WP(C) 6117/2006 BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY Heard Mr. D. Choudhury, learned counsel appearing for the petitioners. The respo ndents are represented by Mr. B.K. Sharma, learned Government Advocate. In all t hese writ petitions, common issues are raised and common arguments are advanced and accordingly they are being disposed of by the following order. For the sake of convenience, facts are noted from WP(C) No. 2362/2006. 2. The petitioners are Ex-army men who were engaged as Constable/Head Const ables/Sub-Inspector respectively under the Prevention of Infiltration of Foreign ers Scheme (hereinafter referred to as the PIF Scheme ) for strengthening the G overnment machinery for detection and deportation of foreigners. By communicatio n dated 3.6.1987 (Annexure-I), the Ministry of Home Affairs agreed to reimburse the cost of Pay & Allowances of the 1280 PIF Scheme personnels in various ranks. 3.1 The petitioners sought appointment under the PIF Scheme and after a sele ction process, they were appointed to posts in different ranks. 3.2 The writ petitioner in WP(C) 2028/2006 Sailen Dutta was appointed as a S ub-Inspector in the year 1993, whereas Basanta Kumar Roy, the writ petitioner in WP(C) 2362/2006 was appointed as a Head Constable in the year 2000. The remaini ng writ petitioners were appointed as Constables in the year 2000. 4. The terms of appointment under the PIF Scheme were incorporated in a Cir cular dated 17.3.1995 issued by the Inspector General of Police (Border), Assam, where it was specified that these are temporary appointments of 1 year duration and that termination notice should be issued to every ad hoc appointee at least 15 days before the date of expiry of 1 year from the date of appointment and on receipt of termination information, the concerned appointee is required to seek a fresh engagement for a further term of 1 year which is required to be conside red by reference to the performance, medical fitness of the personnel and theref ore fresh appointment orders are to be issued once again for a period of 1 year only and this entire process is required to be repeated every year. 5.1 While the personnel were so engaged, by the WT message issued on 11.8.20 04 (Annexure-5) by the Superintendent of Police (B) on purported acceptance of t he recommendation made by the Superintendent of Police (B), Dhubri, approval was conveyed for not renewing the services of the 4 writ petitioners in WP(C) 2360/ 2006, WP(C) 2362/2006, WP(C) 3099/2006 and WP(C) 6117/2006. The aggrieved consta bles have accordingly assailed the said decision and sought direction for contin uance in service. 5.2 The WP(C) 3100/2006 and WP(C) 2028/2006 have been filed to challenge sim ilar decision taken to discontinue the service of the appointees because of unsa tisfactory performances. 6.1 Assailing the impugned decisions, Mr. D. Choudhury refers to the decisio n of the judgment and order of the Apex Court in Civil Rule No. 7922/2002 (Md. A bdul Kadir vs. Director General of Police) which was a case of similarly aggriev ed discharged sub-inspectors appointed under the PIF Scheme. 6.2 The Supreme Court through its judgment in Md. Abdul Kadir (Supra) quashe d the Circular dated 17.3.1995 of the Inspector General of Police (Border) Assam and it has been further held that the appointees under the PIF Scheme are not t o be subjected to annual terminations and reappointments and their engagements a re to be co-terminus with the PIF Scheme, subject to premature termination on th e ground of unsatisfactory performance and/or medical fitness or for disciplinar y reasons. However it is also held by the Supreme Court that irrespective of the duration of the service rendered under the PIF Scheme, the appointees will not be entitled to regularization nor to security of tenure and service benefits ava ilable to regular employees. 6.3 The relevant portion of the consequential direction of the Supreme Court are reproduced below :- & &. (i) The circular dated 17.3.1995 is quashed. The appellants shall no t be subjected to annual terminations and re-appointments (subject to observatio ns in para 8 above). (ii) The benefit of this order will be available to other similarly situated ad hoc border staff, even if they have not approached the court for relief. In v iew of the above, the interlocutory applications for impleading are disposed of as having become infructuous. (iii) This order will not however come in the way of ad hoc employees working as Border staff, being subjected to any periodical medical examination or servic e review (iv) to assess their fitness and suitability for continuation. &. 7. As can be seen from the direction given by the Supreme Court, the appoin tees under the PIF Scheme are not to be subjected to annual termination and reap pointment. Nevertheless, premature termination is permissible if a personnel is found to be medically unfit or he is found to be unsuitable to continue on revie w of service performance. 8. For the termination of the 4 writ petitioners i.e. Dharmeswar Boro, Basa nta Kr. Roy, Debmohan Rajbongshi and Jogendra Nath Boro, the respondents have tr ied to justify their termination on the basis of the communication dated 16.6.20 04 of the Superintendent of Police (B), Dhubri, where unsatisfactory performance of service by the 4 writ petitioners is recorded because of unauthorized absenc e for 5 days in the month of May, 2004. In this context, Mr. Choudhury draws the Court’s attention to the order No. 793 dated 22.7.2004 (Annexure-4) of the Addl . Director of Police (B) Assam, where said unauthorized absence has been ordered as Leave without Pay . It is also recorded in the order that repetition of suc h mis-conduct may lead to termination of contract of service of the delinquent p ersonnel. Because the Addl. Director of Police (B) Assam has condoned the absenc e by granting leave, Mr. Choudhury contends that the respondents could not have considered the performance to be unsatisfactory for the condoned breach and on t hat basis could not have ordered for discontinuance of services of the 4 personn el. 9. It is also argued by Mr. Choudhury that even for termination on the grou nd of unsatisfactory performance, an opportunity should have been afforded to th e engaged personnel, even if they were to be terminated on permissible grounds. 10. Per contra, Mr. B.K. Sharma, learned Government Advocate submits that th e only reason for discontinuance of the services was unsatisfactory performance and the impugned action cannot said to be unauthorized by the Supreme Court. It is also argued that the work for which the personnel under the PIF Scheme are en gaged are of arduous nature and unless the appointees are focused and fit, they would not be able to discharge their duties of detection and deportation of ille gal foreign migrants and would fail in their assigned task as a second line of d efence on the Assam Bangladesh Border. 11. Considering the rival submissions and having regard to the decision rend ered by the Apex Court in Md. Abdul Kadir (Supra), it is abundantly clear that a nnual termination and reappointment of the personnel under the PIF Scheme is imp ermissible. Only for reasons of unfitness and/or unsatisfactory performance of s ervice, premature termination is permissible. But in the perception of this Cour t, even if termination on permissible ground is to be ordered, an opportunity mu st be afforded to the affected personnel, before he can be removed from service. Here such opportunity was not afforded to any of the writ petitioners before th e decision was taken to discontinue with their services. Services of 4 of them h ave been discontinued on an invalid ground of unauthorized absence, which could not have been done as their absence in May 2004 has been condoned by the Addl. D .G.P through his order dated 22.7.2004 (Annexure-4). 12. In the above circumstances, the impugned decision to discontinue the ser vices of the writ petitioners cannot be sustained and the same are quashed. Howe ver considering the nature of the service to be rendered by the police personnel under the PIF Scheme, their reinstatement can not be automatic. Accordingly sub ject to assessment of medical fitness, the petitioners are ordered to be taken b ack in service and be permitted to continue, in terms of the direction given by the Supreme Court in Md. Abdul Kadir (Supra). As no service is received by the S tate and the authority to reimburse the wages of the PIF Scheme personnel, i.e. the Central Government who are not parties in these proceedings, there can be l ittle justification for ordering payment of back wages. Accordingly the prayer f or back wages is not accepted. 13. The writ petitions stand allowed in terms of the above direction.