Balakrishna Eradi, J.
1. The common question of law raised in these cases is whether the mere fact that while terminating the service of a temporary Government servant governed by the Central Civil Services (Temporary Service) Rules in exercise of the power conferred under Rule 5 (1) of those Rules some of his juniors are retained in service, would render such action taken against the temporary servant violative of Articles 14 and 16 of the Constitution of India. In Thankappan v. Sub Divisional Officer, Telegraphs, Trichur, 1977 Ker LT 362, a Full Bench consisting of three Judges of this court has expressed the view that the retention of a junior in service while terminating the service of a senior temporary employee under Rule 5 (1) would in normal circumstances amount to discriminatory treatment and when such action is challenged before court on the ground of violation of Article 16 of the Constitution the said plea based on arbitrary discrimination will have to be upheld unless some valid explanation is furnished by the respondent for keeping the junior in service while dispensing with the service of the senior. When these original petitions came up for hearing in the first instance before our learned brother Vadakkel, J. it was felt by the learned Judge that in view of the decisions of the Supreme Court in Raj Kumar v. Union of India AIR 1975 SC 1116 : (1975 Lab IC 669) and The State of U. P. v. Ram Chandra Trivedi, AIR 1976 SC 2547 : (1976 Lab IC 1647), the aforesaid view expressed by the Full Bench of this court may require reconsideration and hence the cases were referred by the learned Judge to a Division Bench. This opinion was concurred in by a Division Bench before which these cases subsequently came up for hearing and by an order of reference dated 2nd September, 1977 the Division Bench referred the original petitions to a Full Bench for consideration as to whether the matter should not be placed before a larger Bench. Thereafter, these cases went before a Full Bench of three Judges. The Full Bench was also prima facie of opinion that the decision in Thankappan's case required reconsideration and hence by order of reference dated 7-12-1977 the cases were ordered to be posted before a Bench consisting of five Judges. That is how the matter has come up before this larger Bench.
2. The petitioners in the five original petitions were all temporary employees working in the Posts and Telegraphs Department. Admittedly, they were governed by the provisions of the Central Civil Services (Temporary Service) Rules, 1965 (hereinafter called the Rules). The petitioner in O. P. No. 3091 of 1974 was working as a temporary Postman attached to the Head Post Office, Quilon. By the notice Ext. P-1 dated 17-6-1974 issued under Sub-rule (1) of Rule 5 of the Rules the petitioner was informed that his service will stand terminated with effect from the date of expiry of a period of one month from the date on which the notice was served on, or tendered to, him. The legality of the action taken under Ext. P. 1 is challenged by the petitioner on the ground that while dispensing with the services of the petitioner some of his juniors in the category of temporary Postmen were being retained in service and that thereby the petitioner has been arbitrarily discriminated against in gross violation of Article 16 of the Constitution. The petitioner in O. P. No. 4167 of 1974 was a temporary Postman attached to the Head Post Office at Attingal. His services were terminated as per the order Ext. P. 3 dated 14-6-1974 issued under Rule 5 (1) of the Rules. The petitioner in O. P. No. 4177 of 1974 was working as a temporary Postman at Edava Sub Post Office in Attingal Sub-Division. By the order Ext. P-2 dated 14-6-1974 the service of the petitioner was terminated, by the respondent under Sub-rule (1) of Rule 5 of the Rules. The challenge in O. P. No. 4306 of 1974 is directed against the order Ext. P-1 dated 30-9-1974 whereby the service of the writ petitioner who was working as a temporary Telephone Operator at the Tellicherry Telephone Exchange was terminated in exercise of the power conferred by Sub-rule (1) of Rule 5 of the Rules. The petitioner in O. P. No. 5070 of 1974 was working as a temporary Telephone Operator in the Telegraphs Engineering Division, Cannanore. His appointment under the order Ext. P-1 was initially for a period of three months ending with 18-5-1974. Subsequently it was extended for the further period till 21-8-1974. By the memo Ext. P-2 dated 21-8-1974 the petitioner was informed that his services were not required by the Department with effect from 22-8-1374. The original petition has been filed seeking to quash Ext. P-2. All these petitioners seek to invalidate the orders of termination of service passed against them on the sole ground that while dispensing with their services some of their juniors who were also temporary employees belonging to the same category were being retained in service and that this amounted to arbitrary discrimination violative of Art. 16 of the Constitution,
3. Writ Appeals Nos. 467 to 469 of 1976 have been filed by the Postal Department through the concerned Superintendent of Post Offices against the judgment of a learned single Judge of this Court whereby three writ petitions --O. P. Nos. 3958 of 1974, 3960 of 1974 and 4056 of 1974 -- filed by three temporary employees of the Postal Department, whose services had been terminated under Sub-rule (1) of Rule 5 of the Rules, were allowed on the ground that no reason at all had been shown for termination of service of the petitioners who are not the juniormost and hence the impugned orders must be held to be violative of Article 16 of the Constitution. Writ Appeal No. 103 of 1977 has been filed by the Manager, Government of India Press, Koratty and two others against the decision of a learned single Judge of this Court allowing O. P. No. 792 of 1975 and quashing an order issued under Sub-rule (1) of Rule 5 of the Rules terminating the service of the writ petitioner therein who was a temporary Warehouseman employed in the Government of India Press, Koratty. The learned Judge followed the Full Bench decision in Thankappan v. Sub-Divisional Officer, Telegraphs, Trichur, 1977 Ker LT 362, and held that since ten persons who were juniors to the petitioner were admittedly retained in service while dispensing with the service of the petitioner and no valid or satisfactory explanation for the same had been furnished by the Department the impugned order had to be declared invalid on the ground of contravention of Art. 16 of the Constitution. The correctness of this view is called in question in this writ appeal.
