Holding

Termination of a temporary government servant on the ground of unsuitability, without any punitive stigma, does not attract Article 16 and is valid.

Summary

The respondent, V.K. Rajan, was a temporary government servant who rose from casual labourer to Ammunition Repair Labourer, Grade II, and was later terminated. He challenged the termination under Article 226, alleging that his appointment was permanent and that terminating him while juniors remained in service was discriminatory, violating Article 16. The High Court held the termination discriminatory and set aside the order, but the Division Bench affirmed that view. On appeal, the Supreme Court examined whether the termination was a punitive action invoking Article 311(2) and whether Article 16 applied to a temporary servant. Finding that the termination was based on unsuitability, not punishment, and that no stigma was attached, the Court held that Article 16 does not apply and allowed the appeal, confirming the termination order. The decision reaffirmed the principle that temporary or probationary servants may be terminated for unsuitability without invoking constitutional protection against discrimination.

Issues considered

Whether termination of a temporary government servant without assigning a reason, while juniors are retained, violates Article 16 of the Constitution.
Whether the post of Ammunition Repair Labourer Grade II was a permanent appointment, thereby attracting Article 16.
Whether the termination constituted a punishment invoking the safeguards of Article 311(2).
Whether the employer could lawfully terminate a temporary servant on grounds of unsuitability.

Legislation cited

Central Services (Temporary Services) Rules, 1965s. Rule 5
Constitution of Indias. Article 16, s. Article 311(2)
Kerala High Court Acts. Section 5

Subjects

Article 16Article 311temporary government servanttermination of servicediscriminationprobationunsuitabilityconstitutional lawservice law

Judgment

165

COMMODORE COMMANDING, SOUTHERN A
NAVAL AREA, COCHIN
v.
V. K. RAJAN

March 10, 1981 B
[S. MURTAZA FAZAL ALI, A. VARADARAJAN AND A.N. SEN}

Service matter-Article 16-Service of a temporary government servant termi·
nated by a termination order simpliciter-Article 16, if attracted.

The respondent, in the first instance, was appointed as a casual labourer for
a month but was continued against an existing vacancy. He was later appointed
c
as a labourer in a regular cadre in an existing vacancy. Sometime later he was
promoted and appointed as Ammunition Repair Labourer, Grade II. Three
years thereafter his services were terminated.

In a petition under Article 226 of the Constitution the respondent impugned
the order of termination of his services on the ground that he was appointed D
permanently to the post of Ammunition Repair Labourer Grade II and that the
termination of his services, when juniors were retained in service, was discrimina-
tory and was in contravention of Article 16 of the Constitution.

The appellant contended before the High Court that the term "regular
cadre" did not imply as in other instances in the employment of government a

,
substantive post, but that the post in the regular cadre is a purely temporary E
one.

A single Judge of the High Court rejected the respondent's claim that
he was appointed permanently to the post but held that since persons junior
to him had been retained in service, termination of his services without assign-
ing any reason was discriminatory and, therefore, the order was bad in
law.
F
Agreeing with the view of the single Judge a Division Bench of the High
Court dismissed the appellant's appeal.

Allowing the appeal

HELD : A perusal of the file relating to the termination of the services
of the respondent shows that the decision to terminate his services had been G
taken at the highest level on the ground of his unsuitability in relation to the
post held by him and that it was not by way of any punishment and no
stigma was attached to the respondent by reason of the termination of his
services. (172 G-H)

The well settled position in law in this regard is that (i) if the services H
of a temporary government servant are terminated in accordance with the
conditions of his service on the ground of unsatisfactory conduct or his un-
166 SUPREME COURT REPORTS [1981] 3 S.C.R.

A suitability for the job and/or for his work being unsatisfactory or for a like
reason which marks him off in a class apart from other temporary servants
who have been retained in service, there is no question of the applicability of
Article 16; (ii) where the services of a temporary government servant or a proba-
tioner government servant are terminated by an order which does not ex-!acie
disclose any stigma or penal consequences against the government servant and is
merely a termination order simpliciter there is no case ordinarily for assuming that
B it is anything but what it pmports to be; (iii) before Article 16 is held to have
been violated by some action there must be a clear demonstration of discrimina-
tion between one government servant and another similarly placed, which cannot
be reasonably explained except on an assumption or demonstration of "malice in
Jaw" or "malice in fact". Acting on legally extraneous or obviously miscon-
ceived grounds of action would be a case of "malice in law"; (iv) it is open to
the employer to terminate the services of a temporary employee on probation
c at any time before he was confirmed if the employer was satisfied that he was
not suitable for being retained in service. [E 169 D; 170 C; 171 C; 172 BJ

Jn the instant case the respondent was a temporary government servant.
No stigma is attached to the termination of his services. His services had been
terminated for unsuitability in relation to the post held by him. (171 F-G]

D C1vrL APPELLATE JURISDICTION: Civil Appeal No. 1154 of
1970.

