K B. Asthana, C.J., J.M. L. Sinha, J. - (1.) THE plaintiff appellant was, .at the relevant time, serving as a Booking Clerk in the North Eastern Railway in a temporary capacity. A notice dated 18th August 1965, signed by the District Commercial Superintendent, Izatnagar was served upon him terminating his service with effect from 21st of August 1965 as being no longer required. THE notice intimated that the plaintiff appellant would be given 14 days pay in lieu of notice. A true copy of the notice is on record. For convenience of reference it may be reproduced : North Eastern Railway Office Order " Services of Shri Abdul Hakim, Temporary Booking Clerk, PBE are terminated w. e. f. 21-8-1965 as they are no longer required. He will be given 14 days pay in lieu of notice. Sd. Distt. Commercial Supdt, Izatnagar".
(2.) THE plaintiff appellant, in accordance with the rules and procedures applicable to his service, went up in appeal and made representation but to no effect. A suit was then filed by him in the court of Munsif Gorakhpur for declaration and recovery of arrears of pay. THE cause of action pleaded, inter alia, was that the notice of his termination of service was bad and invalid as it did not conform with the provisions of Rule 149 of the Railway Eastablisment Code Volume I. It was pleaded that the plaintiff's services even as a temporary servant could only be terminated by notice of one month or if the termination was to take effect with immediate effect or before the expiry of one month, then on payment of salary of one month. We need not for the purpose of deciding this appeal refer to other pleadings of the plaintiff as nothing would turn upon them in this appeal. The defence was that the Union of India through the North Eastern Railway Administration had absolute power to terminate the services of a temporary servant and the notice served upon the plaintiff was valid and in accordance with the rules which did not lay down any condition precedent of payment of salary of one month before terminating the service. The other usual pleas were also raised in defence which again need not be referred to. Thus the main issue which arose on the pleadings of the parties in the court of first instance related to the validity of the notice of termination. The court of first instance accepted the defence plea and finding no invalidity in the notice of termination dismissed the suit. On appeal by the plaintiff the lower appellate court affirmed the findings of the court of first instance, dismissed the appeal and confirmed the decree for dismissal of the suit. The plaintiff then came up to this court in second appeal. When the appeal was heard by the learned Single Judge of this Court, reliance was placed on behalf of the plaintiff appellant on a decision of the Supreme Court in Senior Superintendent R. M. S. Cochin v. K. V. Gopinath Sorter, AIR 1972 SC 1437, and it was contended that Rule 149 of the Railway Establishment Code Vol. I, which was the appropriate rule applicable to the plaintiff, was in pari materia to Rule 5 of Central Civil Services (Temporary Service) Rules, 1965, hence the declaration of law made by the Supreme Cjurt in respect of the latter Rule, would equally apply to the facts and circumstances of the plaintiff's case. This contention of the plaintiff appellant was strenuously contested by the defendant respondant. It was submitted on behalf of the defendant respondent that Rule 149 of the Railway Establishment Code Vol. I differed materially in its language from Rule 5 of the Central Civil Service (Temporary Service) Rules 1965, and the law declared by the Supreme Court in Senior Superintendent R. M. S. Cochin v. K. V. Gopinath, Sorter (supra) was not attracted to the instant case. Reliance was placed on a Division Bench decision of this Court in Director of Technical Education U. P. Kanpur v. John Mohammad, 1975 AWC (J) 11. The learned Single Judge has referred the matter to the Division Bench observing that the declaration of law by the Supreme Court certainly helps the plaintiff appellant but the Division Bench decision of this Court militates against it which made it difficult for him to decide the appeal. This is how the second appeal has come before us.
(3.) WE have heard learned counsel for the parties. WE find no difficulty in solving the question that arises before us. In the case of Technical Education U. P. Kanpur v. John Mohd. (supra), the Division Bench of this Court was concerned with the Rule applying to termination of services of temporary Government servants made by the State of Uttar Pradesh and published in the Notification dated 30th January, 1953. The material part of that rule is as follows :- "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 servant 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 appointing authority to relieve a Government servant without any notice or accept notice for a shorter period without requiring the Government servant to pay any penalty in lieu of notice." A cursory perusal of this Rule would show that in its intent and scope it does not lay down a rule which makes it a condition precedent for effecting termination to pay an amount equal to one month's salary of a temporary Government Servant. In fact this very rule, as it stood then, was noticed by the Supreme Court in Senior Superintendent R M. S. Cochin v. K. V. Gopi Nath Sorter (Supra) and distinguished from Rule 5 of the Central Civil Services (Temporary Service) Rules 1965. WE do not think that the Division Bench of this Court in Technical Education U. P. Kanpur & another v. John Mohammad (supra), lays down any law contrary to the law declared by the Supreme Court in Senior Superintendant R. M. S. Cochin & another v. K. V. Gopinath Sorter (supra). The next question that arises is whether Rule 149 of the Railway Establishment Code, in its wordings and language is in pari materia with Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965.;