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Gopal Prasad Singh Vs. Deputy Director of Medical and Health Services - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAllahabad High Court
Decided On
Judge
Reported in(1969)ILLJ223All
AppellantGopal Prasad Singh
RespondentDeputy Director of Medical and Health Services
Excerpt:
- - in february 1968, the petitioner joined a registered trade union, named pharmacists' association, kanpur, and, it is alleged, the deputy director, medical and health services, did not like this activity of the petitioner, who thereafter became his eye-sore. in this connexion reference was made in the plaint to the number of assistant directors whose services were not dispensed with even though they were junior to the appellant and did not have as good qualifications as he had. 10. though an express plea of mala fide is not taken, it was argued that the petitioner's services were terminated as the authorities disliked the petitioner joining a trade union......of opinion that there is no force in this contention. this is not a case where the 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 several posts is being retrenched in an office. in those circumstances, qualifications 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....with great respect, these observations of the supreme court do not, in our opinion, imply that whenever the services of a temporary employee are terminated according to the terms of his appointment, he is denied the fundamental right of equality of opportunity in matters.....
Judgment:

B.N. Lokur, J.

1. In this petition under Article 226 of the Constitution, the petitioner prays that the order passed by the Deputy Director of Medical and Health Services (Employees' State Insurance), Uttar Pradesh, terminating his services as untrained temporary pharmacist be quashed.

2. According to the petitioner, he was appointed in 1952 as an attendant under the Deputy Director of Medical and Health Services under the Employees' State Insurance Scheme and worked as a substitute compounder for short periods twice during 1959. He was appointed a compounder on 9 April 1964. Later, he was allowed to take a Refresher Course of Compounders from 1 August 1965 to 31 January 1966. After successfully completing the refresher course, he was entitled to the trained compounders' grade but, in spite of representations, he was not appointed to that grade. In February 1968, the petitioner joined a registered trade union, named Pharmacists' Association, Kanpur, and, it is alleged, the Deputy Director, Medical and Health Services, did not like this activity of the petitioner, who thereafter became his eye-sore. The Deputy Director terminated the services of the petitioner by an order dated 31 July 1968.

3. The petitioner states that seven untrained compounders, appointed after the petitioner, though junior to him, are continuing to serve in the cadre but the petitioner was singled out without any rhyme or reason and his services were terminated.

4. It may be mentioned that the petitioner was appointed as untrained compounder in 1961 on his application and one of the terms of his appointment was that his services would be liable to termination at any time by one month's notice on either side. His services were terminated with one month's notice, as no longer required.

5. The petitioner complains that the fundamental right of equality of opportunity in matters of appointment, enshrined in Article 16 of the Constitution, has been infringed by the termination of his services inasmuch as his juniors were retained in service. In support of this contention, learned counsel for the petitioner relies upon the decision of a Division Bench of the Mysore High Court in Doddayya v. State of Mysore and Ors. 1968-IL.L.J. 794 and two decisions of the Supreme Court referred to therein. The services of the petitioner in the Mysore case were terminated while some of his juniors were either retained in service or reinstated after discharge. The learned Judges held that

there has been denial to the petitioner of equal treatment in matters relating to employment and there has been arbitrary discrimination in terminating the services of the petitioner.

In reaching this conclusion, the learned Judges relied upon the following observations of the Supreme Court in Champaklal Chimanlal v. Union of India 1964-I L.L.J. 752 (at p. 760):

It is next urged that even if Rule 5 is good, the order by which the appellant's services were dispensed with was bad, because it was discriminatory. In this connexion reference was made in the plaint to the number of Assistant Directors whose services were not dispensed with even though they were junior to the appellant and did not have as good qualifications as he had. We are of opinion that there is no force in this contention. This is not a case where the 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 several posts is being retrenched in an office. In those circumstances, qualifications 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....

