Judgment:
1. This O.A. has been filed by the applicant with a prayer to quash the order dated 5.10.2006 (Annexure-1) passed by the Under Secretary (Vig.) on behalf of the President ICAR and the order dated 6.10.2006 (Annexure-2) passed by the Director (Acting), Central Avian Research Institute, Izzatnagar, Bareilly.
2. The case of the applicant are that he was appointed as Research Associate in a purely temporary capacity w.e.f. 18.10.2000 under the time bound Research proposal on CARI, Izzatnagar. This appointment continued till 30.11.2004. An advertisement was published in Employment News inviting applications for the post of T-3 (Lab. Asstt.) in the pay scale of Rs. 4500-125-7000/- on 20/26.11.2004. The applicant applied for the said post and faced the selection process. He was selected. He was medically examined and was found fit for the post by the CMS, Bareilly. He was asked to report for duty to the Head Avian Nutrition & Feed Technology, CARI, Izzatnagar. The appointment order was issued after completing all formalities as per the terms & conditions laid down in the office memorandum dated 18.1.2005. He joined on 19.1.2005.
His services were being utilized for handling of sophisticated equipments (page 8 para 4.11 of the O.A.). He was paid salary till September, 2006.
3. When the matter stood thus, he received an order dated 5.10.2006 issued under the signature of the Under Secretary (vig.) for and on behalf of President, ICAR, New Delhi (respondent No. 2) purporting to terminate his services forthwith exercising powers under proviso to Sub-Rule (1) of Rule 5 of the CCS (CCA) Rules, 1965 (Annexure-1). In pursuance of the said order an order dated 6.10.2006 was passed by the Director (Acting), CARI, Izzatnagar, terminating the services of the applicant with immediate effect (Annexure-2).
4. Under this background, it is averred by the applicant that both the orders (Annexure-1 & 2) are wholly illegal, malafide and against the principles of natural justice. It is further pleaded that the provisions of Central Civil Services (Temporary Services) Rules 1965 have no applicability in this case. The further stand of the applicant is that the order dated 5.10.2006 has not been passed by the appointing authority, but by an authority superior to the appointing authority, without giving an opportunity of hearing to the applicant. In that case he has been deprived of his right of appeal with the appellate authority. So, he has approached this Tribunal for the relief as prayed for.
5. All the respondents in their Counter have taken the stand that undue favour was shown to the applicant for his selection by one Dr. Rajveer Singh; the then Director, who also was found to have committed Irregularities and illegalities during his tenure, which revealed from a report of three members committee. It has also found that though only one post of T-3 was advertised, three candidates were appointed including the applicant and no regard was paid to reservation policy.
Besides the above factual aspects, it has further been pleaded by the respondents that during the period of probation the applicant has been removed exercising powers under the provisions of Rule 5(i)(c) of Termination of Services of a Temporary Government servant and when the said order has been passed without casting any stigma on the employee, the provisions of Article 311 (2) of the Constitution of India are not attracted. It is further pleaded that the applicant having been accepted the terms & conditions that his services can be terminated at any time on any reason now he cannot raise for objection.
6. The only question arises whether the termination of the services of the applicant while he was on probation can be terminated without assigning any reason and without giving opportunity to him? 7. During the course of arguments, learned counsel for the applicant has urged that the services of a probationer cannot be terminated arbitrarily or punitively without applying the principles of natural justice. The probationer is entitled to know about his deficit before his services is terminated under Rule 5 of CCS (Temporary) Services Rules. Reliance has been placed on the following case laws:Anoop Jaiswal v. Government of India and Anr.
(.
8. On the other hand, it is argued on behalf of the respondents that the termination of service of a ad-hoc or temporary Government servant, if simplicitor in terms of contract of service and Rules and not being punitive then the provisions of Article 311(2) of the Constitution of India are not attracted and the applicant being on probation in this case, his services can be terminated at any time without assigning any reason. They have also placed reliance the following case laws:Om Prakash Mann v. Director of Education (Basic) and Ors.
(2006) 7 SCC 558.
9. Admittedly, no reason has been assigned to the applicant before his termination. He has also not been asked to show cause for any of his deficiency on or unsatisfactory performance. Inquiry was made against the Director. No material has been placed before us that undue favour was extended to the applicant by the Director during the selection process. So, for the fault of the Director, the applicant cannot be penalized even if he was on probation he could have been asked about his conduct or for his performances. When that has not been done, we are of the view that there has been violation of principles of natural justice.
10. The impugned order dated 5.10.2006 under which the services of the applicant have been terminated in pursuance of proviso to Sub rule (i) of Rule 5 of the CCS (temporary Service) Rules, 1965. It is not the case that the services of the applicant have been terminated as per the terms & conditions of the appointment letter.
11. During the course of arguments a large number of case laws have been cited on behalf of both the parties. We are not inclined to burden the order by referring all those decisions. The latest decision of the Apex Court on which reliance has been placed on behalf of the respondents in the case of Om Prakash Mann reported in (2006) 7 SCC 558. In that case inquiry was initiated against the probationer and he was dismissed from the service during the probation period. So it was held by the Hon'ble Apex Court that no opportunity is required to be given to the probationer and, therefore, question of violation of principles of natural justice does not arise. The case, in hand, the facts are different. No inquiry has been initiated against the applicant, so the ratio of the case cited would not be applicable in this case.
12. In other hand, in the case of V.P. Ahuja it has been held that the service of a probationer cannot be terminated arbitrarily without complying with the principles of natural justice. In the case of Manorama Devi (Smt.) v. U.O.I. and Ors. Reported in 579 Swamy's CL Digest 1993 it has been held that the probationer to be made known of inadequacy/deficiency affording opportunity to improve before terminating the services under Rule 5 of CCS (TS) Rules. Similar view has also been taken in the case of Deepak Kumar Dass v. U.O.I.and Ors. Reported in 163 Swamy's CL Digest 1995/1.
13. Upon hearing the learned counsel for both the parties and materials available on record as per the our above findings, we are of the view that the termination of the services of the applicant stated to have been made as per the provisions of Sub Rule (1) of Rule 5 of CCS (TS) Rules, 1995 without giving opportunity is illegal and would not be sustainable in the eyes of law. Hence, the O.A. succeeds and is allowed. We hereby quash the order of termination-dated 5.10.2006 and direct the respondents to take the applicant back in service forthwith treating him as continuing in service. No costs.