M. M. Ismail, J.
1. The petitioners in these writ petitions are two Advocates of this Court and the common respondents are the State of Tamil Nadu, represented by the Secretary to Government, Education Department, Fort St. George, Madras-9 and the Director of Legal Studies, Law College, Madras-1. The petitioner in the former writ petition was appointed as a part-time Lecturer in the Law College, Madras, under rule 10 (a) (i) of the General Rules for the Tamil Nadu State and Subordinate Services, by G.O.Ms. No. 1428, Education Department, dated 18th August, 1970, while the petitioner in the latter petition was appointed in the same capacity under the same rule by G.O.Ms. No. 1834, Education Department, dated 25th October, 1971. By a Memorandum No. 35097-F2/73-7 Education dated 17th September, 1973, the first respondent herein terminated the services of the petitioners with effect from the date of relief and it is to quash this order that the two writ petitions have been filed by the petitioners herein.
2. Both the petitioners challenge the impugned order on the following grounds, namely: (1) that the same is mala fide; (2) that it really amounts to one of punishment and consequently the requirements of the provisions of Article 311 of the Constitution of India should have been complied with and in the p resent case, they have not been complied with; and (3) that the order is discriminatory and therefore offends Articles 14 and 16 of the Constitution of India. In addition, the learned Counsel for the petitioner in the latter writ petition contends that the power exercised by the first respondent in terminating the services of the petitioner therein constituted a colourable exercise of power on the part of the respondents and rule 10 (a) (v) of the General Rules for the Tamil Nadu State and Subordinate Services is itself unconstitutional and discriminatory and is hit by Articles 14 and 16 of the Constitution of India.
3. In the affidavit filed in support of the former writ petition, the petitioner therein challenges the impugned order as mala fide on two specific grounds. In paragraph 3 of the affidavit, the petitioner avers that in the year 1972, the second respondent called the petitioner to his chambers in the Law College and enquired of him as to whether he had any connection with a writ petition filed by Thiru V. Selvaraj, the petitioner in the latter writ petition, against the State in respect of appointments made by the Public Service Commission without considering the requisite qualifications necessary for the post of part-time lecturer in the Law College and the petitioner immediately told the second respondent that he had no manner of connection whatever with the filing of that petition and that the second respondent should not hold that out against the petitioner in the mistaken belief that he had a hand in the same. In paragraph 4 of the affidavit, he alleges that he understood that recently in the Supreme Court, in a petition filed by the Ex-Chief Secretary to the Government of Tamil Nadu, Thiru V. Selvaraj, the petitioner in the latter writ petition, was instructing the Counsel for the Ex-Chief Secretary in the Supreme Court and that the hearing of the said case was concluded in August, 1973; that after the impugned order was passed, the petitioner on 25th September, 1973 at 12 noon called on the second respondent at his office in the Law College Buildings and enquired of him as to what was contained in the confidential report and why his explanation had not been called for, if there was anything materially wrong with his conduct; that the second respondent refused to divulge at first the reason which was contained in the said confidential report, but later informed the petitioner that the whole matter hinged on the petitioner's conduct in Mr. Royappa's case as Counsel working for him, behind the scenes and assisting Mr. Selvaraj; that he, the petitioner, denied the allegation and requested the second respondent to intercede on his behalf; and that the second respondent-then frankly told the petitioner that while he (the second respondent) was satisfied with his (petitioner's) work, any recomendation by him then made would, not have any weight with the first respondent which had made up its mind to terminate the petitioner's services without assigning any reason whatever, for his alleged connection along With Mr. V. Selvaraj in the Royappa's case. It is with reference to these allegations that the petitioner stated in paragrpah 5 of the affidavit that the termination of his services in the above circumstances was mala fide and without any basis whatever. The petitioner further avers in the affidavit that as a matter of fact he had no connection with any Counsel who was connected with the case of Mr. Royappa; nor had he any connection with Mr. E.P. Royappa, Ex-Chief Secretary, who was a total stranger to him; and that to attribute to him such intin ate connection and to consider him as having been secretly assisting the said person against the Government was, to say the least, false and a vicious statement intended to wreck his career and divest him of his lecturership without giving him an opportunity to be heard in that behalf.
4. Since the allegations in the affidavit referred to the meeting which the petitioner was alleged to have had in the year 1972 and on 25th September, 1973, the second respondent in his counter-affidavit has dealt with the same. In paragraph 3 of the counter-affidavit the second respondent completely and totally denies that he called the petitioner in the year 1972 to his chambers in the Law College and enquired of him as to whether he had any connection with a writ petition filed by Thiru V. Selvaraj against the State in respect of the appointments made by the Public Service Commission. He, therefore, contends that the further allegation that the petitioner told him (the second respondent) that he had no manner of connection with that writ petition was also not true and further states that no such discussion took place between the second respondent and the petitioner and that such a story had been deliberately concocted for the purpose of prejudicing the mind of this Court. In paragraph 4 of the counter-affidavit, the second respondent avers that the allegations of the petitioner in paragraph 4 of his affidavit that Thiru V. Selvaraj was instructing the Counsel for the Ex-Chief Secretary in the case before the Supreme Court was not a matter within his personal knowledge. The second respondent admits that he sent a demi-official letter dated nth April, 1973 to Thiru Balraj, Deputy Secretary, Education Department, regarding some of the lecturers of the Law College and that letter was Written in his capacity as the Head of the Department of Legal Studies, regarding their suitability and continuance in service and that such confidential inter-Departmental communications were not intended for service on the employees concerned. In paragraph 4 of his affidavit that on 25th September, 1973 at 12 noon the petitioner called on the second respondent was false and that the allegation that the petitioner enquired the second respondent as to what was contained in the confidential report and as to why his explanation had not been called for and wanted to know whether there was anything materially wrong with his conduct was not correct; In this paragraph, the second respondent totally denies that there was any meeting between the petitioner and the second respondent on 25th September, 1973 or there was any conversation as alleged in the affidavit of the petitioner.
5. The petitioner in this writ petition has filed a reply affidavit reiterating his allegation in the affidavit in this behalf, and contending that the denial of the second respondent was deliberate and made only for the purpose of the case.
6. On behalf of the first respondent, a ; counter-affidavit has been filed by the Secretary to Government in the Education Department. In paragraph 3 of this counter-affidavit, he states that with reference to the allegations in paragraph 4 of the affidavit of the petitioner, 'I submit that I have absolutely no knowledge of the alleged conversation that took place between the petitioner and the second respondent in which the second respondent is said to have informed the petitioner that I had made up my mind to' terminate his services without assigning any reason whatever for his alleged connection along with Mr. Selvaraj in Royappa's case'. In paragraph 4 of the counter-affidavit, he further avers: 'The allegation in paragraph 5 of the affidavit that the termination of the petitioner's services is mala fide is stoutly denied'.
7. In view of the above counter-affidavits, Mr. G. Vasantha Pai, learned Counsel for the petitioner in the former writ petition, sought to make out three points. The first is, that the petitioner must be given an opportunity to cross-examine the second respondent, in view of his total denial of the allegations made by the petitioner in his affidavit. The second is, that the first respondent has merely stated that he had absolutely no knowledge of the alleged conversation that took place between the petitioner and the second respondent, but he did not independently deny that the first respondent had made up its mind to terminate the services of the petitioner without assigning any reason whatever for his alleged connection along with Mr. Selvaraj, in Royappa's case. The third, is that the second respondent in paragraph 4 of his counter-affidavit, while dealing with the allegations in paragraph 4 of the affidavit of the petitioner stated that he would be producing 'for the perusal of this Hon'ble Court the original of my demi-official letter dated nth April, 1973 at the time of the hearing of the Writ petition', and this clearly shows that the second respondent had taken back the demi-official letter sent to the first respondent and bad the same in his custody and this itself establishes mala fides.
8. In my opinion, there is no substance in any of 'these three points. As far as the first point is concerned, it is not possible to convert the proceedings in this writ petition into a regular trial, as if it were a suit and to give an opportunity to the petitioner to lead evidence or to cross-examine the second respondent. If the petitioner wants to pursue this point, the proper remedy for him is to file a suit in which he will have an opportunity of giving evidence and submitting himself to cross-examination and equally cross-examining any witness that may be examined on behalf of the respondents herein. Therefore, I have necessarily to proceed on the basis that this controversy cannot be gone into and decided in this proceedings.
