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Kanshi Ram Anand (Dr.) v. State Of U.P.
Structured Summary of the Opinion
Factual and Procedural Background
The petition is an application under Article 226 of the Constitution seeking to quash a Government of Uttar Pradesh order dated 5-8-1954 which terminated and discharged the applicant from State service. The applicant is a refugee from Punjab who obtained his M.B.B.S. in 1939 from King (name partially illegible) Medical College, Lahore, migrated to India in 1947 and resided in Hardwar, Saharanpur district.
He was appointed to the U.P. Public Health Service from 20-6-1949 (initially for six months) and posted at Dehra Dun as Medical Officer, Anti-Epidemic Operations. He was examined by medical boards in 1949 and in April 1950 and declared fit. He was appointed on two years' probation from 20-6-1949; the probationary appointment was published in the Gazette in July 1950. A Director's letter of 16-10-1950 described the post as "permanent and pensionable" and stated that confirmation would follow if work was satisfactory. The ordinary probationary period expired on 19-6-1951.
He was transferred to Saharanpur as Malaria Survey Officer on 2-9-1952. Beginning in 1954 he was repeatedly examined by medical boards (Meerut, a Divisional Board, and the State Medical Board at Lucknow). The State Medical Board met on 3-7-1954 and recommended that he be invalidated and discharged. Government Order dated 5-8-1954 recorded his invalidation and discharge from service.
The applicant made representations (including letters dated 23-8-1954 and three representations to the Governor on 27-8-1954, 2-9-1954 and 3-12-1954). By communication dated 17-6-1955, the Secretary to Government informed him that his representations had been rejected and stated that since he was invalidated on a medical opinion and his termination did not follow disciplinary proceedings, provisions of Rule 55 of the Civil Services (Classification, Control and Appeal) Rules were not applicable and he lacked qualifying service for pension. The present writ petition for certiorari was filed to quash the discharge order.
Legal Issues Presented
- Whether the applicant was a permanent employee of the State and thus entitled to the safeguards of Rule 55 of the Civil Services (Classification, Control and Appeal) Rules and Article 311 of the Constitution.
- Whether the Explanation to Rule 49 (which excludes certain terminations from being treated as "removal") applied to the applicant—i.e., whether his termination amounted to a removal attracting the procedural protections of Rule 55.
- Whether termination effected on the basis of medical invalidation could be lawfully imposed without giving the applicant a prior opportunity to be heard and notice of the proposed termination.
Arguments of the Parties
Petitioner's Arguments
- The petitioner asserted he was in the permanent employment of the State Government, having served the State for seven years.
- He contended any defect relied upon by the State (a stammering disability) existed at the time of his appointment; therefore the State could not terminate his services without giving a reasonable opportunity to show cause.
- He claimed entitlement to the protection of Rule 55 of the Civil Services (Classification, Control and Appeal) Rules and Article 311 of the Constitution.
Opposite Parties' (Respondents') Arguments
- There were complaints about the petitioner's technical work and conduct as Malaria Survey Officer; inquiries indicated poor technical knowledge and lack of tact affecting the unit's performance. He was also asked to refund missing items from the laboratory.
- The petitioner had a physical defect (stammering), recorded in annual confidential reports from 1950-51 onwards; the Additional Director recommended a medical board in 1952-53.
- They relied on the Explanation to Rule 49 of the Civil Services (Classification, Control and Appeal) Rules to argue that termination in the circumstances (probationary/temporary/contractual termination) is not "removal" and thus Rule 55 did not apply.
- They contended the petitioner had been appointed on probation and was not confirmed because he did not possess the required diploma (D.P.H.) under Rule 11 of the U.P. Public Health Service Rules. Although deputed to the D.P.H. course and passing Part I in the second attempt, he was expelled from Part II for adopting unfair means, and so did not obtain the diploma necessary for confirmation.
- On the recommendation of the State Medical Board (3-7-1954), the petitioner was declared unfit for retention and invalidated out of service—thus the termination was based on medical unfitness rather than disciplinary punishment.
Table of Precedents Cited
No case-law precedents were cited in the provided opinion. The opinion refers to statutes and service rules but does not cite judicial precedents.
Court's Reasoning and Analysis
The court proceeded by examining the nature of the petitioner's appointment and the statutory provisions relied upon by the parties. The analysis focused on whether the Explanation to Rule 49 of the Civil Services (Classification, Control and Appeal) Rules applied so as to exclude the petitioner's termination from the meaning of "removal" and thereby exclude the protections of Rule 55 and Article 311.
