Sidak Bala vs State of Punjab and Another

R.P. Nagrath, J.—The petitioner has assailed the termination order dated 26.10.1987 (Annexure P-2) passed by respondent No. 2, her appointing authority, being arbitrary, mala fide, discriminatory in nature. She was not afforded any opportunity of being heard and the order is also non-speaking. The petitioner''s appointment was purely temporary and she claimed to have put in more than 2 1/2 years of service and thus stood regularized in view of the law laid down in Piara Singh''s case. As per the letter dated 07.06.1985 (Annexure P-1) issued to the petitioner by respondent No. 2, her appointment was purely on temporary basis and liable to be terminated at any time without any notice or assigning any reason. The petitioner could also resign from service by giving one month''s notice or deposit one months'' pay in lieu of notice.

Though, the order (Annexure P-2) appeared to be innocuous and termination simplifier, stating that the services are no longer required, it ultimately turned out that the same was based on the misconduct and moral turpitude. Secretary to Government, Punjab Rural Development & Panchayats Deptt. disposed of the revision petition filed by the petitioner against the orders of the former Joint Development Commissioner in appeal vide order dated 08.11.1993 (Annexure P-8). This order suggests that the Addl. Deputy Commissioner (Development)/District Rural Development Agency, Ferozepur held a proper enquiry and prima facie case of immoral turpitude and as such action of the appointing authority, terminating the services of the petitioner is legally in order and based on correct appraisal of the facts of this case. The revision petition was, thus, dismissed.

The learned counsel for the petitioner relied upon two judgments of this Court to support his contention that it is not the form of order of termination but the real import of the order to be determined on the basis of the attending circumstances in reaching the true conclusion. In Dr. Jai Singh Malik v. State of Haryana, 1987 (1) SLR 263, the petitioner was appointed as Medical Officer on ad hoc basis and working as such since 1977. In the written statement it was averred that there were serious complaints about the moral conduct of the petitioner and on many occasions he tried to outrage the modesty of female employees during his posting. Otherwise, it was stated that the services of the petitioner were not terminated by way of punishment but simply on the basis of letter of appointment. In the facts of the case, it was held by this Court that termination order was passed by way of punishment. It was found that immoral conduct attributed to the petitioner in the written statement is not just a motive but is the very basis and the foundation of the termination order. It was held as well settled that form of the order is not conclusive. The real import of the order is to be determined on the basis of the attending circumstances. In reaching the true conclusion, the Court can pierce the veil and look behind the innocuous language employed in an order of termination. It was also found that as a matter of fact no show-cause notice was issued to the petitioner and no enquiry was held against him. It was not spelled out from the written statement as to why the services of the petitioner were no longer required when his juniors were retained in service. The petition was allowed by quashing the impugned order.

In Barkat Ram v. The Collector, Ferozepur and others, 1982 (1) SLR 30, the petitioner was appointed on temporary basis against permanent post of Patwari but he was retrenched from service in order to accommodate disbanded staff of Consolidation Department. The petitioner in that case had rendered more than 3 years of service. This Court held in the light of the rules applicable to the service of the petitioner that with the expiry of the period of probation the petitioner who had been appointed against the permanent post acquired the right to hold that post. Being the situation his services could not be terminated without compliance with the rules or the provision of Article 311 of the Constitution of India. It was further found that in the absence of the return on behalf of the respondents, there was nothing for this Court to disbelieve the allegations made by the petitioner in the petition.

(Emphasis supplied)

The above two cited cases were based on their peculiar facts and are not applicable to the facts of the present case.

On a query put by the Court as to which service rules were applicable to the petitioner, the petitioner''s counsel referred to the Punjab Department of Rural Development and Panchayats (Class-III) Service Rules, 1988. These rules cannot be held applicable as the petitioner was terminated even before these rules came into force. The order of termination is 26.10.1987. Rule 8 of the 1988 Rules provide the method of appointment to the service in the manner specified in Appendix ''B'' to these Rules. It is not the case of the petitioner that she was appointed by following the procedure given in Appendix ''B''. In this Appendix under the head Cadre-I Directorate of Panchayats Headquarters staff other than the intelligence unit staff, there is post of Clerk at serial No. 10. The method of direct recruitment is that the candidate should be matriculate or its equivalent and should have qualified type-writing test in Punjabi language to be conducted by Service Selection Board at the speed of 30 words per minute. It is not the contention of the petitioner that any such test was held by the Service Selection Board for appointing the petitioner to this post.

Rule 21 of these rules has repealed the Punjab Panchayat Department Subordinate Service (Recruitment and Conditions of Service) Rules, 1943 but those rules have not been referred during the course of arguments by the petitioner''s counsel.

