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Case Number

Civil Revn. Case No. 1702 of 1958

Advocates

Priti Bhusan Burman with D.N. Mukherji
Prafulla Kumar Roy with Dr. Debi Prosad Pal

Judges

H.K Bose, J.

Acts

Article 311. Rule 13 Explanation VIII(b) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957
Rule 55B of the Civil Services (Classification, Control and Appeal) Rules, 1930
Rule 2(b) of the Central Civil Services (Temporary Service) Rules, 1949
Rule 5 of the Central Civil Services (Temporary Services) Rules, 1949
Rule 3 of the Central Civil Services (Temporary Service) Pulps 1949
Rule 5 of the Central Services (Temporary Service) Rules, 1949
Central Civil Services (Temporary Service) Rules, 1949
Central Excise Departmental Examination Rules, 1949
Section 241(2) of the Government of India Act, 1935
provisions of Article 311(2) of the Constitution.
Central Civil Services (Temporary Service) Rules
Rule 3 of the 1949 Temporary Service Rules,
clause Rule 2(b) together with Rule 3
costs.AD/V.R.B21. Rule discharged.
clause 2(b), and construed Rule 3
GOVERNMENT OF INDIA ACT 1935
provisions of Article 311(2)
provisions of Article 311.
Rule 3(i) and Rule 3(ii)
Rule 6 of those Rules
Article 226. The Rule
Rule 2(b) and Rule 3
Rule 5 and Rule 6
service.7. Rule 3
Rule 3(ii).14.
Rule 3(ii)
Rule 2(b)

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The petitioner was appointed as a temporary Inspector of Central Excise at Calcutta on 30 July 1946. He was allowed to cross the probationary stage on 1 May 1951 with effect from 1 January 1950, but was warned that failure to pass the departmental examination for Inspectors within the permissible chances would lead to stoppage of increments and possible discharge or reversion. After partial failure in the departmental examination in May 1953 (passing three out of five papers), his increment was stopped from 1 August 1953. He missed one paper of the May 1954 departmental examination after being transferred to Puri and was later discharged under Rule 6 by an order dated 3 May 1955 (served 10 May 1955) and relieved from service on that date.

The petitioner submitted multiple representations (12 May 1955, 4 July 1955, 12 September 1955). He was at one stage reappointed as a temporary Lower Division Clerk on 7 October 1955 and, after correspondence, was informed on 7 January 1956 that he had been removed as Inspector and appointed LDC on compassionate grounds. On 28 June 1956 the petitioner moved the High Court under Article 226 and a rule was issued to show cause.

During the proceedings (7 January 1957) the earlier discharge order dated 3 May 1955 was cancelled and the petitioner was reinstated as Inspector with effect from the date of discharge and posted to Kalimpong; he joined on 31 January 1957 and was later transferred to Kurseong. He requested arrears of salary but received no reply. He was given another opportunity to pass the departmental papers in July 1957 (6 and 8 July 1957) but failed both papers. He had requested books (letter 27 May 1957) and these were supplied on 3 June 1957. Ultimately, because the Central Board of Revenue did not permit any further chances, his services were terminated by an order dated 25 February 1958, effective 6 April 1958, under Rule 5 of the Central Civil Services (Temporary Service) Rules, 1949, upon one month's notice.

The petitioner challenged the 25 February 1958 termination order under Article 226 seeking cancellation of that order and a direction restraining the opposite parties from giving effect to it. The High Court considered contentions about applicability and interpretation of the temporary service rules, the nature of the petitioner's service (whether quasi‑permanent), and whether constitutional protection under Article 311(2) or other procedural protections applied. The rule issued was ultimately discharged.