Appeal by special leave from the Judgment and Or.der dated
18.7.1969 of the Kerala High Court in Writ Appeal No. 620/69.

E M.M. Abdul Khader, K.S. Gurumurthy and R.N. Podar for the
Appellant.

T.C. Raghavan and N. Sudhakaran for the Respondent.

F The Judgment of the Court was delivered by

VARADARAJAN, J. This appeal by special leave is directed
against the judgment of a Division Bench of the Kerala High Court
)
in Writ Appeal No. 620 of 1969, which had been filed by the appel-
lant against the judgment of the learned Single Judge of that High
G Court, allowing 0. P. No. 672 of 1969. O.P. No. 672 of 1969 was ..
filed under Article 226 of the Constitution challenging the termina-
tion of the service of the respondent by the appellant by the order
dated 17-1-67. That order is to the effect that in accordance with
the terms and c~nditions of his service the respondent stated to be a
temporary Ammunition Repair Labourer Grade II, Naval Armaments
Depot, Alwaye, is informed that his service is thereby terminated with
H
effect from the date of service of that order on him. That order
further states that respondent will be paid a sum equivalent to the
COMMODORE COMMANDING v. V.K. RAJAN (Vardarajan, J.) 167

, amount of his pay plus allowances for the period of notice, due to
him, that is, for one month in accordance with the pr0visions of the
Navy Instruction 22/53, as ame.1ded and that the payment of allo-
wances will, however be subject to conditions under which such
allowances are admissible.
A

The respondent having been recommended by the Employment B
Exchange, was appointed by the appellant by Ex. P-1 as labourer on
casual basis in lieu of Sailor in the Installation Team (I.N.S. Vendu-
ruthy) on pay of Rs. 70/- p.m. plus allowances as admissible from
time to time for the period of one month in the first instance with
effect from the forenoon of 18.12.61. The appellant continued the
\_ -

respondent's employment as labourer in lieu of Sailor in B.R.0. c
). (Installation) D~par<me,lt,- C)chi;i against S):U) existing vacancy
with effect from the forenoon of 18.1.62 by Ex. P-2. When he was
casual labourer in the B.R.O. (Installation) Department he was
transferred by the appellant to the Naval Armament Depot, Alwaye
and appointed as labourer in the regular cadre in the scale mentioned
therein plus allowances as admissible from time to time in an existing D
vacancy with effect from 15. 11.62. Subsequently, when the respondent
was working as a labourer in the Naval Armament Depot at Alwaye
the appellant promoted him and appointed him as A.R.L. Grade II

,
in the Naval Armaments Depot, Alwaye in the scale mentioned
therein plus allowances as admissible from time to time in an exist-
ing vacancy with effect ff0m the forenoon of 2.3.64. Thereafter, his E
services were terminated by Order dated 17-1-67 (Ex. P-8) as men-
tioned above.

In the the Writ Petition the respondent attacked the order-
Ex. P-8 on two grounds, namely, (I) that he was appointed perma-
nently to the post of A.R.L. Grade II by the Order (Ex. P-4) and F
(2) that persons junior to the respondent have been retained in
service and, therefore, the termination of the services of the respon-
dent without any reason whatsoever, is discriminatory and contra-
venes Article 16 of the Constitution. Tn the counter-affidavit filed
in the Writ Petition the appellant contended that the phraseology
"regular cadre" does not imply as it may in some other instances in
G
the employment of government, a substantive post, that the post in the
"regular cadre" is also a purely temporary one and that the post of
Ammunition Repair Labourer Grade II to which the respondent
was promoted and appointed, was also on a temporary basis.
The appellant denied that there was any discrimination in the H
termination of the services of the respondent. The learned
168 SUPREME COURT REPORTS [1981] 3 s.c.R.

