ORDER
Bharati Ray, Member (J)
1. Heard Mr. G.S. Rao, Ld. Counsel for the applicant and Mr. V. Rajeswara Rao, Ld. Counsel for the respondents.
2. The undisputed facts of the case are that the applicant was appointed as Substitute Bungalow Peon after he was found fit in C II medical category and he was attached to Bungalow of Sri P. Madan Mohan Rao CCM/PS on pay Rs. 2550/- in Scale of Rs. 2550-3200 (RP) vide Office Order No. P (C)/49/2005 dated 13.5.2005. The order of appointment is annexed as Annexure A/4 at page – 11 to 12 of the O.A. A plain reading of the appointment letter of the applicant dated 13.5.2005 (Supra) would show that the engagement of the applicant i.e. Sri D. Narsimlu, is subject to the following conditions:
If while serving as Sub. Bungalow Peon and before completion of 3 years of Sub. Service he applies for and gets selected for appointment of Group-D post, he will be assigned proforma position in such post according to his turn in the panel.
On completion of 3 years of service as Substitute Bungalow Peon, he will be deemed to have acquired regular status and assigned seniority position in any vacant GroupD post. This is subject to the condition that the service as Substitute Bungalow Peon on completion of 3 years is found to be satisfactory.
He will be transferred to regular establishment (on his acquiring regular status) only when the officer to whom he is attached is transferred to other Railway or retires or ceases to be eligible to have a Bungalow Peon attached to his post. In case no vacancy is available he shall continue to work as such against the post of Bungalow Peon sanctioned in respect of Gazetted post from which the officer is transferred out of the Railway or to a post to which a Bungalow Peon is not attached.
In case his services as B. Peon are not required by the officer either before or after completion of 3 years and he is declared unsuitable for absorption in regular Group D establishment by the officer, he will have no tittle to be transferred to the regular establishment and his services will be terminated without assigning any reasons.
On completion of 120 days of continuous service he is entitled for temporary status, and he may be considered for posting as Substitute against posts of Gangman/Khalasi etc. in case the officer is transferred out of the Railway or retires from service or its transferred to a post for which there is no Bangalow Peon or in the event of deputation/training/long leave (more than 3 months) of the officer. The services of a Bungalow Peon should be subsequently regularized in the same unit on satisfactory completion of 3 years continuous service.
If the officer transferred out of the Railway or transferred within the Railway to a post for which there is no B. Peon, comes back to the Railway or to a post with a B. Peon, he will not be eligible to engage a fresh face again. In such a case, he will be provided with the services of his earlier B. Peon only subject to the condition that the earlier B. Peon has not already been regularized and absorbed.
Accordingly, the applicant reported for duty on 13.5.2005. The very joining of the applicant in the said post goes on to show that he has accepted the conditions stipulated in the appointment letter dated 13.5.2005.
3. However, before he could complete 120 days to attain temporary status, which is one of the conditions stipulated in the appointment letter, the applicant was served with a notice vide order of the Chief Personnel Officer (CPO)dated 17.8.2005, which reads as under:
It is decided to terminate your services as Substitute Bungalow Peon, in Scale Rs. 2550-3200/- (RS) attached to Sri P. Madan Mohan Rao, CCM/PS w.e.f. 31.08.2005 duly giving 14 days notice from 17.8.2005 as your services are not required by CCM/PS.
The said notice dated 17.8.2005 is annexed as AnnexureA/7 to the O.A. Pursuant to the said notice issued by the CPO, the Senior Personnel Officer (T) vide Officer Order No. P(C) 86/2005 dated 31.8.2005 terminated the services of the applicant with immediate effect with a mention that he has not been able to pick up basic work and he has no aptitude for Bungalow Peon work. Being aggrieved by the said order of termination, the applicant has approached this Tribunal by filing the instant O.A. by questioning the said order of termination dated 31.3.2005 seeking for the following reliefs:
It is humbly prayed that the Hon’ble Tribunal may be pleased to Direct the CPO/SC for re-engagement of the applicant as a substitute/B/Peon or casual labour as the termination of CPO/SC letter No. P (C) 269/Gr.D/S.B. Peon datede 31.08.2005 is illegal, arbitrary and violation of Principal of Natural Justice under Article 14, 16 and 311(2) of the Constitution of India and set aside the impugned order dated 31.08.2005 and pass such other order/orders as this Hon’ble Tribunal deem fit and proper in the interest of Principles of natural justice.
4. The respondents have contested the application by filing counter reply wherein it has been stated by the respondents that they have not received any representation after the notice dated 17.8.2005 was issued to the applicant. But, it is the contention of the applicant that on receipt of the said notice dated 17.8.2005, he has submitted his representation on 20.08.2005 stating that he was not well and taking treatment for sickness from the Dr. R. Tapadia of Hyderabad due to severe fever. He further stated therein that all investigations are complete and he has been advised to take one month time to take treatment as the decease was found to be Typhoid fever and, therefore, he requested to take further treatment from 1.09.2005 for the Typhoid fever for a period of 3 weeks. However, the respondents counsel submitted that they have not received any such representation.
