Satish Chandra, J. - (1.) THE respondent was appointed as an Instructor in Science and Mathematics in the Government Junior Technical School, Ghazipur. On July 3, 1970 the Director passed an order terminating his services without any notice. This order was challenged by way of a writ petition on the ground that it was pass ed in violation of the U.P. Government Servants (Temporary) Ser vices Rules, 1953. The learned Single Judge held that under these rules payment of one month's salary in lieu of notice was not the condition precedent. But the order terminating the services of a temporary employee must on the face of it show that the salary in lieu of the period of notice is to be paid to the employee concerned. Since in the present case no such recital was made, the order was held invalid and was accordingly quashed. Aggrieved the Director of Technical Education has come up in appeal.
(2.) THE relevant rules dated January 20, 1953 read as follows: "Government of Uttar Pradesh (Appointment (B) Department) (NOTIFICATION) No. 230/II-B-1953, dated January 30, 1953. In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of U.P. is pleased to make the following general rule regulating the termination of services of temporary government servants: (1) Notwithstanding anything to the contrary in any existing rules and orders on the subject, the services of a government ser vant in temporary service shall be liable to terminate 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. (2) The period of such notice shall be one month given either by the appointing authority to the government servant, or by the government servant to the appointing authority, provided that in the case of notice of the appointing authority the latter may substitute for the whole or part of this period of notice pay in lieu thereof; provided further that it shall be open to the appoint ing authority to relieve a government servant without any notice or accept notice for a shorter period without requiring the gov ernment servant to pay any penalty in lieu of notice." On considering these rules the Supreme Court in State of Uttar Pradesh v. Dinanath Rai, Civil Appeal No. 1934 of 1968 decided on October 11, 1968 held that: - "It seems to us that the meaning of the statutory rule is clear. It gives option to the Government to either give a month's notice or to substitute for the whole or part of this period of notice pay in lieu thereof. The rule does not say that the pay should be given in cash or by cheque at the time the notice is issued. Know ing the way governments are run, it would be difficult to ascribe this intention to the rule- making authority. There is no doubt that the government servant would be entitled to the pay in lieu of notice but this he would get in the ordinary course." It is thus evident that either the giving of notice or the making of payment of one month's pay in lieu thereof is not a condition prece dent to the validity of an order terminating the services of a tempo rary employee. The rules entitle the temporary employee to one month's pay, in case he is not given the requisite notice. The pay need not be given at the time the notice is issued, that is to say, at the time when the order terminating his services is issued or served. The entitle ment to one month's pay can be enforced in the usual way if the Government does not make it good. The question for consideration is if the requirement of giving one month's pay in lieu of notice is not a condition precedent to the validity of the order then would the non-recital of the entitlement to pay make the order bad. In Swadeshi Cotton Mills Co. Ltd. v. State Industrial Tribunal A.I.R. 1961 S.C. 1381 it has been held that: - "Our conclusion thereof is that where certain conditions pre cedent have to be satisfied before a subordinate authority can pass an order (be it executive or of the character of subordinate legislation), it is not necessary that the satisfaction of those con ditions must be recited in the order itself, unless the statute re quires it, though, as we have already remarked, it is most desir able that it should be so, for in that case the presumption that the conditions were satisfied would immediately arise and bur den would be thrown on the person challenging the fact of satis faction to show that what is recited is not correct. But even where the recital is not there on the face of the order, the order will not become illegal ab initio and only a further burden is thrown on the authority passing the order to satisfy the court by other means that the conditions precedent were complied with."
(3.) THUS in cases where certain condition precedents have to be satisfied lack of recital as to their existence or of the fact of their satisfaction does not invalidate the order. In this view the non-recital of a fact which is not a condition precedent cannot possibly invalidate the order. It has been seen that the payment of pay is not condition prece dent to the making of an order of termination of service. The non-recital of the entitlement to pay in the notice could not invalidate the order. We are hence unable to agree with the learned Single Judge that the order in dispute was bad because it did not state that the salary in lieu of notice will be paid to the respondent. For the respondents it was urged that at the time his services were terminated the respondent was senior to 14 other employees. It has also been stated that the service record of those 14 employees was not better than those of the petitioner. It has also been stated that the conditions of service of those other employees and the res pondent were the same. In the counter-affidavit it has been clarified that the service record of the respondent was quite poor. There were several adverse entries against him. It has further been stated that the record of service of other 14 employees mentioned in para graph 3 of the writ petition was better than the respondent and so those 14 persons and the respondent were not similarly situate. In the fact of this controversy it cannot be said that the respondent has affirmatively established that he was similarly situate in regard to those 4 persons. On this material it is difficult to uphold the sub mission that the impugned order is violative of Article 16 of the Constitution.;