Allahabad High Court
Satya Deo Mishra vs State Of U.P. And Anr. on 13 July, 1995
Equivalent citations: [1995(71)FLR430], (1996)IIILLJ793ALL, (1995)3UPLBEC1410
Author: M. Katju
Bench: M. Katju
ORDER M. Katju, J.
1. This writ petition has been filed against the impugned termination order dated March 16, 1988 (Annexure 3 to the writ petition). I have heard Sri. B.N. Rai, learned Counsel for the petitioner and learned Standing Counsel.
2. The petitioner was appointed temporarily on August 1, 1970 on the post of Agriculture Teacher and joined his post on August 14.1970 in Higher Secondary School, Singli, District Pithoragarh. after having selected by the department. It is also stated in paragraph 2 of the writ petition that since then the petitioner has been continuously working on the said post with an unblemished record of service. He was thereafter transferred from place to place but was not regularised. It has also been stated in paragraph 6 of the petition that since juniors to the petitioners had been regularised, he made representations in 1985 and 1987 to the Additional Director (Basic) to confirm him, but no action was taken. True copies of; his representations arc Annexures-1 and 2. The petitioner's service was terminated by the order dated March 16.1988, true copy of which is Annexure-3 to the writ petition. Perusal of Annexure-3 shows that the only reason given in the impugned order is that the petitioner's services are no longer required. Aggrieved, this writ petition was filed in this Court, and the impugned termination order was stayed.
3. Counter-affidavit has been filed by respondents. In paragraph 3 it has been stated that the petitioner was appointed on ad hoc basis temporarily and not on substantive vacancy. It is also stated in paragraph 4 that in 1973-74 and 1974 to 1980, his work was not satisfactory. In paragraph 7 it is stated that the, petitioner was not found fit for regularisation and he earned an adverse entry, and hence his service was terminated.
4. Learned Standing Counsel invited my attention to the decision of the Supreme Court in the case of Triveni Shanker Saxena v. State, (1992-1-LLJ-23) and State of U.P. v. Kaushal Kishore, 1991 AIR SCW 793 . It was held in these cases that a temporary employee has no right to the post.
5. In my opinion the concept that a temporary employee has no right to the post has to be modified in the light of the new interpretation of Article 14 of the Constitution given by the Supreme Court in Maneka Gandhi's case. AIR 1978 SC 597, which is a 7-judge Constitution Bench decision followed by several subsequent decisions of the Supreme Court. The concept that a temporary employee has no right to the post cannot be treated as an absolute concept. It has to be treated as subject to Article 14 of the Constitution. The Constitution is the supreme law of the land. If the Supreme Court gives a new interpretation to a Constitutional provision then it is necessary to revise the earlier concepts in the light of the new interpretation given by the Supreme Court. To tell a person who has put in 18 years of service that his service is no longer required, in my opinion is wholly arbitrary and unreasonable. When a person is appointed then within two or three years the authority must confirm him if his work is satisfactory, or if the work is not satisfactory his service may be terminated if he was appointed temporarily. But it is wholly arbitrary and unreasonable to keep a damocles sword hanging over the head of the employee and not to confirm him for a long period of time. No one can work properly if he does not get job security. In my opinion the decision cited by the learned Standing Counsel are distinguishable. In our country after a person gets a job he ordinarily gets married, has children, and he has to support his family. He settles down in life with a reasonable expectation that he will continue till the time of retirement, and he becomes overage for seeking other service after a few years. As such after a person has put in 18 years of service to tell him that his service is being terminated on the ground that it is no longer required is in my opinion wholly unreasonable and arbitrary.
6. As regards the decision of the Supreme Court in Triveni Shankar Saxena's case and Kaushal Kishore's case (supra) in my opinion these decisions cannot be read in isolation but must be read along with the series of decisions of the Supreme Court beginning from the 5-Judge Constitution Bench decision in Royappa's case, AIR 1974 SC 555: and the seven-Judge Constitution Bench decision in Maneka Gandhi's case, (supra) and several decisions thereafter. These latter decisions have now clearly established that the reasonability test pervades the entire Constitution and that Article 14 strikes not only against irrational classification but also against arbitrariness.