9. With regard to the second point, I am clearly of the opinion that in the absence of any specific allegations in the affidavit filed by the petitioner that the first respondent had made up its mind to terminate the services of the petitioner without assigning any reason whatever for the alleged connection of the petitioner with Mr. Selvaraj in Royappa's case, there was no obligation cast upon the first respondent to independently deny the same. As I have pointed out already, the only allegation that has been made in this behalf by the petitioner is that the second respondent told him to that effect. But the second respondent has denied the entire meeting between the petitioner and himself and consequently the only thing that the first respondent could do was to say whether he had any knowledge or not of the said conversation and there was no further obligation imposed on the deponent of the counter-affidavit filed on behalf of the first respondent to further say whether the first respondent had made up its mind to terminate the services of the petitioner without assigning any reason whatever for his alleged connection with Mr. Selvaraj in Royappa's case.
10. As far as the third point is concerned,, the contention is far-fetched. The word,, ''original' occurring in the counter-affidavit of the second respondent obviously is a mistake. Before me, the file of the Government containing the original of the demi-official letter sent by the second respondent and the office copy of the same maintained by the second respondent have been produced. There is absolutely no scope for any argument that the second respondent took back the demi-official letter sent by him to the first respondent and had it in his custody and it is that original the second respondent promised to produce before this Court at the time of the hearing. The entire argument was based upon the word, 'original' occurring in the counter-affidavit of the second respondent which expression obviously was used only to refer to the copy which he had with him.
11. In this context, Mr. Vasantha Pai relied on the following passage occurring in the judgment of the Supreme Court in the State of Punjab v. Ramji Lal and Ors. : 2SCR550 :
Counsel for the State of Punjab contended that the plea that the action of the State was not bona fide cannot be said to be established, unless the party alleging that case names the officer or officers guilty of conduct which justifies an inference that the official act was done for a collateral purpose, and since no such attempt was made and the High Court did not find that any named officer or officers was or were responsible for that official act the plea that it was not bona fide must fail. We do not think that the law casts any such burden upon the party challenging the validity of the action taken by the State Government. The State Government has undoubtedly to act through its officers. What matters were considered, what matters; were placed before the final authority, and who acted on behalf of the State Government in issuing the order in the name of the Governor, are all with in the knowledge of the State Government, and it would be placing an intolerable burden in proof of a just claim to require a party alleging mala fides of State action to aver in his petition and to prove by positive evidence that a particular officer was responsible for misusing the authority of the State by taking action for a collateral purpose.
I am of the opinion that the above passage has no relevancy whatever to the facts of the present case, which I have set out already in full with reference to the allegations and denials contained in the affidavit and reply affidavit and the counter-affidavits.
12. Further, there is this additional fact. The authority competent to terminate the services of the petitioner and did terminate them is the first respondent. Admittedly, there is no averment in the affidavit directly alleging mala fide against the first respondent. Therefore, I must proceed on the basis that the impugned order of the first respondent is not shown to be mala fide.
13. The charge of mala fides in the latter writ petition has been made on the basis of a different set of allegations. The petitioner therein states in his affidavit that about November, 1971 the Tamil Nadu Public Service Commission called for applications to fill permanent vacancies of full-time junior Professors and part-time Lecturers in the Law College under the rules prescribed therefor and the Public Service Commission selected a number of unqualified persons, rejecting the claims of really qualified persons including the petitioner therein; and that the petitioner thereafter filed a writ petition, W.P. No. 962 of 1972 on the file of this Court challenging the selection made by the Public Service Commission. According to the petitioner, in the affidavit filed in support of that writ petition, the petitioner herein had stated that the second respondent was one of the Members of the Selection Committee in his capacity as the Director of Legal Studies for the selection of the candidates, that the 18th respondent to W.P. No. 962 of 1972 is the wife's brother of the second respondent, that the second respondent participated in assessing the merits and demerits of the various applicants, that he was able to influence the selection of the 18th respondent to that writ petition, though he did not possess the necessary qualifications; and that certain other persons were selected as they happened to belong to the same community as the second respondent. The petitioner herein further challenged the selection on the basis that favoured treatment was given to persons who were in some way or other connected with the ruling D.M.K. party and contended that the petitioner was victimised, he being a member of the Nadar community in Kanyakumari District, which is the only District which did not return any but one member of the ruling party to the Tamil' Nadu Legislative Assembly in the last election. According to the petitioner, to that writ petition he had impleaded the first respondent as well as the second respondent herein as respondents 1 and 3, and the Chairman of the Public Service Commission as the second respondent and selected candidates were impleaded as other respondents; counter-affidavits were filed by Thiru K. Diraviam on behalf of the first respondent and by Thiru A. Palaniswamy, the third respondent; and in the counter-affidavit, the first respondent had stated that the Government, on a careful consideration, had decided not to grant any exemption from the prescribed qualifications and had p assed orders appointing those who fulfilled all the necessary qualifications as per the notification and the deponent had taken objection in the counter-affidavit to the petitioner's allegation in the affidavit filed by him. The petitioner further avers that there was subsequently another selection by the Public Service Commission at which also the petitioner was not selected; that during the pendency of the writ petition, finding that the favoured persons could not be taken into the college, the second respondent filed a petition before this Court stating that the College was in urgent need of lecturers, that the students were threatening to strike for want of sufficient teaching staff, that fully qualified persons were not available for appointment and that therefore he should be permitted to make temporary appointments under rule 10 (a) (i) of the General Rules for the Tamil Nadu State and Subordinate Services. The petitioner then contends that the permission was granted and ultimately in view of the statement made by the first respondent in the counter-affidavit, the writ petition itself was dismissed as withdrawn. On the basis of these allegations, the petitioner herein states in paragraph 18 of his affidavit that ever since the filing of that writ petition, the second respondent was not favourably disposed towards him and the petitioner felt that the reason for his being so was the filing of that writ petition by him.
14. The second aspect of the allegation of mala fides is based on the fact that the petitioner herein was engaged by Mr. E.P. Royappa, the former Chief Secretary of the State of Tamil Nadu to appear in his case in W.P. No. 284 of 1972 before the Supreme Court of India and that he actively assisted the Counsel appearing in the Supreme Court in the conduct of his case by inspecting all the Government files relevant to the case in the secretariat under the orders of the Supreme Court and taking notes and preparing fascimile copies of documents for that purpose.
15. According to the petitioner, these two sets of facts have infuriated the respondents herein and consequently the impugned order, which was mala fide, was passed for the purpose of getting rid of the petitioner and satisfying the personal grudge of the authorities against the petitioner. The petitioner alleges that the respondents were ill-disposed towards him on account of the representations made by him to the different authorities regarding the manner in which selection of part-time and full-time Lecturers was made and his filing the writ petition, W. P. No. 962 of 1972. He further avers that the allegations made by him in the affidavit filed in support of that Writ petition infuriated the respondents and the said allegations naturally created a personal grudge in the minds of the respondents against the petitioner and that it was evident that they had been biding their time to terminate the services of the petitioner. According to the petitioner, the statement made by Mr. Diraviam in in the counter-affidavit filed in W.P. No. 962 of 1972 was to the effect that the petitioner made reckless allegations; further Mr. Diraviam had even expressed surprise at the petitioner, who was a Government servant, having made such allegations. The petitioner further states that that the above statement of Mr. Diraviam only showed the extent to which he was personally affected by the averments made by the petitioner in W.P. No. 962 of 1972. According to him, the fact of his having filed W.P. No. 962 of 1972 and thereby the respondents being compelled to agree that they would not appoint unqualified persons naturally caused bitterness in the minds of the respondents and that is the cause for the impugned order. The petitioner goes to the extent of saying that for the above reasons the respondents were interested in getting rid of him somehow or other and they could not be expected to take a dispassionate and impartial attitude in the case of the petitioner.