4. Sub-rule (1) of Rule 5 of the Rules is in the following terms:--
'5 (1) (a). The service 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;
(b) The period of such notice shall be one month :
Provided that the service of any such Government servant may be terminated forthwith and on such termination the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing them immediately before the termination of his services, or as the case may be for the period by which such notice falls short of one month.'
The constitutional validity of this rule came in for examination by the Supreme Court in Champaklal Chimanlal Shah v. The Union of India, AIR 1964 SC 1854, wherein an attack was levelled against the provision on the ground that it infringed Article 16 of the Constitution. Repelling that contention the Supreme Court observed thus (at pp. 1859-60) :
'In short Rule 5 gives power to the Government to terminate the services of the temporary Government servant by giving him one month's notice or on payment of one month's pay in lieu of notice or such shorter or longer notice or payment in lieu thereof as may be agreed to between the Government and the employee concerned. This rule 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.........It is well recognized that the Government may have to employ temporary servants to satisfy the 'needs of a 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............In particular the very fact that the service of a Government servant is purely temporary makes him a class apart from those in permanent service and such Government servant cannot necessarily claim all the advantages which a permanent servant has in the matter of security of service. We are therefore of opinion that considering the nature of the employment of a temporary Government servant, a provision like that in Rule 5 in respect of termination of service is a reasonable provision which cannot be said to deny equality of opportunity provided in Article 16. The attack therefore on Rule 5 on the ground that it is hit by Article 16 of the Constitution must fail.'
Dealing with the contention advanced on behalf of the appellants in that case that the order of termination was discriminatory because several of the juniors of the appellants in the concerned category of temporary employees were retained in service while the appellant's services were dispensed with, the Supreme Court made the following observations (at page 1860) :
'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 connection reference was made in the plaint to a 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 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. The present however is a case where the appellant's services were terminated because his work was found to be unsatisfactory.' In Ram Gopal Chaturvedi v. State of Madhya Pradesh, AIR 1970 SC 158, the Supreme Court had again occasion to consider the question of validity of a similar provision contained in Rule 12 of the Madhya Pradesh Government Servants (Temporary and Quasi-Permanent Service) Rules, 1960. That rule was in the following terms :--
'12 (a). Subject to any provision contained in the order of appointment or in any agreement between the Government and the temporary Government servant, the service of a temporary Government servant who is not in quasi-permanent service shall be liable to termination at any time by notice in writing given either by the Government servant to the appointing authority or by the appointing authority to the Government servant :
Provided that the services of any such Government servant may be terminated forthwith by payment to him of a sum equivalent to the amount of his pay plus allowances for the period of the notice, or as the case may be, for the period by which such notice falls short of one month or any agreed longer period :
Provided further that the payment of allowances shall be subject to the conditions under which such allowances are admissible.
(b) The periods of such notice shall be one month unless otherwise agreed between the Government and the Government servant.'
Upholding the validity of the rule the Supreme Court said!
'Counsel next submitted that Rule 12 was violative of Arts. 14 and 16 of the Constitution. There is no merit in this contention. Rule 12 applies to all temporary Government servants who are not in quasi-permanent service. All such Government servants are treated alike. The argument that Rule 12 confers an arbitrary and unguided discretion is devoid of any merit.'
