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Miss Suraj Bhutra Vs. High Court of Judicature for Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberD.B. Civil Special Appeal No. 471/1983
Judge
Reported in1985WLN(UC)68
AppellantMiss Suraj Bhutra
RespondentHigh Court of Judicature for Rajasthan and ors.
DispositionAppeal allowed
Cases Referred(Devkinandan Saraswal v. Rajasthan High Court and Anr.
Excerpt:
.....14 & 16--no recruitment test took place--25 persons retained in service who also failed in type test--result of type test declared after termination of service--persons appointed after appellant were not subjected to type test and their term was extended--held, it is case of hostile discrimination and services were terminated arbitrarily;it is fully established that in the first place no recruitment test had taken place. in the second place, out of 37 persons who were asked to appear at the type test by the order dated june 2, 1982 only 10 persons were successful, yet the services of the remaining 25 employees were not terminated and that the appellant and ashok kumar purohit were picked out arbitrarily for purposes of termination or their services. in the third place, even the..........appear in the recruitment test for regular appointment. the appellant was directed to appear at a type test along with 36 other persons by the order dated june 2, 1982. the appellant's case was that although the result of the type test was never declared, yet, by the order dated august 23, 1982 her service was terminated with effect from august 24, 1982. the service of another lower division clerk, ashok kumar purohit appointed along with the appellant was also terminated by the very same order dated august 23, 1982. subsequently, by an order dated september 27, 1982 the service of 44 lower division clerks, whose names were specified in that order and whose term of ad hoc/temporary appointment had expired, was extended upto december 31, 1982. the appellant's grievance was that some of.....
Judgment:

Dwarka Prasad Gupta, J.

1. This appeal has been preferred against the order passed by a learned Single Judge of this Court dated July 26,1983 dismissing the writ petition filed by the appellant in this Court.

2. The appellant, Miss Suraj Bhutra, along with four other persons was appointed as a Lower Division Clerk on urgent, ad hoc and temporary basis for a period of 6 months from she date she joined her duties, by the order of the Registrar, Rajasthan High Court dated February 2', 1982. One of the conditions, subject to which the appointment of the appellant was made, was that her service was liable to be terminated at any time, without notice and further that she would have to appear in the recruitment test for regular appointment. The appellant was directed to appear at a type test along with 36 other persons by the order dated June 2, 1982. The appellant's case was that although the result of the type test was never declared, yet, by the order dated August 23, 1982 her service was terminated with effect from August 24, 1982. The service of another Lower Division Clerk, Ashok Kumar Purohit appointed along with the appellant was also terminated by the very same order dated August 23, 1982. Subsequently, by an order dated September 27, 1982 the service of 44 Lower Division Clerks, whose names were specified in that order and whose term of ad hoc/temporary appointment had expired, was extended upto December 31, 1982. The appellant's grievance was that some of the employees who appeared along with her for the type-test in pursuance of the order dated June 2, 1982 were also allowed extension by the order dated September 7, 1982, while the service of the appellant was terminated without assigning any reason. The appellant also submitted that respondent No. 2 was appointed on the post of Lower Division Clerk, on an ad hoc temporary basis, in the office of the Rajasthan High Court after the appellant was so appointed, but the respondent No. 2 was allowed to continue in service and his term of employment was extended by the order dated September 27, 1982 although he did not pass the type test. It was also submitted by the appellant that other persons similarly situated and who had not passed the type test were continued in service of the High Court, yet the appellant was arbitrarily picked out and her service was terminated and that discrimination was apparent in the manner in which the appellant was treated in the matter of termination of her employment.

3. The stand taken by the High Court in its reply was that the appellant was appointed on a purely temporary basis for a period of 6 months only and her service was liable to be terminated without any notice and so her service was terminated on the expiry of the period of 6 months. It was also averred that the appellant had failed in the type test and it was notified by the order Ex. 2 dated June 2, 1982 that the service of those Lower Division Clerks who failed or did not appear at the type test was liable to be terminated and so her service was rightly terminated on account of her failure at the type test. In respect of persons whose temporary or ad hoc service was extended by the order dated September 7, 1982, it was explained that they had acquired sufficient experience of the working in the High Court and they were senior to the appellant and it was not considered proper to dispense with their services. As regards respondent No. 2. it was stated that as he was appointed as Lower Division Clerk after June 2,1982 and so the question of his appearing at the type test in persuance of the order dated June 2, 1982 did not arise.