Respondents would rely on Surendra Prasad Tewari Vs. Uttar Pradesh Rajya Krishi Utpadan Mandi Parishad and Others, . In that case the regularization in public employment was the main issue. The petitioner was appointed on contract basis for a fixed term for carrying out the work of a specified projects. The appointment was made without following the procedure as laid down under Articles 14 and 16 of the Constitution of India. The petitioner continued to be engaged from time to time to work on different projects. The High Court in that case held that there are only two kinds of appointment. First is permanent and second is temporary appointment. The temporary appointments have further various sub categories such as casual appointee, daily wager, ad hoc appointee, contractual appointee, probationer etc. It was held that temporary appointee has no right to the post and it was also observed that appointment to the permanent posts are made after following the procedure under Article 16 of the Constitution, The Court observed that the appellant was never appointed by following the said procedure and he was never confirmed and consequently has no right to the post as well It would be relevant to quote the following paragraphs from the above judgment of Hon''ble Supreme Court:--

In East India Hotels Ltd. Vs. Syndicate Bank, the Court held as under:

...A temporary or ad hoc employee may not have a claim to become permanent without facing selection or being absorbed in accordance with rules but no discrimination can be made for same job on basis of method of recruitment. Such injustice is abhorrent to the constitutional scheme.

The controversy involved in this case is no longer res integra.

A Constitution Bench of this Court in the case of Secretary, State of Karnataka and Others Vs. Umadevi and Others, has comprehensively dealt with the issues involved in this case. The Constitution Bench has observed as follows:

Public employment in a sovereign socialist secular democratic republic, has to be as set down by the Constitution and the laws made thereunder. Our constitutional scheme envisages employment by the Government and its instrumentalities on the basis of a procedure established in that behalf. Equality of opportunity is the hallmark, and the Constitution has provided also for affirmative action to ensure that unequals are not treated as equals. Thus, any public employment has to be in terms of the constitutional scheme.

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In the present case also the petitioner did not plead under which provision of the service rules as may be applicable to her case that the appointments were made as per the prescribed procedure. The petitioner did allege in the rejoinder that she was appointed as Clerk-cum-typist through Employment Exchange Department by the Selection Committee against regular vacant post for indefinite period. It is not her case that any advertisement for the said post was issued or applications from general public were called. If it is found that the termination was by way of punishment on the allegation of misconduct or moral turpitude, the consequence would be that she be taken back in the service, which is possible only if she was entitled to be regularized in the Department, for which she was not able to make out a case. In the order of termination there was no such indication that the termination was by way of punishment and would not have affect on her future career to seek any other employment.

In Secretary, State of Karnataka and Others Vs. Umadevi and Others, , the Hon''ble Supreme Court observed that in case when the Court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the temporary, contractual, casual or daily wage employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution. It is, therefore, not possible to accept the argument that the State action in not regularizing the employees was not fair within the framework of the rule of law.

The Hon''ble Supreme Court in that case held as under:--

With respect, why should the State be allowed to depart from the normal rule and indulge in temporary employment in permanent posts? This Court, in our view, is bound to insist on the State making regular and proper recruitments and is bound not to encourage or shut its eyes to the persistent transgression of the rules of regular recruitment. The direction to make permanent -- the distinction between regularization and making permanent, was not emphasized here -- can only encourage the State, the model employer, to flout its own rules and would confer undue benefits on a few at the cost of many waiting to compete. With respect, the direction made in paragraph 50 of State of Haryana and others Vs. Piara Singh and others etc. etc., are to some extent inconsistent with the conclusion in paragraph 45 therein. With great respect, it appears to us that the last of the directions clearly runs counter to the constitutional scheme of employment recognized in the earlier part of the decision. Really, it cannot be said that this decision has laid down the law that all ad hoc, temporary or casual employees engaged without following the regular recruitment procedure should be made permanent.

The petitioner initially impleaded Rajni Bala, who was stated to have been appointed in her place, as respondent No. 3. But Sidak Bala, as per the respondents'' version was appointed purely on temporary basis and later on her services were also dispensed with. The petitioner stated in the rejoinder that after termination of Rajni Bala another girl Balwinder Kaur was appointed by the Department. The petitioner is out of job for the past about 18 years. There seem to be limited number of posts of Clerks in the Department where the petitioner was appointed and the incumbent appointed after termination of petitioner might have by now rendered 18 years of service if he/she is in service continuously since then. Even otherwise it has not been clarified that as to which service rules are applicable to the petitioner''s post. In view of the above discussion, the petitioner is found to have no merit in her claim. Therefore, the same is dismissed.