By these pronouncements of the Supreme Court the position is now well-settled that Rule 5 in so far as it empowers the appointing authority to terminate the service of a temporary Government servant at any time by a notice in writing whenever the Government thinks it necessary or expedient to do so for administrative reasons, is perfectly valid and constitutional and that no violation of Articles 14 or 16 of the Constitution is involved in the exercise of the said power. The contention that Rule 12 confers an arbitrary and unguided discretion on the Government has been expressly negatived by the Supreme Court as being totally devoid of merit. When Rule 5 (1) confers on the appointing authority the power to terminate the service of a temporary Government servant irrespective of any consideration as to his position in the seniority list and the said provision has been expressly held to be constitutionally valid and not violative of Article 14 or Article 16, we fail to see how an order passed in the bona fide exercise of the power conferred by the said rule can be called in question on the ground of infringement of Articles 14 and 16 of the Constitution. Once it is recognised that there is a valid power vested in the appointing authority to terminate at any time the service of any temporary Government servant, irrespective of his position in the seniority list, by a notice in writing given in accordance with the provisions contained in Rule 5, there is ne longer any scope for basing a plea of arbitrary discrimination on the mere fact that the person whose services were terminated was not the juniormost in the concerned category. Inasmuch as the rule confers the power on the appointing authority to terminate at any time the service of any temporary Government servant the exercise of the said power will not be interfered with by the Court unless it be very clearly made out that the action impugned was taken mala fide. Thus, except in cases where there are clear and specific allegations of mala fides into which an investigation is considered necessary by the Court, the Court will not delve into the reasons which prompted the appointing authority to terminate under Rule 5 (1) of the Rules the service of a temporary Government servant.
5. In Commodore Commanding. Cochin v. V. N. Rajara, 1970 Ker LJ 164, a Division Bench of this Court while dismissing a writ appeal in limine has expressed the view that since no reason had been alleged or shown by the appointing authority as to why it chose to terminate the services of the writ petitioner in that case (a temporary employee) governed by the Rules such as that it was administratively convenient to do so or that the work and conduct of the employee was unsatisfactory or that it was a case of retrenchment and the employee concerned was chosen for some relevant reason such as that he was the juniormost, the impugned order of termination passed by the appointing authority was violative of Article 16 of the Constitution. In the opinion of the Division Bench the decision of the Supreme Court in Champaklal Chimanlal Shah v. Union of India, AIR 1964 SC 1854, lent support to the above view. This ruling of the Division Bench has been referred to and relied on by the Full Bench in Thankappan v. Sub-Divisional Officer, Telegraphs Trichur, 1977 Ker LT 362. The Full Bench has also construed the decision in Champaklal's case as laying down that if the temporary employee whose services are terminated under Rule 5 of the Rules prima facie shows that he was not the juniormost person in the concerned category and puts forward a plea of arbitrary discrimination the said plea will have to be upheld unless the appointing authority satisfies the Court that the termination was for valid administrative reasons which justified the retention of the juniors. With great respect we are unable to understand the observations of the Supreme Court in Champaklal's case as lending support to the above view. In that case the appellant had put forward a contention before the Supreme Court that the order terminating his services under Rule 5 (1) was discriminatory since a number of Assistant Directors who were juniors to the appellant were retained in service while dispensing with the appellant's services. The Supreme Court categorically held that there was no force in that contention since it was not a case where the services of a temporary employee were being retrenched because of the abolition of a post. It was further observed by the Supreme Court that it is only in the case of retrenchment of employees because of the abolition of a post that the question will arise as to who out of several temporary employees should be retrenched and only in such a case will the length of service of those holding similar temporary posts become relevant in considering whether the retrenchment of a particular employee was as a result of discrimination. It is after laying down this ratio in clear terms that the Supreme Court proceeded to state :
'The present however is a case where the appellant's services were terminated because his 'work was found to be unsatisfactory.'
The emphasis in the above sentence, as we understand it, is on the fact that the termination in that particular case was not by way of retrenchment but for other administrative reasons. In our opinion, this decision cannot, therefore, be regarded as authority for the position that whenever a challenge is raised against an order passed under Rule 5 terminating the service of a temporary employee who is not the juniormost in the concerned category it is incumbent on the appointing authority to satisfy the Court that there were valid reasons justifying the action taken against the temporary employee concerned.
