B K GUPTA Vs. UNION OF INDIA

JUDGEMENT

(1.) WE have heard learned counsel for the petitioner.

(2.) THE petitioner was appointed as a temporary Assistant Medical Officer, on an adhoc basis, and his services were liable to be terminated at any time without assigning any reason, on giving a month's notice on either side. THE petitioner appeared for selection before the Union Public Service Commission for appointment to the post of Assistant Medical Officer, in accordance with the provisions of the Indian Medical Department (Assistant Medical Officers Glass II Recruitment) Rules, 1967, but he could not be selected. Even after the rejection of his candidature by the Union Public Service Commission, the petitioner was allowed to continue on the aforesaid post in a purely temporary capacity on adhoc basis and his term was extended from time to time. By the order of the General Manager, Northern Railway, issued in March 1976 the petitioner's service was terminated with effect from the date of expiry of one month's notice from the date of service of such notice. THE case of the petitioner before this Court is that he was removed from service without recourse to proceedings under Art. 311 of the Constitution, and the order of termination, is in fact one of removal from service and is, therefore, bad in law. It has also been argued by the learned counsel that the petitioner was unlawfully discriminated against as other persons who were also not selected by the Union Public Service Commission, were allowed to continue on the posts of Assistant Medical Officer in a temporary capacity on adhoc basis, although the petitioner's service was terminated by the order Ex. 2.

(3.) IN Samsher Singh vs. State of Punjab (6) their Lordships of the Supreme Court while considering the case of a probationer laid down the law as under: - "before a probationer is confirmed the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post. IN the absence of any Rules governing a probationer in this respect the authority may come to the conclusion, that on account of inadequacy for the job or for any temperamental or other object not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged. No punishment is involved in this. The authority may in some cases be of the view that the conduct of the probationer may result in dismissal or removal on an inquiry. But in those cases the authority may not hold an inquiry and may simply discharge the probationer with a view to giving him a chance to make good in other walks of life without a stigme at the time of termination of probation If, on the other hand, the probationer is faced with an enquiry on charges of misconduct or inefficiency or corruption, and if his services are terminated without following the provisions of Art. 311 (2) he can claim protection. . . . . . . . . The fact of holding an enquiry, is not always conclusive. What is decisive is whether the order is really by way of punishment. " It was held in the aforesaid case, relying on the decision in Champaklal's case (supra), that a preliminary inquiry to satisfy that there was reason to dispense with the services of a temporary employee does not attract Art 311 of the Constitution.