7. Thus in Maneka Gandhi's case the Supreme Court observed "the principle of reasonableness which legally as well as philosophically is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence". Similarly in Ram anna v. Internationa! Airport Authority. (1979 -II-LLJ-217) it was held "the principle of reasonableness and rationality which is legally as well as philosophically an essential element of equality or non-arbitrariness is projected by Article 14, and it must characterise every Stale action, whether it be under authority of law or in exercise of executive power without making law". In Shrilekha Vidyarthi v. State, AIR 1991 SC 537, the Supreme Court observed "it is now too well seltled that every State action in order to survive must not be susceptible to the vice of arbitrariness which is the crux of Article 14 of the Constitution and basic to the rule of law, the system which governs us. Arbitrariness is the very negation of the rule of law".
8. Hence the concept that a temporary employee has no right to the post must be held to be subject to Article 14 of the Constitution according to which the Slate cannot act arbitrarily To tell a person after a long period of service that his service is longer required and he has no right to the post as he is a temporary employee is surely arbitrary. How will his wife and children survive? In D.K. Yadav v. J. M. A. Industries, (1993-II-LLJ- 696) the Supreme Court observed "that order of termination of service of an employee/workman visits with civil consequences of jeopardizing not only his livelihood but also the career and livelihood of dependents". Also, if the service of a temporary employee is terminated within two or three years of appointment he can try for a job elsewhere, but if it is terminated long after appointment it will be extremely difficult for him to get a job. and may also be overage. Moreover, the concept that a temporary employee has no right to the post must also be held subject to Article 21 of the Constitution, which has not been interpreted by the Supreme Court so as to include the right to livelihood. In Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180 a Constitution Bench of the Supreme Court held that right to life includes right to livelihood because no person can live without the means of living i.e. means of livelihood (sec also LIC v. Consumer Education and Research Centre, 1995 AIR SCW 2834 and D.K. Yadav v. J.M. Industries, (supra). These decisions of course do not mean that every person in the country must be given a job, but what they do means is that once a person has been given a job it cannot be taken away arbitrarily. Regarding the decision of the Supreme Court in Kaushal Kishore's case and Triveni Shankar Saxena's case (supra) two things have to be said .
(1) These decisions cannot be read in isolation but along with the decision of the Supreme Court pertaining to Articles 14 and 21 of the Constitution referred to above. The decision in Manuka Gandhi's case (supra) is a 7-Judges Constitution Bench decision, and hence the decision in Kaushal Kishore's case and Triveni Shankar Saxena's case (supra), being of smaller Benches, cannot prevail over it. No doubt Maneka Gandhi's case does not relate to service law. but the principle it has propounded, that is even' Slate action must be non arbitrary, is of universal application.
(2) These decisions are distinguishable. Triveni Shanker Saxena's case is distinguishable because it has only examined the termination of service from the point of view of Article 14. Kaushal Kishore's case is distinguishable because it has applied the old test of Article 14, i.e.. rational classification, but not the new test of non-arbitrariness laid down in Maneka Gandhi's case (supra) which is a 7-Judges decision and other similar decision.
9. As regards the allegation that the Selection Committee found the work of the petitioner unsatisfactory, in my opinion, such selection has to be done within 2 or 3 years of appointment and it cannot be done after 18 years of the appointment. As held by the Supreme Court in Union of India v. J. Ahmed, (1979-II-LLJ-14), if a person's work is not satisfactory it is not misconduct though he can be deprived of promotion.
10. In the present case there is nothing to show that the respondents took any steps within a few years of the petitioner's appointment to judge the petitioner's suitability. The petitioner was appointed in 1970 but the respondents thought of considering his suitability only after 18 years of his appointment. In my opinion such action of the respondents is wholly arbitrary and unreasonable.
11. The petitioner's service has been continued by interim order dated April 1, 1988 of this Court and he still continues in service. In view of the above discussion the termination order dated March 16, 1988 is quashed. The petitioner shall continue in service and shall get all benefits, including arrears. Accordingly the petition is allowed. No order as to costs.