UNION OF INDIA AND ORS. versus ARUN KUMAR ROY

Citation: [1986] 1 S.C.R. 136 · Decided: 23-01-1986 · Supreme Court of India · Bench: A.P. SEN · Disposal: Appeal(s) allowed

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Judgment (excerpt)

A 
B 
c 
D 
E 
F 
G 
H 
136 
UNION OF INDIA AND ORS. 
v. 
ARUN KUMAR ROY 
JANUARY 23, 1986 
[A.P. SEN AND V. KHALID, JJ.] 
Service Law - Termination of service during the period r 
of probation - Whether it was incumbant upon the Authorities 
to pay notice salary along with the termination notice- Effect 
of the amended Rule 5(1 )(b) of the Central Civil ·services 
(Temporary Service) Rules, 1965 -
Notification cannot over-
ride statutory rules made governing 
service conditions -
Whether the terms embodied in the order of appointment should 
govern the service conditions of employees appointment should 
govern the service conditions of employees in Government 
service - Constitution of India, 1950, Article 309. 
The Respondent was appointed as a Stores Officer in the .C 
Department of Zoological Survey of India on July 30, 1975. Ile 
was placed on probation for two years. 
By a Memo dated July 
25, 1977, his period of probation was extended by another 
year. During this extended period of probation, by an order 
dated July 27, 1978, his services were terminated with effect 
from 'the afternoon of July 29, 1978. The co111111111ication stated 
that the respondent would be entitled to claim a sum equal to 
the amount of his pay plus allowances in lieu of one month's 
notice at the same rates at which he was drawing them immedia-
tely before the termination of his service. 
The respondent challenged this order by filing writ, 
petition No. 385/1981 before the Calcutta High Court. The 
learned Single Judge dismissed the petition holding that the 
order of termination was valid, inasnuch as the respondent 
was 
a temporary Government servant governed by the amended 
Rule 5(l)(b) of the Central Civil Services (Temporary Service) 
Rules, 1965. However, in appeal, the Division Bench of that 
Court addressed itself to the question whether the amended 
provisions of the proviso to Rule 5(l)(b) applied to the case 
of the respondent or not. It came to the conclusion that 
the 
order of termination was bad relying upon the terms contained 
in the order of 
appointment 
and 
the 
Notification dated '# 
26.8.1967 which clarified the operation of Rule 5 of the Civil 
u.o.r. v. ARUN KUMAR ROY 
137 
). Service Rules, The Di vision Bench held that the said Noti-
~ication excluded the operation of Rule 5(1) including the 
proviso thereto and that the 
terms of appointment clearly 
indicated that his services could be terminated only if the 
salary and allowance for one month were either paid or tender-
ed alongwith the order of termination. Hence the appeal by 
special leave. 
Allowing the appeal, the Court 
HELD: 1. A Notification has no statutory force. It can-
~ 
not override rules statutorily made governing the conditions 
of service of the employees. 
The Notification is dated 
26,8.67, Rule 5(l)(b) of the Central Civil Service (Temporary 
Service) Rules, 1965 was amended in 1971 with retrospective 
effect from May 1, 1965, The rule was necessarily to govern 
the service conditions and not the notification. Therefore, 
the reliance by the High Court 
on the Notification in 
preference to the rules is misplaced. Even if strict adherence 
to the notification is to be made, it has to be noted that it 
only states that "it would be desirable 
to terminate the 
_ .. services of probation •••.••. .•..•••• ". In other words this 
notification does not make it obligatory for tender. or pay-
ment of salary alongwith the order of termination. [145 A-B; 
144 G-H] 
2. As per Rule 5(1 )(b) of the Central Civil Service 
(Temporary Service) Rules, 1965, the payment of notice salary 
is not a pre-requisite for termination. The payment can be 
made after the order of ·termination is served on the employee. 
Since the Rule was amended in 1971 with. retrospective effect 
from May 1, 1965 it is only the amended Rule 5(l)(b) which 
applies in this case inasmuch as ·the respondent was appointed 
on July 30, 1975, [144 F-G] 
• 
Baj Kumr v. Union of India, 
[ 1975] 
3 s.c.R. 963 
referred to. 
3.1 
The terms and conditions of service of an employee 
under the Government who enters service on a conti;act, will 
once he is appointed, be governed by the rules governing his 
service conditions. It will not be permissible thereafter for 
him to rely upon the termli of contract which are not in conso-
nance with the rules governing the service. It is well settled 
~ that a Government servant whose appointment though originates 
in a contract, acquires a status

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