Legal Issues Presented

Whether the Central Civil Services (Temporary Service) Rules, 1949, could be applied to the petitioner who was appointed in 1946 (i.e., whether the Rules have retrospective effect).
Whether the petitioner had acquired "quasi‑permanent service" status (by continuous service of more than three years and/or by a declaration under Rule 3) such that Rule 6 (and Article 311(2) protections) would apply instead of Rule 5.
Whether Rule 3 should be read as requiring both conditions (continuous service for more than three years and a declaration by the appointing authority) or whether continuous service alone suffices.
Whether termination of the petitioner's service under Rule 5 amounts to dismissal or removal attracting the protection of Article 311 of the Constitution, or whether it is a valid termination under service rules not amounting to a penalty.
Whether, alternatively, the petitioner should have been treated as a probationer and thereby entitled to the procedural protection of Rule 55B (Civil Services (Classification, Control and Appeal) Rules, 1930) or Article 311(2).
Whether the termination order was mala fide.

Arguments of the Parties

Petitioner's Arguments (Mr. Burman)

The Central Civil Services (Temporary Service) Rules, 1949 cannot be retrospectively applied to the petitioner who was appointed on 30 July 1946.
The petitioner, having been in Government service since 30 July 1946 (and specifically between 30-7-1946 to 25-2-1948), should be deemed to be in quasi‑permanent service; consequently Rule 5 does not apply and Rule 6 (with Article 311 protections) governs termination.
The conjunction "and" in Rule 3 (as published in some Government publications) is a misprint; Rule 3 should be read so that continuous service for more than three years alone makes one quasi‑permanent (relying on the Supreme Court's reasoning in Parshotam Lal Dhingra).
If the petitioner is not quasi‑permanent then he is a probationer, and termination of service on grounds of inefficiency amounts to punishment and requires the safeguard of Article 311(2).
The petitioner should have been given notice of the grounds and opportunity to show cause under Rule 55B of the Civil Services (Classification, Control and Appeal) Rules, 1930.
The termination order was mala fide (this point was raised but not pressed strongly at hearing).

Respondents' Arguments (Mr. Roy)

Whether or not the conjunction "and" appears in the text of Rule 3 is immaterial because the definition of "quasi‑permanent service" in Rule 2(b) makes a declaration under Rule 3(ii) an essential ingredient of quasi‑permanent status.
Rule 2(b) and Rule 3 must be read together; a mere continuous service of more than three years is not sufficient without the appointing authority's declaration.
Termination under Rule 5 was valid because the petitioner was not in quasi‑permanent service; termination as per Rule 5 does not amount to dismissal attracting Article 311.
The petitioner had been given multiple chances to pass the departmental examination; there was no bad faith in the authorities' actions.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
K.S. Srinivasan v. Union of India, AIR 1958 SC 419 at 424	Accepted that the 1949 Temporary Service Rules were the relevant rules governing conditions of service for persons appointed in 1946; supports prospective operation of the Rules on continuing service.	The court referred to this decision to reject the contention that the 1949 Rules could not apply to the petitioner; it showed that the Rules could govern service continuing after framing and were applicable to appointments made before the Rules.
Parshotam Lal Dhingra v. Union of India, AIR 1958 SC 36	Held that a person in continuous service for over three years or certified fit for quasi‑permanent capacity under Rule 3 becomes quasi‑permanent and acquires a right to the post; termination otherwise than in accordance with Rule 6 may attract Article 311.	The court observed that the Dhingra judgment construed Rule 3 in isolation (without giving full effect to the definition in Rule 2(b)), and noted that it did not place due stress on the definition clause.
A Supreme Court report cited as AIR 1958 SC 418 at p. 424 (as referred to in the opinion)	Shows an instance where Rule 3 with the conjunction "and" was placed before the Supreme Court and S.K. Das, J. set out the rule; if "and" is present, a declaration under Rule 3(ii) is required in addition to continuous service.	The court relied on this treatment to support the position that, if Rule 3 contains the conjunction "and", mere continuous service of three years is insufficient and a declaration is necessary to confer quasi‑permanent status.
Hartwell Prescott Singh v. Uttar Pradesh Government, AIR 1957 SC 886	Held that termination of employment in accordance with conditions of service contained in service rules does not amount to dismissal or removal so as to attract Article 311.	The court cited this authority to support the conclusion that termination under Rule 5 (in accordance with service rules) is not a penalty/dismissal attracting Article 311, and therefore the petitioner's termination under Rule 5 was valid.