A Single Juage repelled the contention that the respondent
had been permanently appointed to the post of ARL Grade II
by the Order Ex. P-4 on the ground that there is nothing
in the order to show that the respondent had been appointed
permanently to the post. Regarding the second ground urged by
the respondent the learned Single Judge held, relying upon this
B Court's decision in Champaklal Chimanlal Shah v. The Union of
India(1) and two other decisions of the Mysore and Andhra Pradesh .
High Court in Diddaiah v. State( 2) and Jankiraman v. State of
Andhra Pradesh( 3) respectively that Article 16 of the Constitution
applies even to temporary government servants. The learned Judge
observed that there is no denial of the fact that persons junior to
c the respondent have been retained in service and that there is
nothing in the order, Ex. P-8 or in the counter affidavit filed by the
respondent in the Writ Appeal to show that the respondent was
guilty of any misconduct or was otherwise unfit to hold the post.
The learned Judge further observed that in paragraph 8 of the
counter affidavit it has only been stated that the fact other persons
D who are junior to the respondent are retained in service, would not
confer any right on the respondent to continue in service. In this
view the learned Judge held that the termination of the respondent's
services under Ex. P-8 without assigning any reason was discrimina-
tory and he accordingly allowed the Writ Petition without costs.
In the Writ Appeal filed under s. 5 of the Kerala High Court Act
E
the Division Bench followed the aforesaid decision of this Court in
Champaklal Chimanlal Shah v. The Union of India (supra) and agreed
with the learned Single Judge that the appellant's action in termina-
ting respondent's services under Ex. P-8 is violative of Article 16 of
the Constitution. The learned Judges observed in their judgment
that no reason at all was either alleged or proved as to why appel-
F
lant chose to terminate the respondent's services under rule 5 of the )
Central Services (Temporary Services) Rules 1965 such as that it
was administratively convenient to do so or that the respondent's
work or conduct was unsatisfactory or that it was a case of retrench-
ment and the respondent was chosen as the junior-most person.
G The learned Judges accordingly dismissed the Writ Appeal.
r
The principle that even temporary government servants are
entitled to the protection of Article 311 (2) in the same manner as

H (!) A.I.R. 1964 SC 1854. [1964] 5 S.C.R. 119.
(2) A.l.R. 1967 Mysore 223.
(3) A.I.R. 1959 A.P. 185.
COMMODORE COMMANDiNG v. V.K. RAJAN (Vardarajan, J.) 169

permanent government servants if the government takes action A
against them by meting out one of the three punishments of dismis-
sal, removal or reduction in rank, is well settled. This court has held
in Champaklal Chimanlal Shah v. The Union of India(1) that tempo-
rary servants are also entitled to the protection of Article 311(2) in
the same manner as permanent government servants if the govern-
ment takes action against them by me'ing out one of the three above B
punishments following the decision in Purshotam Lal Dhingra v.
Union of Indic.(2) and tl:at this protecction is only available where
the discharge, removal or reduction in rank is sought to be inflicted
by way of punishment and not otherwise. The same view has been
reiterated by this Court in Manager, Govt. Branch Press and Anr.
v. D.B. Beliappa,(3) where it has been observed thus : c
"The principle that can be deduced from the above ana-
lysis is that if the services of a temporary Government servant
are terminated in accordance with. the conditions of his service
on the ground of unsatisfactory conduct or his unsuitability
for the job and/or for his work being unsatisfactory, or for a D
like reason which marks him off in a class apart from other
temporary servants who have been retained in service, there is
no question of the applicability of Article 16.

Conversely, if the services of a temporary Government
servant are terminated, arbitrarily, and not on the ground of E
his unsuitability, unsatisfactory conduct or the like which
would put him in a class apart from his juniors in the same
service, a question of unfair discrimination may arise, notwith-
-· standing the fact that in terminating his service, the appointing
authority was purporting to act in accordance with the terms
of the eniployment. Where a charge of unfair discrimination F
is levelled with specificity, or improper motives are imputed to
the authority making the impugned order of termination of
the service, it is the duty of the authority to di spell that charge
by disclosing to the Court the reason or motives which impelled
it to take the impugned action. Excepting, perhaps, in cases
analogous to those covered by Article 311(2), Proviso (c), the G
authority cannot withhold such information from the Court o
the lame excuse, that impugned order is purely administrative
and not judicial, having been passed in exercise of its adminis-

(1) [1964] 5 S.C.R- 119 at 203. H
(2) [1958] S.C.R. 828.
(3) [1979] 2 S.C.R. 458 at 466-67.
170 SUPREME COURT REPORTS [1981) 3 s.c.R.

A trative discretion under the rules governing the conditions of
the service."