4. The main contention advanced on behalf of the appellant before the learned Single Judge was that out of large number of persons who were appointed temporarily or in ad hoc capacity on the post of Lower Division Clerk in the Rajasthan High Court the service of some were retained while some others including the appellant were arbitrarily picked up and their services were terminated without assigning any reason and thus, the treatment meted out to the appellant was discriminatory and violative of Articles 14 and 16 of the Constitution. The learned Single Judge negatived the contentions advanced by the learned counsel for the appellant and dismissed the writ petition.

5. In this appeal the same contentions have been advanced before us by the learned counsel for the appellant as were advanced before the learned Single Judge and it was argued that hostile discrimination was practised against the appellant and that although the type test could not be considered as equivalent to a recruitment test, even the result of the type test had not been declared upto August 23, 1982, when the service of the appellant was terminated. It was also argued by the learned counsel for the appellant that even persons who were directed to appear at the type test and had failed were retained and continued in the service of the High Court as Lower Division Clerks. More over, employees who were temporarily appointed subsequently were not subjected to any test, yet they still continue in employment beyond the initial period of 6 months and their term has been extended from time to time. Learned counsel for the appellant also submitted that more than one opportunities were afforded to the employees to pass the type test, which was not the rercuitment test. In substance, the argument of the learned counsel for the appellant was that while other employees similarly situated, who were appointed as Lower Division Clerks ad hoc/temporary basis have been retained in the service of the Rajasthan High Court, yet the appellant and few others were picked up for hostile treatment and their services were terminated, in violation of the guarantee of equality before law contained in Article 14 and 16 of the Constitution.

6. In the Manager, Govt. Branch and Anr. v. D.B. Bolliappa : (1979)ILLJ156SC , their Lordships of the Supreme Court observed as under:

The protection of Articles 14 and 16(1) will be available even to such a temporary Government servant if he has been arbitrarily discriminated against and singled out for harsh treatment in preference to his juniors, similar circumstances. It is true that the competent authority had the discretion under the condition of service governing the employee concerned to terminate the latter's employment without notice. Rut, such discretion has to be exercised in accordance with reason and fair play and not capriciously. Benefit of rationality and fairness, discretion degenerates into arbitrariness which is the very antithesis of the founded. Arbitrary invocation or enforcement of the service condition terminating the service of a temporary employee may itself constitute denial of equal protection and offend the equality clause in Articles 14 and 16. Article 16(1) guarantees 'equality of opportunity for all citizens in matters relating to employment of appointment to any office under the State.

Moreover, according to the principle underlying Section 16 of the General clauses Act, the expression 'appointment' used in Article 16(1) will include termination of or removal from service, also..

Conversely, if the services of a temporary Government servant are terminated, arbitrarily, and not on the ground of his unsuitability, unsatisfactory conduct or the like which would put him in a class apart from his juniors in the same service, a question of unfair discrimination may arise, notwithstanding the fact that in terminating his service, the appointing authority was purporting to act in accordance with the terms of the employment. Where a charge of unfair discrimination is levelled with specificity, or improper motives are imputed to the authority making the impugned order of termination of the service, it is the duty of the authority to dispel that charge by disclosing to the Court the reason or motive which impelled it to take the impugned action. Excepting, perhaps, in cases analogous to those covered by Article 311(2), Proviso (c), the authority cannot withhold such information from the Court on the lame excuse, that the impugned order is purely administrative and not judicial, having been passed in exercise of its administrative discretion under the rules governing the conditions of the service. 'The giving of reasons', as Lord Denning put it in Green v. Amalgamated Engineering Union (1971) 1 All BR 1148 'is one of the fundamentals of good administration' and to recall the words of this Court in Khudi Ram v. State of Bengal : [1975]2SCR832 in a Government of laws' there is nothing like unfettered discretion immune from judicial review ability'. The executive, no less than the judiciary, is under a general duty to act fairly. Indeed, fairness founded on reason is the essence of the guarantee epitomised in Articles 14 & 16.