Court's Reasoning and Analysis

The court proceeded through a sequence of legal determinations expressly tied to the text of the relevant rules and the authorities cited:

Non‑retroactivity argument: The petitioner’s contention that the 1949 Rules could not apply to an officer appointed in 1946 was rejected. The court noted prior decisions and the rule‑making power under Section 241(2) of the Government of India Act, 1935 permitting rules to govern continuing services irrespective of whether appointment preceded the Act; accordingly the 1949 Rules governed the petitioner’s continuing employment.
Definition of "quasi‑permanent service": The court examined the definition in Rule 2(b) ("quasi‑permanent service means temporary service commencing from the date on which a declaration issued under Rule 3 takes effect...") and concluded that a declaration contemplated in Rule 3 is an essential element for a service to become quasi‑permanent.
Construction of Rule 3 and the "and" issue: The court analyzed the textual discrepancy (some publications showing "and" between sub‑rules (i) and (ii) of Rule 3 and other publications lacking it). It considered the Supreme Court’s Dhingra judgment, which was seen as construing Rule 3 in isolation (resulting in continuous service alone conferring quasi‑permanent status). The court contrasted that with a later Supreme Court consideration (referred to in the opinion, including the Srinivasan treatment) which read Rule 3 together with Rule 2(b) and treated the declaration as indispensable. The court accepted the latter approach as the correct interpretation and held that the presence or absence of the conjunction would not change the outcome once Rule 2(b) is read with Rule 3: in all events a declaration is the sine qua non of quasi‑permanent status.
Application to the petitioner: Because there was no declaration under Rule 3 converting the petitioner’s service into quasi‑permanent service, the petitioner could not be treated as quasi‑permanent despite long continuous service. Therefore Rule 5 (termination of temporary Government servants not in quasi‑permanent service by notice) applied.
Whether termination under Rule 5 is a dismissal attracting Article 311: The court relied on Hartwell Prescott Singh to the effect that termination as per service rules in accordance with conditions of service does not amount to dismissal or removal attracting Article 311. The petitioner’s termination under Rule 5 for failure to pass the departmental examination and for being unsuitable for the post was treated as valid termination rather than a punitive dismissal.
Probationer and Rule 55B argument: The court observed the petitioner had been allowed to cross the probationary stage (order dated 1 May 1951 with effect from 1 January 1950). The petitioner had therefore not been a probationer at the time his services were ultimately terminated. The court further noted that the petition did not plead a specific case that Rule 55B applied, and accordingly rejected the contention based on that Rule.
Mala fides and repeated opportunities: The court found no convincing material of bad faith. It recorded that the petitioner had been given several chances to pass the departmental examinations, that the authorities had reinstated him when the May 1954 notice issue was raised, and that after reinstatement further chances were granted but he still failed. On these factual and procedural foundations the court concluded there was no ground to interfere under Article 226.

Holding and Implications

Holding: The rule issued in the petition is discharged.

Implications (direct effect on the parties):

The court upheld the validity of the termination process under Rule 5 of the Central Civil Services (Temporary Service) Rules, 1949, because the petitioner was not in quasi‑permanent service (no declaration under Rule 3 had been made).
The termination of the petitioner's services under Rule 5 was not held to be a dismissal attracting Article 311; it was treated as valid termination in accordance with service rules.
No order as to costs was made (the court specifically noted there would be no order as to costs).

Broader implications: The court adopted the interpretation that Rule 2(b) and Rule 3 must be read together so that a declaration under Rule 3 is essential to create quasi‑permanent service. The opinion did not purport to set out any broader precedent beyond applying existing Supreme Court authorities; if no broader policy statement was made, the direct consequences are limited to the parties and the correctness of the statutory/rule interpretation applied in this case.

AD/V.R.B

Order: Rule discharged.

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Purnanando Patra v. Collector Of Central Excise, Calcutta And Another Opposite Parties.

