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1. The common question of law raised in these cases is whether the mere fact that while terminating the service of a temporary Government servant governed by the Central Civil Services (Temporary Service) Rules in exercise of the power conferred under Rule 5 (1) of those Rules some of his juniors are retained in service, would render such action taken against the temporary servant violative of Articles 14 and 16 of the Constitution of India. In Thankappan v. Sub Divisional Officer, Telegraphs, Trichur, 1977 Ker LT 362, a Full Bench consisting of three Judges of this court has expressed the view that the retention of a junior in service while terminating the service of a senior temporary employee under Rule 5 (1) would in normal circumstances amount to discriminatory treatment and when such action is challenged before court on the ground of violation of Article 16 of the Constitution the said plea based on arbitrary discrimination will have to be upheld unless some valid explanation is furnished by the respondent for keeping the junior in service while dispensing with the service of the senior. When these original petitions came up for hearing in the first instance before our learned brother Vadakkel, J. it was felt by the learned Judge that in view of the decisions of the Supreme Court in Raj Kumar v. Union of India AIR 1975 SC 1116 : (1975 Lab IC 669) and The State of U. P. v. Ram Chandra Trivedi, AIR 1976 SC 2547 : (1976 Lab IC 1647), the aforesaid view expressed by the Full Bench of this court may require reconsideration and hence the cases were referred by the learned Judge to a Division Bench. This opinion was concurred in by a Division Bench before which these cases subsequently came up for hearing and by an order of reference dated 2nd September, 1977 the Division Bench referred the original petitions to a Full Bench for consideration as to whether the matter should not be placed before a larger Bench. Thereafter, these cases went before a Full Bench of three Judges. The Full Bench was also prima facie of opinion that the decision in Thankappan's case required reconsideration and hence by order of reference dated 7-12-1977 the cases were ordered to be posted before a Bench consisting of five Judges. That is how the matter has come up before this larger Bench.

2. The petitioners in the five original petitions were all temporary employees working in the Posts and Telegraphs Department. Admittedly, they were governed by the provisions of the Central Civil Services (Temporary Service) Rules, 1965 (hereinafter called the Rules). The petitioner in O. P. No. 3091 of 1974 was working as a temporary Postman attached to the Head Post Office, Quilon. By the notice Ext. P-1 dated 17-6-1974 issued under Sub-rule (1) of Rule 5 of the Rules the petitioner was informed that his service will stand terminated with effect from the date of expiry of a period of one month from the date on which the notice was served on, or tendered to, him. The legality of the action taken under Ext. P. 1 is challenged by the petitioner on the ground that while dispensing with the services of the petitioner some of his juniors in the category of temporary Postmen were being retained in service and that thereby the petitioner has been arbitrarily discriminated against in gross violation of Article 16 of the Constitution. The petitioner in O. P. No. 4167 of 1974 was a temporary Postman attached to the Head Post Office at Attingal. His services were terminated as per the order Ext. P. 3 dated 14-6-1974 issued under Rule 5 (1) of the Rules. The petitioner in O. P. No. 4177 of 1974 was working as a temporary Postman at Edava Sub Post Office in Attingal Sub-Division. By the order Ext. P-2 dated 14-6-1974 the service of the petitioner was terminated, by the respondent under Sub-rule (1) of Rule 5 of the Rules. The challenge in O. P. No. 4306 of 1974 is directed against the order Ext. P-1 dated 30-9-1974 whereby the service of the writ petitioner who was working as a temporary Telephone Operator at the Tellicherry Telephone Exchange was terminated in exercise of the power conferred by Sub-rule (1) of Rule 5 of the Rules. The petitioner in O. P. No. 5070 of 1974 was working as a temporary Telephone Operator in the Telegraphs Engineering Division, Cannanore. His appointment under the order Ext. P-1 was initially for a period of three months ending with 18-5-1974. Subsequently it was extended for the further period till 21-8-1974. By the memo Ext. P-2 dated 21-8-1974 the petitioner was informed that his services were not required by the Department with effect from 22-8-1374. The original petition has been filed seeking to quash Ext. P-2. All these petitioners seek to invalidate the orders of termination of service passed against them on the sole ground that while dispensing with their services some of their juniors who were also temporary employees belonging to the same category were being retained in service and that this amounted to arbitrary discrimination violative of Art. 16 of the Constitution,