5. Mr. G.S. Rao, ld. Counsel for the applicant has argued strenuously that the respondents without hearing the applicant and without considering the representations submitted by the applicant has issued the impugned order dated 31.08.2005. It is the contention of the applicant that in terms of the conditions stipulated in the appointment order dated 13.5.2005, respondents cannot terminate the applicant from services on the ground that the officer concerned does not require him any more. He has also submitted that in the notice dated 17.08.2005 there is no mention about his inablity to pick up the basic work and that he has no aptitude for Bungalow Peon Work. It is only after second thought, the said comments have been made in the impugned order dated 31.08.2005. He further submits that it is needless to say that the works which have to be performed by the Bungalow Peon can be done any person with minimum I.Q. Moreover, the services of the applicant cannot be terminated for the reason that the concerned officer does not want him. In support of his contentions, he has placed reliance on the Judgment of the CAT, Patna Bench, Patna reported in AISLJ XI1995 (3) in the case of Sameshwar Ram v. Union of India and Ors. passed in O.A. No. 80 of 1993 Wherein the applicant was a Bungalow Peon and he was discharged because the new officer did not want him and a new person was appointed and the Tribunal said that this is like a bonded labour and such action cannot be allowed. The Tribunal while deciding the above case, has referred to the decision of the Hon’ble Apex Court in the case of Miss Sujata Obrai v. Union of India and Ors. reported in 1987 (A) SLR (CT), page 625 wherein it has been said that an applicant acquires a right to the post only as per the terms of appointment.
He has also referred to the judgment of this Tribunal passed in O.A. No. 530 of 2000 dated 3.11.2000. I find from the said judgment that the services of the applicant therein were terminated because of the unsatisfactory work. The Tribunal held that the applicant should have been dealt with in accordance with the Discipline & Appeal Rules of the Department. As the services of the applicant were terminated therein without following rules, the impugned order of termination was set aside by the Tribunal.
6. Admittedly, the applicant herein could not attain the temporary status and notice dated 17.08.2005 was issued before he completed 120 days. It is not in dispute that the applicant herein completed 110 days before his termination from services.
7. In para 3 at page – 2 of the counter reply, it is categorically mentioned by the respondents that the services of the applicant were terminated vide impugned order dated 31.08.2005. The main reason for his termination was that he had not been able to pick up basic work and had no aptitude for Bungalow Peon work as reported by the same officer under whom he was working. It is also stated in the said paragraph that the representation of the applicant dated 20.8.2005 to the show cause notice dated 17.08.2005 was not received in the office.
8. I have gone through the O.A., reply and rejoinder and material papers annexed along with the O.A. and counter reply.
9. Ld. Counsel for the respondents submits that the applicant did not attain temporary status as he has not completed 120 days of continuous service and, therefore, the question of following the D.A. Proceedings does not arise in this case. Therefore the orders passed by the CAT, Hyderabad Bench, Hyderabad (Supra) relied upon by the applicant is not applicable in this case. One of the terms and conditions stipulated in the appointment letter dated 13.5.2005 which is annexed as Annexure – A/4, is that “In case his services as B. Peon are not required by the officer either before or after completion of 3 years and he is declared unsuitable for absorption in regular Group – D establishment by the officer, he will have no title to be transferred to the regular establishment and his services will be terminated without assigning any reasons.
10. It is clearly mentioned in the letter dated 17.8.2005 that the decision of termination of the services of the applicant was taken as his services are not required by CCM/PS i.e. the officer concerned. It is not the case of the respondents that the applicant has been communicated with the remark that he could not pick up the basic work of the post held by him. The order dated 17.8.2005 only says that the officer concerned does not require his services. Subsequently, by impugned order dated 31.08.2005, the respondents have terminated the services of the applicant on the ground that he had not been able to pick up the basic work and he has no aptitude for Bungalow Peon work. As mentioned above, the apex court in the case of Miss Sujata Obrai v. Union of India and Ors. reported in 1987 (A) SLR (CT), page 625 has held that “an applicant acquires a right to the post only as per the terms of appointment.” It is reiterated that according to the terms and conditions stipulated in the appointment letter of the applicant, he cannot be terminated from services on the sole ground that the officer concerned does not require his services. It is no one’s case that the applicant has ever been communicated with any remark of his unsatisfactory work. Moreover, the notice dated 17.8.2005 is not a show cause notice as claimed by the respondents.
11. In view of the decision of the Hon’ble Supreme court in the case of Miss Sujata Obrai v. Union of India and Ors. reported in 1987 (A) SLR (CT), page 625 wherein it has been laid down that “an applicant acquires a right to the post only as per the terms of appointment.”, I am of the view that the order of termination of the applicant has not been issued in accordance with the terms and conditions of the appointment letter dated 13.5.2005 and, therefore, the impugned order issued by the respondents is not sustainable in the eye of the law and is liable to be set aside. Accordingly, I quash and set aside the impugned order dated 31.08.2005. The respondents are directed to reinstate the applicant into service within 15 days from the date of receipt of copy of this order. However, it is made clear that the applicant is not entitled for any back wages for the intervening period.
12. The is O.A. is allowed to the extent indicated above. However, there shall be no order as to costs.