16. An elaborate counter-affidavit has been filed by the second responded herein and in that counter-affidavit, the second respondent, while referring to the selection made by the Public Service Commission, the writ petition filed by the petitioner and the counter-affidavit filed by him, contends that those facts did not create in his mind any bias or prejudice. He further states in the counter-affidavit that the counter-affidavit filed by the respondents in W.P. No. 962 of 1972 may be read as part and parcel of the counter-affidavit filed by him in the present Writ petition. In that counter-affidavit he had stated:
It is true that Thiru Doraiswamy is my brother-in-law but it is totally false to say that I participated either in the assessment of merits or in the deliberation of the Commission in regard to his selection. In fact I did not at all participate in his selection I have endorsed this fact in the records of the Tamil Nadu Public Service Commission nor did I participate in the discussions either for his selection. The selection was done entirely by the other members of the Tamil Nadu Public Service Commission and therefore there is no question of any influence being brought upon the other Members of the Tamil Nadu Public Service Commission. Since I did not participate there was absolutely no embarrassment to the other Members of the Commission. The statement that the direct personal interest of mine in one of the candidates vitiated the entire selections is totally in correct and untenable.
The second respondent has further stated in his counter-affidavit that the respondents have no favourites; nor is the writ petitioner persona non grata with the second respondent; and that the second respondent as the Head of the Legal Department and as Director of Legal Studies in charge of administration of the Law College and entrusted with the task of coaching the students for the examination in law, was duty bound to study the suitability of the candidate who may apply for appointment as lecturer in the Law College and retain only such of those who are found suitable for the job. With regard to the allegations of the petitioner in relation to his active association with the conduct of Mr. Royappa's case, the second respondent has stated that they were not matters within his knowledge and that consequently the alleged association of the petitioner with the conduct of Mr. Royappa's case could not have had and did not have any influence on him at all with reference to his attitude towards the petitioner herein.
17. An independent counter-affidavit has been filed by the Secretary to Government, Education Department on behalf of the first respondent. Paragraphs 3 to 5 of the said counter-affidavit are as follows:
3. As regards the allegations in paragraph 22 (8) of the affidavit I submit I have neither personal nor official knowledge of the petitioner having been associated in any way with the case of Mr. Royappa and it. is absolutely baseless to say that this alleged association had any influence on me in passing the impugned order.
4. Regarding the allegation mentioned in para.22 (9) I wish to state that it is correct to say that I filed a counter in W.P. No. 962 of 1972 denying the allegations made by the petitioner while challenging the selection for appointment of lecturers in the Law College by the Service Commission. Those proceedings have nothing to do with the impugned order and I wish to state categorically that the present impugned order was not in any way influenced or motivated by the said writ petition filed by the petitioner.
5. I totally deny the allegations of mala fides made against me or the Government while passing the impugned order.
A reply affidavit has been filed by the petitioner reiterating his contentions in the affidavit.
18. The question for consideration is, whether, having regard to the allegations made in the affidavit and reply affidavit of the petitioner and the counter-affidavits of the respondents, the case of mala fides alleged by the petitioner has been made out. As I have pointed out already, the allegations of mala fide spring from two different sets of facts. The first set of facts related to the filing of the writ petition, W.P. No. 962 of 1972 by the petitioner, in which he had made allegations against the first respondent as well as the second respondent herein. In my opinion, the mere fact that the petitioner filed such a writ petition and made such allegations cannot be said to have made the respondents herein to entertain any bias or prejudice against or illwill towards the petitioner herein. Filing of writ petitions by Government servants against the Government has become a daily occurrence now. Equally the allegations of mala fides made against the Government and other officers and authorities in the affidavits filed in support of writ petitions filed by Government servants have become a common feature. Therefore, if it is to be contended or held that the filing of such an affidavit and making of such an allegation have influenced the Government or the officers in Government in in one way or the other towards the Government servant concerned, every other Government servant could be the object of such illwill or prejudice. Further, in this particular case, it is admitted that it is Thiru K. Diraviam, who passed the impugned order in his capacity as Secretary to Government in the Education Department and the said Thiru K. Diraviam had no reason to bear illwill towards the petitioner because of the allegations made in the affidavit filed by the petitioner in W.P. No. 962 of 1972, since none of the allegations had anything to do with Thiru K. Diraviam.
19. The only point that has been stressed in the affidavit filed in the present writ petition is that in the counter-affidavit filed by Thiru K. Diraviam on behalf of the first respondent in W.P. No. 962 of 1972 it is stated that the allegations made by the petitioner in that writ petition were reckless and it was surprising that a Government servant should have made such reckless allegations. I am unable to hold that simply because Thiru K. Diraviam had made such a statement in the counter-affidavit filed on behalf of the first respondent in W.P. No. 962 of 1972, be must be deemed or held to be prejudiced or biased against the petitioner herein.
20. The second set of facts related to the association of the petitioner in the conduct of Mr. Royappa's case. As far as that aspect in concerned, I do not see any reason why Thiru K. Diraviam, who passed the impugned order, should have been prejudiced or biassed against the petitioner for that reason. Thiru K. Diraviam is as much an officer of the Government as Mr. Royappa is and there is absolutely no reason why one officer of the Government functioning as Secretary of a particular Department should be prejudiced or biassed against another officer of the Government filing a writ petition against the State. Therefore I am unable to hold that in passing the impugned order, Thiru K. Diraviam was in any way biassed or prejudiced against the petitioner herein.
21. As far as the second respondent is concerned, taking the normal human nature into account, certainly he should have been piqued and embarrassed, when the petitioner herein in the affidavit filed in support of the writ petition, W.P. No. 962 of 1972 made personal allegations against him. However, I am of the opinion that that is not sufficient to hold that the second respondent was determined to get rid of the petitioner on that ground. The second respondent himself has stated in the counter-affidavit filed by him in that writ petition that he did not participate in the selection or assessment of the merits or demerits of his brother-in-law and that it was only the Members of the Public Service Commission who assessed the suitability of his brother-in-law. When that was the real position, it is too much to hold that the second respondent bore illwill towards the petitioner herein and wanted to get rid of him from his position as part-time Lecturer in the Law College, simply because he had made such allegations; in the affidavit filed in support of that writ petition, which were not true, as borne out by the records. Further, every officer is expected to discharge his official duties fairly and objectively, irrespective of any personal predilections or prejudidices and it is not every one who fails to rise up to the above expectation or standard. In my opinion, it is not possible to hold that the second respondent wanted to wreak vengeance on the petitioner herein or to wreck his career throwing away all the responsibilities and decencies and fair play attached to his office simply because the petitioner herein chose to make untrue allegations against him in the affidavit filed in support of W.P. No. 962 of 1972.
22. With regard to the association of the petitioner herein in the conduct of Mr. Royappa's case in the Supreme Court, the second respondent has stated in his affidavit that he had no knowledge of the same and that he had nothing to do with the same. There is absolutely no justification for coming to the conclusion that the said association of the petitioner in the conduct of Mr. Royappa's case had in any way prejudiced the second respondent against the petitioner, since the second respondent had absolutely no concern with that case. Therefore, I am clearly of the opinion that the allegations of mala fides made against the respondents herein had not been made out in the present case.
23. Mr. S. Padmanabhan, learned Counsel for the petitioner in the latter writ petition, drew my attention to the decision of the Supreme Court in Sukhbans Singh v. The State of Punjab : (1963)ILLJ671SC in which with reference to the facts and circumstances of that case, the Supreme Court held that the action of the Government in reverting the appellant in that case to his original post of Tahsildar was mala fide and the reversion was by way of punishment for misconduct without complying with the provisions of Article 311 (2) of the Constitution of India. That decision did not lay down any general principle in this behalf, but the conclusion that the order was mala fide was arrived at having regard to the special facts and circumstances of that case.
24. The contention of Mr. S. Padmanabhan that the passing of the impugned order constituted a colourable exercise of power is connected with the allegation of mala fides. Once I have found against the allegation of mala fides, there is no scope for the contention that the passing of the impugned order constituted colourable exercise of power.