By these pronouncements of the Supreme Court the position is now well-settled that Rule 5 in so far as it empowers the appointing authority to terminate the service of a temporary Government servant at any time by a notice in writing whenever the Government thinks it necessary or expedient to do so for administrative reasons, is perfectly valid and constitutional and that no violation of Articles 14 or 16 of the Constitution is involved in the exercise of the said power. The contention that Rule 12 confers an arbitrary and unguided discretion on the Government has been expressly negatived by the Supreme Court as being totally devoid of merit. When Rule 5 (1) confers on the appointing authority the power to terminate the service of a temporary Government servant irrespective of any consideration as to his position in the seniority list and the said provision has been expressly held to be constitutionally valid and not violative of Article 14 or Article 16, we fail to see how an order passed in the bona fide exercise of the power conferred by the said rule can be called in question on the ground of infringement of Articles 14 and 16 of the Constitution. Once it is recognised that there is a valid power vested in the appointing authority to terminate at any time the service of any temporary Government servant, irrespective of his position in the seniority list, by a notice in writing given in accordance with the provisions contained in Rule 5, there is ne longer any scope for basing a plea of arbitrary discrimination on the mere fact that the person whose services were terminated was not the juniormost in the concerned category. Inasmuch as the rule confers the power on the appointing authority to terminate at any time the service of any temporary Government servant the exercise of the said power will not be interfered with by the Court unless it be very clearly made out that the action impugned was taken mala fide. Thus, except in cases where there are clear and specific allegations of mala fides into which an investigation is considered necessary by the Court, the Court will not delve into the reasons which prompted the appointing authority to terminate under Rule 5 (1) of the Rules the service of a temporary Government servant.

5. In Commodore Commanding. Cochin v. V. N. Rajara, 1970 Ker LJ 164, a Division Bench of this Court while dismissing a writ appeal in limine has expressed the view that since no reason had been alleged or shown by the appointing authority as to why it chose to terminate the services of the writ petitioner in that case (a temporary employee) governed by the Rules such as that it was administratively convenient to do so or that the work and conduct of the employee was unsatisfactory or that it was a case of retrenchment and the employee concerned was chosen for some relevant reason such as that he was the juniormost, the impugned order of termination passed by the appointing authority was violative of Article 16 of the Constitution. In the opinion of the Division Bench the decision of the Supreme Court in Champaklal Chimanlal Shah v. Union of India, AIR 1964 SC 1854, lent support to the above view. This ruling of the Division Bench has been referred to and relied on by the Full Bench in Thankappan v. Sub-Divisional Officer, Telegraphs Trichur, 1977 Ker LT 362. The Full Bench has also construed the decision in Champaklal's case as laying down that if the temporary employee whose services are terminated under Rule 5 of the Rules prima facie shows that he was not the juniormost person in the concerned category and puts forward a plea of arbitrary discrimination the said plea will have to be upheld unless the appointing authority satisfies the Court that the termination was for valid administrative reasons which justified the retention of the juniors. With great respect we are unable to understand the observations of the Supreme Court in Champaklal's case as lending support to the above view. In that case the appellant had put forward a contention before the Supreme Court that the order terminating his services under Rule 5 (1) was discriminatory since a number of Assistant Directors who were juniors to the appellant were retained in service while dispensing with the appellant's services. The Supreme Court categorically held that there was no force in that contention since it was not a case where the services of a temporary employee were being retrenched because of the abolition of a post. It was further observed by the Supreme Court that it is only in the case of retrenchment of employees because of the abolition of a post that the question will arise as to who out of several temporary employees should be retrenched and only in such a case will the length of service of those holding similar temporary posts become relevant in considering whether the retrenchment of a particular employee was as a result of discrimination. It is after laying down this ratio in clear terms that the Supreme Court proceeded to state :