Posted On by &filed under High Court, Rajasthan High Court.


Rajasthan High Court
Mahendra Singh Meena vs Central Administrative Tribunal … on 12 October, 2000
Equivalent citations: 2001 (1) WLC 71, 2001 (1) WLN 283
Author: . Lakshmanan
Bench: . A ., A Parihar


ORDER

Lakshmanan, CJ.

(1). Heard the learned counsel for the petitioner. This writ petition has been filed to set aside the order passed by the Central Administrative Tribunal, Jaipur Bench, Jaipur (hereinafter referred to as ‘the Tribunal’) dated 5.12.97 and to quash the order of termination dated 18.11.97 (Annex.5) A further prayer to reinstate the petitioner in service with all consequential benefits of service and to declare rule 6(b) of the Posts and Telegraphs Extra-Departmental Agents (Conduct and Service) Rules, 1964 (hereinafter referred to as ‘the Rules of 1964’) as ultra vires and unconstitutional is also made.

(2). It is the case of the petitioner that pursuant to the communication dated 26.12.96, he submitted the required information in the prescribed proforma with supported documents and that after considering the same, the respondents have selected the petitioner for the post of Extra Departmental Mail Carrier (for short ‘E.D.M.C.’) Kithana EDBO and issued order dated 13.1.97 (Annex.2) by which the respondent No. 5 directed the MOI Chirawa to hand over the charge of EDMC, Kithana. The petitioner after appointment on 14.1.97 also remitted amount towards surety as per the rules and as per the direction of respondent No.5. While so, the respondent No.5 terminated the services of the petitioner without any reason invoking the provisions of rule 6(b) of the Rules of 1964 vide order dated 18.11.97 (Annex.5) with immediate effect by remitting one month notice pay.

(3). It is the specific case of the petitioner that the services of the Departmental Agents including the EDMC are governed by the Rules of 1964 and that Rule 6(b) which came into force by way of a amendment w.e.f. 7.9.93, empowers the respondents to terminate the services of the employees under this category who has not completed three years service, by giving simply one month notice or pay in lieu of the notice irrespective the fact that either appointment is made by regular mode of recruitment or otherwise without showing reasons or providing opportunity of hearing or following the principal of natural justice. Therefore, it is contended that rule 6(b) of the Rules of 1964 is to be declared as ultra vires and unconstitutional.

(4). It is argued by the learned counsel for the petitioner that the Rules of 1964 do not say any thing regarding temporary and permanent employee and once a person selected on the post after due selection his services can not be terminated without extending a chance of hearing or disclosing reasons for termination. Thus, Mr. Mukesh Agarwal, learned counsel for the petitioner submitted that the action of the respondents is against the provisions of rule 6(b) of the Rules of 1964 and therefore, the said action is liable to be declared ultra vires.

(5). The Tribunal by order dated 5.12.97 after considering the case put forward by the petitioner, dismissed the original application following he recent decision of the Supreme Court in Sub-Divisional Inspector of Post, Valkam & Ors. etc. vs. Theyyam Joseph etc. (1). The Tribunal has also scanned the Rules of 1964 and held that rule 6(b) is not ultra vires of the Constitution as alleged.

(6). We have perused the annexures filed along with the writ petition and the order passed by the Tribunal. Our attention was drawn to the relevant rules. Section III of the Rules 1964 provides Method of Recruitment. Cl. (1) of Sec. III provides instructions regarding selection. It is stated in this Cl. (1) that the question of consolidating various instructions issued from time to time governing the appointment and other service conditions of ED Agents has been engaging the attention of the Directorate and that after careful examination of all aspects of employment of ED staff, it has been decided to observe the instructions scrupulously while making selection of ED Agents. The said section provides the minimum age limit as 18 years and also provides the educational qualifications, income and ownership of properly, residence, security etc. A format has been prescribed for issuing the order of appointment. The order of appointment to be issued to the appointee and the acknowledgement reads thus:-

ORDER OF APPOINTMENT

No…..,dated at…..the….. Shri ….. son of ….. is hereby appointed as ED …..with effect from…..forenoon/afternoon. He shall be paid such allowances as are admissible from time to time.

2. Shri….. should clearly understand that his employment as ED….. shall be in the nature of a contract liable to be terminated by him or by the undersigned by notifying the order in writing and that his conduct and service shall also be governed by the Posts and Telegraphs Extra-Departmental Agents (Conduct and Service) Rules, 1964, as amended from time to time.

3. If these conditions are acceptable to him, he should communicate his acceptance in the enclosed pro forma.

(Appointing Authority)

To Shri…..

ACKNOWLEDGEMENT

I…., acknowledge the receipt of your Memo No….. dated the ….. and hereby accept the appointment of….. under the specific condition that my appointment is in the nature of a contract liable to be terminated by notice given in writing.

2. I further declare that I have read the Posts and Telegraphs ED Agents (Conduct and Services) Rules, 1964, and clearly understand that I become liable to the provisions and penalties contained in these rules on being appointed as…. in the posts and Telegraphs Department.