7. Similar view was taken by their Lordships of the Supreme Court in Virendra Kumar v. Union of India : AIR1981SC1775 wherein it was observed as under:

If a large number of other persons similarly situated have been promoted as Chargeman Gr. II after completing 2 years of service, there is no reason why the appellant should also not be similarly promoted after completing same period of service.

8. In the case of V.S. Puri v. State of Punjab : (1982)ILLJ330SC it was held that by reverting one person and not another, who was similarly situated, the State practiced discrimination and on that ground the order of reversion stood vitiated as being violative of Article 14 of the Constitution of India. In that case the concerned employee was reverted because he failed to pass the departmental examination, although another employee who similarly did not pass the departmental examination was not reverted. Thus the law is well settled that unequal treatment could not be given amongst equals or persons similarly situated and the said principle was equally applicable in matters of employment including termination thereof. After a consideration of the various decisions cited before the learned Single Judge the following principles were deduced by him:

(1) That if the services of a temporary government servant are terminated in accordance with the conditions of his service on the ground of unsatisfactory conduct of his unsuitability for the job and/or for his work being unsatisfactory or for a like reason which makes him off a class apart from other temporary servants who have been retained in service, there is no question of applicability of Article 16.

(2) That conversely, if the services of a temporary government servant are terminated arbitrarily and not on the ground of his unsuitability, unsatisfactory conduct or the like which would put him in a class apart from his juniors in the same service, a question of unfair discrimination may arise, notwithstanding the fact that in terminating his service, the appointing authority was purporting to act in accordance with the terms of the employment;

(3) That where a charge of unfair discrimination is levelled with specificity, or improper motives are imputed to the authority making the order of termination of service, it is the duty of the authority to dispel that charge by disclosing to the court the reason or motive which impelled it to take the impugned action.

9. We are in respectful agreement with the learned Single Judge so far as the aforesaid legal propositions propounded by him are concerned; but with great respect we are unable to agree with the learned Single Judge on the question of applicability of the aforesaid propositions to the facts of the instant case. Learned Single Judge observed that the result or the type test was finalished prior to the passing of the termination order dated August 23, 1982 and on the basis of the terms of appointment and for the reason that the appellant did not pass the type test, it could not be held that the order of termination of service of the appellant was discriminatory or illegal. Thus in substance it was held that the appellant was not entitled to continue in service having failed in the type test. With great respect to the learned Single Judge, we are unable to agree with the aforesaid conclusion arrived at by him. In the first place, we may point out that under Rule 2-A of the Rajasthan High Court (Conditions of Service of Staff) Rules, 1953 the method of recruitment to a post or category of posts may be specified by the Hon'ble Chief Justice & he is authorised to specify the manner in which such recruitment would take place in the case of direct recruitment. It is not disputed that a competitive examination is conducted for making direct recruitment to the posts of Lower Division Clerks. The candidates are subjected to a written test and then those who have passed the written test are required to appear at a type test. Thus, merely the type test could not be considered as equivalent to a recruitment test for the purpose of making substantive appointment to the posts of Lower Division Clerks. Even the High Court did not take the stand that the type test was a substitute for recruitment test and those who passed at the type test were given permanent appointments on the post of Lower Division Clerks on the basis of the result of the type test. The order of temporary appointment of the appellant contained the condition that she would have to appear at the recruitments test for regular appointment. It is not disputed that no recruitment test, as envisaged in the rules, comprising of a written test followed by a type test was conducted at the relevant time in June 1982. Moreover, it does not appear that the High Court at all intended by order dt. 2-6-1982 that the type test should be considered as substitute for recruitment test, as it was not envisaged that those who passed the type test would be regularly appointed on substantive basis. In the second place, it was stated on behalf of the High Court in the writ petition filed by Ashok Kumar Purohit that the result of the type test held on June 23, 1982 was declared, only on April 21, 1984. We, therefore, called for the record and the relevant record was placed before us by the learned Government Advocate appearing for the High Court. From a perusal thereof it appears that although the result of the type test was prepared by the Registry of the High Court prior to the termination of the service of the appellant but the result was not declared because when the result was submitted before the Hon'ble Chief Justice he made certain quarries and the matter continued to remain pending until April 21,1984 when only the result of the type test was published for the first time. Thus, merely the fact that the office had compiled the result of the type test, could not be made the basis for terminating the service of the appellant on the ground that she had failed in the type post, when the result of the said type test had not been declared until 21-4-1984. A copy of the order issued by the High Court on April 21, 1984 has also been placed on record of this appeal by the learned Government Advocate, In the third place the order dated April 21, 1984 shows that only 10 out of 37 persons who were asked to appear at the type test had passed the same. Thus if the passing of type test would have been the basis of termination of the service of the appellant, then the service of 25 other employees, who had either failed or did not appear at the type test, ought to have been terminated along with the appellant and Ashok Kumar. But that was not done and only the services of two parsons, namely, the appellant and Ashok Kumar Purohit were terminated by the order dated August 23, 1982.