25. This takes me on to the second of the points, namely, that the impugned order constitutes punishment, that the provisions of Article 311 of the Constitution of India are applicable and that those provisions have not been complied with. It is not in dispute that the petitioners herein were appointed only temporarily as part-time Lecturers in the Law College under the provisions of Rule 10 (a) (i) of the General Rules for the Tamil Nadu State and Subordinate Services. The said Rule is as follows:
10. Temporary appointments. -- (a) (i) (1). It is necessary in the public interest owing to an emergency which has arisen to fill immediately a vacancy in a post borne on the cadre of a service, class or category and if there would be undue delay in making such appointment in accordance with these Rules and the Special Rules, the appointing authority may temporarily appoint a person, otherwise than in accordance with the said rules.
(2) No appointment under sub-clause (1) shall ordinarily be made of a person who does not possess the qualifications, if any, prescribed for the said service, class or category. Every person who does not possess such qualifications and who has been or is appointed under sub-clause (1) shall be replaced as soon as possible by a person possessing such qualifications
Equally admittedly under Rule 10 (a) (v) of the said rules the services of such an appointee can be terminated at any time without assigning any reason whatever. Consequently power is available to the Government to terminate the services of the petitioners as they have done in the present case. However, the learned Counsel' for the petitioners contends such a termination can take place only in the course of ordinary routine administration or because of exigencies of service and the order should be one of 'accident of service' as referred to by the Supreme Court in K. H. Phadnis v. State of Maharashtra : AIR1971SC998 . The learned Counsel further contends that in this particular case, the impugned order has been passed on the basis of a demi-official letter dated nth April, 1973 sent by the second respondent herein to the first respondent and that consequently if that demi-official letter contained any remarks adverse against the petitioners herein, they should have been given an opportunity to defend themselves and that in that sense Article 311 of the Constitution of India has been violated. The further contention is that the matter is one of substance and not of form and simply because the impugned order in the present case merely states:
The services of the following candidates who were appointed temporarily under rule 10 (a) (i) of the General Rules for the Tamil Nadu State and Subordinate Services as Part-time Lecturers in the Law College, Madras are terminated with effect from the date of relief:
1. Thiru V. Selvaraj.
2. Thiru S. Sankararamakrishnan.
it cannot be held that the impugned order constitutes termination, or discharge simpliciter of the petitioners herein; and that if that order is taken into account along with the demi-official letter of the second respondent, it will clearly show that the order is one of punishment and that therefore Article 311 of the Constitution of India has been violated,
26. Before I deal with the above cotention, I shall dispose of the other contention of Mr. S. Padmanabhan that Rule 10 (a) (v) itself is unconstitutional. I am of the opinion that there is no substance in such a contention. A person is appointed temporarily under Rule 10 (a) (i), when the post in question cannot be filled in accordance with the rules prescribed therefor and very often unqualified persons are appointed temporarily till qualified persons are available and therefore by the very terms of the appointment, such a temporary appointment is capable of being terminated at any time without assigning any reason. Once the petitioner in W. P. No. 5564 of 1973 got himself appointed only under Rule 10 (a) (i) of the General rules for the Tamil Nadu State and Subordinate Services, it is not open to him to contend that the other part of the rule, namely Rule 10 (1), (v) should not be applied to him. The very temporary character of the appointment involves and implies the inevitable and necessary consequence of the said appointment being terminated at any time without assigning any reason therefor. Further, the decision of the Supreme Court in Champaklal Chimanlal Shah v. The Union of India, lends support to this conclusion of mine. In that case, an argument was advanced that Rule 5 of the Central Services (Temporary Service) Rules, 1949, was unconstitutional, as hit by Article 16 of the Constitution of India and the said argument was rejected by the Supreme Court. The said Rule was:
(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, at the same rates at which he was drawing them, immediately before the termination of his services 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.
Dealing with the contention advanced before it, the Supreme Court pointed out:
These rules show that there are two classes of employees namely, (1) permanent employees and (it) 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 a particular contingency and such employment should 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....
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 be 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 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.
Therefore, in my opinion, there is no substance in this contention of Mr. Padmanabhan. Further, it is well-settled that a discretionary power is not necessarily discriminatory.
27. With regard to the main contention based on Article 311 of the Constitution of India, it is needless to cite authorities for the proposition that whenever an order of termination affecting the service of a Government servant is passed, and the said Government servant challenges that order, it is not a matter really of form but one of substance. As I have pointed out already, in this case, the second respondent herein has sent a demi-official letter dated nth April, 1973 to the first respondent herein and the petitioners' complaint is that a copy of the said demi official letter was not served on them, while the second respondent has taken up the stand that it is a confidential communication sent by him in his official capacity and that the petitioners are not entitled to a copy of the same. I have also referred to the fact that the file of the first respondent containing the original demi-official letter sent by the second respondent herein as well as the office copy of the second respondent have been produced before me. That demi-official letter makes recommendations in respect of four Lecturers of the Law College of whom the petitioners are two. With regard to the petitioners, the second respondent expressed his opinion that their work and conduct as Lecturers in the Law College had not been satisfactory. With regard to the petitioner in the former writ petition, he further stated that he was also not up to the mark and that it was gathered that there was a police enquiry about his involvement in an examination episode, and therefore he recommended that his services might be terminated. With regard to the petitioner in the latter writ petition, he stated that his work and conduct were not satisfactory; that he had not by then handled the classes efficiently; and that there have been reports from the students about his inefficient work and therefore he requested that orders terminating his service might be issued. The question for consideration is, whether these remarks can be said to constitute a stigma, as contended by the petitioners herein, and consequently the provisions of Article 311 of the Constitution of India are attracted.
28. I am clearly of the opinion that there is no substance in the contention of the petitioners in this behalf. When a (person is appointed temporarily, generally it is done in order to meet a particular contingency or emergency and such an appointment is capable of being terminated whenever that emergency or contingency ceases. As a matter of fact, it may be that the post itself is temporary and therefore when the post itself is abolished, automatically the appointment itself is terminated. It may be that the post is permanent and temporary appointment is made till permanent arrangements are made to fill up the post and therefore when the permanent arrangements are made, the temporary appointment is terminated. It may be that even before permanent arrangements are made, if a particular person appointed temporarily is found unsuitable to hold the post, his. services can be terminated. In this particular case, as I have pointed out already, the second respondent had communicated to the first respondent about his (second respondent's) assessment of the suitability of the petitioners herein to continue in the posts of part-time Lecturers in the Law College and in his opinion they were unsuitable. The termination of the services of the petitioners on such a basis cannot be said to be one by way of punishment or one which involves a stigma and therefore it attracts the application of Article 311 of the Constitution of India.
29. A temporary Government servant occupies a peculiar position. Though Article 311 of the Constitution of India applies both to permanent Government servants and temporary Government servants, in its application to a temporary Government servant, the incidence of his office cannot be ignored. The Supreme Court in more than one decision has considered the case of temporary Government servants and has pointed out the peculiar features present in their case, starting from its decision in Parshottam Lal Dhingra v. Union of India : (1958)ILLJ544SC .
30. In Jagdish Mitter v. The Union of India : (1964)ILLJ418SC at 452 Supreme Court observed:
It is thus clear that every order terminating the services of a public servant who is either a temporary servant, or a probationer, will not amount to dismissal or removal from service within the meaning of Article 311. It is only when the termination of the public servant's services can be shown to have been ordered by way of punishment that it can be characterised either as dismissal or removal from service.
* * * * *
It is true that the tenure held by a temporary public servant or a probationer is of a precarious character. His services can be terminated by one month's notice 'without assigning any reason either under the terms of contract which expressly provide for such termination or under the relevant statutory rules governing temporary appointments or appointments of probationers. Such a temporary servant can also be dismissed in a punitive way; that means that the appropriate authority possesses two powers to terminate the services of a temporary public servant; it can either discharge him purporting to exercise its power under the terms of contract or the relevant rule, and in that case, it would be a straightforward and direct case of discharge and nothing more; in such a case, Article 311 Will not apply. The authority can also act under its power to dismiss a temporary servant and make an order of dismissal in a straightforward way; in such a case, Article 311 will apply.
