Decided on October 30,1973

Panchanan Sabat Appellant
State of Orissa And Anr. Respondents


R.N. Misra, J. - (1.) THE Petitioner was appointed as a temporary work sarkar on trial basis for a period of two months by the Executive Engineer, Rourkela construction Division (Opposite party No. 2) from 1 -11 -1969. The order of appointment clearly showed that it was under the work -charged establishment and the post was purely temporary and terminable at any time without assigning any reason. In May, 1971. a further order was made that the Petitioner may continue in the post till 15 -6 -1971, when the work of the construction of R.H.S. quarter (Group No. 1) under the Subdivision No. 1 would be nearing completion. On 29 -7 -1971, the Petitioner was re -appointed after termination of his previous service to a different post with a direction that the gap period between the previous service and the fresh joining may be treated as leave without pay. Ultimately on 9 -11 -1971, the following order was made: Since there is no more work against which he has been appointed, his services are no longer required with effect from the expiry of one month from the date of receipt of this order. The Petitioner has challenged the aforesaid order as being contrary to principles of "last come first go" because some reasons junior to him in the appointment as work sarkar have been retained in service while the Petitioner has been asked to go.
(2.) IN the counter affidavit filed on behalf of the opposite parties, it has been asserted that the Petitioner 's services was no longer required after 15 -6 -1971 and in view of the fact that the entire establishment was temporary and there was no need for the Petitioner 's services. the same were terminated on 15 -6 -1971 on the terms of the appointment. On his own representation the Petitioner was given a fresh appointment on purely temporary basis on 29 -7 -1971 as a guage reader and ultimately the Petitioner has been retrenched from that post for want of work. It has been stated in paragraph 5 of the counter affidavit that no work sarkar has been appointed after 29 -7 -1971, i.e. when the Petitioner was re -appointed as a guage reader. It is not disputed by the Petitioner that he was employed in a work -charged establishment. It is not his contention that he is governed by the Industrial Disputes Act and is entitled to the benefit of Section 25 -G which recognise the principle of "last come first go". The short question that arises here on the basis of the Petitioner 's contention is as to whether to a Government servant the same principle can be applied. Reliance is placed on two decisions of the Supreme Court in support of the Petitioner 's contention. In the case of Champaklal v. Union of India : A.I.R. 1964 S.C. 1854, at page 1860, it has been observed: It is next urged that even if Rule 5 is good, the order by which the Appellant 's services were dispensed with was bad, because it was discriminatory. In this connection reference was made in the plaint to a number of Assistant Directors whose services were not dispensed with even though they were juniors to the Appellant and did not have as good qualifications as he had. We are of opinion that there is no force in this contention. This is not a case where services of a temporary employee are being retrenched because of the abolition of a post. In such a case a question may arise as to who should be retrenched when one out of several posts is being retrenched in an office. In those circumstances, qualifications and length of service of those holding similar temporary posts may be relevant in considering whether the retrenchment of a particular employee was as a result of discrimination. The present however is a case where the Appellants services were terminated because his work was found to be unsatisfactory... The next case upon which reliance has been placed is that of Ramaswamy v. LG. of police : A.I.R. 1966 S.C. 175. In paragraph 12 of the judgment, the Court said: ...Even so, it may be conceded that when reversion takes place on account of exigencies of public service, the usual principle is that the junior most persons among those officiating in clear or long term vacancies are generally reverted to make room for the senior officers coming back from deputation or from leave, etc. Further ordinarily as promotion on officiating basis is generally according to seniority, subject to fitness for promotion, the juniormost person reverted is usually the person promoted last. This state of affairs prevails ordinarily unless there are extraordinary circumstances as in the present case.... The Court was considering Rule 2(c) of the Mysore Seniority Rules. In the same paragraph of the judgment, referring to the principle relied upon by the Petitioner before us, the Court has said: Now Rule 2(c) as it stands merely provides for seniority between persons officiating in a higher rank when they are officiating as such; it is not an express rule as to the manner in which reversion should be made where reversions are necessary on account of exigencies of service. The rule, therefore, cannot be held as expressly providing for the principle of "last come first go" with which one is familiar in industrial law.... As we have already indicated, the Petitioner 's service was purely temporary and it was in a work -charged establishment. The Petitioner has not established before us that in the same work -charged establishment to which he was appointed there were others junior to him who had been retained in service. That may not have made any difference, because the observations made by the -Supreme Court are not in support of the contention of the Petitioner that the rule contained, in Section 25 -G of the Industrial Disputes Act is applicable to Government servants. In this Court it has never been accepted yet that a Government servant is entitled to the benefit of the said rule and we are not satisfied that a departure need be made in the present case.
(3.) WE would accordingly hold that the Petitioner has no case on the basis of the rule applicable to Industrial labour "last come first go" the Petitioner 13 not entitled to claim to be retained in office. Over and above, the Petitioner has also not established on the basis of which claim of application of that rule could be laid. The writ application is accordingly dismissed, but in the circumstances without costs. K.B. Panda, J.;

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