10. We would like to observe that it is not the case of the respondent High Court that the service of the appellant was terminated on the ground of unsatisfactory conduct or her unsuitability for the job or on the ground that her work was unsatisfactory or there was any such reason to make her a class apart from other temporary Lower Division Clerks whose services were retained. Thus it is fully established that in the first place no recruitment test had taken place. In the second place, out of 3 7 persons who were asked to appear at the type test by the order dated June 2, 1982 only 10 persons were successful, yet the services of the remaining 25 employees were not terminated and that the appellant and Ashok Kumar Purohit were picked out arbitrarily for purposes of termination of their services. In the third place, even the result of the type test held on June 23, 1982 had not been declared upto August 23, 1982 and then ways and means were being considered as to what should be done when number of employees had failed at the type test. The result of the type test was eventually declared on April 21, 1984 but the services of the other employees who had failed at the type test were not terminated even then In the fourth place even persons, who were appointed after the appellant was appointed, like respondent No. 2 were neither subjected to similar type test before the expiry of the term of six months nor their services were terminated on the expiry of the term of six months, but they were continued in service and their term was extended from time to time. In this view of the matter it appears to us that the case of the appellant squarely fell within the second category deduced by the learned Single Judge from the decision of their Lordships of the Supreme Court in Belliappa's case AIR 1979 SC 429 and there is no doubt that the services of the appellant and Ashok Kumar Purohit who were temporary employees, were terminated arbitrarily, nor on the ground of any unsuitability, unsatisfactory conduct or the like or according to service conditions. A question of unfair discrimination clearly arises in the present case, although the Appointing Authority purported to terminate the service of the appellant on the expiry of the period of six months, for which the appointment was initially made However, no valid reason has been brought to our notice as to why the temporary employment of the appellant was not extended like other temporary Lower Division Clerks who were appointed before her and who also failed in the type test or who were appointed after the appellant was temporarily appointed and who were not subjected to any type test, yet whose term of temporary employment was extended after the same had expired. Thus merely the expiry of the term of six months could not be a valid and lawful reason for termination of the employment of the appellant as a Lower Division Clerk, because the terms of employment of other employees similarly situated were extended. To our mind, the third principle deduced by the 1d. Single Judge from Belliappa's case in as much as, the authority making the order of termination of service has failed to disclose a satisfactory reason or the motive which impelled it to terminate the employment of the appellant. The only reason which was disclosed by the respondent and which appealed to the learned Single Judge was that the appellant had failed in the type test held in June 1982. But then in Ashok Kumar Purohit's writ petition it was disclosed that the result of the type test was not declared prior to April 21,1984 and after the relevant record was called for and perused by us, the learned Government Advocate has also placed on record a copy of the order dated April 21, 1984 declaring the result of the type test. Thus, it was most unfair that the appellant's service was terminated on the alleged ground of her failure in the type test even before the result of such type test was declared & the charge of unfair discrimination is writ large in the present case. The only ground which prevailed with the learned Single Judge in upholding the validity of the order of termination was that the appellant had appeared at the type test and had failed but the said ground can no longer be sustained. As mentioned above, now it has become apparent that not only the appellant and Ashok Kumar Purohit but 25 other employees working on the post of Lower Division Clerks in the High Court had also failed at the type test and further that the result of the said type test was declared almost 1-2 year after the service of the appellant was terminated by the order dated August 23,1982 If other persons, who were directed by the order dated June 2,1982 to appear at the type test were retained in service as Lower Division Clerks, even inspite of their failure to pass the type test, or had failed to appear at the said type test, there was no reason why the appellant and Ashok Kumar Purohit were picked up arbitrarily and were subjected to discriminatory treatment and were singled out for the purpose of termination of their employment as Lower Division Clerks. Further the result of the type test had not been declared even until April 21, 1984.