1. This is an application under Article 226 of the Constitution for an appropriate Writ for cancellation of an order dated the 25th February, 1958 terminating the employment of the petitioner as an Inspector of Central Excise and for directing the opposite parties to forbear from giving effect to that order. On 30th July, 1946 the petitioner was appointed as a temporary Inspector in the Central Excise Collectorate, Calcutta, having its jurisdiction over West Bengal and Orissa. On 1st May, 1951 the petitioner was allowed to cross the probationary stage in the prescribed time scale of pay with effect from 1st January, 1950 and the petitioner was warned that if the petitioner failed to pass the departmental examination for Inspectors within the next permissible chances his increment in the time scale of pay would be stopped until further orders, and he would be liable to be discharged or reverted as the case might be. The prescribed time scale of pay at the time was Rs. 80-Prob-100-5-120 E.B-8-200-10/2-220. The petitioner appeared for the first time in the departmental examination in May 1953 but he passed only in three out of the five papers and on account of this failure of the petitioner to pass the departmental examination completely, the petitioner's increment in the time scale of pay was stopped with effect from 1st August, 1953. The petitioner was thereafter called upon to appear in the two papers in which he had failed, at the departmental examination which was to be held at Calcutta on 13th May, 1954, while he was at Banamalipur in Puri district, having been transferred there on 9th May, 1954. The petitioner received intimation about the examination on 12th May, 1954 and he at once made arrangements for coming down to Calcutta but in-spite of his efforts he missed the examination in paper No. 1 and appeared only in Paper II, On 3rd May, 1955 the petitioner received an order under R. 6 of the Central Excise Departmental Examination Rules, 1949 discharging the petitioner from service with effect from the date of service of the Order. On 10th May, 1955 the Order was served on the petitioner and he was relieved from Government service on the same date.

2. The petitioner thereupon sent several representations to the Central Board of Revenue on 12th May, 1955, 4th July, 1955 and 12th September, 1955. On 7th October, 1955 the petitioner was reappointed as a temporary Lower Division Clerk. The petitioner made repeated representations against this order and after some correspondence the petitioner was informed on 7th January, 1956 that the petitioner had been removed from his service as Inspector for failure to pass the departmental examination and he was appointed as a Lower Division Clerk as a special case on compassionate grounds. On 28th June, 1956 the petitioner moved this Court under Article 226 of the Constitution and Sinha, J. issued a rule on the opposite parties to show cause why the order dated 3rd May, 1955 should not be cancelled or quashed. On 7th January, 1957 during the pendency of the Rule the order of discharge dated the 3rd May, 1955 was cancelled and the petitioner was reinstated in service in the grade of Inspector of Central Excise, with effect from the date of his discharge, and was posted to Kalimpong division. The petitioner joined his post at Kalimpong on 31st January, 1957. Sometime thereafter he was transferred to Kurseong. The petitioner after his reinstatement; made several representations for payment of his arrears of salary but no reply was received to such representations. The petitioner however was given another chance after his reinstatement to pass the departmental examination in Papers I and II held on 6th July, 1957 and 8th July, 1957 in which the petitioner appeared but he failed in both the papers. Before appearing in the examinations the petitioner by his letter dated the 27th May, 1957 asked for supply of some books from the department of Central Excise Collectorate and the books were supplied to him on 3rd June, 1957. After his failure in the July examination the petitioner was asked to be in readiness for the Departmental examination to be held in November 1957 but as ultimately the Central Board of Revenue did not condescend to give the petitioner any further permission to appear in the examination the petitioner's services were terminated by an order dated the 25th February, 1958 with effect from 6th April, 1958 in accordance with R. 5 of the Central Civil Services (Temporary Service) Rules, 1949 upon one month's notice being given to the petitioner. The said order dated the 25th February, 1958 may be set out hereunder:

“Sri Pumananda Patra, a temporary Inspector of Central Excise is hereby informed that his services are no longer required in this Collectorate. Under R. 5 of the Central Civil Services (Temporary Service) Rules he is accordingly hereby given one month's notice of termination of his service. This notice will take effect from the date on which it is served on Sri Patra and his services will accordingly stand terminated at the expiry of the period of one calendar month from that date.