With great respect, these observations of the Supreme Court do not, in our opinion, imply that whenever the services of a temporary employee are terminated according to the terms of his appointment, he is denied the fundamental right of equality of opportunity in matters of employment if his Juniors continued to be retained in service. The effect of these observations is, to our mind, that the qualifications and length of service would be a relevant consideration where services of temporary employees are being retrenched on the abolition of posts. This is clear from the following further observations of the Supreme Court:

A question of discrimination may arise in a case of retrenchment on account of abolition of one of several temporary posts in the same cadre in the same office but can, in our opinion, never arise in the case of dispensing with the services of a particular temporary employee on account of his conduct being unsatisfactory.

As the case under their consideration did not arise out of retrenchment, the Supreme Court rejected the contention of the appellant that the termination of his services denied to him the protection of Article 16 of the Constitution and he was treated in a discriminatory manner.

6. The Mysore High Court referred also to another decision of the Supreme Court in G.S. Ramaswami v. Inspector-General of Police : (1970)ILLJ649SC . In that case, as a result of the reorganization of States, some sub-inspectors of police were promoted on ad hoc basis to the posts of circle inspectors as permanent incumbents had either gone on leave or on deputation. On the return of the permanent incumbents the ad hoc circle inspectors were reverted to their substantive posts of sub-inspectors. It was contended that the petitioners should not have been reverted without first reverting others who were junior to them. The Supreme Court observed that:

when reversion takes place on account of exigencies of public service, the usual principle is that the juniormost persons among those officiating in clear or long term vacancies are generally reverted to make room for the senior officers coming back from deputation or from leave, etc.

and that

this state of affairs prevails ordinarily unless there are extraordinary circumstances.

The Supreme Court, holding that there were extraordinary circumstances in the case by reason of reorganization of States, rejected the plea of the sub-inspectors that their reversion suffered from the vice of discrimination.

7. Another decision of the Supreme Court may be noticed in this connexion. In Divisional Personnel Officer, Southern Railway, Mysore v. S. Raghavendrachar 1967-I L.L.J. 401, it was held that the reversion of an officiating person to his substantive post, notwithstanding that his junior was retained in the higher post, did not amount to reduction in rank.

8. In our view, the termination of services of a temporary employee or reversion of an officiating employee from a higher post to his lower substantive post, while retaining his juniors in service or in the higher post, as the case may be, would be hit by Article 16 only where such termination or reversion is necessitated by exigencies of service, e.g., retrenchment following abolition of posts, availablity of permanent incumbents for appointment to the posts on their return from deputation or leave. There would be no infringement of Article 16 if the services of a temporary employee are terminated or if an officiating employee in a higher post is reverted to his lower substantive post for other reasons, e.g., on the ground of misconduct, inefficiency or unsuitability.

9. In the present case the termination of the services of the petitioner is not as a result of exigencies of service and it cannot, therefore, be claimed that, by retaining his juniors in service, the petitioner's fundamental right under Article 16 has been infringed.

10. Though an express plea of mala fide is not taken, it was argued that the petitioner's services were terminated as the authorities disliked the petitioner joining a trade union. It was pointed out that an endorsement below the order of termination refers to a demi-official letter from the Uttar Pradesh Swasthya Sewa Nideshak and it was contended that the order was prompted by this demi-official letter. We are unable to accept this contention for the simple reason that other members of the trade union are not discharged from service. Apart from that, when the services of a temporary employee are terminated without assigning any reason, the motive operating in the mind of the authority is irrelevant, in Parshotam Lal Dhingra v. Union of India 1958-I L.L.J. 544, the Supreme Court observed:

It is true that the misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rules; nevertheless, if a right exists, under the contract or the rules to terminate the service, the motive operating in the mind of the Government is, as Chagla, C.J., has said in Shrinivas Ganesh Chandorkar v. Union of India 1957-II L.L.J. 189 wholly irrelevant.

11. The petition has no force and is rejected.


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