Kan Singh, J. - (1.) THIS is a plaintiff's second appeal arising out of a suit impugning the order for termination of the plaintiff's services on account of infringement of the statutory rule governing the conditions of service requiring the railway to make payment of the salary for the notice period where notice for termination of service was not desired to be given by the appointing authority. Western Railway Divisional office, Jaipur, No ES/890/8 Dated 5th July, 1961 Office Order Sub: Recruitment of class III Service ... Shri Moti Lal Sharma is appointed substitute Lab. Asst. in scale Rs. 60 -150 (P) on Rs. 60/ - plus allowances as admissible on the terms and conditions laid down in this office letter No. ES/890/6 dated 13 -3 -61. Sd/ - President Rly. Schools & DPO, Jaipur It will be noticed from the above that the terms and conditions that were to govern the plaintiff's appointment were those laid down in the office letter dated 13th March, 1961. That office letter has been brought on record as Ex. A 12. I may read the relevant portions of this letter: Western Railway Registered Post Ack. Due - - - - - - - - - - - - - - - - - - - - - - - - - - - No. ES/890/6 Divisional Office, Jaipur. 13th March, 1961 Shri Motilal Sharma S/o Khairati Lal Sharma Carpenter IOW BK I Sub; Employment to Railway Service Class HI staff Tfc. Deptt. - - - - You are hereby appointed as Sub Lab, Asstt. in the scale of Rs. 60 -150 (P) on Rs. 60/ -per month plus compensatory allowance, house allowance and dearness allowance as admissible under the rules in this office.
(2.) THE appointment offered to you is temporary and your services are liable to be terminated on 14 days notice or pay in lieu thereof. You will be considered for appointment in a permanent post on completion of a prescribed period of probation. You will have to conform all rules & regulations applicable to Government Railway employees The 4th, 5th, 6th and 7th clauses are about the plaintiff being required to make a declaration regarding his allegiance to India and to the Constitution of India and other matters which are not relevant for the purpose. Then, there is Clause 9 which I may read: You are being taken on trial on probation & appointment is not guaranteed. 2. It may be mentioned here that first the plaintiff was appointed vide letter Ex. A. 12. Then, there was cessation of that appointment and the plaintiff was appointed fresh vide order Ex. 5 but the terms & conditions were the same as mentioned in the earlier order of the appointment Ex. A. 12. The plaintiffs services were terminated vide order Ex. 6, dated 25th June, 1964. I may read this order as well: Western Railway No. ES/890/7 Vol. II Divisional Office, Jaipur Dated 25 -6 -64 Shri Motilal, Substitute Lab. Assistant, Rly: M.P.H.S. School BK I (Through the Principal, Rly. M.P.H.S. School BK I) Sub: Recruitment To Class III Substitute Teachers - - - - - Your services are not required with effect from 25/6/64 afternoon. Necessary charge if any held by you may please be handed over to the person as directed by the Head Master/Principal to whom a copy of the letter is being endorsed. Sd/ - President Rly. School and DPO Jaipur After serving the notice under Section 80 C.P. C the plaintiff brought the suit in the court of the Civil Judge, Jaipur District, Jaipur. The plaintiff averred that the order of termination was in the nature of a penalty and was in violation of Article 311 of the Constitution as no show -cause notice was served on him. The plaintiff claimed that he was a probationer and as a period of one year had been fixed by the relevant statutory rules as the period of probation he should be taken to have been confirmed on the post on completion of this period and thereafter his services could be dispensed with only in accordance with the disciplinary rules and not otherwise. The plaintiff took the position that though he was posted in the vacancy caused temporarily on account of one Shri P.D. Deshmukh having gone on leave, a clear vacancy thereafter occurred when the services of Shri Deshmukh were terminated and the subsequent appointment vide order Ex. 5 was thus against a clear vacancy. Then, in the alternative the plaintiff claimed that even assuming that plaintiff was still a temporary employee his services could be dispensed with only in accordance with Rule 149 of the Indian Railway Establishment Code. The Union contested this position 3. The learned Civil Judge framed a number of issues but eventually he dismissed the suit holding that the plaintiff was only a temporary employee and the order of termination of his services could not attract provisions of Article 311 of the Constitution. The learned Civil Judge also held that the notice of termination of the plaintiff's services was not otherwise invalid. In the result he dismissed the suit.
(3.) THE plaintiff then went up in appeal to the court of the District Judge, Jaipur District, Jaipur. The learned District Judge affirmed the finding of the first court. He held that the plaintiff was only a temporary employee appointed as a substitute for another and therefore the order of termination of the plaintiff's services could not be considered illegal. He repelled the contention that even without any order of confirmation the plaintiff could be deemed to have been confirmed automatically because the period of probation had expired. In the result the learned District Judge found that the order of termination of the plaintiff's service is unassailable and accordingly he dismissed the appeal. It is in these circumstances that the plaintiff has come in further appeal to this Court.;