Sd/- R.N Misra

Collector of Central Excise,

Calcutta.

24-2-1958.”

3. The first contention raised by Mr. Burman, the learned Advocate for the petitioner, is that the petitioner having been appointed on 30-7-1946, the Central Civil Services (Temporary Service) Rules which came into force in 1949 cannot have any retrospective application to his case. But it has been pointed out in previous decisions of this Court, that under Section 241(2) of the Government of India Act, 1935 the Government had the power to frame rules so as to affect services of persons in the employment of the Government no matter whether such service commenced before the coming into force of the Government of India Act, 1935 or after it came into operation. The Central Civil Services (Temporary Service) Rules, 1949 were framed under this rule-making power, and the petitioner's employment being a continuing one and it having continued after the framing of the Rules, the Rules operated prospectively in the case of petitioner's service. In my view there is no substance in this contention of the petitioner. In fact in the case of K.S Srinivasan v. Union Of India, AIR 1958 SC 419 at 424 (2nd column top) no such point was even attempted to be raised and it was conceded that these Rules were the relevant Rules which governed the conditions of the service of the appellant who was appointed on 1-5-1946.

4. The next point that has been argued by Mr. Burman is that the petitioner being in the service of the Government from 30-7-1946 to 25-2-1948 the petitioner must be deemed to be in the quasi-permanent service of the Government and hence Rule 5 of the Central Services (Temporary Service) Rules, 1949 has no application to his case.

5. Now the expression “Quasi-permanent service” has been defined in Rule 2(b) of the Central Civil Services (Temporary Service) Rules, 1949 as follows:

“‘Quasi-permanent service’ means temporary service commencing from the date on which a declaration issued under Rule 3 takes effect and consisting of periods of duty and leave (other than extraordinary leave) after that date”.

6. So according to this definition a declaration was contemplated in Rule 3 is essential before a service can be regarded as quasi-permanent service.

7. Rule 3 as appearing in the Government publications (Except the Gazettee of India) reads as follows:

“A Government servant shall be deemed to be in quasi-permanent service:

(i) if he has been in continuous Government service for more than three years, and (ii) if the appointing authority being satisfied as to his suitability in respect of age, qualifications, work and character for employment in a quasi-permanent capacity, has issued a declaration to that effect in accordance with such instructions as the Governor-General may issue from time to time”.

8. It will also be convenient at this stage to set out the relevant portions of Rule 5 and Rule 6 on which reliance has been placed by the learned Advocate for the petitioner:

“Rule 5(a) The service of a temporary Government servant who is not in quasi-permanent service shall be liable to termination at any time by notice in writing given either by the Government servant to the appointing authority or by the appointing authority to the Government servant.

(b) The period of such notice shall be one month, unless otherwise agreed to by the Government and by the Government servant.

Rule 6 — The service of a Government servant in quasi-permanent service shall be liable to termination:

(i) in the same circumstances and in the same manner as a Government servant in permanent service, ox

(ii) ****”

9. The argument of Mr. Burman is that the conjunction “and” appearing in the Government publications between Rule 3(i) and Rule 3(ii) is a misprint as the Gazette of India publication shows that the word “and” is not there, and consequently a Government servant who is in continuous Government service for more than three years shall be deemed to be in quasi-permanent service and as under Rule 6(i) the services of such an employee can be terminated only in the manner in which services on permanent Government servant can be terminated, such a servant is entitled to the protection and benefits of the provisions of Article 311(2) of the Constitution. As the petitioner is in Government service for about 12 years he must be deemed to be in quasi-permanent service and so his services cannot be terminated under Rule 5 but only under Rule 6(i) and as that has not been done, and no opportunity as required under Article 311(2) has been given to him to show cause against the action proposed to be taken against him, the order dated 25-2-1958 is invalid and inoperative.

