Pintu Chowdhury vs Union Of India And Ors

The petitioner has challenged an order dated 30.08.2017 issued by the respondent No.2, Director (East Zone), Weavers‟ Service Centre, Government of India by which the petitioner‟s service as Junior Weaver, Weavers‟ Service Centre, Agartala, came to be terminated.

Brief facts are as under:

The petitioner has the qualification of Diploma in Handloom Technology and B.Sc. in Fashion Design. He was appointed as a Craft Teacher under order dated 08.11.2010 in Eklavya Model Residential School run by Tripura Tribal Welfare Residential Educational Institutions Society (hereinafter to be referred to as „the said Society‟), which is receiving 100% grant from the Tribal Welfare Department, Government of Tripura. He joined his duties on 04.01.2011 on which post he worked till 28.01.2016.

Respondent No.2, which is the Government of India Organization had published an advertisement on 01.08.2015 inviting applications from eligible candidates for various posts including 15 posts of Junior Weaver, of which 8 posts were to be fulfilled by unreserved category candidates. The rest were distributed over reserved category candidates. As per the advertisement, the upper age limit of the candidate would be 30 years, relaxable up to 10 years in case of Government servants (13 years in case of reserved category candidates). The petitioner applied for the posts, in question, which application was forwarded by the Principal of the School where the petitioner was at that time engaged. The petitioner was invited for an interview in which he participated with the consent of his employer. The respondent No.2 issued order dated 19.01.2016 appointing the petitioner to the said post and posted him at Agartala. Petitioner joined on 29.01.2016. The petitioner continued to discharge his duties without any complaint from the department. However, suddenly respondent No.2 passed the impugned order dated 30.08.2017 terminating the service of the petitioner pursuant to which a release order dated 04.09.2017 was passed. At that stage, the petitioner filed this petition in which under an order dated 05.04.2018, this Court stayed the operation of the impugned order of termination dated 30.08.2017. The order also provided that the respondent shall allow the petitioner to join the post of Junior Weaver, which he was holding prior to passing of the order dated 30.08.2017. Thus, under interim protection from the High Court the petitioner has been discharging his duties on the said post.

The case of the respondent No.2 emerging from the reply is that as per the advertisement, the petitioner was over aged for appointment. He had claimed the benefit of age relaxation by 10 years which was available only to a Government servant. The petitioner was not in Government service. When this mistake was detected, the service of the petitioner was terminated. In an affidavit dated 07.12.2017 filed on behalf of the respondent Nos.1 to 4, it is stated that a complaint was received from a private person that the petitioner had been wrongly granted age relaxation which was admissible only to Government employees and that the Eklavya Model Residential School was not a Government school. Whereupon the Development Commissioner of Handlooms, New Delhi had sought a clarification from Weavers Service Centre, Guwahati and also the Department of Personnel & Training (DoP&T) who clarified that the employees of the said Society do not bear the status of Government servants as defined in Rule 2(h) of CCS (CCA) Rules and therefore, no age relaxation can be granted in favour of such employees. The second respondent therefore, had terminated the service of the petitioner relying on a clause of the advertisement that if any declaration made or information furnished by a candidate is found to be false, he would be discharged from service. The said respondents however agreed that the said Society is an organization under the administrative control of the Tribal Welfare Department, Government of Tripura and is also fully funded by the State Government. However, in view of a clarification issued by the DoPT, the petitioner was not entitled to age relaxation as per the Rules.

The Government of Tripura has filed a short reply dated 28.11.2017 in which it is stated that the said Society is not a Government department.

The Society has also filed an affidavit in which it is stated that the Tribal Welfare Department of Government of Tripura had established the said Society with a view to imparting quality education to Scheduled Tribe boys and girls students in the interior tribal areas of the State and the Society runs from the grant received from the Tribal Welfare Department of the Government. It is stated that the Board of Governors of the Society has adopted the service Rules for its employees as applicable to the State Government employees.

Appearing for the petitioner, learned counsel Mr. Somik Deb submitted that the respondent No.2 has committed a serious error in passing the impugned order, that too without granting any hearing to the petitioner. He submitted that the impugned order results in adverse civil consequences and is also stigmatic and punitive. Such an order could not have been passed without hearing the petitioner. Counsel further submitted that the petitioner was engaged as a Teacher in a Society, which was fully funded and controlled by the State Government. The Society was constituted by the Tribal Welfare Department for specific purposes. The status of the petitioner as an employee of such a Society was akin to a Government servant. The petitioner was therefore entitled to the benefit of age relaxation. In this context, he relied on a decision of Division Bench of Punjab and Haryana High Court in case of Sukhwinder Singh vs. State of Punjab and another dated 26th March, 2013 in which it was held as under:

