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Verghese George Vs. the Officer Commanding, T.T.W.A.F. Station Yalahanka, Bangalore North - Court Judgment

LegalCrystal Citation
SubjectConstitution;Service
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 4364 of 1968
Judge
Reported inAIR1970Kant302; AIR1970Mys302; (1970)2MysLJ55
ActsCentral Services (Temporary Services) Rules, 1965 - Rule 5(1); Constitution of India - Articles 16 and 311
AppellantVerghese George
RespondentThe Officer Commanding, T.T.W.A.F. Station Yalahanka, Bangalore North
Appellant AdvocateM. Balachandran, Adv.
Respondent AdvocateB.S. Keshava Iyengar, Central Govt. Pleader
Excerpt:
.....service, it is well established that unless an express order is made declaring such a status, no temporary government servant acquires quasi-permanency of service. 6. on both these matters, the law is now well settled by the rulings of the supreme court. these circumstances, according to the argument, must be regarded as giving quite a different complexion to the notice which on the face of it, may appear perfectly innocent or innocuous. state of punjab, (1964)illj68sc or (1964)illj418sc .8. another ruling of the supreme court which answers these contentions as well as the second contention of the petitioner is, the unreported case of union of india v. it is well recognised that the government may have to employ temporary servants to satisfy the needs of the particular contingency and..........case, 1967-2 mys lj 100 = (air 1967 mys 223) does. what the supreme court held was:--'...... this rule (rule 5 (1) (a) withwhich we are now concerned) is being attacked on the ground that it is hit by article 16 which provides that 'there shall be equality of opportunity for all citizens in matters relating to employment 'or appointment to any office under the state . we have not been able to understand how this rule can possibly be hit by article 16, which provides for equality of opportunity. these rules show that there are two classes of employees namely, (i) permanent employees, and (ii) temporary employees; the latter being divided into two sub-clauses (a) quasi-permanent, and (b) temporary. it is well recognised that the government may have to employ temporary servants to satisfy.....
Judgment:

Narayana Pai, J.

1. The petitioner who was working as a civilian motor transport driver attached to the Airforce Station at Yelahanka, was served with a notice dated 11-11-1968, issued by the Officer Commanding the Station, under Rule 5 (I) (a) of the Central Services (Temporary Service) Rules, 1965, terminating his services with effect from the date of expiry of a period of one month from the date of service or tender of the notice. The petitioner impugns the validity of the said notice, and contends that it is illegal as well as violative of his fundamental rights under the Constitution and that therefore, it should be quashed by the issue of an appropriate writ.

2. That the petitioner was entertained as a temporary Government servant is an admitted fact. It is also admitted that though he had completed four and a half years of service at the time of notice was issued, he had not been invested with the status of a quasi-permanent Government servant. Although it is a minimum qualification for such a status to complete three years of service, it is well established that unless an express order is made declaring such a status, no temporary Government servant acquires quasi-permanency of service. Hence the petitioner has to be considered only as a temporary Government servant and his rights, if any, allegedly violated by the impugned notice have also to be ascertained on that basis.

3. The rule under which the impugned notice was issued, reads:--

'5. (1) (a) The services of a temporary Government servant who is not in quasi-permanent service shall be liable to termination at any time by a notice in writing given either by the Government servant to the appointing authority, or by the appointing authority to the Government servant.'

** ** **

The rest of the rule is not relevant.

4. The impugned notice reads as follows:

'In pursuance of Sub-rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965, I hereby give notice to Shri Varghese George that his service shall stand terminated with effect from the date of expiry of a period of one month the date on which this notice is served, or as the case may be, tendered to him.'

5. The arguments in support of the prayer for the issue of a writ are only two,-- (1) that though the notice purports to be One of termination of service under Rule 5 (1) (a) of the rules, it is only a cloak for actual punishment of dismissal without giving an opportunity to the petitioner to defend himself against such proposed action; (2) that it violates his fundamental right under Article 16 because, twenty seven persons who were appointed subsequent to himself and therefore juniors to him, had been retained in service.

6. On both these matters, the law is now well settled by the rulings of the Supreme Court. Hence, no discussion of principles is called for. On the first point, all the cases bearing thereon have been discussed by the Supreme Court in the case of State of Punjab v. Sukh Raj, : (1970)ILLJ373SC and the general effect thereof summarised in paragraph 16 of the Judgment is as follows:--

'On a conspectus of these cases, the following propositions are clear:--

1. The services of a temporary servant or a probationer can be terminated tinder the rules of his employment and such termination without anything more would not attract the operation of Article 311 of the Constitution.

2. The circumstances preceding or attendant on the order of termination of service have to be examined in each case, the motive behind it being immaterial.

3. If the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant.

4. An order of termination of service in unexceptionable form preceded by an enquiry-- 'enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service, does not attract the operation of Article 311 of the Constitution.

5. If there be a full scale departmental enquiry envisaged by Article 311, i. e., an Enquiry Officer is appointed, a charge sheet submitted, explanation called for and considered, any order of termination of service made thereafter will attract the operation of the said Article'.