10. Reliance is placed on the decision of the Supreme Court in the case of Parshotam Lal Dhingra v. Union Of India, AIR 1958 SC 36 where after laying down the proposition that a person appointed substantively to a permanent post and a person appointed to a temporary post for a fixed term of years, in Government service, have a right to their post and are entitled to the benefit of the provisions of Article 311(2) when their services are sought to be terminated for misconduct, negligence, inefficiency or other disqualitications, S.R Das, C.J proceeded to observe as follows: (page 48)

“Further, take the case of a person who having been appointed temporarily to a post has been in continuous service for more than three years or has been certified by the appointing authority as fit for employment in a quasi-permanent capacity, such person under Rule 3 of the 1949 Temporary Service Rules, is to be deemed in quasi-permanent service which under Rule 6 of those Rules can be terminated (i) in the circumstances and in the manner in which the employment of a Government servant in a permanent service can be terminated or (ii) when the appointing authority certifies that a reduction has occurred in the number of posts available for Government servant not in permanent service. Thus when the service of a Government servant holding a post temporarily ripens into a quasi-permanent service as defined in the 1949 Temporary Service Rules, he acquires a right to the post although his appointment was Initially temporary and therefore the termination of his employment otherwise than in accordance with Rule 6 of those Rules will deprive him of his right to that post which he acquired under the rules and will prima facie be a punishment and regarded as a dismissal or removal from service so as to attract the application of Article 311. Except in the three cases just mentioned a Government servant has no right to his post and the termination of service of a Government servant does not except in those cases amount to a dismissal or removal by way of punishment”.

11. It is clear from the above observations of the learned Chief Justice of India that it was the Rule 3 of the Central Civil Services (Temporary Service) Pulps 1949 as published in the Gazette of India, without the conjunction “and”, which had been placed before the Supreme Court, and the learned Chief Justice was construing such rule. According to such construction the petitioner before me who has put in a continuous service for a period of about twelve years is to be deemed to be in quasi-permanent service and so Rule 5 has no application to his case and the order dated 25-2-1958 which purports to terminate the employment of the petitioner in terms of Rule 5 is bad.

12. It may be pointed out however that in the latter case before the Supreme Court reported in AIR 1958 SC 418 at p. 424 to which I have already referred, in an earlier part of this judgment, Rule 3 with the conjunction “and” was placed for consideration before the Supreme Court and S.K Das, J. has set out this Rule in his judgment at page 424 (2nd column bottom). Now if the conjunction “and” was in fact in Rule 3 as framed by the Rule-making authority, then the petitioner cannot be regarded as being in quasi-permanent service by reason of his merely putting in a continuous service of more than three years. There has to be further a declaration as contemplated in Rule 3(ii) in order to convert the service of the petitioner into a quasi-permanent service.

13. Mr. Roy on behalf of the respondents has however argued that whether the disputed conjunction “and” is there in Rule 3 or not, is immaterial, inasmuch as the definition of the expression “quasi-permanent service” as given in Rule 2(b) clinches the matter in issue. According to Mr. Roy, this definition makes it clear that a declaration as contemplated in Rule 3(ii) is an essential ingredient of a quasi-permanent service or status. In other words according to Mr. Roy, before the petitioner can be deemed to be in quasi-permanent service it is incumbent on him to show, not only that he has been in continuous Government service for more than three years but also that the appointing authority has issued a declaration as contemplated in Rule 3(ii).

14. In my view the contention of Mr. Roy is correct. It appears to me that Rule 2(b) and Rule 3 should be read together, and Rule 3 is a further amplification and clarification of the definition cl. 2(b). Even if the conjunction “and” is not there in Rule 3 the definition clause indicates that a declaration as contemplated in Rule 3 is the sine qua non of a “quasi-permanent service”. There is nothing repugnant in Rule 3 which excludes the operation of the definition clause. The first Supreme Court judgment in Dhingra's case, AIR 1958 SC 36, did not lay due stress on the definition clause 2(b), and construed Rule 3 in an isolated manner. The later case of “Srinivasan” considered the definition clause Rule 2(b) together with Rule 3 which had the conjunction “and” between Sub-rules (i) and (ii) of this Rule, and held that declaration is essential for a quasi-permanent service.

