SUPREME COURT OF INDIA

Before:- S. Saghir Ahmad and N. Santosh Hegde, JJ.

Civil Appeal No. 2854 of 1996. D/d. 10.3.1999.

Lakhan Lal Tripathi - Appellant

Versus

Commandant General and Anr. - Respondent

A. Service Law - Recruitment Process - Conditions for Eligibility - Age limit - Age of 30 years fixed as upper age-limit for appointment in the present case - Appellant's date of birth was 4-5-1952 and he was appointed on 3-5-1982 - Held appellant was not over-aged.

[Para 4]

B. Service Law - Termination - Ineligibility for appointment - Duty to afford opportunity to show cause to affected employee - Services of appellant terminated on the ground that he had crossed upper age-limit at the time of his initial appointment and the Government had not relaxed this limit in his case - Ground found to be factually wrong - However if at all appellant's services were to be terminated on these grounds, respondents could not take the right of appellant by not giving opportunity to the appellant - Termination held to be in violation of principles of natural justice.

[Para 6]

C. Service Law - Reinstatement - Relief to be granted when the cadre itself has been disbanded - Appellant's services found to have been illegally terminated - His post had been abolished in the meantime - Appellant's colleagues had been absorbed in other Government departments - Respondents therefore directed to consider appellant's absorption on an appropriate post in another department.

[Para 7]

ORDER

1. This appeal is directed against the judgment passed by the Madhya Pradesh Administrative Tribunal on 23-8-1991 whereby the claim petition filed by the appellant was rejected.

2. The State of Madhya Pradesh constituted bhumi sena (land army) under Bhumi Sena Adhiniyam, 1981 which was enforced with effect from 11-11-1981. The appellant was appointed as a Cadet Warrant Officer on 3-5-1982. He joined the post on 4-5-1982. Thereafter, by order dated 9-11-1982, the appellant was appointed temporarily as a Warrant Officer in the scale of pay of Rs 195-300. Four years later, by an order dated 16-9-1986, his services were terminated on the ground that at the time of appointment on the post of Warrant Officer, he was found to be beyond age. The termination order recites as under:

?Services of Shri L.L. Tripathi appointed as Warrant Officer vide this Office Order No. Pers/LA(AGR)/2626/82, dated 9-11-1982 are hereby terminated with immediate effect because he has been found over age at the time of appointment and his case for relaxation of age-limit has not been considered by Government.

2. In lieu of one month's notice for termination of services, one month salary be paid.?

3. It is this order which was challenged before the Tribunal, but the Tribunal, as pointed out above, dismissed the claim petition.

4. The appellant's date of birth is 4-5-1952. This is not disputed. On 3-5-1982, when he was appointed as Cadet Warrant Officer, he was undisputedly below 30 years of age and therefore his initial appointment was not bad. For further advancement in the service, the appellant was given training and was thereafter appointed on the post of Warrant Officer. There was, therefore, no question of the appellant being over age at that stage.

5. That apart, the services of the appellant were terminated for the reason that he was found over age at the time of appointment on the post of Warrant Officer and when a reference was made to the State Government for relaxation in age, the Government refused to consider the matter.

6. Whether the appellant was over age and whether he was entitled to any relaxation in age are questions which could not have been decided by the respondents by taking a one-sided decision without giving any opportunity to the appellant to indicate that the opinion of the respondents that he was over age was not correct. The principles of natural justice were not observed and the termination order was arbitrarily passed.

7. It is contended by the respondents? counsel that the land army has since been disbanded with effect from 7-11-1992. That being so, it would not be possible to grant the relief of reinstatement to the appellant. The respondents have, however, filed a counter-affidavit in which they themselves have stated that when the land army was disbanded, 157 persons were affected and their services were terminated. But 148 of them have since been absorbed in various Government posts. Having regard to this averment in the counter-affidavit, we direct the respondents to consider the absorption of the appellant also on an appropriate post as he had served the Government for about 4 years when his services were illegally terminated. The appeal is disposed of finally with the above directions. No costs.

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