11. We are unable to hold that the type test could be considered as a substitute for recruitment test nor the same was ever intended by the High Court to be treated as a recruitment test for the purpose of making regular appointment in substantive capacity. The recruitment test is primarily a written test and those passing the written test are thereafter also subjected to a type test and as pointed out by Mr. Mridul persons having passed the written test could be afforded more than one opportunities to pass the type test. Moreover, no uniform practice of subjecting other temporary Lower Division Clerks to type test before extending their term of temporary employment was followed by the High Court and even those persons who were asked to appear at the type test by the order dated June 2, 1982 and who had failed at the said type test or did not appear there at, were continued and their term of temporary employment was extended by the order dated September 7,1982. Moreover, those employees working as Lower Division Clerks, who were not subjected to type test by the order dated June ?, 1982 were also allowed extension after the expiry of their initial term of six months without their being subjected to any type test, including respondent No. 2, who were employed after the appellant & were junior to her in the category of temporary Lower Division Clerk. Thus, the conclusion is irresistable that the appellant was subjected to hostile discrimination and her services were terminated arbitrarily although other persons who were working as temporary Lower Division Clerks in ad hoc capacity were allowed to continue and their term of employment was extended after the expiry of the initial period of six months. We may also observe here that after the learned Single Judge dismissed the writ petition filed by the appellant, the case of Ashok Kumar Purohit, who was appointed along with the appellant by the same order dated February 23, 1982 and whose service was terminated by the same order dated August 23, 1982 along with the appellant, came up for consideration before another learned Single Judge of this Court who allowed the writ petition and quashed the termination order dated August 23, 1982 so far as Ashok Kumar was concerned. MX). Jain, J. while allowing the writ petition of Ashok Kumar Purohit agreed with Agarwal, J., who while deciding S.B. Civil Writ Petition No. 86/83 (Devkinandan Saraswal v. Rajasthan High Court and Anr.) by his order dated December 17, 1984 held that the termination of the service of Lower Division Clerks of the High Court while retaining others who were similarly situated was violative of Articles 14 and 16 of the Constitution. We express our agreement with the view taken by Agrawal, J. in Devkinandan Saraswat's case (supra) and M.C. Jain, J. in the case of Ashok Kumar Purohit, referred to above.

12. In the result, the appeal is allowed, the order dated August 23, 1982 passed by the Registrar, Rajasthan High Court terminating the service of the appellant as temporary Lower Division Clerk is quashed and the respondent High Court is directed to reinstate the applicant on the post of Lower Division Clerk and she shall be deemed to have continued on the said post as if the order dated August 23, 1982 terminating her service had not been passed. The appellant shall also be entitled to her emoluments and other benefits, financial and otherwise, to which she would have been entitled as if she continued to remain in service throughout during the period from August 23, 1982.

13. The parties are left to bear their own costs.


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