15. In my view this later decision has put the correct interpretation on Rule 3 and the interpretation will be the same whether the conjunction “and” is there or not.

16. So the petitioner not being in quasi-permanent service his services were validly terminated by giving notice under Rule 5. It has been held by the Supreme Court in the case of Hartwell Prescott Singh v. Uttar Pradesh Government, (S) AIR 1957 SC 886 that termination of employment according to the conditions of service contained in the service rules does not amount to dismissal or removal from service so as to attract Article 311 of the Constitution. It is clear that in the present case the petitioner's services were terminated by giving one month's notice under Rule 5 because he failed to pass the departmental examination and was found to be unsuitable for the post. It is not a case of removal or dismissal from service.

17. It was further contended by Mr. Burman that the petitioner is to be regarded as a Probationer if he is found not to be in quasi-permanent service, and the termination of his service on the ground of inefficiency is a punishment and amounts to removal or dismissal of service and as he was not given the opportunity envisaged in Article 311(2) of the Constitution the order of termination of service is invalid. But the Supreme Court has pointed out in the case of AIR 1958 SC 36 that a probationer has no right to the post and termination of the service of a probationer is not prima facie and per se a punishment and does not attract the provisions of Article 311. But if the Government takes the view that a simple termination of service is not enough and the conduct of the probationer servant has been such that he deserves a punishment entailing penal consequences, in such a case, the Government may choose to proceed against the servant on the basis of his misconduct, negligence, inefficiency or the like and inflict on him the punishment of dismissal, removal or reduction carrying with it the penal consequences. In such a case the servant will be entitled to the protection of Article 311(2). There is however nothing in this case to indicate that the opposite parties have proceeded to inflict any of the punishments contemplated in Article 311. Rule 13 Explanation VIII(b) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957 makes it clear that termination in accordance with Rule 5 of the Central Civil Services (Temporary Services) Rules, 1949 is not a penalty. Moreover the petitioner had already been allowed to cross the probationary stage before his services were finally terminated by the order dated 28-2-1958. So he was not a probationer when his services were terminated. So this contention of Mr. Burman has no force.

18. The next point urged by Mr. Burman is that under Rule 55B of the Civil Services (Classification, Control and Appeal) Rules, 1930 the petitioner should have been apprised of the grounds of the proposal for termination of his employment and opportunity should have been given to him to show cause before passing any order terminating his employment. But no case is made in the petition that the petitioner was a probationer at the time his employment was terminated and no ground is taken in the petition that Rule 55B applies to his case. If a specific ground had been taken or any such specific case had been made, the opposite parties might have stated facts in their affidavit in opposition to controvert the allegations. The case made in the petition is as I have already pointed out that the petitioner was allowed to cross the probationary stage by an order dated 1-5-1951 with effect from 1-1-1950. This contention of Mr. Burman is therefore rejected.

19. It has been suggested in the petition that the order teiminating the employment is a mala fide one but this point has not been seriously pressed at the hearing. I am however unable to come to the conclusion that the order was prompted by any improper motive or bad faith.

20. The petitioner had several chances to pass the departmental examination as appears from paragraph 9 of the affidavit in opposition, but he did not deliberately avail himself of these chances; and in the chances that he did avail of before the first order of discharge was served on him on 10-5-1955, he failed to pass in all the papers. It is true that in respect of the examination held in May 1954 he was not given sufficient notice of the examination but after he had moved the High Court under Article 226 on 28-6-1956 the authorities apparently felt the reasonableness of the petitioner's complaint with regard to the May examination and so proceeded to reinstate him with effect from the date of discharge. Thereafter further chance was given to him to sit for the papers in which he had failed, but the petitioner failed to come out successful. In my view no ground has been made out for interference under Article 226. The Rule is accordingly discharged. But there will be no order as to costs.

AD/V.R.B

21. Rule discharged.

Purnanando Patra v. Collector Of Central Excise, Calcutta And Another Opposite Parties.

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments (Mr. Burman)

Respondents' Arguments (Mr. Roy)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Purnanando Patra v. Collector Of Central Excise, Calcutta And Another Opposite Parties.

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