This simple position is sometimes complicated by the fact that even while exercising its power to terminate the services of a temporary servant under the contract or the relevant rule, the authority may in fairness enquire whether the temporary servant should be continued in service or not. It is obvious that temporary servants or probationers are generally discharged, because they are not found to be competent or suitable for the post they hold. In other words, if a temporary servant or a probationer is found to be satisfactory in his work, efficient, and otherwise eligible, it is unlikely that his services would be terminated, and so before discharging a temporary servant, the authority may have to examine the question about the suitability of the said servant to be continued and acting bona fide in that behalf, the authority may also give a chance to the servant to explain, if any complaints are made against him, or his competence or suitability is disputed on some grounds arising from the discharge of his work; but such an enquiry would be held only for the purpose of deciding whether the temporary servant should be continued or not. There is no element of punitive proceedings in such an enquiry; the idea in holding such an enquiry is not to punish the temporary servant but just to decide whether he deserves to be continued in service or not. If as a. result of such an enquiry, the authority comes to the conclusion that the temporary servant is not suitable to be continued, it may pass a simple order of discharge by virtue of the powers conferred on it by the contract or the relevant rule; in such a case it would not be open to the temporary servant to invoke the protection of Article 311 for the simple reason that the enquiry which ultimately led to his discharge was held only for the purpose of deciding whether the power under the contract or the relevant rule should be exercised and the temporary servant discharged.
As pointed out by the Supreme Court in the above decision itself, it has been settled by the decisions of the Supreme Court that the motive operating in the mind of the authority in terminating the services of a temporary servant does not alter the character of the termination and is not material in determining the said character. To emphasise this aspect, the Supreme Court observed:
Take a case where the authority initiates a formal departmental enquiry against a temporary servant, but whilst the enquiry is pending, it takes the view that it may not be necessary Or expedient to terminate the services of the temporary servant by issuing an order of dismissal against him. In order to avoid imposing any stigma which an order of dismissal necessarily implies, the enquiry is stopped and an order of discharge simpliciter is served on the servant. On the authority of the decision of this Court in the case of Parshottam Lai Dhingra 1958 S.C.J. 217 : 1958 S.C.R.838 : : (1958)ILLJ544SC , it must be held that the termination of services of the temporary servant which in form and in substance is more than his discharge effected under the terms of contract or the relevant rule, cannot, in law, be regarded as his dismissal, because, the appointing authority was actuated by the motive that the servant did not deserve to be continued for some alleged misconduct. That is why in dealing with temporary servants against whom formal departmental enquiries may have been commenced but were not pursued to the end, the principle that the motive operating in the mind of the authority is immaterial, has to be borne in mind.
31. The above view was reiterated by the Supreme Court in Champaklal Chimonlal Shah v. The Union of India : (1964)ILLJ752SC , where the Court observed that '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 rule is irrelevant'.
32. It is in view of these peculiar features of temporary Government servants alone that the Supreme Court in Jagdish Milter v. The Union of India : (1964)ILLJ418SC referred to already pointed out:
It would thus be noticed that the problem raised by complaints made by temporary public servants who have been dischanged, presents several facts, and in dealing with one fact or the other presented to the Court by the special facts in each case, emphasis has naturally shifted.
With reference to this position alone, the Supreme Court examined its earlier decisions with regard to temporary servants in that case. In dealing with the State of Bihar v. Gopi Kishore Prasad : (1960)ILLJ577SC the Supreme Court pointed out that the order of discharge in terms referred to considerations which showed why the Government treated the probationer as corrupt and therefore unsuitable for the post he held on probation. In view of that the Supreme Court held that the Government servant was discharged because the Government had on an enquiry come to the conclusion, rightly or wrongly that he was unsuitable for the post he held on probation, that on the face of the order, a stigma was attached to him and therefore Article 311 of the Constitution would apply. Sinha, C J., who spoke for the Court in that case summarised the effect of the decision of the Supreme Court in Parshotlam Lal Dhingra v. Union of India 1958 S.C.J. 217 : : (1958)ILLJ544SC by formulating the following five prepositions:
1. Appointment to a post on probation gives to the person so appointed no right to the post and his service may be terminated, without taking recourse to the proceedings laid down in the relevant rules for dismissing a public servant, or removing him from service.
2. The termination of employment of a person holding a post on probation without any enquiry whatsoever cannot be said to deprive him of any right to a post and is, therefore, no punishment.
3. But, if instead of terminating such a person's service without any enquiry, the employer chooses to hold an enquiry into his alleged misconduct, or inefficiency or for some similar reason, the termination of service is by way of punishment, because it puts a stigma on his competence and thus affects his future career. In such a case he is entitled to the protection of Article 311 (2) of the Constitution.
4. In the last mentioned case, if the probationer is discharged on any one of those grounds without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge, it will amount to a removal from service within the meaning of Article 311 (2) of the Constitution and will therefore, be liable to be struck down.
5. But, if the employer simply terminates the services of a probationer without holding an enquiry and without giving him a reasonable chance of showing cause against his removal from service, the probationary civil servant can have no cause of action, even though the real motive behind the removal from service may have been that his employer thought him to be unsuitable for the post he was temporarily holding, on account of his misconduct, or inefficiency, or some such cause.
With reference to the third of the above propositions, the Supreme Court found it necessary to explain its scope in Jagdish Mitter v. The Union of India : (1958)ILLJ544SC . The Supreme Court in that case observed:
It would be noticed that these propositions were laid down in a case where the order of discharge on its face attributed stigma to the probationer whose services were discharged and it was preceded by an enquiry held with a view to decide whether the said probationer's services should not be terminated forthwith; and so, with respect, in appreciating the effect of the proposition as enunciated in the judgment, these material facts must be borne in mind. We do not think that the Court intended to lay down a broad and unqualified proposition that wherever any kind of enquiry is held by the authority before terminating the services of a probationer, the subsequent termination of such a probationer's services in whatever form it is couched must always be deemed to amount to his dismissal. As we have already indicated, almost in every case where the question of continuing the probationer or a temporary servant falls to be decided by the authority, the authority has necessarily to enquire whether the said probationer or temporary servant deserves to be continued and that may sometimes lead to an enquiry....
Such an enquiry is actuated solely by the desire to decide the simple question as to whether the temporary servant or the probationer should be continued or not, and is undertaken for that purpose alone without any desire to attach any stigma to him. An enquiry of this character must be distinguished from the formal departmental enquiry where charges are served on the servant and which is undertaken for the purpose of punishing him, otherwise it would lead to this anomalous result that in the case of a temporary servant or a probationer, the authority must discharge him without enquiring into his alleged inefficiency or unsuitability but if the authority chooses to act fairly and makes some kind of enquiry and gives an opportunity to the servant concerned to explain his alleged deficiency, the discharge becomes dismissal. We have no doubt that in laying down the third proposition, this Court did not refer to such informal enquiries and did not intend to take in cases of simple and straightforward discharge of temporary servants which follow such informal enquiries.
33. The abovesaid five propositions were restated by the Supreme Court in The State of Punjab and Anr. V. Sukha Raj Bahadur : (1970)ILLJ373SC as follows:
1. The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Article 3.11 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 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.
The above propositions were followed by the Supreme Court in the State of Bihar and' others v. Shiva Bhikshuk Mishra : (1970)IILLJ440SC .
34. The State of Orissa and Anr. v. Ram Narayan Das : (1961)ILLJ552SC , dealt with a case of a Sub-Inspector of Police in the Orissa Police force, who had been discharged. Rejecting the contention of the discharged Government servant that the order amounted to dismissal, the Supreme Court came to the conclusion that the impugned order of discharge could not properly be held to be an order of dismissal. Such a conclusion was arrived at notwithstanding the fact that the impugned order of discharge did refer to the adverse notes made against the probationer's conduct and did say that it was therefore no good to retain him further in service and that prima facie would amount to attaching a stigma to the petitioner who was discharged.
