfere with the
impugned termination orders, holding that,
the petitioners are entitled to protection of
employment under Article 311 of the
Constitution that too, when the Institution is
run by the BSF Education Fund which is
purely an unaided Institution.
13. Lastly, regarding the submission
made by the learned counsel for petitioners
that, the respondents have not made any
sincere efforts for taking the services of the
petitioners in other institutions run by its on
social, equity and on humanitarian
considerations having regard to the fact that,
the petitioners are age- bared and this is the
only source of income for their livelihood, in
my considered view, the said submission of
the learned counsel for petitioners cannot be
accepted in view of the categorical stand
taken by Union of India, in its statement of
objections and as rightly pointed out by Sri.
Dixit, learned counsel appearing for Union of
India. From the said statement of objections,
it can be seen that, the authorities have made
all sincere efforts to utilize the services of
these petitioners and only when it was
beyond their control, they could not utilize the
services of these petitioners within the
Institute run by the BSF Education Fund
Society in other states and they were forced
to terminate the services of these petitioners
by abolishing their respective posts. To
substantiate the said stand, Sri.Dixit has also
placed heavy reliance on the observations
made by the Apex Court in the case of
K.RAJENDRAN AND OTHERS VS.STATE
OF TAMIL NADU AND OTHERS (A.I.R.
1982 SC 1107 (SUPRA)) and drew my
attention to paragraph 34 of the said
judgment which reads thus:
"34. It is no doubt true that Art. 38 and
Art.43 of the Constitution insist that the
State should endeavour to find
sufficient work for the people so that
they may put heir capacity to work into
economic use and earn a fairly good
living. But these articles do not mean
that everybody should be provided with
a job in the civil service of the State and
if a person is provided with one he
should not be asked to leave it even for
a just cause. If it were not so, there
would be no justification for a small
percentage of the population being in
Government service and in receipt of
regular income and a large majority of
them remaining outside with no
guaranteed means of living. It would
certainly be an ideal state of affairs if
work could be found for all the able
bodied men and women and everybody
is guaranteed the right to participate in
the production of national wealth and to
enjoy the fruits thereof. But we are
today far away from that goal. The
question whether person who ceases to
be a Government servant according to
law should be rehabilitated by giving an
alternative employment is, as the law
stands today, a matter of policy on
which the Court has no
voice."(emphasis supplied).
14. The Apex Court has clearly held
that, it would certainly be an ideal state of
affairs if work could be found for all the able
bodied men and women and everybody is
guaranteed the right to participate in the
production of national wealth and to enjoy the
fruits thereof. But we are today far away
from that goal. The question whether a
person who ceases to be a Government
servant according to law should be
rehabilitated by giving an alternative
employment is as the law stands today, a
matter of policy on which the Court has no
voice. In the instant case, as stated supra,
the Institute has taken the decision of
abolition of posts in view of non availability of
students to AME course to which posts, these
petitioners were appointed and that too after
obtaining necessary recommendations from
the Committee constituted for the said
purpose and after taking necessary approval
from the competent authority and also as per
the terms and conditions of the appointment
orders issued. It is pertinent to note that,
the petitioners having accepted the terms
and conditions of the offer of
appointment including condition No.3,
now, cannot go back on the ground that,
condition No.3 goes against them. The
petitioners have accepted condition No.3
without any objections that their services
may be terminated with three months'
notice or three months' salary in lieu
thereof and in the instant case, after
giving thee months' salary in lieu of
three months' notice, their services have
been terminated by giving cogent reasons
for their termination and after obtaining
necessary approval from the competent
authority. As a result of abolition of
AME course and thereafter the posts
attached to it, the only course open for
the authorities was to terminate the
services of the petitioners. Once they
have accepted the terms and conditions
of the appointment orders, it is not open
for the petitioners to redress their
grievance that, the said terms and
conditions are not applicable to them as
per the cases, referred supra, especially
when the Institute is an un- aided
Institution. The respondents have clearly
stated that, on two previous occasions, some
incentive was given by the then Home
Ministry. Therefore, I do not find any
justification or substance in the submission
made by the learned counsel for petitioners
that, the respondents have not made any
sincere efforts for accommodating the
petitioners in any other Institution run by the
said Institute in other states.
15. Having regard to the facts and
circumstances of the case, as stated above,
and having regard to the factual legal aspect
of the matter, as enumerated above, I do not
find any justification or good grounds to
interfere in the impugned orders passed by
the competent authority."