6. As early as in 1961. the Supreme Court has held in Union of India v. Pandurang Kashinath More, AIR 1962 SC 630, that the termination of service of a temporary employee could not be regarded as discriminatory merely by reason of the fact that while dispensing with his services some other employees junior to him were retained in service. Rejecting the contention advanced in that case that Article 16 had been violated, the Supreme Court observed thus at page 632 :
'The arbitrary and discriminatory nature of the termination of service must however first be established before the article can have any application. As we have earlier stated, the High Court thought that on the pleadings the appellant must be taken to have admitted that the termination of service was arbitrary and discriminatory. The High Court did not on the evidence find as a fact that such was the position. We have looked at the evidence ourselves and found nothing to support the conclusion that there has been any discrimination. All that appears from the evidence led in the case, is that many employees junior to the respondent had been retained in service while his service had been terminated. This, in our view, is entirely futile for establishing discrimination.'
To the same effect are the following observations of the Supreme Court in Union of India v. Prem Parkash, 1969 Serv LR 655 :
'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 hold public service under Article 16 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 hold public service. Under Article 16 of the 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.'
We may also refer to a more recent ruling of the Supreme Court on the subject in Rajkumar v. Union of India, AIR 1975 SC 1116 : (1975 Lab IC 669), where the following observations were made (at p. 672 of Lab IC) :--
'There are only two questions raised by the petitioner in his writ petition One is that certain persons junior to him have been continued in service while his services have been terminated and that it offends Article 14. The termination of the appellant's service was not on the ground of retrenchment. The question of offending Article 14 does not therefore arise. When action is taken against him under the relevant rules which enable the authorities concerned to terminate his temporary service without assigning any reason the Court would not go into the reasons which led to the appellant's services being terminated.'
In the light of these clear pronouncements by the Supreme Court we understand the correct legal position to be that except in cases where mala fides is specifically alleged the Court in dealing with a challenge raised against an order passed under Rule 5 of the Rules terminating the services of a temporary employee will not go behind the order and investigate into the reasons which weighed with the appointing authority in terminating the service of the employee. The fact that the employee, whose services are terminated, was not the juniormost in the category of temporary servants and that while dispensing with his service junior hands were retained will not make any difference in regard to the applicability of the legal principle stated above. That this is the true legal position has been reiterated by the Supreme Court in Regional Manager v. Pawan Kumar Dubey, AIR 1976 SC 1766 : (1976 Lab IC 1146). Therein Beg, J. (as he then was) observed (at p. 1151 of Lab IC) :
'We do not think that Sughar Singh's case (AIR 1974 SC 423) in any way, conflicts with what has been laid down by this Court previously on Article 311(2) of the Constitution or Article 16 of the Constitution. We would, however, like to emphasize that, before Article 16 is held to have been violated by some action there must be a clear demonstration of discrimination between one Government servant and another, similarly placed, which cannot be reasonably explained except on an assumption or demonstration of 'malice in law' or 'malice in fact.' As we have explained, acting on a legally extraneous or obviously misconceived ground of action would be a case of 'malice in law.' Orders of reversion passed as a result of administrative exigencies, without any suggestion of malice in law or in fact, are unaffected by Sughar Singh's case (supra). They are not vitiated merely because some other Government servants, juniors in the substantive rank, have not been reverted.'
The above observations are particularly relevant in our present context because the Full Bench in Thankappan's case (1977 Ker LT 362) (FB) has relied on the decision in Sughar Singh's case as lending support to its view that the termination of service of a senior while retaining junior hands will constitute arbitrary discrimination violative of Article 16 unless valid grounds are made out by the appointing authority in justification of tha action taken against the senior employee. In the light of the above observations contained in Regional Manager's case it is clear that the decision in Sughar Singh's case cannot be called in aid in support of the above view, Again, in State of U. P. v. Ram Chandra Trivedi, AIR 1976 SC 2547 also, the Supreme Court has reiterated that the decision in Sughar Singh's case should not be understood as having departed from earlier decisions of the Court on the applicability of Article 311(2) or Article 16 of the Constitution and that the observations made in Regional Manager's case should suffice to clear the doubts as to the ratio decidendi of Sughar Singh's case. After extracting the relevant portion of the judgment in Regional Manager v. Pawan Kumar Dubey, AIR 1976 SC 1766 : (1976 Lab IC 1146), wherein the scope of the decision of Sughar Singh's case had been explained, Jaswant Singh, J. went on to observe (at p. 2556 of AIR 1976 SC) :
'Keeping in view the principles extracted above, the respondent's suit could not he decreed in his favour. He was a temporary hand and had no right to the post. It is also not denied that both under the contract of service and the service rules governing the respondent, the State had a right to terminate his services by giving him one month's notice. The order to which exception is taken is ex facie an order of termination of service simpliciter. It does not cast any stigma on the respondent nor does it visit him with evil consequences, nor is it founded on misconduct. In the circumstances, the respondent could not invite the Court to go into the motive behind the order and claim the protection of Article 311(2) of the Constitution.
