- (1.) We have heard learned Counsel for the petitioner. The petitioner was appointed as a temporary Assistant Medical Officer, on an ad hoc basis, and his services were liable to be terminated at any time without assigning any reason, on giving a month's notice on either side. The petitioner appeared for selection before the Union Public Service Commission for appointment to the post of Assistant Medical Officer, in accordance with the provisions of the Indian Medical Department (Assistant Medical Officers Class II Recruitment) Rules, 1967, but he could not be selected. Even after the rejection of his candidature by the Union Public Service Commission, the petitioner was allowed to continue on the aforesaid post in a purely temporary capacity on ad hoc basis and his term was extended from time to time. By the order of the General Manager, Northern Railway, issued in March 1996 the petitioner's service was terminated with effect from the date of expiry of one month's notice from the date of service of such notice. The case of the petitioner before this Court is that he was removed from service without recourse to proceedings under Article 311 of the Constitution, and the order of termination, is in fact one of removal from service and is, therefore, bad in law. It has also been argued by the learned Counsel that the petitioner was unlawfully discriminated against as other persons who were also not selected by the Union Public Service Commission, were allowed to continue on the posts of Assistant Medical Officer in a temporary capacity on ad hoc basis, although the petitioner's service was terminated by the order Ex. 2.
(2.) The order of termination of service of the petitioner (Ex. 2) is innocuous in nature and does not cast any stigma. But the contention of the learned Counsel is that merely the form of the order is not conclusive but its true nature must be considered by this Court. In the writ petition a show cause notice was issued to the respondents and in the reply filed by the Railway Administration it has been stated that the services of temporary Assistant Medical Officers, working on ad hoc basis were extended from time to time by the Railway Board and for such extension review of the performance of the persons working on the posts of Assistant Medical Officer on ad hoc basis was undertaken. The competent authority on review found the service of the petitioner to be unsatisfactory and the service of the petitioner was terminated not by way of penalty but purely for administrative reasons.
(3.) The law relating to the discharge of temporary employees has now been well settled by a catena of cases decided by their Lordships of the Supreme Court. In the case of Jagdish Mitter v. Union of India, 1964 1 LLJ 418 SC it was held that the appropriate authority may make an enquiry whether the temporary employee deserves to be continued. Such an enquiry is actuated solely by the desire to decide the simple question as to whether the temporary servant should be continued or not and is undertaken, for that purpose alone without any desire to attach any stigma to him. An enquiry of this character must be distinguished from a formal departmental enquiry which is undertaken for the purpose of punishing an employee. In case after such an enquiry, the authority decides to terminate the service of the temporary employee such termination would not amount to dismissal or removal, as. no stigma attaches to it. The test in such cases must be, does the order cast an aspersion or attach a stigma to the person when it purports to discharge him. If the answer to this question is in affirmative, then notwithstanding, the form of the order, termination of service must be held in substance to amount to dismissal. But if the answer is in the negative, then it is discharge simpliciter.;