Central Administrative Tribunal - Lucknow
Ravindra Kumar vs Union Of India (Uoi) And Ors. on 16 September, 2002
Equivalent citations: 2003(2)SLJ119(CAT)
ORDER A.K. Misra, Member (A)
O.A. No. 648/2001
1. The applicant of this O.A. has prayed that the order dated 9th November, 2001 as contained in Annexure No. 4 be quashed and further that the applicant be provided with all service benefits to which he is entitled.
O.A. No. 187/19982. The relief claimed in this O.A. is for issue of directions to the respondents to grant annual increments to the applicant to which he is lawfully entitled.
3. Since the issues involved in both the O.As. are similar, both the O.As. are disposed of by common and consolidated order for the sake of convenience.
4. Pleadings on record have been perused and learned Counsel for the parties have been heard.
5. The applicant was appointed on 2nd December, 1992 as Lower Division Clerk (in short LDC) in the office of the Director of Census Operations, Uttar Pradesh, Lucknow on compassionate grounds under the dying and harness rules. The age of the applicant on the date of his appointment was 35 years and 4 months. The appointment letter dated 2nd December, 1992 contained a recital to the effect that the applicant is employed as LDC in the pay scale of Rs. 950-1500 on temporary basis for a period of two years and further it was provided that the applicant shall within two years of his appointment have to qualify the typing test in Hindi at the speed of 25 W.P.M. and typing test in English at the speed of 30 W.P.M. It is also stated in the letter of appointment dated 2.12.1995 that if the applicant fails to qualify in the typing test within the said period of two years, his services will be terminated. The applicant having failed to qualify the typing test within the initial period of two years and also within the extension given from time to time was ultimately terminated by order dated 9.11.2001 under Rule 5(1) of the Central Civil Services (Temporary Services) Rules, 1965 which is impugned in the present O.A. before he could complete the age of 45 years.
6. The case of the applicant is that he was not appointed under the Central Civil Service (Temporary Service) Rules, of 1965 and hence he could not have been terminated under the said rules. It is also submitted on behalf of the applicant that he was eligible for exemption from the age bar in the light of the instructions of the Deptt. of Personnel in the matter.
7. The case of the respondents is that the applicant was not eligible for exemption from age bar under the existing instructions of the Deptt. of Personnel and further that the services of the applicant were rightly terminated under the Rule 5(1) of the Central Civil Services (Temporary Service) Rules of 1965 as he had failed to qualify in the typing test within the specified period of two years and within the extensions allowed to him from time to time. It was also submitted on behalf of the respondents that there was no parity between the cases of Umer Draz Ahmad, R.S. Pandey and M. Jethwani with whom the applicant has wrongly sought parity.
8. The undisputed facts are that the applicant was appointed by order dated 2.12.1992 on compassionate grounds under the dying and harness rules. At the time of his appointment, the age of the applicant was 35 years and 4 months as the date of birth of the applicant is 10th July, 1957. It is also not in dispute that the appointment order issued to the applicant contained a recital that the appointment of the applicant was temporary for a period of 2 years and within the said period he had to qualify the typing test both in Hindi and English. It is also not disputed that the applicant failed to qualify the typing test within the specified period of two years and within the extensions allowed to him from time to time. Pleadings on record show that the applicant was granted a number of attempts even after the expiry of two years to qualify the typing test. To illustrate the applicant was asked to appear in the typing test on 9.2.95 by letter dated 3.2.95. He was again asked to appear in the typing test on 30.11.95 by letter dated 25.8.95. By letter dated 16th October, 1996, the applicant was informed that he has not been able to qualify the typing test within a period of 2 years from the date of his appointment. Again by letter dated 26.4.2001, the applicant was informed that he has not been able to pass the typing test and accordingly even as late as on 26.4.2001, he was given one more chance to clear the typing test. Further on 4th June, 2001, the applicant was informed that the Staff Selection Commission is going to hold the typing test in the last week of July, 2001 and accordingly he was asked to apply for appearing in the said test. On 13.9.2001, the applicant was again informed that the Staff Selection Commission is holding a typing test in the last week of October, 2001 and accordingly he was asked to apply for appearing in the said test. The applicant chose not to apply in the typing tests to be held by the Staff Selection Commission in the last week of July, 2001 and in the last week of October, 2001. In all the typing tests held by the Department, prior to July, 2001, the applicant failed to qualify in the typing tests. Accordingly the service of the applicant was terminated under Rule 5(1) of Rules of 1965 in terms of the recital contained in his letter of appointment dated 2nd December, 1992, before he could complete the age of 45 years.
9. The issues to be examined are whether the applicant was entitled to any age relaxation in terms of the instructions of the Deptt. of Personnel, Government of India and whether he could have been terminated under Rule 5(1) of the Central Civil Services (Temporary Service) Rules, 1965, having regard to the fact that his appointment was made under the dying in harness rules on compassionate grounds.
10. As regards the instructions of the Department of Personnel, our attention was invited to O.M. No. 14020/1/78-Estt (D) dated 23.11.1978 in which it is provided that those compassionate appointees who were between the age of 25 years and 40 years at the time of his appointment, could not be given exemption from the test after attaining the age of 45 years if they have made one genuine attempt to pass the test. As per Swami's fundamental rules, also the provisions of O.M. No. 14/10/78-CS (II) dated 7.6.90 and 24.6.90 and subsequent O.M. dated 23.8.91, also it is provided that those compassionate appointees who are appointed between the age of 35 years and 40 years may be granted exemption on attaining the age of 45 years.