We, therefore, agree with the submission made on behalf of the appellant that the High Court was in error in arriving at the finding that the impugned order was passed by way of punishment by probing into the departmental correspondence that passed between the superiors of the respondent overlooking the observations made by this Court in I. N. Saksena v. State of Madhya Pradesh, (1967) 2 SCR 496 : (AIR 1967 SC 1264) that when there are no express words in the impugned order itself which throw a stigma on the Government servant, the Court would not delve into Secretariat files to discover whether some kind of stigma could be inferred on such research.'
To the same effect are the following observations of Alagiriswami, J. in S. P. Vasudeva v. State of Haryana, AIR 1975 SC 2292 :--
'We may in this connection point out that where an order of reversion as in the present case, of a person who had no right to the post, does not show ex facie that he was being reverted as a measure of punishment or does not cast any stigma on him, the Courts will not normally go behind that order to see if there were any motivating factors behind that order.'
7. To sum up it must now be taken to be well-established by the rulings of the Supreme Court aforecited that where the relevant service rules empower the appointing authority to terminate the service of a temporary Government servant by notice given in the manner provided therein, without assigning any reasons, an order of termination passed under such rule will not be regarded as discriminatory merely because the employee, whose service was terminated, was not the juniormost in the concerned category. Rule 5 (1) (a) of the Rules empowers the appointing authority to terminate the service of a temporary servant at any time by notice in writing given in the manner prescribed therein regardless of his seniority in the particular category. Inasmuch as the constitutional validity of this rule has been upheld by the Supreme Court there is no scope at all for any challenge being raised against an order passed in the exercise of the power conferred by this rule complaining of infringement of Article 16 of the Constitution merely on the ground that while dispensing with the service of the temporary employee concerned some persons junior to him were retained in service. When the validity of an order passed under Rule 5 is challenged before the Court on the ground of violation of Article 16, except in cases where mala fides is clearly alleged, the Court would not go into the reasons which prompted the appointing authority to terminate the service of the employee. When the termination of the service of a temporary employee is not on the ground of retrenchment no question of offending Article 14 or 16 of the Constitution will arise from the mere fact that he was not the juniormost in the particular category of temporary employees at the time of the action impugned. Once it is held that the Court will not investigate into the grounds that weighed with the appointing authority in terminating the service of the employee it must necessarily follow that there is no legal obligation for the appointing authority to plead and establish before the Court grounds in justification of the action taken by it to terminate the service of senior temporary employee while retaining junior hands. With respect, we hold that the contrary view expressed by the Full Bench in Thankappan v. Sub-Divisional Officer, Telegraphs, Trichur, 1977 Ker LT 362, and in the earlier ruling of the Division Bench in Commodore Commanding, Cochin v. V. N. Rajan, 1970 Ker LJ 164, is not correct or sound. Those decisions will accordingly stand overruled.
8. As already noticed, the only ground put forward in the original petitions for challenging the orders of termination passed against the petitioners is that they were not the juniormost temporary employees in the concerned category at the time when those orders were passed and that hence there has been discrimination violative of Article 16 of the Constitution. In the light of what we have stated above, this ground is not sustainable in law. The original petitions are therefore devoid of merits and they will accordingly stand dismissed. We direct the parties to bear their respective costs. Likewise, the only ground on which the learned single Judge allowed the writ petitions against which Writ Appeals Nos. 467, 468 and 469 of 1976 and 103 of 1977 have been filed by the Department is that the writ petitioners, whose services were terminated under Rule 5 of the Rules, were not the juniormost temporary employees in the concerned category. In the light of the foregoing discussion it is clear that the view taken by the learned Judge that the impugned orders of termination were violative of Article 16 of the Constitution cannot be sustained. Accordingly we allow tha writ appeals, set aside the judgments under appeal and dismiss O. Ps. Nos. 4056, 3960 and 3958 of 1974 and 792 at 1975. The parties will bear their respective costs.