JASRAJ CHOPRA, J- - (1.) THIS special appeal is directed against the order of the learned single Judge of this Court dated 29.7.86 whereby the. petitioner's writ petition has been dismissed.
(2.) THE contention of the petitioner-appellant is that he was initially appointed as L.D.C. in the respondent Paschimi Rajasthan Dugdh Utpadak Sakhari Sangh Ltd., Jodhpur on purely adhoc basis for a period of six months vide Order Annexure-1 dated 18.1.1986. It is alleged that while the petitioner- appellant was in service, he was asked to explain his conduct vide letter Annexure-6 dated 19.5.86. Certain irregularities were pointed out as regards his working in the discharge of his duties as a Despatcher THEreafter, by order Annexure-3 dated 17.6.1986, he was transferred from Jodhpur to Phalodi. However, vide order Annexure-2 dated 21.6.1986, his services were terminated on expiry of six months. THE petitioner-appellant has challenged the order Annexure-2 dated 21.6.1986 on two grounds: firstly that it is penal in character and secondly that it is arbitrary as persons appointed with him and after his have been retained in service and, therefore, it is violative of Articles 14 and 16 of the Constitution. It has been alleged that one Shri Ramesh D. Purohit was appointed with the petitioner -appellant and he has been retained in service whereas the services of the petitioner-appellant has been terminated. It has further been claimed that one Shri Nabi Hussain was appointed vide Order dated 31.4.1986 for a period of four months and his services were extended for a further period of two months vide Order Annexure-5 dated 24-6-1986. Thus, it has been submitted that Shri Nabi Hussain, who was appointed after the petitioner has been kept in service whereas the services of the petitioner-appellant have been terminated and, therefore, the order Annexure-2 dated 21.6.1986 is arbitrary and violative of Articles 14 and 16 of the Constitution. The writ petition came to be dismissed in limine by a learned single judge of this Court on the ground that the petitioner's appointment was a term appointment and therefore, the termination of the services of the petitioner after the expiry of that term is not violative of Articles 14 and 16 of the Constitution. It was further held by the learned single Judge that since the appointment of the petitioner is being terminated in terms of the order as the petitioner was appointed for a fixed term, therefore, simply some persons who have been appointed later on, they are retained in terms of their appointment, then no exception can be taken to the termination of the petitioner's appointment after expiry of the fixed term. No reason for unsuitability or misconduct has been disclosed in the order. It was also held that the order is innocuous simplicitor, therefore, unsuitability and misconduct as the basis for termination cannot be inferred. We have heard Mr. M. Mridul, the learned counsel appearing for the petitioner-appellant and Mr. B.C. Mehta, the learned counsel appearing for the respondents. The contention of Mr. Mridul is that the impugned order Annexure-2 dated 21.6.1986 suffers from two vices: i.e.(i) it is penal in character and (ii) that it is arbitrary and violative of Articles 14 and 16 of the Constitution of India. He has submitted that certain authorities were cited before the learned single Judge out they were not considered. He has also drawn our attention to certain authorities, which we shall deal with hereunder.
