G.D. Sahgal, J. -
(1.)THESE two writ petitions have been filed by one Kedar Nath Pandey. He was a clerk in the office of the Deputy Commissioner, Lucknow. By and by he rose to the post of the Election Inspector. On attaining the age of 55 years, which was the age of superannuation, he retired from service on the 15th of August, 1992. He was re-employed after retirement and a letter dated the 10th of September, 1962, copy of which it contained in Annexure 1 to both the petitions, was received by Sri M.C. Sharma, District Magistrate, Lucknow, from the Chief Electoral Officer, U. P., intimating that the petitioner's re- employment had been sanctioned from the date of his taking over to the 31st of March, 1963. In pursuance of that letter he took over charge on the 18th of September 1962. A formal sanction to the post was also accord ed by the communication dated the 4th of December, 1962, from the Nirvachan Vibhag of the U. P. Government addressed to the District Officer, Lucknow, vide Annexure 2. On the 20th of April, 1963, again a letter was sent for his further re-employment for a further period of one year vide Annexure 3. Thereafter in April, 1964, again he was further re-employed on the existing terms and conditions to the post of Election Inspector, Lucknow, for a further period with effect from, the 1st of April 1964, till he attained the age of 58 years or till the expiry of the term of the post of Election Inspector whichever was earlier, vide annexure 4. It may here be mentioned that this age of 58 was attained by him on the 15th of August, 1965. Thereafter another communication was received from the Secretary to Government, Nirvachan Vibhag, dated the 25th of April, 1964 in partial modification of the order contained in the earlier communication making his period of re-employment for three months only with effect from the 1st of April, 1964 to the 30th of June. 1964 (vide Annexure 5). Thus while under Annexure 4 he had been employed for the period till he attained the age of 58 years or till this expiry of the term of the post of Election Inspector whichever was earlier, under this letter that period which extended upto his attaining the age of 58 years was reduced only to three months. It is against this order that Writ Petition No. 334 of 1964 has been filed. The prayer is for the quashing of Annexure 5 and for the issue of a writ of mandamus or a writ, order, or direction in the nature of mandamus directing the State of Uttar Pradesh and the District Magistrate, Lucknow, from giving effect to the order of the 25th of April. 1964, Annexure 5. It probably means a mandamus for not giving effect to the order dated the 25th of April, 1904. This writ was filed on the 20th day of May, 1964 though it appears to have been prepared on the 7th of May, 1964. Notice of this writ petition was served on the Standing Counsel, however, on the 11th of May, 1964, which allegation made in paragraph 12 of Writ Petition No. 357 of 1964 is admitted in the counter-affidavit filed in that writ petition. On the 16th of May, 1964, however, a notice was issued on behalf of the State of Uttar Pradesh opposite party No. 1, signed by the Secretary- cum-Chief Electoral Officer that without prejudice to the earlier letter under which the re-employment of the petitioner terminated on the 30th of June, 1964, the Governor was pleased to give notice that in any event his services would stand terminated on the expiry of June 30, 1964, in terms of the general rule promulgated under Notification No. 230/IIB-1953. dated January 30, 1953 regulating the termination of services of temporary government servant. This letter is Annexure 6 to writ petition No. 357 of 1964. It is after the receipt of this notice that Writ Petition No. 357 of 1964 was filed praying for the quashing of this order of the 16th of May, 64 (Annexure 6) also. A writ of mandamus also was prayed for refraining the opposite parties from giving effect to the order dated the 16th of May, 1964.
(2.)IT is in these circumstances that these two writ petitions come up for hearing together. The second prayer as to the writ of mandamus in either of them has become infructuous as the Court refused to grant interim relief during the pendency of the writ petitions.
There is an allegation in the subsequent writ petition to the effect that the Minister concerned was not favourably inclined towards the petitioner and after his appointment by the Chief Minister, Uttar Pradesh as Election Inspector, Lucknow, till he attained the age of 58 years he took exception to the order and made it a question of his prestige by tendering his resignation to the Governor. As a consequence in order to avert a ministerial crisis the petitioner's services were cut short upto the 30th of June, 1964. In the circumstances the impugned order is said to have been a mala fide order.
The other facts are not in dispute, but as to this allegation an affidavit has been filed on behalf of the Minister concerned who has denied that the individual case of the petitioner had been made a question of prestige by him though he admitted that there was a difference on a question of policy very much wider and more comprehensive than the individual case of the petitioner or anybody else. He has further stated that he had taken a view that the petitioner's service should not be extended but his view was not based upon any consideration peculiar to the petitioner. In his note that he had written he has stated that such re-employments which were not covered by the rules caused unnecessary heart- burning and bitterness in the office. He also pointed out that it was known as a fact that a very large number of officers were retired during 1962-1963 who were in every way suitable for re-employment and whose retention might have resulted in more efficient disposal of the work but because they had completed the age of 55 years they were compelled to retire. He also pointed out that it was a fact that there were always officials who know the work just as well as the retiring officer himself and they can always shoulder the responsibility of carrying on elections efficiently and in a capable manner. Another note of his pointed out that the re-employment of the petitioner and one more official who were due to retire is Sept-ember, 1962, amounted to discrimination in their favour which was not justified and it was likely to cause considerable heart-burning in the services and spoil their morale.
(3.)THE contention on behalf of the petitioner is that when once the petitioner had been appointed for a period till he attained the age of 58 years, his was an appointment for a definite term. THE post was continuing when he attained the age of 58 as would appear from Annexures B1, B2, B3, B4 and B5 which show that the post has been continuously sanctioned from time to time and the latest sanction of the post is till the 29th of February 1966 (it should be the 28th of February, 1966, as the year 1966 is not a leap year). By terminating his services prior to the end of this fixed term, it is urged, the petitioner has been removed from service within the meaning of that term under Article 311 of the Constitution and as such that Article of the Constitution has been violated.
Secondly, it has been urged that in the first place the G. O. of 1953, referred to in Annexure 6, viz., Notification No. 230/IIB-1953 dated January 30, 1953 does not apply to him and even if it is held that it applies to him then it is ultra vires as it is contrary to the guarantee under Article 311 of the Constitution given to a civil servant and secondly because it gives unfettered and uncontrolled power to the Government to make arbitrary selection and terminate the services of any one whose services it may come into their pleasure to terminate.