(Extra-Departmental Employee)

(7). A reading of the order of appointment clearly shows that the nature of the appointment is on contract basis and is liable to be terminated by the appointing authority by informing the appointee in writing that his services are governed by the Rules of 1964 and that the appointee should acknowledge his acceptance in the enclosed proforma. The acknowledgement extracted above would also clearly shows that the appointee accepts the appointment under specific condition that his appointment is in the nature of contract and is liable to be terminated by notice given in writing. The appointee has to further declare that he has read the Rules of 1964 and clearly understood that he become liable to the provisions and penalties contained in the Rules on being appointed on a particular post in the department.

(8). In the instant case, learned counsel for the petitioner is not in a position to place before this Court any order of appointment issued as per Sec. III of the Rules of 1964. The petitioner has produced only one document (Annex.2) to show that his appointment was approved for the post of EDMC Kithana and that the person in Chirawa Head Office was directed to hand over charge to the approved candidate namely, the petitioner and report to the officer concerned. Annex.5 is the order of termination, which reads as follows:-

“DEPARTMENT OF POSTS, INDIA

OFFICE OF THE INSPECTOR OF POST OFFICES, CHIRAWA

SUB DIVISION CHIRAWA

Memo No.PF/EDMC/Kithana/97-98
dated at Chirawa/the 18.11.97

ORDER

In pursuance of the provision to Rule 6(b) and the note below rule 6(b) of the P&T Extra Departmental Agents (Conduct & Service) Rules, 1964, I Bihari Lal SDI (P) Chirawa hereby terminate (forthwith) the services of Shri Mahendra Singh Meena EDMC Kithana and direct that he shall be entitled to claim a sum equivalent to the amount of his basic allowances plus dearness allowances for the period of notice at the same rates at which he was drawing them immediately before the termination of his services.

The due amount of basis allowances is being remitted in lieu of the notice of one month.

Station-Chirawa

Date : 18.11.97

sd/-

Inspector of Post Office

Chirawa, Sub-Division.”

(9). It is seen from the above order of termination that the petitioner was terminated from service by the respondent invoking rule 6(b) of the Rules of 1964. Rule 6(a) and (b) of the Rules of 1964 reads thus:-

“6. Termination of Services:- (a) The services of an employee who has not already rendered more than three years’ continuous service from the date of his appointment shall be liable to termination at any time by a notice in writing given either by the employee to the appointing authority or by the appointing authority to the employee;

(b) the period of such notice shall be one month:

Provided that the service of any such employee may be terminated forthwith and no such termination, the employee shall be entitled to claim a sum equivalent to the amount of his basic allowance plus Dearness Allowance for the period of the notice at the same rates at which he was drawing them immediately before the termination of his services, or, as the case may be, for the period by which such notice falls short of one month.”

(10). The above rule provides that the service of an employee who has not already rendered more than three years, continuous service from the date of his appointment shall be liable to be terminated forthwith by notice in writing given either by the employee to the appointing authority or by the appointing authority to the employee. The period of such notice shall be one month. Proviso to rule 6 provides that the service of any such employee may be terminated forthwith and on such termination, the employee shall be entitled to claim a sum equivalent to the amount of his basic allowance plus Dearness Allowance for the period of the notice at the same rates at which he was drawing them immediately before the termination of his services, or, as the case may be, for the period by which such notice falls short of one month.

(11). In the instant case, the petitioner was appointed on 14.1.97 and his services were terminated by invoking the authority of rule 6 of the Rules of 1964. The petitioner has not rendered the services for more than three years continuously from the date of his appointment. Since, the petitioner has not completed three years’ continuous service, the respondent in our opinion is entitled to terminate the services of the petitioner at any time by a notice in writing. In the instant case, such notice in pursuance to the provisions of rule 6(b) was also issued to the petitioner herein (Annex-5) dated 18.11.97. The due amount of basic allowance plus Dearness Allowance was also remitted in lieu of notice of one month. Thus, in our opinion, provisions of Rule 6(b) of the Rules of 1964 have been strictly complied with by the authority while terminating the services of the petitioner.

(12) The said rule 6(b) of the Rules of 1964 came up for consideration before the Supreme Court in the case of Sub- Divisional Inspector of Posts (supra) and their Lordships of the Supreme Court while interpreting the said rule have observed that the respondent having been appointed and having worked de hors the rule, remains to be an ad hoc Extra Departmental Employee and that he will be entitled under the Conduct Rule 6 to the payment of the amount to be calculated for one month allowance plus D.A. In the said case, the respondent had approached the Industrial Tribunal questioning his termination. The Supreme Court held that the Tribunal was wholly wrong in directing the appellants to terminate the service in accordance with the provisions of the Industrial Disputes Act. It is also categorically observed that the method of recruitment and conditions of service, scale of pay and Conduct Rules, regulating the service conditions of ED Agents are governed by the statutory regulations. The Supreme Court also held that the employees are civil servants and are regulated by these Conduct Rules. Therefore, by necessary implication, they do not belong to the category of workmen to attract the provisions of the Industrial Disputes Act.

(13). In the instant case, rule 6 of the Rules of 1964 has been strictly followed and adhered to and under such circumstances the contention now raised by the learned counsel for the petitioner that the said rule is ultra vires cannot be countenanced. The very rule was interpreted by the Supreme Court in the above referred judgment.

(14). Under such circumstances, there is no merit in the writ petition. The writ petition fails and is hereby dismissed.


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