S.R.Singh - (1.) BY means of present petition under Article 226 of the Constitution the petitioner seeks issuance of a writ of certiorari quashing the order dated 12-1-1988, whereby his services were terminated in the purported exercise of powers under U. P. Government Temporary Servant (Termination of Service) .Rules, 1975 by offering him one month's pay in lieu of one month's notice on the ground that his services were no longer required.
(2.) THE petitioner was enlisted in police force as a constable Civil Police in the year 1986. It appears that while he was posted in the district of Jhansi he was sanctioned 7 days casual leave with effect from 14-11-1987 on the ground of his mother's illness. After expiry of the leave period the petitioner resumed his duties but on. 7-12-1987 he again applied for leave on the ground of illness of his wife, who, it is said was admitted in a hospital at Sultanpur In support of his leave application the petitioner had attached a telegram which he received regarding her illness and admission in the hospital. It appears from the letter dated 11-12-1987 written by Senior Superintendent of Police, Jhansi to Superintendent of Police. Sultanpur that the former doubted the genuineness of the message contained in the telegram and accordingly he by his aforesaid letter required the Superintendent of Police, Sultanpur to get an enquiry made in the matter and let him know about it. It transpires from the report Annexure-RA-I to the rejoinder affidavit that the enquiry could not be made because of the reason that the petitioner's village Birshahka Pura did not fall within the limits of police station Gosainganj, the police of which were require to enquiry into the matter and the only information that was sent back to the Senior Superintendent of Police Jhansi was to the effect that village Birshahka Pura was not within the limits of police station Gosainganj, Sultanpur and it was on this report that the Senior Superintendent of Police, Jhansi directed the Head Constable in his office to "put up discharge notice with one month pay" It is in this back ground that the impugned order of termination was passed. I have heard learned counsel for the petitioner and the learned Standing Counsel. The impugned order has been challenged inter alia on the ground that it was passed by way of punishment without affording the petitioner an opportunity of bearing and that it was arbitrary and discriminatory and is in violation of Article 14 of the Constitution in that the petitioner's service were terminated even though "junior constables appointed after petitioner and placed much below in rank and service and placed similarly and equally" were allowed to be retained in service, as is evident from para 20 of the petition which has not been denied.
(3.) HAVING given my anxious consideration to the points involved in the case I am of the opinion that the impugned order is not sustainable in law even if it is held, as contended by the learned Standing Counsel, that the services of the petitioner were not terminated by way of punishment and that he was not entitled to an opportunity of hearing within the meaning of Article 311 of the Constitution. The petitioner being a temporary government servant his services were no doubt liable to be terminated in accordance with the provisions contained in the rule referred to in the impugned order and as held by the Honourable Supreme Court in State of U. P. v. Kaushal Kishor Shukla, 1991 (1) UP LB EC 152, he was not entitled to an opportunity of hearing but the question is not so much of a right of temporary government servant to an opportunity of hearing before his services are terminated on the ground of unsuitability as it is of an obligation on the part of the appointing authority to act reasonably and fairly in consonance with the principles of natural justice which is regarded as a facet of Article 14 of the Constitution in order to arrive: at a conclusion as to whether or not a temporary government servant, whose services are sought to be terminated on the ground of unsuitability, was suitable for the post. There is no gain saying the fact,that acting in tune with the principles of natural justice by an Administrate Authority in its decision making process as to whether or not a temporary government servant is suitable to be retained in service would be in larger public interest for that would certainly be conducive to the sustenance of faith in the 'Administration' which, I believe, is of paramount importance for the success of democracy. The rule of law that Article 14 of the Constitution aims at achieving, would be better observed by the State and its delegates vis-a-vis the temporary government servants if the competent authorities follow a non-discriminatory procedure in tune with the principle of natural justice in all its facets, in regard to dispensation of their services on the ground of unsuitability. Such a procedure is bound to subserve larger public interest and therefore, it ought to be observed as a rule of public policy" The services of a temporary Government servant may be lawfully dispensed with either on the ground of the abolition of post other than abolition actuated by ill-will and malice and brought about with a view to dispense with the services of an inconvenient temporary government servant or because the purpose and work for which appointment was made, stood exhausted or on the ground of unsuitability. Termination on the ground of unsuitability would be fully justified if it is brought about reasonably and not arbitrarily and capriciously. Such a course would also help a court of law, where the order of termination is challenged to ascertain, whether State agency has acted reasonably in consonance with the rule of law mandated by Article 14 of the Constitution while exercising its powers conferred under the contract or Service Rule to terminate: the services of a temporary Government Servant. In Om Prakash Goel v. Himachal Pradesh Tourism Development Corporation Ltd., AIR 1991 SC 1490, the Honourable Supreme Court was considering a provision which empowered the Corporation to terminate the services of an employee by giving him one month's notice or pay in lieu thereof, in the case of temporary employee who have completed one month's service, and one day's notice or pay in lieu thereof in the case of temporary employees in the first month of their service. The Honourable Supreme Court was pleased to hold as under . 'In this context, the learned counsel also questioned the termination order from another angle. In that order, it is mentioned that the services of the petitioner are no longer required, therefore, they are terminated. But from the record, it is clear that juniors to the petitioner are retained and they are continuing in service. In tie affidavit, it is clearly mentioned that juniors whose names are given there are retained in service in violation of Articles 14 and 16 of the Constitution. In the counter affidavit only a vague reply is given simply stating that the averments made by the petitioner are not correct. In K. C. Joshi v. Union of India, (1985) 3 SCR. 869 = AIR 1985 SC 1016, it is observed that 'if it is discharged simplicitor, it would be violative of Article 16 because a number of store keepers junior to the appellant are shown to have been retained in the service.' Likewise in Jarnail Singh's case, AIR 1986 SC 1626 it was observed as under (at p. 1635)- "In the instant case ad hoc services of the appellants have been arbitrarily terminated as no longer required while the respondents have retained other surveyors who ate juniors to the appellants. Therefore, on this ground also, the impugned order of termination of the services of the appellants are illegal and had been in contravention of the fundamental rights guaranteed under Articles 14 and 16 of the Constitution of India." "After a careful perusal of the record we are satisfied that the juniors to the petitioner are retained. Therefore, on this ground also the termination order is liable to be quashed.";