- (1.) THESE three Writ Petitions (C. W. P. Nos. 127, 29 and 2236 of 1976) raise a common question, whether the termination of the services of a Government employee temporarily appointed to a post or the reversion of an employee temporarily promoted to a higher post offends Article 16 (1) of the Constitution, if his juniors, also appointed temporarily, are continued in service, or if his juniors, also promoted temporarily, are continued in higher posts. Shri Jawahar lal Gupta, learned counsel, argued that the Fundamental Right guaranteed by article 16 (1) of the Constitution was available not only at the stage of initial recruitment but at all subsequent stages incidental to employment such as promotion, reversion, termination of service etc. He urged that the rule of 'last come, first go' was essentially a rule of 'fair play' which was required by law to be observed as much in Government employment as in Industrial employment. If without adequate explanation the rule was departed from and a senior temporary employee's services were terminated while retaining his juniors, there was a violation of the Fundamental Right of equality of opportunity guaranteed by Article 16 (1) of the Constitution. According to the learned counsel whenever a temporary employee's services were to be terminated, the claims of all temporary employees for retention in service had to be considered and thereafter only it was to be determined as to who was to go. Shri Jawahar lal relied upon certain decisions to which we shall presently refer.
(2.) A certain amount of confusion has been created by the occasional importation of the principle of last come, first go from Industrial Law into the law relating to public servants. The primary interest of Industrial Law is the ensuring of industrial peace. A frequent cause of labour unrest being the victimization of employees in the guise of retrenchment, the rule of 'last come, first go' has been evolved. The primary object of the law relating to public servants is the securing of efficiency in public service, the interest to be served being the public interest. There is thus a basic difference between the goals of industrial law and the law relating to public servants. It will not therefore be right to import, rigidly, into the law relating to public servants the principles applied in Industrial Law, however salutary they may be. The rule 'last come, first go', so well recognised in Industrial Law, is undoubtedly a salutary rule. It is perhaps desirable to apply it to public servants too. Indeed, very often it is so applied. But it is one thing to say that it is desirable to apply the rule of 'last come, first go' in given situations and that it is often so applied, it is quite a different thing to say that the failure to apply the rule leads to the necessary inference of denial of equal opportunity under Article 16 (1 ). To say so would be to elevate the rule to a rule of universal application, which it is not. The supreme Court did not say anything different in Ramaswamy v. I. G. of Police, air 1966 SC 175 on which Shri Jawahar Lal Gupta placed considerable reliance. The observations on which the learned counsel relied were:-- "the rule (Rule 2 of the Mysore Seniority Rules), therefore, cannot be held as expressly providing for the principle of 'last come first go' with which one is familiar in industrial law. . . . . . . . . Even so, it may be conceded that when reversion takes place on account of exigencies of public service the usual principle is that the junior most persons among those officiating in clear or long term vacancies are generally reverted to make vacancies for the senior officers corning back from deputation or from leave, etc. Further ordinarily as promotion on officiating basis is generally according to seniority, subject to fitness for promotion, the junior most person, reverted is usually the person promoted last. This state of affairs prevails unless there ere extraordinary circumstances, as in the present case. " The observations of the Supreme Court were no more than mere statements of fact concerning the general practice in such matters. They should not be confused with statements of law. The Supreme Court was merely stating that though the rule of 'last come first go' was not a rule of law it was generally observed in practice except under extraordinary circumstances. The Supreme court neither sanctified the rule as a rule of law nor declared its nonobservance a violation of Article 16 (1 ).
(3.) SHRI Jawahar Lal placed very strong reliance on State of Mysore v. Kulkarni, 1972 Serv LR 795 = (1972 Lab IC 1280) (SC) and State of Uttar Pradesh v. Sughar Singh, (1974) 1 Serv LR 435 = (1914 Lab IC 353) (SC ). In the first case, which was decided by Ray C. J. and Beg J. , it was found, on the facts that officers who were junior to and less meritorious than the respondents had stolen a march over them, because of a certain misapprehension in the mind of the Government The order of reversion of the respondents was, therefore, held to be based on legally extraneous grounds and in violation of Article 16 (1 ). The decision is of no help to the petitioner. In the second case which was decided by mathew and Beg JJ. , the facts, as the learned Judges themselves said, were very peculiar. From out of a group of about 200 officers most of whom were junior to Sughar Singh, he alone was reverted, not for any administrative reason but because of an adverse entry made in his confidential character roll. On the facts and circumstances of the case it was found that the reversion was in truth a measure of punishment which was imposed without observing the requirements of Article 311. Some observations were also made suggesting that there was an infringement of Articles 14 and 16 of the Constitution. It was said:-- "the respondent's counsel then challenged the order of reversion on another ground. He pointed out that at least 200 Head Constables who had taken training as Cadet Sub-Inspectors of Armed Police at sitapur after the respondent and who were junior to the respondent have still been allowed to retain then present status as Sub-Inspector and have not been reverted to their substantive post of Head constable. Unless this can be justified as a measure of punishment, the reversion of the respondent would amount to discrimination in contravention of the provisions of Articles 14 and 16 of the constitution. The facts on which this contention is based are found in paragraphs 7 and 20 of the petition. The contention itself is to be found in ground No. 3 of the writ petition. The complaint, we must say, is one which has to be sustained. No possible explanation in this extreme form of discrimination has been shown to us. Indeed, it appears from the judgment of the third learned Judge, who heard the petition in the High Court that in answer to a question put by him, the standing counsel appearing for the State clearly stated that the order of reversion was a result of the adverse entry made in the appellant's confidential character roll. If this statement of the learned standing counsel has to be accepted, it is impossible to resist the suggestion that the respondent's order of reversion was really an order of punishment in disguise in which event the order must be struck down for non-compliance with the requirements of Article 311 of the constitution. The appellant in fact faces a dilemma. If it was not a case of punishment, it becomes difficult to explain why this discrimination was made against the respondent vis-a-vis at least 200 other officers who were junior to him in the substantive cadre. That would make the order liable to be struck down as violative of Aricle 16 of the Constitution. Reference may be made to State of Mysore v. P. R. Kulkarni, 1972 Serv LR 795 = (1972 Lab IC 1280) (SC) where an order of reversion was struck down by this Court on the ground of 'unjustifiable discrimination' which brought the order within the mischief of Articles 14 and 16 of the Constitution. . . . . . In the instant case we have no doubt in our mind that the peculiar circumstance that from out of a group of about 200 officers most of whom are junior to respondent, the respondent alone has been reverted to the substantive post of Head Constable makes it absolutely clear that there was no suggestion at any time made on behalf of the appellant that the post had been abolished or that the respondent was for administrative reasons, required to go back to his own post of Head constable. This circumstance only corroborates what the learned standing counsel for the State admitted before the High Court that the foundation of the order of reversion is the adverse entry made in his character roll. In this view of the matter, we have no doubt that the order was passed by way of punishment, though all outward indicia show the order to be a mere order of reversion. Even if it were not so, we have no doubt that the order would be liable to be quashed on the ground of contravention of Articles 14 and 16 of the constitution. ";