35. In Madan Gopal v. The State of Punjab and Ors : (1964)ILLJ68SC . the termination of the services of a temporary employee was challenged. The facts showed that he was served with a charge-sheet alleging that he had received illegal gratification and he had demanded illegal gratification. After the concerned Government servant submitted his explanation an enquiry was conducted and the Enquiry Officer made his report in which a finding was made against the temporary employee in regard to the charge that he had received illegal gratification. The Officer who held the enquiry found the Government servant guilty of the charges and recommended his removal. It is thereafter an order passed terminating the Government servant's services forthwith and informing him that in lieu of notice he would get one month's pay as required by the Rules. In that case, though the order in form purported to be one of discharge, the Deputy Commissioner who issued the order in terms indicated that he agreed with the Enquiry Officer's finding that the Government servant concerned had accepted bribes. In that context, the Supreme Court held that the order was punitive in nature and consequently Article 311 of the Constitution was attracted.
36. As far as the facts of the present case are concerned, no charge was framed against the petitioners, no imputation was made against them and no enquiry was conducted. The termination order, apart from referring to the two Government orders under which the petitioners were temporarily appointed as part-time Lecturers in the Madras Law College referred to the demi-official letter, dated 11th April, 1973 sent by the second respondent to the first respondent. Solely on the basis of this demi-official letter in which the second respondent has expressed his opinion about the suitability of the petitioners herein to be continued as part-time Lecturers in the Law College and his recommendation with reference to the petitioner herein, it cannot be contended that the order is punitive in nature. It is admitted that the impugned order issued by the Government is an order of discharge simpliciter. As I have pointed out already, one of the circumstances; in which the services of a temporary Government servant can be terminated is, when that temporary Government servant is found unsuitable to continue in office. In this particular case, the second respondent herein is the Head of the Law College and he is the competent person to observe the performances of the petitioners herein, and to form an opinion about their efficiency and suitability as part-time Lecturers. In that capacity, if the second respondent had expressed his opinion to the first respondent and sought the orders of the first respondent, it cannot be contended that any stigma is attached to the petitioners and therefore the order is punitive in character. Excellence of academic qualification cannot be the sole criterion for capacity to function as a successful Lecturer, since a Lecturer must possess the capacity to teach and communicate to the students and also the capacity to control the students. If a particular person temporarily appointed as a Lecturer in the Law College does not possess or exhibit these qualities, certainly it is open to the respondents herein to terminate the services of such a Lecturer on that ground and such a termination cannot be said to be a punishment with a stigma so as to attract Article 311 of the Constitution of India. This conclusion I am 1 reaching treating the matter not simply as one of form but also as one of substance, in the light of the proposition referred to by the Supreme Court in Jagadish Mitter v. The Union of India : (1964)ILLJ418SC that 'in dealing with the complaints made by public servants against their discharge from public service, what matters is not the form of the order by which their services are terminated but the substance of it.' That is the reason why I have referred to the demi-official letter of the second respondent as well as one of the circumstances in which the services of a temporary Government servant can be terminated, namely, unsuitability of the Government servant concerned.
37. M. Vasantha Pai, in this connection invited my attention to the decision of the Supreme Court in The State of Bihar and Ors. v. Shiva Bhikshuk Mishra : (1964)ILLJ418SC . The Supreme Court in that case extracted the following observation of its in its judgment in Union of India v. R.S. Dhaba, Income-tax Officer, Hoshiappur C.A. No. 880 of 1966 dated 7th April, 1969:
The test for attracting Article 311 (2) of the Coinstitution in such a case is whether the misconduct or negligence is a mare motive for the order of reversion or termination of service or whether it is the very foundation of the order of termination of service of the temporary employee (see the decision of this Court in Champaklal Chimanlal Shah v. The Union of India : (1964)ILLJ752SC . In the present case, however, the order of reversion does not contain any express words of stigma attributed to the conduct of the respondent and, therefore, it cannot be held that the order of reversion was made by way of punishment and the provisions of Article 311 of the Constitution are consequently attracted.
After extracting the above passage, the judgment proceeded to state:We are unable to accede to the contention of the appellant that the ratio of the above decision is that so long as there are no express words of stigma attributed to the conduct of the Government officer in the impugned order it cannot be held to have been made by way of punishment. The test as previously laid and which was relied on was whether the misconduct or negligence was a more motive for the order of reversion or whether it was the very foundation of that order. In Dhaba's case C.A. No. 882 of 1966, dated 7th April, 1969 it was not found that the order of reversion was based on misconduct or negligence of the officer. So far as we are aware no such rigid principle has ever been laid down by this Court that one has only to look to the order and if it does not contain any imputation of misconduct or words attaching a stigma to the character or reputation of a Government officer it must be held to have been made in the ordinary course of administrative routine and the Court is debarred from looking at all the attendant circumstances to discover whether the order had been made by way of punishment. The form of the order is not conclusive of its true nature and it might merely be a cloak or camouflage for an order founded on misconduct (see S.R. Tewari v. District Board Agra : (1964)ILLJ1SC . It may be that an order which is innocuous on the face and does not contain any imputation of misconduct is a circumstance or a piece of evidence for finding whether it was made by way of punishment or administrative routine. But the entirety of circumstances preceding or attendant on the impugned order must be examined and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order.
Mr. Vasantha Pai's contention is that in this particular case, the opinion of the second respondent expressed in the demi-official letter referred to in the impugned order of termination is not a mere motive for the order in question but is the very foundation itself and consequently the impugned order is by way of punishment, attracting Article 31.1 of the Constitution of India. I am unable to accept this argument. In the first place, as pointed out by the Supreme Court in Champaklal Chimanlal Shah v. The Union of India : (1964)ILLJ752SC , already referred to, whether the termination of services of a temporary Government servant would amount to dismissal or removal within the meaning of Article 311 (2) would depend upon facts of each case and the action taken by Government which finally leads to the termination of service. In this case, as I have printed out already, there has been no levelling of charge, no imputation of miscorduct and no enquiry against the petitioners herein and the order of termination in form is an order of discharge simpliciter and there are absolutely no circumstances to warrant the applicability of Article 311 of the Constitution of India. Secondly, in the case of private individuals, motive for passing such an order may be in the mind of the individual concerned. However, in the case of a Government, which is an impersonal body, it has to act through its Ministers and officers and therefore motive can be found only in the notings or the remarks of a particular officer or in the correspondence that passed between the different officers; and therefore it has necessarily to be a matter of record. Consequently when that motive finds a place in the records of the Government and a reference has been made to such a record, i t is not possible to hold that the non-suitability of the Government servant concerned was the very frundation of the order and did not constitute a motive for the passing of the order. As a matter of fact, here again for the purpose of distinction between motive and foundation, what can be more relevant is the allegation of misconduct against the Government servant concerned rather than the expression of opinion about his suitability to continue to hold the post he holds.
38. On the other hand, the learned Advocate-General, who appears for the respondents, placing reliance on certain observations of the Supreme Court in Jagdish Milter v. The Union of India : (1964)ILLJ418SC , already referred to and in the latest repeated case of the Supreme Court on the point, namely, The State of U.P. v. Shyam Lal Sharma : (1964)ILLJ418SC , contends that for the purpose of finding out whether the order is one of simple discharge or is one of punishment, the Court should lock only into the terms of the order and should not delve into the files of the Secretariat.
In the former case, the Supreme Court observed:
That is why the form of the order is inconclusive. It is the substance of the matter which determines the character of the termination of services. In dealing with this aspect of the matter, We must bear in mind that the real character of the termination of services, must be determined by reference to the material facts that existed prior to the order. Take a case where a temporary servant attacks the validity of .his discharge on the ground of mala fides on the part of the authority. If in resisting the plea of mala fides, the authority refers to certain facts justifying; the order of discharge and these facts relate to the misconduct, negligence or inefficiency of the said servant, it cannot logically be said that in view of the plea thus made by the authority long after the order of discharge, it should be held that the order of discharge was the result of the considerations set out in the said plea. What the Court will have to examine in each case would be, having regard to the material facts existing up to the time of discharge, is the order of discharge in substance one of dismissal? If the answer is that notwith standing the form which the order too k, the appointing authority, in substance really dismissed the temporary public servant, Article 311 would be attracted.