(3.) OUR attention has been drawn to a decision of their lordships of the Supreme Court in Commodore Commanding, Southern Naval Area V. V.N. Ranjan (1), wherein it has been held : "that even a temporary Govt. servant is entitled to the protection of Art.311(2) of the Constitution where termination involves a stigma or amounts to punishment." It may be stated here at the very outset that in this case, the appointment of the petitioner was purely on adhoc basis for a fixed term of six months. It is not a case of regular appointment on temporary basis. In Commodore Commanding, Southern Naval Area's case (supra), the petitioner was appointed as a Labourer on casual basis on 18.12.1961. He continued the respondent's employment as labourer in lieu of Sailor in B.R.O. (Installation) Department, Cochin against some existing vacancy with effect from the forenoon of 18.1.62 by Ex.P.2. When he was casual labourer in the B.R.O. (Installation) Department, he was transferred by the appellant to the Naval Armament Depot, Always and appointed as labourer in the regular cadre in the scale mentioned therein plus allowances as admissible from time to time in an existing vacancy with effect from 15.11.62. Subsequently, when the respondent was working as a labourer in the Naval Armament Depot, at Always, the appellant promoted him and appointed him as A.R.L. Gr.II in the Naval Armaments Depot, Always in the scale mentioned therein plus allowances as admissible from time to time in an existing vacancy with effect from the forenoon of 2.3.64. Thereafter, his services were terminated by order dated 17.1.67. It was held by their lordships of the Supreme Court that they are satisfied that the decision to terminate the services of the respondent had been taken at the highest level on the ground of unsuitability of the respondent in relation to the post held by him. It was observed that it is not by way of any punishment and no stigma is attached to the respondent by reason of the termination of his services but still, this termination on the ground of unsutability attracted Art. 311(2) of the Constitution. Suffice it to say, that it was not a case of term appointment on adhoc basis but it was a case of temporary appointment where the petitioner was in service for about 6 years and during that period, he was absorbed as a regular employee and even he was promoted to the next higher post and it was thereafter that his services were terminated. It was in these circumstances that such a termination was held to be violative of Art.311(2) of the Constitution. Our attention was next drawn to a decision of their lordships of the Supreme Court in State of U.P. V. Sughar Singh (2). That was a case of reversion of the petitioner, although his juniors were retained on promotional post which they occupied on officiating basis. It was felt that such reversion amounts to punishment and, therefore, it entails the vice of Art. 311(2) of the Constitution. It was, therefore, observed that such a reversion cannot be made without taking disciplinary proceedings. Here, in the case in hand, Shri Ramesh D. Purohit has been retained in service because he was senior to the petitioner in merit and, therefore, no grouse can be raised as regards the retention of Shri Ramesh D. Purohit. So far as the case of Shri Nabi Hussein is concerned, it has been claimed that initially he was employed in the Census Department of the Govt. of Rajasthan, where he was declared surplus and, therefore, he was ordered to be absorbed by the respondents vide an order of the Govt. His absorption is regulated by the Rajasthan Civil Services (absorption not affect the case of the petitioner. Moreover, Shri Nabi Hussain of Surplus Personnel) Rules, 1969 and, therefore, his retention can too was given a term appointment and that term appointment had not expired. Earlier, he was appointed for a period of four months but later, his term was extended for a further period of two months. It is not known what has happened after completion of his six months' services. So that as it may, it is clear that Shri Nabi Hussain is a surplus employee and is guided by the Rajasthan Civil Services (Absorption of Surplus Personnel) Rules, 1969 and, therefore, no exception can be taken to the retention of such a person, who was earlier in service and has been absorbed in the respondent Paschimi Rajasthan Dugdh Utpadak Sahkari Sangh Ltd. under the orders of the Govt. Thus, this authority (Supra) has no application to the facts of this case. Our attention was also drawn to a decision of their lordships of the Supreme Court in Nepal Singh V. State of U.P.(3), it was a case of Sub-Inspector, who was in service prior to 1964. The exact date of has appointment is not known but it is certain that in the year 1964, when he was posted at Pithoregarh, he contacted a second marriage, while his first wife was alive and thereafter, certain adverse entires were made against him on account of law reputation and integrity and his habit of creating problems everywhere he is posted and the encouragement provided or given by him to the gambling activities, excise offences and brothel criminals etc. His services were terminated by Order dated 27.4.1978 i.e. after about more than six years of his services. He was a regular employee on temporary basis. In those facts, it was observed by their lordships of the Supreme Court that where allegations of misconduct are levelled against a Government servant then it is a case where the provisions of Article 311(2) of the Constitution should be applied. It is not open to the competent authority to take the view that holding the enquiry contemplated by that clause would be a bother or a nuisance and that, therefore, it is entitled to avoid the mandate of that provision and resort to the guise of an ex facie innocuous termination order. In this case, there are no such allegations. The only allegation made against the petitioner is with regard to the irregularity in the maintenance of the despatch and receipt registers and that aspect of the matter will be dealt with later on. ;