Ghulam Rasool Mir vs Assistant Electrical Engineer

Gupta. ACJ

This appeal under Clause 12 of the Letters Patent is directed against the judgement of the learned Single Judge announced on 4th May, 1985 in

Writ Petition No.292/ 83, whereby the writ petition filed by the appellants herein was dismissed by the learned Single Judge. When the appeal

came up for hearing, Mr. A.K. Malik submitted that the appeal was being pressed only with respect to appellants 1, 7, 10, 11, 12, 13, 15, 17, 22

and 23 and that in respect of other appellants the appeal was not pressed.

The appellants had been appointed at relevant periods of time as permanent daily labourers/temporary daily labourers (PDL/ TDL for short).

They felt aggrieved of the passing of the order on 29th April, 1983 by the Assistant Electrical Engineer whereby their services were terminated

with effect from 141983. Various orders were passed in respect of various appellants separately, but the text of the orders was common to all of

them. The text of the order reads as under :

Sub: Notice of termination from service. Ref: Power Development Commissioner's Telegran No.424Est/128032AS dated: 221983.

As your services are not required by this department, you are being terminated from service w.e.f. 141983.

Sd/

Asst. Electrical Engineer,

Electric SubDivision, Langate.

The appellants are relying upon Government Order No.81PDD of 1980 dated: 15th April, 1980, whereby, according to them, the Government

had itself stated and committed that the PDL/TDL who are appointed before 31st of July, 1979 but had not completed five years of service would

continue as such and would not be brought in regular establishment on completion of five years. However, as and when any vacancy occurred in

the regular establishment, it would be filled up from amongst such PDL/TDL etc. Clause (J) of this Government Order, which is relevant for our

purpose is reproduced as under

(J) No further regularisation of PDL/TDL shall be made in future. Those who on July 31, 1979 had less than five years in service as PDL/TDL

will continue as such. They will not be brought in regular establishment on completion of five years service but as and when there occurs any

vacancy in the regular establishment it will be filled from amongst such PDL/TDL vacancies in the department which may be [SIC] comparable to

the posts on which PDL/TDL has been adjusted will not be available for direct recruitment till the whole lot of PDL/TDL gets adjusted.

The appellants submit that they had been appointed before 31st July, 1979 and despite the aforesaid stipulation in the Government Order, vide

the impugned orders, the respondents terminated their service which was an act patently in contravention of the Government order itself.

The learned Single Judge vide the impugned judgement clearly held that the appellants had no right to continue in service because of the nature

of their appointment. Admittedly, on the own showing of the appellants, they were not holding any substantive post on regular basis, nor were they

appointed to any such regular post through any regular selection process. By its very nature, the appointment of the appellants were wholly casual

in nature because they were daily labourers working on such projects where their services may or may not have been required from time to time.

There is no doubt that the State and the competent appointing authority had the power to terminate the services of the aforesaid PDL/TDL if they

were not required any more.

Mr. A.K. Malik, learned counsel appearing for the appellants, submitted that some others similarly placed as the appellants were allowed to

continue, but the respondents discriminated against the appellants by terminating their services. The answer to Mr. Malik's submission had to be

found in the following observation of the learned Single Judge in the judgement under appeal:

Petitioners have tried to make out a case that some PDLs similarly circumstanced with the petitioners in the Department were adjusted against the

available posts and petitioners were discriminated against. However, no such person is made a party in the writ petition nor is it shown in any of the

paras as to who was adjusted in the department against the permanent posts and the petitioners were not given consideration for adjustment.

These allegations appear to be vague and is not supported by any document.

The law is well settled on the point. The appointing authority has the power to terminate the services of a person if his services were not required,

provided the termination is not based on some punishment or it does not cast a stigma upon the employee concerned. If the termination is based

upon some punishment or the order terminating the services casts a stigma on the employee whose services are terminated, the provisions of

Article 311 of the Constitution of India come into play immediately. In either of these two eventualities the employee concerned has a right of being

informed of the reasons of such termination and, depending upon the nature of employment, and obligation may be cast upon the employer to

afford the employee an opportunity of being heard and to hold a detailed enquiry into the matter by following various procedural safeguards

contained in the relevant and applicable service rules and regulations. That, however, goes only in those cases where termination is by way of

punishment or it casts stigma on the employee concerned. Where the termination simpliciter is on the ground that the services are not required, the

employer has no such obligation. It is entirely in the discretion of the employer to decide as to whether he requires the services of an employee or

not, depending upon the nature of the work, its requirements, the financial constraints etc. Only one safeguard is provided in such cases. The

employer cannot arbitrarily pick and choose the employees for such termination. He has to follow a procedure in the sense that the employee or

the employees sought to be terminated have to form and constitute a single case. The golden principle in such cases is of last come first go. If this

principle is violated, the aggrieved employees can have a legitimate grievance and approach this court for redressal.

As observed above, the learned Single Judge has very correctly held that no such allegation was made in the writ petition, nor was any instance

of such discrimination shown by the appellants, nor did not the appellants either implead any such person as a party in the writ petition. Nor was

any such order challenged or attacked on any ground.

More than twelve years have since elapsed when the orders impugned in the writ petition were passed. We do not know whether the appellants

immediately went out of service because of the passing of the impugned order? or are continuing in service either at the instance of the respondents

or because of some direction issued by the Court. If the appellants are out of service, we are not in a position to help them in any manner because

of our findings returned above. However, if the appellants or any one of them were not thrown out of service because of the passing of the orders

impugned in the writ petition, either on the basis of the court direction or otherwise, the appellant's continuance in service all these years has earned

them equity in their favour. Equitable consideration being that the continuous service of post about 13 to 14 years should not render them jobless

now, at a stage when this appeal is being disposed of. If, therefore, as observed above, the appellants are in continuous service, or any of them is

in continuous service since 1983, irrespective of the termination orders, the respondents shall not dislodge them from service and treat them to

have been in regular service all these years without break. That being the case, formal orders regularising their services shall be passed, with all

consequential benefits to the appellants, or any one of them, as the case maybe.

With the aforesaid observations, we dismiss the appeal. No order as to costs.