- (1.) J. C. Gupta, J. By means of this writ petition, the petitioners have prayed for the quashing of the order dated 7. 10. 83 (An-nexure 1 to the writ petition) passed by the U. P. Public Services, Tribunal, respondent No. 2, whereby the order dated 13. 10. 86 terminating the services of respondent No. 1 as confirmed by the appellate order dated 16. 4. 78, was set aside and the respondent No. 1 was ordered to be paid pay and al lowances as if his services were never ter minated. Respondent No. 1 was admittedly appointed as P. M. H. S. Officer on temporary basis by the order dated 2. 8. 72. The appoint ment order contained that the services of respondent No. 1 were liable to termination after giving one month's notice. He did not join his duty at Fatehgarh in pursuance of the order, dated 2. 8. 72. Consequently, the appointment order of respondent No. 1 was cancelled by the order dated 19. 9. 72. The order dated 19. 9. 72 was recalled and respondent No. Ijoined his duties at Amoli Primary Health Centre as Medical Officer on 18. 10. 72. According to the respondent No. 1, he was on leave duly supported by Medical Certificate from 14. 5. 74 to 20. 10. 74 and during his leave he was transferred to Allahabad, where he submitted his joining report on 21. 10. 74, but he was not allowed to join his duties and his services were ter minated by an order dated 13. 10. 76, whose copy has been annexed as Annexure 6 to the writ petition. The services of respondent No. 1 were terminated by an order simpliciter purporting to be made under the provisions of Uttar Pradesh Temporary Government Servant (Termination of Ser vices) Rules, 1975, by giving one month's notice. The respondent No. 1 filed an appeal against the said order, but the same was also dismissed by the order dated 16. 4. 78. The respondent No. 1 then filed a claim petition before respondent No. 2 for the quashing of the aforesaid order. By the impugned order dated 7. 10. 83 the termination order of the petitioner has been set aside.
(2.) THE case of the petitioners before the respondent No. 2, in short was that on a general assessment of work and conduct, respondent No. 1 was found not suitable for the job and his services were terminated by a simple order without casting any stigma and consequently respondent No. 1 was not en titled to get any inquiry conducted. Before this Court the learned Stand ing Counsel appearing for the petitioners contended that since the services of respon dent No. 1 were terminated under the provisions of Uttar Pradesh Temporary Government Servant (Termination of Ser vices) Rules, 1975 the need to conduct in quiry as contemplated under Articles 311 (2) of the Constitution, by necessary im plication got obviated. Rule 14 (a) of the said Rules provides for termination of ser vices of temporary Government servant either with one month's notice or pay in lieu there of and therefore it was submitted that once the services of the petitioners have been terminated by means of an order simpliciter, the Tribunal committed an error in law by quashing the termination order. In reply the contention of the learned counsel for respondent No. 1 is that even where the appointing authority purports to act either in accordance with the terms of the employ ment or under the aforesaid Rules, it cannot act arbitrarily with discriminatory treat ment and since the petitioner has been treated discriminately inasmuch as officers junior to him were retained in service, the termination order is violative of Article 14 of the Constitution. Before dealing with the contentions canvassed on both sides, it will be useful to notice the relevant undisputed facts. The respondent No. 1 was appointed initially in temporary capacity. His services were ter minated under the aforesaid Rules by giving one month's notice without assigning any reason. The allegation of respondent No. 1 is that the officers junior to him, were still retained in service, when his services were terminated and this has also been found as a fact by the Tribunal. The Tribunal has also found as a fact that the contention of the petitioners, that respondent No. 1 was found to be unsuitable, was not acceptable, as no material was available at the time of passing the impugned order, which could support petitioners' stand that respondent No. 1 was unsuitable. The adverse remarks for the year 1973-74 made against respon dent No. 1, were communicated to him much later than the date of passing of the termination order. The Tribunal has also observed that respondent No. 1 was awarded good entry by the Deputy Chief Medical Officer, Family Planning in the year 1974-75 whose remark was endorsed by the Chief Medical Officer, Pitehpur on 18. 5. 74. The Tribunal was of the view that as the petitioner till the passing of the impugned order had not been communicated any ad verse remarks and he had no opportunity to make a representation against the said ad verse remarks, therefore, the adverse entry had to be excluded from consideration for coming to the conclusion of unsuitability. The other ground of unsuitability of respon dent No. 1, which has now been raised in the writ petition, was never raised before the Tribunal. Therefore, the petitioners cannot be permitted to raise new grounds in sup port of their stand or opinion of un suitability of respondent No. 1.
(3.) THE main question which falls for consideration is whether the impugned order of termination, which purports to have been made under the terms of the employment and under the provisions of the aforesaid Rules of 1975 could be challenged on the ground of contravention of guaran tee of equal treatment embodied in Article 16 of the Constitution. THE learned counsel for the petitioners contended that since respondent No. 1 was appointed in a tem porary capacity, his services could be ter minated at any time after giving one month's notice, especially where the ser vices were terminated in accordance with the conditions of service and under the Statutory Rules. In my opinion this conten tion of the learned counsel must be repelled. Even where the services of a temporary ser vant are dispensed with by giving one month's notice as provided under the Rules, but simultaneously retaining persons junior to him, valid reasons must be shown by the authority making the termination order for such an action. In the case of Union of India v. Pandurang More, AIR 1962 SC 630, the Apex Court proceeded on the assumption that Article 16 of the Constitution might be violated by an arbitrary and discriminatory termination of service. In the decision in the case of The Manager, Government Branch Press and another v. D. B. Belliappa, AIR 1979 SC 429, it was contended before the Apex Court on behalf of the employer that Articles 14 and 16 (1) of the Constitution have no applica tion, Whatsoever, to the case of a temporary employee whose service is terminated in accordance with the terms and conditions of his service because the tenure or the dura tion of the employment of such an employee is extremely precarious being dependent upon the pleasure and discretion of the employer-State. The Apex Court observed as under: "in our opinion no such generalisation can be made. The protection of Article 14 and 16 (1) will be available even to such a temporary Govern ment Servant if he has been arbitrarily dis criminated against and singled out for harsh-treat ment in preference to his juniors, similarly cir cumstanced. It is true that the competent authority had the discretion under the conditions of service governing the employee concerned to terminate the latter's employment without notice. But, such discretion has to be exercised in accord ance with reason and fair play and not capricious ly. Bereft of rationality and fairness, discretion degenerates into arbitrariness which is the very antithesis of the rule of law on which our democratic polity is founded. Arbitrary invocation or enforcement of a service condition terminating the service of a temporary employee may itself constitute denial of 'equal protection and offend the equality clause in Articles 14and 16 (1 ). ";