- (1.) SHARDA Prasad Srivastava has prayed for the issue of a writ of certiorari under Article 226 of the Constitution quashing the order dated 21-9-1954 removing the petitioner from service passed by the opposite party, the Accountant General, Uttar Pradesh, Allahabad.
(2.) THE petitioner was appointed as a temporary upper division clerk in the office of the accountant General, Uttar Pradesh, Allahabad in August 1950, he having applied for appointment to that post in response to an advertisement in the press inserted by the opposite party. According to the petitioner, the advertisement contained no condition that, after selection to the post and after working therein, the continuance of the petitioner's service was conditional on appearing and passing in a departmental examination. Nor was any such condition incorporated in the letter of appointment or in the contract of service which the petitioner was required to sign. The petitioner goes on to state that some time about the middle of the year 1953 the form in which the advertisement used to be issued was changed and it was specifically mentioned therein that the passing of the departmental examination would be a condition for confirmation after recruitment. Rut this condition did not exist at the time when the petitioner applied for appointment and was given the appointment. The petitioner claimed that from the date of his appointment he had been conscientiously and satisfactorily performing his duties and there had been absolutely no grievance against his work or conduct by the officers supervising his work and that the petitioner had also passed the efficiency Test. Some time in the year 1950 departmental instructions were issued prescribing a departmental examination. But, according to the petitioner, the Comptroller and Auditor General of India while on tour at Allahabad gave out to understand 'that the examination was merely nominal and optional and that it had been introduced purely for the purpose of increasing the initial pay from Rs. 85/- to Rs. 100/- in the prescribed scale. The first departmental examination was held in January 1951, and in subsequent years it used to be held twice every year. The petitioner appeared in the examination in November 1951 and again in May, 1952, but was declared to have failed. On 21-9-1954 a notice was served on the petitioner under the signature of the opposite party informing him that, as he had failed to pass the Departmental Confirmatory Examination within the prescribed period, his services were being terminated. The petitioner's case is that a large number of other temporary clerks who had also failed to pass the examination were retained in service and this discrimination was brought about by the opposite party in enforcing the terms of the contract of service. The petitioner further complains that he was not given any opportunity to show cause under Article 311 of the Constitution against his proposed removal. He has also mentioned certain circumstances indicating that the departmental examination which used to be held was not fair and proper and there were possibilities of manipulation of the results. Another grievance made by the petitioner is that he was not allowed to apply for employment in other offices with the result that he became overage for service in any other government post and yet he was being removed from this service. On the basis of these facts the petitioner sought the relief mentioned above.
(3.) ON behalf of the opposite party a counter affidavit was filed. But it does not appear to be necessary to give all the facts given in that affidavit Some of the facts mentioned will, however, be helpful. The counter affidavit gives a copy of the advertisement which was issued in september 1950 for recruitment of upper division clerks. Obviously this was not the advertisement in response to which the petitioner applied for a post and received the appointment. On behalf of the opposite party it has been suggested that the advertisement to which the petitioner responded was in similar terms, the petitioner has not produced the actual advertisement to which he had responded and consequently I have to proceed on the basis that that advertisement was similar in terms. After the advertisement, an actual offer of appointment was sent to the petitioner by a letter a copy of which has also been filed with the counter affidavit. This offer clearly mentioned that the post was temporary and was liable to be terminated with one month's notice on either side. Subsequently the petitioner was required to sign an agreement copy of which has also been filed. Under this agreement, the petitioner clearly stated that he had understood that his employment under the Government was temporary and that his services may be terminated after a notice for a period of not less than thirty days and without any reasons being assigned. It has been pointed out in the counter affidavit that under the contract of service of the petitioner the petitioner's services were liable to be terminated on one month's notice without giving any reasons at all and it was in exercise of this power that the opposite party terminated the services of the petitioner. The petitioner's contention that he was removed from service, is not correct. On the question of discrimination, it has been stated in the counter affidavit that the cases of the various persons who were holding temporary posts were considered individually on merits by the Comptroller and Auditor General or by the Accountant General. In considering their cases, regard was had to the entries in their character rolls and the marks obtained by each employee in the examinations in the various subjects and in deserving cases services were retained and further chances were given. So far as permission to apply for appointment in other departments was concerned, it is stated that the question of forwarding such applications of temporary employees was regulated by departmental orders and policy. It was also denied in the counter affidavit that the departmental examination was held in such a manner that the results could be manipulated.;