PETITIONER: STATE OF ORISSA Vs. RESPONDENT: MOHD. YUNUS DATE OF JUDGMENT17/09/1993 BENCH: ACT: HEADNOTE: JUDGMENT:
&
ORDER
1. We have heard the counsel on either side. Leave
granted.
2. This appeal arises against the order of the tribunal
made in O.A. No. 1005 of 1989 dated March 22, 1993. The
respondent is an ex-serviceman. He applied for recruitment
to Orissa Administrative Service, Class 11. Pending
proceedings a direction was given to keep one post vacant
for consideration of the appellant in the event of his
succeeding in the original application. The tribunal
allowed the petition and directed to appoint him in that
post. The State is aggrieved against this order. Thus,
this appeal by special leave.
3.The only question that arises for consideration in this
appeal is whether the respondent could be treated on a par
with members of the Scheduled Castes and Scheduled Tribes
for lowering the standard for selection by the Public
Service Commission. The tribunal following the judgment of
the Full Bench of Punjab and Haryana High Court in the case
of Jagdish Rai v. State of Haryana’ directed that the
respondent is entitled to the same benefits. We are unable
to agree with the tribunal and the ratio in the Full Bench
judgment. The members of the SCs and STs have been given
benefit by operation of Article 16(4) of the Constitution.
Any concession or relaxation in their favour is in
compliance of the constitutional mandate to provide adequate
representation of them in any service or posts under the
State. Any other category other than SCs and STs cannot be
put on a par with them in the matters of relaxation of the
conditions for recruitment or other conditions. It is
stated by Mr Mehta, learned counsel for the State that the
Commission has put a minimum of 780 marks as qualifying
marks for the general candidates. The respondent admittedly
belongs to the general category. Though three posts have
been reserved for ex-servicemen, if a candidate who belongs
to ex-servicemen gets eligibility by securing 780 minimum
marks, irrespective of the fact whether he/they comes by
general selection or not, by virtue of reservation made to
the ex-servicemen, he/they
+ Arising out of SLP (C) No. 10343 of 1993
1 AIR 1977 P&H 56: 79 Punj LR 1 : 1977 Lab IC 353
56
become eligible for consideration. This relaxation has been
made in contradistinction with other general candidates but
for which the respondent would be ineligible. The fixation
of the general standard marks prescribed for the general
candidates would undoubtedly be a handicap to the ex-service
personnel who are made to compete with youngsters after
several years of service put in the defence service. The
State Government and the Public Service Commission are
directed to consider the desirability to fix a lesser
standard than that of the general candidates as ex-
servicemen have served the nation in its defence and in the
process they may not come on a par with the general
candidates. Therefore, some relaxation in their behalf
would be necessary to meet the exigencies of coping up with
the reservation given to them. Otherwise, reservation would
be illusory. The State Government in consultation with the
Public Service Commission would decide this issue within a
period of three months from the date of the receipt of this
order and thereafter consider the case of the respondent
accordingly.
4. The appeal is allowed with no order as to costs.
ORDER
1. Leave granted. Heard on merits.
2. The appellant was appointed as a Constable in the U.P.
Police Force on probation in a clear vacancy in December
1986. He was then sent for training at the Police Training
School, Moradabad in January 1987 and had successfully
completed the training course. In December 1990 while the
appellant was
+ Arising out of SLP (Civil) No. 14711 of 1991
57
posted as a Constable in Police Station Nangla in District
Bijnor, a report was made by the Station House Officer on
December 17, 1990 accusing the appellant of certain
misconduct. The very next day, on December 18, 1990, the
appellant was transferred to the Police Lines. However,
without holding any inquiry, on December 19, 1990, the
appellant’s services were terminated (Annexure B) by giving
him one month’s salary in lieu of notice. The appellant
challenged the termination of his services by filing a writ
petition in the Allahabad High Court. That writ petition
has been dismissed by the impugned judgment dated July 20,
1991. Hence this appeal by special leave.
3.The High Court has taken the view that the services of
the appellant being merely temporary, there was no infirmity
in the termination of his services in this manner. Learned
counsel for the appellant submitted that the appellant was
not appointed merely temporarily but on probation in a clear
vacancy and, therefore, the procedure for termination of his
services would be governed by Regulation 541 of U.P. Police
Regulations; and that the termination having been made
without complying with the requirements of Regulation 541,
it was invalid. In reply, learned counsel for the State
merely contended that the appointment of the appellant was
not on probation in a clear vacancy but was temporary
appointment which was not governed by Regulation 541 of the
U.P. Police Regulations. We are satisfied that this appeal
has to be allowed.
4.The appellant has expressly asserted that his
appointment as a Constable was on probation in a clear
vacancy. On behalf of the State of U.P., there is no denial
of this assertion and no material has been produced by the
State to indicate that the appellant’s appointment was not
of this nature. There can be no doubt that the State which
is in possession of the entire record was not in a position
to show with reference to the record that the factual
position was different. The failure of the State Government
to produce any record in support of its submission is alone
sufficient to reject its submission to this effect. The
case has, therefore, to be examined on the basis that the
appellant’s appointment was on probation in a clear vacancy
which was governed by Regulation 541 of the U.P. Police
Regulations.
5.Mere perusal of Regulation 541 shows that an inquiry is
contemplated of the kind mentioned therein before any order
of discharge thereunder is made in a case like the present
during the period of probation. Admittedly that procedure
was not adopted in the present case before terminating the
appellant’s services. The order of termination is,
therefore, obviously invalid.
6.In the result, the appeal is allowed with costs.
Consequently, the impugned judgment of the High Court is set
aside and writ petition filed in the High Court is allowed,
with consequential benefits. The appellant is to get costs
from respondent-State of U.P. The costs are quantified at Rs
5000 (Rupees Five thousand) only.
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