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Kamal Kishore Vs. Assistant Commissioner, Excise and Taxation - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtRajasthan High Court
Decided On
Judge
Reported in(1967)IILLJ231Raj
AppellantKamal Kishore
RespondentAssistant Commissioner, Excise and Taxation
Excerpt:
- - 2). the petitioner went up in appeal to the deputy commissioner, excise and taxation, but met with no success. these essential qualifications or attributes of an 'official in quasi-permanent employ' are admittedly not satisfied in the present case; the mere fact that in sheer length of service he is senior to like persons who have been appointed after him, cannot possibly be a factor in his favour, and his work and conduct, which on their intrinsic merit have been adjudged to be below standard by these competent to judge him, could not thereby become better or up to the requisite standard......and taxation, sikar, was not competent to terminate his service under rule 23a because he was a quasi-permanent employee of the state and his case fell within the exception recognized in that rule. in the second place the contention is that the order of his discharge is discriminatory within the meaning of article 16 of the constitution.3. we shall deal with these contentions in the order in which we have set them out above.4. now, so far as the first ground is concerned, we may begin by reproducing rule 23a as it stood, both at the time when the petitioner was appointed and when his services were dispensed with:23a. (a) 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.....
Judgment:

Modi, J.

1. This writ petition under Article 226 of the Constitution is directed against en order of the Assistant Commissioner, Excise and Taxation, Sikar, by which the services of the petitioner were terminated under Rule 23A of the Rajasthan Service Rules.

2. The petitioner Kamal Kishore was appointed as a lower division clerk in the office of the Assistant Commissioner, Excise and Taxation, Sikar, in a temporary capacity on 16 May 1958 (vide Ex. 1). He was allowed to continue In service on the came basis until 9 July 1962 when his services were terminated (see Ex. 2). The petitioner went up in appeal to the Deputy Commissioner, Excise and Taxation, but met with no success. He, therefore, preferred the present writ application questioning the order dated 9 July 1962, The attack against that order is twofold. In the first place, it is contended that the respondent Assistant Commissioner, Excise and Taxation, Sikar, was not competent to terminate his service under Rule 23A because he was a quasi-permanent employee of the State and his case fell within the exception recognized in that rule. In the second place the contention is that the order of his discharge is discriminatory within the meaning of Article 16 of the Constitution.

3. We shall deal with these contentions in the order in which we have set them out above.

4. Now, so far as the first ground is concerned, we may begin by reproducing Rule 23A as it stood, both at the time when the petitioner was appointed and when his services were dispensed with:

23A. (a) 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.

(b) The period of such notice shall be one month, unless otherwise agreed to by the Government and by the Government servant:Provided that the service 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 by which such notice falls short of one mouth or any agreed longer period. The payment of allowances shall be subject to the conditions under which such allowances are admissible.

5. The expression 'official in quasi permanent employ' was defined is Clause (21) of the rules as follows:

Official la quasi-permanent employ means a Government servant, who has been appointed to a temporary or officiating vacancy on the understanding, given to him In writing, before lie took up the appointment, that the vacancy is expected to become permanent but is not confirmed after completion of three years' continuous service:Provided that a Government servant will be treated as quasi-permanent only after a declaration to this effect is made in writing by the autherity competent to make substantive appointment. In respect of gazetted officers the declaration may be communicated to the Accountant-General and in respect of others recorded in the service book.

6. It is crystal-clear from this definition that before a temporary employee could toe treated as being in quasi-permanent employment of the State, he must have been given, at the time of his appointment, an understanding that the vacancy to which ho is being appointed IB expected to become permanent, and secondly a declaration to the effect that such Government servant would be treated as quasi-permanent must have been made in writing by the autherity competent to make the substantive appointment. These essential qualifications or attributes of an 'official in quasi-permanent employ' are admittedly not satisfied in the present case; and, that being so, the plea that the petitioner was a servant of that character and therefore his services could not be dispensed with by one month's notice or pay in lieu thereof under Rule 23A of the rules, is altogether without any substance. This disposes of the first contention raised on behalf of the petitioner before us.

7. Coming next to the question as to whether the termination of the petitioner's service by a notice under Rule 23A is violative of Article 16 of the Constitution, the petitioner's case is that there were as many as six persons whose names are mentioned in the writ application before UB, who were appointed as temporary clerks after him in the very department wherein he had been appointed and that In spite of the fact that he was the seniormost among them, he had been singled out for discharge, and this could not have been done unless his case had been adversely adjudged in comparison with these of the other employees who were appointed as temporary clerks in the department after him. The reply of the State on this aspect of the case is that there was no rule to determine seniority as between clerks who were appointed temporarily, but even assuming that the petitioner was the seniormost among a number of clerks who were appointed on a temporary basis in the department, his services his been dispensed with because he was not found suitable for the post held by him, and that the authorities concerned came to this conclusion after watching his work for a sufficiently long time. It is further contended that the retention of the services of a temporary employee depends upon the cumulative effect of a variety of factors, such as efficiency, sense of discipline and responsibility, capacity for learning1, and so on, and so forth, and his suitability was to be judged on the basis of his performance from all these points of view extending over the time from his appointment to the date of his discharge. It is further averted that Judged from all these standpoints the petitioner's work wa8 below standard and he was generally found to be inefficient and slack and that the further retention of his services would not have been in the interest of the State,

8. The question is whether in these circumstances it can be postulated of the present case that the action taken by the authorities was discriminatory within the meaning1 of Article 16 of the Constitution. Oar answer to this question Is In an emphatic negative. The reason to our mind is not; far to seek. A temporary Government servant has no right to his retention in service and his further continuance in service must obviously depend upon his suitability thereto, therefore, if the work and conduct of such an employee are found below mark, and his services fall to be dispensed with, we are altogether unable to hold that he is, by such discharge, subjected to a discriminatory treatment. The mere fact that in sheer length of service he is senior to like persons who have been appointed after him, cannot possibly be a factor in his favour, and his work and conduct, which on their Intrinsic merit have been adjudged to be below standard by these competent to judge him, could not thereby become better or up to the requisite standard. Where, therefore, a temporary Government servant is discharged from service for unsatisfactory work under Rule 23A no question of discrimination within the meaning of Article 16 of the Constitution can possibly arise. These observations, of course, do not apply to the case of Government servants who are in quasi-permanent employment of the State who have been placed under the rules on a different footing.

9. For the reasons mentioned above, the present application fails and is hereby dismissed. But, under the circumstances, we make no order as to costs.


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