"9. The aforesaid dicta laid down by the Supreme Court as well as by the Division Bench of this Court provides complete answer to the arguments of the respondents and impels us to hold that non-extension of provision of age relaxation to the employees of the Corporations/Boards/Public Sector Undertakings, which are State under Article 12, is violative of Article 14 of the Constitution. We, thus, allow this writ petition and hold that employees of such Corporations/Boards/Public Sector Undertakings shall also be entitled to the benefit of age relaxation in similar manner. The effect of that would be that petitioner shall be treated as eligible for the post in question. The petitioner is permitted to apply for the post and the respondents shall consider his application as well."

Counsel further submitted that the petitioner had not given any false representation about his age or his employment. The petitioner had resigned from his permanent employment in a semi Government organization. The respondents under the circumstances would be esstopped from terminating the service of the petitioner on the stated grounds.

On the other hand, learned counsel for the respondent Nos.1 and 2 opposed the petition contending that the relaxation in the upper age limit was meant only for the Government employees. The petitioner was admittedly not a Government employee. His service in the said Society cannot be treated as Government employment. The respondent No.2 therefore upon assessment of correct facts found that the petitioner was not qualified for the post in question and therefore, terminated his service.

I am inclined to allow this petition on a short ground of the impugned order having been passed without a fair opportunity of hearing being given to the petitioner. The impugned order resulted in adverse civil consequences to the petitioner. It was highly stigmatic and also punitive. The respondent No.2 by the impugned order has recorded as under:

"NOW THEREFORE, after considering the record of facts and circumstances of the case, the undersigned has come to the conclusion that the act of major misconduct of producing the false information for the purpose of age relaxation by Shri Pintu Chowdhury, S/o Late Amalendu Chowdhury shall be categorized as an offence and hereby Shri Pintu Chowdhury made his appointment liable to be terminated.

ACCORDINGLY, the undersigned is of the view that ends of justice would be met by imposition of the Major Penalty of dismissal from Government Service with immediate effect under the CCS(CCA) Rules, 1965."

Admittedly, no hearing was granted to the petitioner before passing the said order. Apart from the impugned order being stigmatic and punitive, even the issue of age relaxation in favour of the petitioner was not free from doubt. The concerned department had to seek clarifications from the Government of Tripura as well as DoPT. Admitted position is that the petitioner was employed in a school which was run by an organization, which was constituted by the State Government for the special purpose of providing quality education to tribal students in remote areas and which organization was fully funded and administratively controlled by the State Government. The terms and conditions of service and other service rules governing the employees of the Society were adopted from the State Government model. Crucial question therefore would be in such a situation can the employee of such a Society claim age relaxation by extension of the provision on the premise that his status was akin to that of a Government servant. Division Bench of Punjab & Hariyana High Court, in case of Sukhwinder Singh(supra) has taken such a view. However, I would not like to conclude this issue in the present petition because for the reasons noted above, the impugned order is required to be set aside on the ground of non-granting of hearing.

There are other reasons why in the present case such a hearing would be necessary. As noted, the petitioner had resigned from his permanent post in a semi Government organization. The petitioner, thus, had reasonable assurance of service tenure in his previous employment also. Having resigned from such a secured job, can the petitioner be told a year and a half after his appointment that his initial engagement itself was invalid since he was over aged. The petitioner can legitimately argue that if he had not made any misrepresentation about his age or his service, it would be inequitable to allow the department to terminate his service which would render him jobless from his previous employment also. Further, I find a reference in the affidavit-in-reply filed on behalf of the respondent Nos.1 to 4 that the petitioner had produced a certificate of belonging to OBC. However, that certificate was produced after time permitted for such purpose and therefore, not taken into account. It appears that independently of his status as being in Government service or equivalent to Government service, as an OBC candidate, he would be entitled to age relaxation. If that be so, should the service of the petitioner be terminated when on the strength of his OBC status he would any way, be within the age limit, simply because he could not produce such certificates within the time.

All in all, all these aspects need to be gone into at the first instance by the department. For such purpose, impugned order dated 30.08.2017 is set aside. The petitioner shall make a detailed representation to respondent No.2, in which he will be allowed to take all his contentions factual as well as legal. Such a representation shall be made within a period of 8 (eight) weeks from today. The respondent No.2 shall consider such representation and pass a speaking order thereon. If such order is in any manner adverse to the petitioner, it would be open for him to file a fresh petition challenging the same on all grounds.

Petition disposed of accordingly. Pending application, if any, also stands disposed of.