33. However, the decision more in point is the latter decision relied on by the learned Advocate-General. In that case, a Government servant was compulsorily retired by an order date d 28th March, 1962. But that order itself referred to a letter dated 16th March, 1962 of the Deputy Superintendent of Police. Head Quarters, signed 'for Inspector General of Police, U.P.'. T. at letter dated 16th March, 1962 in turn referred to a letter dated 14th February, 1062 addressed to the Deputy Inspector-General of Police, Agra Range, U.P., in which it was stated that the Government servant concerned, had lost his utility to the Department and he was considered to be a bad lot, incorrigible, and no longer useful and therefore 1 is compulsory retirement was recommended. Thus, it will be seen that the reference to the Government servant concerned having lost his utility to the Department and he being considered to be a bad lot, incorrigible and no longer useful did not find a place in the actual order of compulsory retirement; nor did it find a place even in the letter dated 16th March, 1962 referred to in the order of compulsory retirement, but only in the letter which was referred to in the letter dated 16th March, 1962. It is in that context, an argument was advanced before the Supreme Court that the order in question was not a simple order of discharge but one of dismissal attaching a stigma to the Government servant concerned. The Supreme Court pointed out that the order of compulsory retirement cannot be said to sustain the plea of punishment by extracting opinions expressed by the authorities in regard to the officer in the past. The Court proceeded to state:
The ruling in Saksena's case : (1967)IILLJ427SC , is also that where there are no words in the order of compulsory retirement which throw any stigma there should not be any inquiry into Government files to discover whether any remark amounting to stigma could be found in the files. The reason is that it is the order of compulsory retirement which alone is for examination. If the order itself does not contain any imputation or charge against the officer the fact that 'considerations of misconduct or misbehaviour weighed with the Government in coming to its conclusion whether any action could be taken under rule 278 does not amount to any imputation or charge against the officer'. This was the view expressed by this Court in Dalip Singh's case : 1953CriLJ1465 . In that case the relevant rule was as follows:
The State reserves to itself the right to retire any of its employees on pension on political or on other reasons.Where the authorities can make an order of compulsory retirement for any reason and no reason is mentioned in the order it cannot be predicated that the order of compulsory retirement has an inherent stigma in the order.
The observation of the Court in Saksena's case : (1967)IILLJ427SC referred to above was more explicit, when it stated:
Where an order requiring a Government servant to retire compulsorily contains express words from which a stigma can be inferred, that order will amount to removal within the meaning of Article 311. But where there are no express words in the order we cannot delve into Secretariat files to discover whether some kind of stigma can be inferred on such research.
These observations of the Supreme Court certainly support the contention of the learned Advocate-General that it is the impugned order alone that is for examination in the present case and that so long as that order does not contain any express words attaching any stigma to the Government-servants concerned, the Court cannot go behind that order to examine the files for the purpose of finding out whether some kind of stigma was contemplated or not.
40. However, Mr. Vasantha Pai, contends that these observations were made in relation to an order of compulsory retirement which stands apart and that therefore those observations cannot be applied to a case relating to termination of services of temporary Government servants. I am unable to accept this distinction sought to be made by the learned Counsel. In the first place, the Supreme Curt in the State of U.P. v. Shyam Lal Sharma : (1971)IILLJ325SC referred to above has referred to its judgment in Jagdish Mitter v. The Union of India : (1964)ILLJ418SC , which was a case of termination of services of a tempoany Government servant. Secondly, there is a very close analogy between compulsory retirement of a Government-servant and termination of service of temporary Government-servant. In both the cases, the services of the Government servants concerned are put an end to. In both the cases, such termination of the services of the Government-servants are brought about by the exercise of power conferred on the authorities either under the terms of the contractor under the rules applicable to them -- in one case by virtue of the provisions contained in the rules relating to temporary appointments and in the other by virtue of the rules reserving to the Government a power to compulsorily retire a Government servant, after he has put in a certain number of years' service. In both the cases the question that has been agitated and which came up for consideration before the Courts was, whether the orders complained of were passed in exercise of such powers conferred on the authorities concerned under the contract or the rules or were really by way of punishment.
41. Notwithstanding this legal position, I have in this particular case considered the circumstances attending the passing of the impugned order and come to the conclusion that the same was not by Way of punishment and therefore Article 311 of the Constitution of India is not attracted.
42. That leaves the last of the points urged on behalf of the petitioner, namely, that the impugned order is discriminatory and therefore is violative of Articles 14 and 16 of the Constitution of India. In paragraph 8 of the affidavit filed on behalf of the petitioner in the former writ petition the petitioner has averred: --
I have been arbitrarily picked out from among other temporary part-time Lecturers even though there are more than 15 of them who are junior to me and who do not possess even the prescribed minimum qualification for a part-time Lecturer. Therefore the termination of my service is violative of Article 16 of the Constitution of India.
The second respondent in his counter-affidavit in paragraph 9 dealing with this allegation has stated:
There is no arbitrary exercise of power in terminating the petitioner among the persons who are holding posts temporarily. The contention based upon the possession of the required qualification would not be relevant since the rules framed under Article 309 of the Constitution namely the Tamil Nadu State and Subordinate Service Rules confer power to make appointments on temporary basis even though the persons do not possess the minimum qualification. Further as among the persons who are so appointed on temporary basis, if the services of one are terminated as per the provisions of rules, the claim based upon Article 16 of the Constitution would not be maintainable. The capacity to teach and the capacity to control the students is an important requirement of a lecturer which is not dependent only upon academic qualifications. The conduct and character of a lecturer is also taken into account because he has to be a model to the students in cultivating right trends and behaviour. It is for the head of the institution to determine the suitability of lecturers and terminate the services of those who do not come up to the required level in spite of their academic qualifications. The power of termination of service has therefore been exercised in this instant case in a fair and reasonable manner and the allegation of arbitrariness is therefore devoid of merits.
Thus, according to the second respondent, the services of the petitioner in W.P. No. 5454 of 1973 were terminated since he did not possess the necessary capacity to teach and control the students and consequently there was no arbitrariness. However, the independent counter-affidavit filed on behalf of the first respondent does not deal with this allegation of the petitioner at all. The only paragraph in the short counter-affidavit which deals with the order terminating the services of the former petitioner is paragraph 2 and the same is as follows:
The petitioner had been appointed temporarily under rule 10 (2) (1) of The General Rules for the Tamil Nadu State and Subordinate Service and his services can therefore be terminated at any time without assigning any reasons. The impugned order of termination of services is thus in accordance with the rules.
Thus, it will be seen that the first respondent, apart from putting forward the contention that under the rules the power to terminate the services of a person was available to the first respondent and in the instant case the services of the petitioner were terminated in accordance with the said rules, did not traverse the allegation put forward by the petitioner in the former writ petition that he has been arbitrarily picked out from out of the temporary part-time Lecturers, even though there are more than 15 of them who are junior to the petitioner and who did not possess even the prescribed minimum qualifications for a part-time Lecturer and that consequently the impugned order is violative of Article 16 of the Constitution of India.
43. The situation is more explicit with regard to the case of the petitioner in the latter writ petition. In paragraph 22 of the affidavit filed by the petitioner in that writ petition, he has set out several grounds for challenging the impugned order as violative of Articles 14, 16, 19 (1) (g) and 311 of the Constitution of India. In ground No. 1 he alleges that the impugned order is discriminatory, in that it is violative of Articles 14 and 16 of the Constitution of India. In ground No. 3, the averment is that the petitioner has been arbitrarily picked out from among other temporary part-time lecturers and his services terminated. Ground No. 4 is:
The petitioner was appointed in November, 1971. On the date of the termination of his service by the impugned order the petitioner possessed the maximum qualification prescribed under the Rules for the post of part-time Lecturer. Subsequent to the appointment of the petitioner persons such as M/s. Balakrishnan, K. M. Natarajan, Bhaskaran, Sungundaraj, Francis Rajan, Hassam Mbhideen Abdul Kalam, Jayaram, P. L. Venkataraman and Ors. have been appointed. None of them holds M.L. degree of the Madras University. Apart from that they do not possess the qualification prescribed under the Rules and they have also put in less service than the petitioner. In the circumstances the picking out of the petitioner and the termination of his services is clearly an act of discrimination and personal differentiation between the petitioner on the one hand and the other part-time lecturers on the other in the matter of service under the State. In other words the termination of the services of the petitioner is a negation of the right of the petitioner of equal access to employment or opportunities to any office under the State.
