SHRINIVAS GANESH Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS is an appeal by an employee of the Military Accounts Department whose services were dispensed with, and he filed a suit from which this appeal arises contending that the order discharging him was not a valid order and that he continued to be in service of the Department. The appellant passed the entrance examination in June 1941, obtained a medical certificate of fitness on 24-10-1941 and he was appointed a clerk on the same date in the Military Accounts Department. In January 1948 he was transferred to Bombay and he served in the office of the Controller of Naval Accounts. He continued to serve in this Department till 8-12-1948 when he was dis-charged. The order of discharge states :

(2.) THE first question that we have to consider is whether the appellant was a temporary or a permanent servant of Government. There is a large volume of evidence which the learned Judge has considered which leaves no doubt that the appellant was a temporary servant and was never confirmed. In his own plaint he avers that the appointment of the plaintiff had become a permanent one in pursuance of the relevant rules and other rules, this averment clearly implies that when the plaintiff was appointed he was appointed as a temporary servant, and the plaintiff has failed to adduce any evidence in support of his contention that at ,a later date he was made permanent or confirmed in his post. In his evidence also he has referred to his expectation that he would be confirmed in his post in or about the year 1947 and he has admitted that during the course of his service he did not receive any order or letter from the department confirming him or making him permanent. In the certificate that was issued to him on his being discharged he is referred to as a temporary clerk and in the service register which he has signed he has throughout been referred to as a temporary clerk. In the letter which he wrote on 10-12-1948 after he was discharged, he states that he had more than seven years service in the department and hence he was expecting confirmation in the department, and he makes a grievance of the fact that he asked for bread but got a stone and that instead of getting confirmation he was discharged from service. On this evidence we agree with the learned Judge that the appellant was a temporary servant of Government who was at no time confirmed in his post, nor at any time made permanent.

(3.) THE interesting question that has been argued by Mr. Vakharia is as to what are the rights of a temporary Government servant vis-avis the Constitution, and Mr. Vakharia's contention is that this order of discharge was passed against his client without the constitutional safeguards guaranteed to him being complied with. The constitutional safeguards on which reliance is placed are not the constitutional safeguards, given by Article 311 of the Constitution but Section 240 (3 ). Government of India Act which was in force, but as is well known the section and the Article are practically in 'pari materia'. What is urged is that the appellant was dismissed from service without any reasonable opportunity being given to him to show cause against the charge that was levelled against him that he was permanently incapacitated. In this Court we have held in several decisions that a temporary Government servant cannot claim the rights provided in Article 311 of the Constitution, and the same would be the position with regard to Section 240 (3 ). What Mr. Vabharia wanted to urge before us today was that even in the case of a temporary Government servant if the Government wishes to dismiss him or remove him or reduce him in rank, he is entitled to the same rights as a permanent servant. Mr. Vakharia's contention is that the tenure of service has nothing whatever to do with the rights that a Government servant has under Section 240 (3) or Article 311.