Key steps in the court's analysis:
- The court reviewed the relevant service rules: Rule 11 (qualification requirements, including a diploma in public health for certain posts), Rule 19 (government may dispense with services of a probationer during or at end of probation and may extend probation up to one year), Rule 20 (conditions for confirmation after completion of prescribed probationary period and satisfaction of the Government), and Rule 21 of the Subordinate Public Health Service Rules (period of probation cannot be extended for more than one year).
- The opposite parties' contention that the petitioner remained a probationer (and thus his termination was covered by the Explanation to Rule 49) was examined. The court noted that the applicant was appointed on a two-year probation from 20-6-1949 and that the ordinary probationary period expired on 19-6-1951. There was no averment that the period of probation was formally extended; even if non-confirmation were treated as an extension, the rules limit extension to at most one year.
- Given the limits on extension and the absence of any pleaded formal extension beyond the permitted period, the court concluded the petitioner could not properly be treated as a probationer at the relevant time and therefore was not within the class of terminations described in the Explanation to Rule 49. The petitioner was not a temporary servant either; clause (b) did not apply.
- The court then considered the respondents' further submission that Rule 55 and Article 311 apply only where a person is "punished." The court examined Rule 49 which sets out penalties including removal, and observed that the Explanation to Rule 49 identifies specific circumstances in which termination will not be regarded as "removal." The implication is that terminations in other circumstances do amount to removal and will attract the protections of Rule 55.
- Applying these principles to the facts, the court held that even if the stated ground for discharge was medical unfitness, the effect was a removal from a permanent post. Because the petitioner was in permanent employment, his discharge amounted to removal within the meaning of the service rules and he was therefore entitled to the procedural protections of Rule 55 (and by extension the protections reflected in Article 311).
- The court concluded that before the State could lawfully discharge the petitioner, it had to give him an opportunity to be heard and a notice that his service was proposed to be terminated. The absence of that opportunity rendered the discharge invalid.
Holding and Implications
Holding:
THE PETITION IS ALLOWED. The court quashed the Government order dated 5-8-1954 terminating the applicant's services and directed that he be reinstated. The petition was allowed with costs. The opinion is signed "V.B.B" and concludes with the statement "Petition allowed."
Implications and direct effects:
- The direct effect is that the specific order invalidating and discharging the petitioner (dated 5-8-1954) is quashed and the petitioner is to be reinstated with costs as directed by the court.
- The court limited its reasoning to the application of the Civil Services Rules and Article 311 to the facts before it. The opinion does not set out any broad new legal principle or declare the creation of a binding precedent beyond the application of the rules to these facts. The decision resolves the immediate procedural unfairness found in the procedure followed before discharge (lack of a hearing/notice) in the petitioner's case.
Other Notable Points from the Opinion
- The opinion discusses multiple relevant service provisions: Article 226 and Article 311 of the Constitution; Rule 55 and Rule 49 (including its Explanation) of the Civil Services (Classification, Control and Appeal) Rules; and Rule 11, Rule 19, Rule 20 and Rule 21 of the U.P. Public Health Service Rules (and Subordinate Public Health Service Rules).
- The factual record relied upon by the respondents included confidential reports noting the petitioner's stammering, inquiries into alleged poor technical performance as Malaria Survey Officer, and an allegation that the petitioner adopted unfair means in a D.P.H. Part II examination leading to expulsion from that exam.
- The court's remedial order is limited to quashing the discharge and directing reinstatement; the opinion identifies the absence of required procedural safeguards as the core defect in the respondents' action.
V.B.B
Document source: Summary prepared strictly from the text of the provided opinion. No information outside the opinion was added.
1. This is an application under Article 226 of the Constitution praying that an order passed by the U.P Government dated 5-8-1954, terminating the services of the applicant be quashed. The facts are fully set out in the affidavit filed in support of the petition. The applicant is a refugee from Punjab. He passed his M.B.B.S degree from king ??? Medical College, Lahore in 1939. He migrated from Pakistan to India in 1947 and started residing in Hardwar in district Saharanpur. He was appointed to the U.P Public Health Service from 20-6-1949 for a period of six months and was posted at Dehra Dun as Medical Officer, Anti-Epidemic Operations.
2. On 10-8-1949, he received a communication from the Assistant Director of Medical and Health services, U.P to the ??? that the orders for his permanent appointment in the U.P Public Health Service have since been received. He was, therefore, advised to dick to his appointment. When serving at Dehra Dun, he was asked to appear before the Medical Board in 1949 and again before the U.P Medical Board and was declared fit by the said Board in April 1950.