11. On behalf of the applicant, his termination under Rule 5(1)(a) of the Central Civil Services (Temporary Service) Rules, 1965 has also been challenged. Rule 5(1)(a) of the Central Civil Service (Temporary Service) Rules, 1965 provides as under:
"The service of a temporary Government servant who is not quasi permanent, shall be liable to be terminated 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."
12. Rule 2(d) of the Central Civil Service (Temporary Service) Rules 1965 provides as under:--
"Temporary service means the service of a temporary Govt. servant in a temporary post or officiating service in a permanent post under the Government of India."
13. Thus though Rule 5(1) of the Central Civil Service (Temporary Service) Rules, 1965 provides for termination of the services of the temporary Government servant by giving notice of one month in writing, Rule 2(d) defines a temporary service to mean the service on a temporary post or in officiating post on a permanent post. The provisions of Rule 2(d) and Rule 5(1)(a) of the Temporary Service Rules, 1965 are compatible and are in harmony. Thus a Government servant appointed against a permanent post in an officiating capacity is also liable for termination under Rule 5(1)(a). In the present case the appointment of the applicant even if construed against a permanent post could only be officiating till he cleared the typing test in Hindi and English within the period of two years which he failed to do. His term of appointment was also extended beyond two years and he was given repeated opportunities even after completing two years of service to pass typing test in Hindi and English. His appointment could be confirmed only after he passed the typing test. Till such time as the applicant could pass the typing test, his appointment could be construed only as officiating though on a permanent post. In such an eventuality also, the service of the applicant was liable for termination under Rule 5(1)(a) of the CCS (Temporary Service) Rules, 1965. Hence no prejudice can be said to have been caused merely for the reason that in the impugned order of 9th November, 2001, the notice of termination was issued under Rule 5(1)(a) of the CCS (Temporary Service) Rules, 1965. The contention raised on behalf of the applicant in so far as this aspect of the matter is concerned has to be rejected.
14. Learned Counsel for the applicant also relied on the following case law:--
1. Ajay Kumar Srivastava v. Commissioner, Consultation, UP 2002(2) LBESR, 175 (Allahabad).
2. Ram Nihor Singh v. State of U.P., 2001(2) LBESR 697 (Allahabad).
3. Kamlesh Kumar Pandey v. State of U.P. and Anr., (2001) 3 UPLBEC page 2188.
4. Prof. Ram Vir Singh v. Chairman, Kendriya Hindi Shikshan, Mandal, New Delhi and Anr., 2001(2) LBESR, page 733 (Allahabad).
5. Om Prakash v. Engineer Varanasi, 2001(1) LBESR 116 (Allahabad).
15. The pith and substance of all the decisions cited on behalf of the applicant is that the appointment on compassionate grounds under the dying in harness rules has to be a permanent appointment and cannot be treated as appointment on temporary basis and hence liable to be terminated without prior notice. This is for the reason that an appointment on compassionate grounds is to enable the employee of the deceased Govt. servant who has died in harness to support his family by meeting both ends meet and is intended to provide immediate relief to the family on the death of the bread winner.
16. In fact the termination of appointment of the applicant in the present case was made not because he was given appointment on temporary basis but because he repeatedly failed to clear the typing test in Hindi and English even after availing repeated attempts beyond a period of two years. Thus none of the above decisions will apply in the case of the applicant since in none of these decisions, the termination was made for the reason that the petitioner had failed to clear the typing test.
17. In the judgment in the case of Kamlesh Kumar Pandey v. State of U.P. and Anr. (supra), the Hon'ble High Court observed as under:
"The appointment letter itself shows that the petitioner was offered appointment on probation of one year. The earlier recital in the appointment letter to the effect that petitioner's services were temporary and liable to be determined without prior notice gets nullified by the subsequent recital providing for appointment on probation."
18. In the present case also the appointment of the applicant was temporary for a period of two years as per recital made in para 1 of the appointment letter dated 2.12.1992 but in the second para, it was provided that he has to pass typing test in Hindi and English at the given speed within a period of two years and failure to do so would render his termination. Thus the earlier recital in paragraph 1 of the appointment letter dated 2.12.1992 that the appointment was temporary gets nullified in the light of the observations made by the Hon'ble High Court of Allahabad in the case of Kamlesh Kumar v. State of U.P. and Anr., (supra).
19. In view of the foregoing discussion in paragraph Nos. 13 to 18 and the case law discussed and in particular the decision in the case of Kamlesh Kumar Pandey v. State of U.P. and Anr. (supra), we are of the view that the O.A. Number 648/2001 has no merit.
19-A. As regards O.A. No. 187/98, the limited relief claimed is to grant annual increments to the applicant. The said relief also in our view cannot be granted to the applicant in view of the fact that he was entitled to exemption from typing test only after attaining the age of 45 years and since the applicant failed to clear the typing test in Hindi and English within the period of two years and even beyond the period of two years for which extension was given to him from time to time, he was not eligible to earn annual increments. Grant of increments would be a natural corollary to the applicant's confirmation which depend on passing the typing test in Hindi and English within the stipulated period of two years. Besides exemption could be allowed to the applicant only after attaining the age of 45 years in terms of the O.M. No. 14020/1/7 8-Estt. (D) dated 23.11.78 according to which those who were appointed between the age of 35 years and 40 years could be given exemption on attaining the age of 45 years provided that they had made one genuine attempt to pass the typing test. The applicant was terminated on 9.11.2001 before he could complete the age of 45 years and the admitted position is that he failed to pass the typing test within two years and even after the extended period allowed to him beyond two years. Hence the relief claimed by the applicant with regard to the annual increments cannot be granted in our view. O.A. Number 187/98 therefore also has no merit.
20. In view of the foregoing discussion, both the O. As. are dismissed without any order as to costs.