7. Now, in this case, if one reads only the notice, no exception whatever can be taken to it. It does not even say, as was stated in a similar case considered by the Supreme Court in Jagdish Mitter v. Union of India, : (1964)ILLJ418SC that the petitioner is an undesirable person. The argument strongly pressed on behalf of the petitioner before us, however, is that in the counter affidavit filed on behalf of the respondent, certain previous instances of misconduct or misdemeanour on his part have been set out resulting in punishment by way of warning or censure having been imposed and also a statement that action to terminate his service under Rule 5 (1) (a) was decided upon after he became incorrigible. These circumstances, according to the argument, must be regarded as giving quite a different complexion to the notice which on the face of it, may appear perfectly innocent or innocuous. It is difficult to accept this contention, because, so far as the previous cases of misdemeanour or misconduct are concerned, they had already terminated by the imposition of warning or censure by way of punishment. At the time the notice was issued, it is not the case that there was any enquiry pending in which a finding of guilt had been recorded against him. If there had been any such finding, then the issue of a notice may be logically connected there with and termination regarded as punishment. In the case of Sukh Raj, : (1970)ILLJ373SC referred to above, there was, in fact, such an enquiry instituted by the issue of a charge-sheet and followed by the receipt of explanation from the delinquent, but, no further steps were taken. In those circumstances, the Supreme Court held that there was no occasion to apply the principles stated in the previous cases of Madan Gopal v. State of Punjab, : (1964)ILLJ68SC or : (1964)ILLJ418SC .

8. Another ruling of the Supreme Court which answers these contentions as well as the second contention of the petitioner is, the unreported case of Union of India v. Prem Prakash Midha, Civil Appeal No. 865 of 1966, D/- 14-8-1969 = (reported in AIR 1969 NSC 155). In that case, there was only a formal notice under Rule 5 (I) of the same type as in the present case without any adverse remark against the Government servant, and the Supreme Court held that such a notice cannot be regarded as amounting to any type of punishment or even a stigma. Regarding the availability of Article 16 in cases of this type, this is what their Lordships state in that decision.

'The District Court also held that when the service of the respondent was terminated and officers junior to him were retained in service, the respondent was denied equal opportunity to public service under Art. 18 of the Constitution. But there is nothing in Article 16 of the Constitution which supports the view expressed by the learned District Judge. By Article 16 all citizens are entitled to equality of opportunity in matters relating to employment or appointment to any office under the State, By merely terminating the employment of the respondent, the respondent was not denied of equal opportunity to bold public service. Under Article 16 of Constitution, it is not one of the fundamental rights that a person who is an employee of the State shall be entitled to continue in service and that his employment shall not be terminated so long as persons junior to him remain in service.'

Union of India,

16

'.... This is not a case where services of a temporary employee are being retrenched because of the abolition of a post. In such a case a question may arise as to who should be retrenched when one out of the several posts is being retrenched in an office, In those circumstances, qualification and length of service of those holding similar temporary posts may be relevant in considering whether the retrenchment of a particular employee was as a result of discrimination. .....'

But the decision of the Supreme Court itself in Champaklal Chimanlal's case, : (1964)ILLJ752SC did not lay down the broad proposition that termination of services of even temporary Government servant while retaining a person junior to him in service amounts to contravention of Article 16(1) of the Constitution as the head-note of the report in Doddiah's case, 1967-2 Mys LJ 100 = (AIR 1967 Mys 223) does. What the Supreme Court held was:--

'...... This Rule (Rule 5 (1) (a) withwhich we are now concerned) is being attacked on the ground that it is hit by Article 16 which provides that 'there shall be equality of opportunity for all citizens in matters relating to employment 'or appointment to any office under the State . We have not been able to understand how this rule can possibly be hit by Article 16, which provides for equality of opportunity. These Rules show that there are two classes of employees namely, (i) permanent employees, and (ii) temporary employees; the latter being divided into two Sub-clauses (a) quasi-permanent, and (b) temporary. It is well recognised that the Government may have to employ temporary servants to satisfy the needs of the particular contingency and such employment would be perfectly legitimate. There can also be no doubt, if such a class of temporary servants could be recruited that there would be nothing discriminatory or violative of equal opportunity if the conditions of service of such servants are different in some respects from those of permanent employees. Further we see no denial of equal opportunity if out of the class of temporary employees some are made quasi-permanent depending on length of service and their suitability in all other respects for , permanent employment eventually and thus assimilated to permanent employees. It has been urged on behalf of the respondent that Article 16 in any case will not apply to matters relating to termination of service. We do not think it necessary for present purposes to decide whether Article 16 would apply to rules relating to termination of service. We shall assume for the purposes of this appeal that Article 16 will apply even in the case of rules relating to termination of services. But we fail to see how the rule which applies to one class of Government Servants in the matter of termination but does not apply to the other two classes can bo said to violate equality of opportunity provided in Article 16. The classification of Government servants into these classes is reasonable and differences in the matter of termination of service between these classes cannot be said to be discriminatory in the circumstances......'

In view of this clear declaration of the law both in Champaklal's case, : (1964)ILLJ752SC as well as in the latest unreported case in C. A. 865 of 1966 = (reported in AIR 1969 NSC 155) we do not think it is right to regard the decision of this Court in Dodd-iah's case, 1967-2 Mys LJ 100 = (AIR 1967 SC 223) as an authority for the proposition set out in its headnote. The decision in that case turns upon the facts of that case namely, that there was sufficient material to hold that a certain number of persons out of the same class were discriminated against in favour of certain other persons in the same class. That is certainly not the position in this case in which we are concerned with the right or wrong of the termination of the services of a temporary servant in accordance with the Rule 5 (1), directly governing the position.

10. This writ petition therefore, fails and Is dismissed.

11. Petition dismissed.


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