3. After this he was appointed as Medical Officer Anti-Epidemic Operations in U.P Medical Service on two years' probation from 20-6-1949. His probationary appointment was published in the gazette dated July, 1950. On 16-10-1950, the petitioner received a communication from the Director of Medical and Health Services, U.P to the following effect:
“The post on which you have been appointed is permanent and pensionable and you will be confirmed on it in due course provided your work is satisfactory.”
4. In the ordinary course, the probationary period expired on 19-6-1951. The applicant was transferred from Dehra Dun to Saharanpur on 2-9-1952 and was posted at Saharanpur as Malaria Survey Officer. On 8-1-1954, the Additional Director of Medical and Health Services informed the petitioner that in accordance with the order of Government he was directed to appear before the next Medical Board at Meerut. The applicant appeared before the Medical Board at Meerut on 9-2-1954 and was declared fit by the Board.
5. The applicant was directed by a letter dated 24-3-1954, sent by the Civil Surgeon, Meerut under instructions from the Director of Medical and Health Services, U.P, to appear before the Divisional Medical Board consisting of the Civil Surgeon, an Assistant Surgeon and a Military doctor. The Military doctor held in favour of the petitioner while the remaining two doctors gave their opinion adverse to the petitioner. The petitioner was, therefore, asked to appear before the State Medical Board at Lucknow on 3-7-1954.
6. Government Order dated 5-8-1954 was sent of the applicant from which it appeared that he had been declared unfit for the retention in service ??? the State Medical Board and he was invalidated and discharged. After this order of discharge, the applicant made a representation to the Director of Medical and Health Services, U.P by his letter dated 23-8-1954 in which he protested against the order of his discharge. Thereafter he made several representations to the head of his department and on 31-8-1954 he received a communication from the Director of Medical and Health services intimating him that his representation had been rejected.
7. Thereafter he made three representations to the Governor dated 27-8-1954, 2-9-1954 and 3-12-1954 praying for his reinstatement and for the revision of the order passed against, him. He also made a representation to the effect that he was entitled to his increments which had been withheld. He received a communication from the Secretary to Govt., U.P D/- 17-6-1955 in which it was stated that his representations had been rejected and as he had been invalidated from service on the basis of an authoritative medical opinion and that as his services had not been terminated as a sequel to any disciplinary proceedings, the provisions of S. 55 of the Civil Services (Classification, Control and Appeal) Rules were not applicable to him and as he had not put in the prescribed period of qualifying service, he could not be granted any pension.
8. As his services had been terminated, the question of granting him any increments did not arise.
9. On these facts the present petition has been filed for a writ of certiorari quashing the order of discharge passed by the opposite parties.
10. A counter-affidavit has been filed in this case on behalf of the opposite parties in which it is stated that there were complaints against his work while he was employed as Malaria Survey Officer, Saharanpur Dehra Dun. The Assistant Director (Malariology) made an inquiry of the complaints and he complained that the Officer showed poor technical knowledge in respect of Malaria Laboratory work and lacked in tact with the result that Malaria Inspector-cum-Laboratory Assistant under him could not get adequate technical guidance and training with the result that the work in that unit had been of poor quality.
11. The petitioner was further asked to refund the cost of one stop-watch and a stove which were lost from the Malaria Laboratory. The annual confidential reports on this officer for the year 1950-1951 onwards contained an entry to the effect that stammering was a great physical disability with him. The Additional Director, in his confidential report on this officer for the year 1952-1953, reported that the petitioner was reported to be stammerer which was a handicap and he should be put up before Medical Board.
12. In view of the above report of the Additional Director, he was examined by the Medical Board under the orders of the Government. The report of the Board was that so far as duties of field work as Malaria Survey Officer were concerned, this defect did not interfere with the efficient discharge of his duties but if his duties involved, making prolonged speeches or addressing big audience, then this defect did stand in his way.
13. The petitioner was ultimately examined by the State Medical Board at Lucknow on 3-7-1954 and on the recommendation of the Board, his services were terminated. He was declared unfit for retention in service by the State Medical Board and was thus invalidated out of Government Service and discharged from the date of relief.
14. The main contention of the petitioner is that he was in the permanent employment of the State Government. He had been serving the State Government for the last seven years and the defect, if any, existed at the time when he was appointed to the service. The State Government could not terminate his services without giving him any reasonable opportunity to show cause against the order of discharge.