44. As I have pointed out already, an elaborate counter-affidavit has been filed by the second respondent in this writ petition. T. is counter-affidavit purports to have been filed on behalf of the second respondent only. However in the body of the counter-affidavit, the second respondent speaks for himself as well as for the first respondent also. Referring to the above allegations of the petitioner contained in 1 is affadavit the second respondent states in paragraph 19 of his counter-affidavit as follows:
The allegations in paragraph 22 (3) of the affidavit that the petitioner has been arbitrarily picked rut from among other temporary part-time Lecturers and his service has been terminated, is not correct. The question whether the petitioner should be continued in service with regard to the suitability, is a matter which the respondents have to decide and they decided it on a fair assessment of the petitioner's performance as a Lecturer and decided that he need not be continued as a Lecturer. Such a decision was taken by the respondents fairly and not arbitrarily. The petitioner is not similarly placed like the other Lecturers in his performance as Lecturer.
In paragraph 20 of the counter-affidavit, the second respondent states:
The allegation in paragraph 22 (4) of the affidavit that the petitioner possessed the maximum qualification prescribed under the rules for the post of a part-time Lecturer, is misleading. It is not by mere academic qualification like attaining the M.L. Degree that one can say that he is best suited person to be a Lecturer in the Law College. Mere academic attainment would not necessarily make an efficient Lecturer. The petitioner has given a list of persons who even though appointed temporarily, are retained in the Law College as Lecturers and states since his services have been terminated there has been a discrimination. It is respectfully submitted for the reasons stated above that there has beer no invidious discrimination and each case was judged on its own merits.
Thus, it will be seen that the case of the second respondent, is that both the second respondent and the first respondent decided that the petitioner herein did not have the necessary capacity to function succesfully as a lecturer in the Law College, that it is on the basis of this assessment of theirs of the performance of the petitioner herein as a lecturer, his services Were terminated and that therefore there was no discrimination as between the different part-time Lecturers as alleged by the petitioner herein.
45. However, the short counter-affidavit filed on behalf of the first respondent states the following On this aspect in paragraph 2:
As regards the allegations in paragraph 22 (5) of the affidavit I am to state that it is true that the impugned order does not disclose any reason for the termination of the service of the petitioner. In so far as the petitioner's averment that the impugned order refers to the confidential D.O. letter, I am to state that I was not in any manner influenced by the contents of the D.O. letter, since, the petitioner being a temporary employee, there was no need to assign any reason and much less to go into the contents of the D.O. letter. It happened to be cited in the impugned order since it formed part of the file.
In view of this express statement contained in the counter-affidavit filed on behalf of the first respondent, Mr. S. Padmanabhan, contends that there is a vital discrepancy between the counter-affidavit filed by the second respondent and that filed by the first respondent in this b half and that itself shows that the impugned order has not been a fair or straight one. In my opinion, undoubtedly there is a discrepancy. But certainly that discrepancy will not support the case of the petitioner that the impugned order has not been a fair and straight one. It may be that as the second respondent has sent a demi-official letter to the first respondent and the impugned order has referred to the said demi-official letter, the second respondent assumed that the first respondent had accepted the opinion expressed by the second respondent in his demi-official letter and acted on the same and therefore he has stated in the counter-affidavit that both the respondents terminated the services of the petitioner herein on their assessment of the performance of the petitioner as lecturer in the Law College.
46. However, one crucial thing still remains, namely, the first respondent herein has not at all traversed or denied the allegation made by the petitioner in the affidavit which I have already extracted, namely, that the petitioner has been singled out among the temporary part-time Lecturers and Us services have been terminated arbitrarily and that there are part- time Lecturers appointed subsequent to the petitioner herein, who are less qualified than the petitioner himself.
47. Whatever might have been the stand of the second respondent, it is for the first respondent to explain the circumstances under which the services of the petitioners were terminated when the petitioners had alleged that they were discriminated against and were picked out from among the several part-time Lecturers for this arbitrary termination,, because it is the first respondent who passed the order in question and who had the power to pass the order. Admittedly the posts have not been absolished. Equally admittedly regular appointments to the said posts have not been made. Consequently, if the petitioners' services were terminated, they could have been terminated only on the basis that they were found unsuitable to continue to hold the post of part-time Lecturer. The first respondent has expressly stated in the counter-affidavit that the deponent to the counter-affidavit was not at all influenced by the contents of the demi-official letter sent by the second respondent and as a matter of fact, he went to the extent of saying that there was no need to assign any reason in the order and much less to go into the contents of the letter. That means, the first respondent had not terminated the services, of the petitioner in the latter writ petition for the reasons mentioned by the second respondent in his confidential demi-official letter. Since the same demi-official letter of the second respondent mentions about both the petitioners and since under the same order the services of both the petitioners have been terminated, it could not be that the deponent of the counter-affidavit filed on behalf of the first respondent did not look into the contents of the said demi-official letter and was not influenced by the same with regard to the petitioner in the latter writ petition, but did look into the said contents and was influenced by the same with regard to the petitioner in the former writ petition. Hence, it follows that with regard to both the petitioners, the first respondent did not look into the contents of the said demi-official letter and was not influenced by the same. Consequently, the conclusion is irresistible that the allegation made by the petitioners in both the writ petitions that they have been singled out for arbitrary treatment as among several temporary part-time Lecturers stands unrebutted.
48. Hence, even though I have held that the impugned order is not mala fide, that it does not attract Article 311 of the Constitution of India, and that the first respondent has the power to terminate the services of the petitioners herein on the ground that they were found unsuitable to hold the post, withcut following the procedure prescribed in Article 311 of the Constitution of India, still I have to allow these writ petitions and quash the impugned order on the sole ground that the allegation of the petitioners in both the cases that they have been singled out and arbitrarily dealt with as among the several part-time Lecturers in the Law College has not been refuted by the first respondent by placing before the Court the circumstances under which the first respondent happened to pass the impugned order: and with regard to the petitioner in the latter writ petition the first respondent went a step further and positively stated that the deponent of the counter-affidavit was the officer who passed the order and that he was not at all influenced by the contents of the demi-official letter dated nth April, 1973 of the second respondent, thereby making it clear that the first respondent had no reason whatever to single out the petitioner therein for the purpose of terminating his services.
49. Under these circumstances, both these writ petitions are allowed and the order of the first respondent dated 17th September, 1973 terminating the services of the petitioners is quashed. There will be no order as to costs.
50. Before parting with these cases, let me permit myself the liberty of making an observation on a matter which is obvious. In the past, the lecturership of the Madras Law College was a matter of honour and recognition. Men of vast knowledge, deep learning, matchless erudition, unimpeachable integrity, fine culture and sterling character were invited and entreated to be the part-time Lecturers of the college. They with their mellifluous voice, torrential flow, appropriate and arresting language clear analysis and masterly exposition of the subject instantaneously commanded and compelled the attention, admination, respect and obedience of the students and the question of discipline which bedevils every institution to-day was a matter of course. Their exemplary conduct and character, earnestness and quiet efficiency born out of the possession of the necessary equipment in abundance, enabled them to handle classes of hundreds of students without a itch or ruffle. They were men and masters of superb and superlative mettle and calibre. Their very presence on the dais inspired in the students a sense of awe and respect and created an infectious and irresistible interest in and thirst for knowledge and enlightenment. Alas, it is a far cry from that to the present situation, where there is a scramble for such posts, the Government is forced to relax the rules requiring the prescribed qualifications and the Law College, probably, the only income-yielding educational institution in the State is carried on with scores of temporary members of staff. The only consolation is, if it is a consolation at all, that it is not peculiar to the Madras Law College, but is part and parcel of a general malice which has afflicted every field of activity in the country, where though there is considerable expansion horizontally, there is no corresponding development, vertically or in depth.