Sub-Divisional Soil Conservation Officer And Another v. M.M Saiyed

Majmudar, J.:—

1. [Not reported. Only portions approved for reporting by High Court are reported.]

2. The short question involved in this appeal is as to whether learned Single Judge was justified in allowing reinstatement in service with full back wages. A few facts leading to this appeal may be stated at the outset.

3. Respondent who was original petitioner in the writ petition was employed as a Clerk cum Tracer by appellant No. 1 herein in Sabar kantha district. He was given various appointment orders of 29 days each. First such order was of July 3, 1984. Scries of orders in succession followed and there was a continuous link in these orders till we come to the last order for 29 days which was given from 29-9-1985 and it was to last upto 21-10-1985. Before that 29 days order could run out and could get exhausted by afflux of time, services of the respondent were terminated by the impugned order of termination dated 14-10-1985 wherein it was intimated that even though temporary appointment was given to him upto 21-10-1985 from 29-9-1085 on 29 days basis, as a measure of economy, he was to be terminated after office hours on 19-10-1985 and that is how, his services were put to an end. It is, therefore, apparent that the respondent's services stood terminated not by efflux of time but by way of termination before time by the impugned order. This order was challenged by the respondent by filing special civil application No. 6064 of 1987 in this court.

4. That petition was filed on 19-11-1987. In the said petition, both the parties were heard and R.C Mankad, J. took the view that the impugned termination was void and contrary to Rule 33(1)(b) of Bombay Civil Services Rules, 1959. Consequently, the respondent was entitled to get reinstatement with full back wages. It is this order which is challenged in this appeal.

5. Mr. Dave for the appellants raised the following contentions in support of the appeal:

(1) That the order of the learned Judge ordering reinstatement is patently erroneous as Rule 33(1)(b) will not apply to the facts of the present case as the respondent was given fixed period appointment of 29 days and for such fixed period appointment, the aforesaid rule cannot be pressed in service.

(2) In any case, order of full back wages from 1985 onwards cannot be justified as the respondent himself filed the writ petition after two years of termination, and for this delay, the appellant authorities cannot be penalised by way of ordering full back wages from the date of termination.

6. We shall deal with these contentions seriatim.

7. So far as the first contention is concerned it is necessary to have a look at Rule 33(1) of the rules which provides asunder:

“33(1)(a) The service of a temporary Govt., servant shall be liable to termination at any time, by a notice in writing given to him by the appointing authority;

(b) where the temporary Govt. servants has put in service for a period exceeding one year the period of such notice shall be one month and where such Govt. servant has put in service for one year or any period less than one year the period of such notice shall be one week:

Provided that the services of any such Govt. servant may be terminated forthwith by payment to him of a sum equivalent to the amount of his pay plus allowance for the period of the notice at the same rates at which he was drawing pay and allowance immediately before the termination of his service, or as the case may be, for the period by which such notice falls short of notice period.”

8. Mr. Dave is right when he contends that the said provision deals with interception of services of a temporary Govt. servant by notice. He is also right when he contends that in the present case, the last order of appointment given to the respondent was for a fixed period for 29 days which was to terminate on its expiry on 21-10-1985 after office hours. If the appellants had relied upon termination of appointment by efflux of time and waited upto 21-10-1985, the situation would have been on a firmer ground. But unfortunately for them, the respondent's services are terminated not by efflux of time under the last appointment order of 29 days but prior thereto by way of intimation terminating his services after office hours on 19-10-1985. Consequently, on the date of such intimation respondent who was a temporary Govt. servant was sought to be terminated from service and consequently, Rule 33(1)(b) clearly got attracted. It is not in dispute that by series of 29 days appointment, total period of service which the respondent had put in by 19-10-1985 was more than one year as his first appointment order was dated 3-7-1984. It must, therefore, be held that Rule 33(1)(b) got attracted on the facts of this case. It cannot be disputed that one month's notice as required by Rule 33(1)(b) was not given to the respondent while terminating his service on 19-10-1985. On the contrary, it was a forthwith termination.

9. However, Mr. Dave placed strong reliance on the proviso to the said rule. He submitted that at the highest, respondent would be entitled to two days salary or for that matter, full one month's salary if such notice was not given. But the impugned order cannot get voided. It is not possible to agree with this contention in view of the Supreme Court decision in the case of Raj Kumar v. Union of India, (1975) 3 SCC 458 : AIR 1975, SC 536, wherein an identical Rule 5(1)(a) of the Central Services (Temporary Service) Rules 1965 came to be interpreted by the Supreme Court Proviso therein was similarly worded and it was provided that services of any such Govt. servant maybe terminated forthwith by payment. Interpreting these words employed in the proviso, the Supreme Court held that this showed that the payment was a condition of the termination of service forthwith and once it is not done, the order would get voided. In the facts of the present case, a similar situation has arisen. Necessary payment of notice period pay has not been made to the respondent simultaneously with the impugind order. Therefore, the order gets vitiated in law. Consequently, no fault can be found with the conclusion reached by the learned single Judge that the termination is violative of Rule 33(1)(b). We may also mention one aspect of the matter highlighted by Mr. Dave for the appellants. He submitted that the respondent could not have been appointed regularly as he was not qualified and till regularly appointed person was available, by way of ad hoc arrangement, the respondent was given 29 days appointments. Be that as it may, the short question is whether his termination on 19-10-1985 was contrary to Rule 33(1)(b) of the rules or not. So far as that question is concerned, the question whether the respondent was qualified or not pales into insignificance. The first contention, therefore, fails.

10. [Not reported. Only portions approved for reporting by High Court are reported.]

11. [Not reported. Only portions approved for reporting by High Court are reported.]

12. Order accordingly.