15. The contention of the applicant, in effect, is that the petitioner is a civil servant and is entitled to protection of R. 55 of the Civil Services (Classification, Control and Appeal) Rules as well as Article 311 of the Constitution. The contention of the Standing Counsel, in reply, is that R. 55 of the Civil Services (Classification, Control and Appeal) Rules does not apply to the case of the present petitioner.
16. Reliance has been placed on the explanation to R. 49 of the Civil Services (Classification, Control and Appeal) Rules which provides that:
“The termination of employment:
(a) of a person appointed on probation during or at the end of the period of probation, in accordance with the terms of the appointment and the rules governing the probationary service; or
(b) of a temporary Government servant appointed otherwise than under contract, in accordance with R. 5 of the Central Civil Services (Temporary Service) Rules, 1949; or
(c) of a person engaged under a contract, in accordance with the terms of his contract does not amount to removal or dismissal within the meaning of this rule or of R. 55.”
17. In short, the contention of the opposite parties is that the petitioner was not a permanent employee. Admittedly, he was appointed on probation of two years on 26-6-1949 and after the expiry of two years, his period of probation expired. It is, however, contended in the counter-affidavit filed by the opposite parties that after the expiry of the probationary period, he had been informed that he would not be confirmed in the U.P Public Health Service unless he possessed a diploma in public health as required by Rule 11 of the U.P Public Health Service Rules.
18. The petitioner did not raise any objection to this condition at that time and applied for the D.P.H course for 1951-1952 session. He was selected for the same and deputed to attend the course in June, 1951. He passed Part I of the D.P.H Examination in the second attempt but while appearing in Part II examination he adopted unfair means.
19. He was consequently expelled from the examination up to the date of his discharge from the service. This allegation in the counter-affidavit really means to say that as he did not hold the necessary diploma required by R. 11 of the U.P Public Health Service Rules, he was not confirmed after the expiry of two years. In the first place, Rule 11 applies to the cases when a person is appointed to a post.
20. It cannot be held to be a ground for withholding the confirmation and secondly, even if it was a valid ground for with holding the confirmation, it cannot be said in the present case that the petitioner continued to be a probationer and his period of probation had been extended. Rule 11(i) of the U.P Public Health Service Rules provides that—
“A candidate for a post other than that of Deputy or Assistant Public Analyst must possess a qualification in medicine and surgery registrable in the United Kingdom or of the University of Lucknow, or of a University recognised by the University of Lucknow and in addition must possess a British or an Indian diploma in public health or an equivalent qualification”.
21. Rule 19 of the rules provides:
“The services of a probationer may be dispensed with by the Government at any time during the period of probation or at its end. The Government may also extend the period of probation in the case of any particular member for any further period up to one year.”
22. Rule 20 of tile Rules provides that:
“A probationer shall be confirmed in his appointment when:
(a) he has completed the prescribed period of probation, and
(b) the Government are satisfied that (i) he is sufficiently acquainted with all local enactments relating to public health, municipal and district organization, the administrative work of local bodies; and the relations of those bodies to the various departments of the Government; (ii) he is otherwise fit for confirmation.”
23. Rule 21 of the Subordinate Public Health Service Rules, therefore, clearly provides that the period of probation cannot be extended for more than one year. In the present case there is no averment by the opposite parties that the period of probation was extended and even if it be deemed that it had been extended by the Government by not confirming his appointment, the extension could not be made for more than one year after the expiry of the period.
24. It cannot, therefore, be said that the petitioner was on probation and consequently came under the Explanation to R. 49 of the Civil Services (Classification, Control and Appeal) Rules. He was not a temporary servant and consequently he was also not covered by clause (b) of the Explanation to R. 49.
25. The next point which was urged by the opposite parties was that even if he was not a probationer he was not entitled to the guarantee given under R. 55 or Article 311 of the Constitution inasmuch as it only applies to the cases where a person is punished. Rule 49 of the Rules provides the penalties which may, for sufficient reason, be imposed upon the members of the service.
26. Clause (6) of the said Rule provides for removal from service which does not disqualify from future employment and the Explanation, which I have already given, provides that termination of employment in certain circumstances will not be regarded as removal. This Explanation necessarily means that termination of service in other cases will be regarded as removal and the provisions of R. 55 in those cases will be attracted.
27. In the present case the grounds of his discharge may have been that he was physically unfit but nonetheless it amounts to removal as he was in permanent employment and the petitioner is entitled to the protection guaranteed under R. 55. Before he could be discharged, he was entitled to a hearing and a notice that the opposite parties proposed to terminate his service. I, therefore, allow this petition with costs, quash the order of discharge and direct that he will be reinstated.
V.B.B
28. Petition allowed.
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