This order passed by the learned Single Judge was
carried in appeal in Writ Appeal No.2741/2005 by the
petitioners on the ground that no relief was granted to
them for their continuance in service. The Division
Bench dismissing the writ appeal observed thus:
"3. We have heard the learned
counsel appearing for the appellants and find
no merit in the appeals. There is no
gainsaying the fact that the appellant and the
other teachers/instructors/technicians had
been appointed on the terms and conditions
contained in the letter dated June 24, 1994.
Clause (3) of the letter of appointment
provided that the appointment would be on
probation for one year which could be
extended if necessary. It further provided
that during the period of probation the
services of the appointee could be terminated
on one month's notice on either side without
assigning any reason therefor. However,
after the completion of probation and
confirmation, the service was terminable with
three months notice or three months salary in
lieu thereof. With the abolition of the course,
the posts of teachers/lecturers/technicians
were abolished and they were given three
months notice in terms of the order of
appointment and their services terminated.
Since the posts were abolished with the
abolition of the course, no fault can be found
with the action of the Society in terminating
the services of the appellant. It is well settled
that the creation and abolition of the posts is
the prerogative of the employer who cannot be
forced to recruit people or continue to employ
them when there is no need. Obviously,
when the posts and the course were
abolished there was no need to have the
teachers/lecturers/technicians.
4. The learned senior counsel
however urged that the appellant and others
whose services have been terminated for no
fault of theirs have no other source of
livelihood and cannot seek employment
elsewhere as they have become over age.
That may be so. It will however be desirable
for the Society to consider the claim of the
appellant and others like him whose services
were terminated on account of the abolition of
the posts for appointment as and when a
need arises for such recruitment in future."
16. Since the issue before this Court both in the
writ petitions and writ appeals were identical to one that
is in issue in the subject writ petition, I am bound by
the decision of the coordinate Bench and the Division
Bench declining to grant any relief to those petitioners
who are appointed by the very same Border Security
Force Institute of Technology which is the employer in
this case as well. Every one of the contentions now
urged in these writ petitions had all been urged in the
earlier petition before a Co-ordinate Bench and the
Division Bench. Those having been negatived, there can
be no direction that can be issued to the respondents to
continue the services of the petitioners in the Institution
that has ceased to exist on account of its closure. This
Court will not sit in appeal over the decision upon the
respondents to close down the institution for the
reasons indicated therein. Therefore, I hold point No.2
against the petitioners.
17. The petitioners approached this Court in these
writ petitions seeking to challenge the notices of
termination issued to them. This Court initially by an
order dated 06.07.2018 in W.P.Nos.27055-57/2018
directed that the petitioners therein should not be
relieved from their services without the leave of this
Court. The same interim order is granted in all these
petitions. Therefore, on the strength of the interim
orders the petitioners retained their jobs and are paid
salary till this date. Since the petitioners are paid
salary on the strength of the interim order granted, I
deem it appropriate to direct the respondents not to
recover any salary that is paid during the pendency of
the subject writ petitions on the ground that the
contentions urged by the petitioners have not found
acceptance by this Court.
18. Learned counsel appearing for the petitioners
in all these cases would submit that the petitioners
have put in 15 to 25 years of service without any break
and did possess qualification to hold the post
throughout. It is their submission that the Border
Security Force runs several institutions in the country
and documents are also place with regard to Border
Security Force schools inviting applications in
Jallandar, Jammu & Kashmir, Gwalior and Shillong to
fill up several teaching and non-teaching posts on direct
recruitment basis in the year 2019-20 and the
petitioners are prepared to work in any of the
institutions in the entire country as few of the
petitioners who are aged above 50 years will be left in
the lurch without employment. If that be so, it is for the
respondents to consider the cases of petitioners, if
available in law, to rehabilitate these petitioners whose
services stood terminated on account of closure of
Institution. In the afore-narrated circumstances, this
Court has no reason to believe that the respondents
would not consider the grievance of the petitioners as a
one off remedy to a one off situation.
19. For the aforesaid reasons, the following:
ORDER
a. The Writ Petitions are dismissed.
b. Dismissal of the writ petitions will not come in
the way of the 1st respondent - Union of India
and the BSF taking any decision on the
grievances of the petitioners.
c. The respondents are restrained from recovery of
any salary paid during the pendency of the writ
petitions.
In view of dismissal of the writ petitions, all
pending Interlocutory Applications also stand
dismissed.
Sd/-
JUDGE
nvj
CT:MJ