Jn the latest decision in State of Maharashtra v. Veerappa
R. Saboji and Anr.(1 ) a similar observation has been made by
Pathak, J. at page 567 :
B
"The law, it seems to me, is that where the services of a
tempora·ry Government servant or a probationer Government
servant are terminated by an order which does not ex jacie
disclose any stigma or penal consequences against the Govern-
ment servant and is merely a termination order simpliciter,
c there is no case ordinarily for assuming that it is anything but
what it purports to be. Where, however, the order discloses
on the face of it that a stigma is cast on the Government
servant or that it visits him with p<!nal consequences, then
plainly the case is one of punishment. There may still be another
kind of case where although the termination of service is in-
D tended by way of punishment, the order is framed as a termina-
tion simpliciter. In such a case, if the Government servant
is able to establish by material on the record that the order
is in fact passed by way of punishment, the innocence of the
language in which the order is framed will not protect it if
the procedural safeguards contemplated by Article 311(2) of
E
the Constitution have not been satisfied. In a given case, the
Government servant may succeed in making out prima jacie
case that the order was by way of punishment but an attempt
to rebut the case by the authorities may necessitate sending for
the official records for the purpose of determing the truth. It
is in such a case generally that the official records may be
F
called for by the Court. It is not open to the Court to send
for the official records on a mere allegation by the Government
servant that the order is by way of punishment. For unless
there is material on the record before the Court in support of
that allegation, an attempt by the Court to find out from the
G record whether the termination of service is based on the
unsuitability of the Government servant in relation to the post
held by him or is in reality an order by way of punishment
will in effect be an unwarranted attempt to delve into the
official records for the purpose of determining the nature of
H the order on the basis of a mere allegation of the Government

(I) [1980] 1 S.C.R. 551.
COMMODORE COMMANDING v. v.K. RAJAN (Vardarajan, J.) 171

servant. On a sufficient case being made out on the merits A
before tbe Court by the Government servant it is open to the
Court to resort to scrutiny of the official records for the pur-
pose verifying the truth".
/
This Court has observed in Regional Manager and Am. v.
Pawan Kumar Dubey (1 ) thus : B

''We do not think that Sughar Singh' s case, in any way,
conflicts with what ·has been laid down by this Court previously
on Article 311(2) of the Constitution or Article 16 of the
Constitution. We would, however, like to emphasize that,
before Article 16 is held to have been violated by some action c
there must be a clear demonstration of discrimination between
one Government servant and another, similarly placed, which
cannot be reasonably explained except on an assumption or
demonstration of "malice in law" or "malice in fact". As we
have explained, acting on a legally extraneous or obviously
misconceived ground of action would be a case of "malice in D
law". Orders of reversion passed as a result of administrative
exigencies, without any suggestion of malice in law or in fact,
are unaffected by Sughar Singh's case (supra). They are not
vitiated merely because some other Government servants
juniors in the substantive rank, have not been reverted."
E
After examining the recorc! in Suglwr Singh's case (supra), the
learned Judges have observed :

"What weighed with this Court was not only that there
was a sufficient "element of punishment" in reverting Sughar
Singh for a supposed wrong done, from which the order of F
reversion could not be divorced, so that Article J 11 (2) had to
be complied with, but, there was also enough of an impropriety
and unreasonableness in the action taken against Sughar Singh,
solely for a very stale reason, which had become logically quite
disconnected to make out a case of "malice in law" even if
it was not a case of "malice in fact" G
The matter is also covered by a recent decision of this Court
in Oil and Natural Gas Commission and Ors. v. Dr. Mohd. S.

(!) [1976] 3 S.C.R. 540 at 547. H
172 SUPREME COURT REPORT [1981] 3 S.C.R.

A lskender Ali(1) where one of us (Fazal Ali, J.) speaking for the Court
observed as follows :

"As the respondent was a temporary employee on proba-
tion, it was open to the employer to terminate his services at
any time before he was confirmed, if the employer was satisfied
B that he was not suitable for being retained in service."

"The learned counsel for the respondent submitted that
the remarks made in the assessment roll went to show that the
intention of the appointing authority was to proceed against
the respondent by way of punishment. We are, however, un-
c able to agree with this submission. It is obvious that a tempo-
rary employee is appointed on probation for a particular
period only in order to test whether his canduct is good and
satisfactory so that he may be retained. The remarks, in the
assessment roll, merely indicate the nature of the performance
put in by the officer for the limited purpose of determing whe-
D ther or not his probation should be extended. These remarks
were not intended to cast any stigma."

'·Jn these circumstances, therefore, it is obvious that as the
respondent was merely a probationer, the appointing authority
did not consider it necessary to continue the enquiry but deci-
E ded to terminate tJ,e services of the respondent as he was not
found suitable for the job. It is well settled by a fong course of
decisions of this Court that in the case of a probationer or a
temporary employee, who has no right to the post, such a ter-
mination of his service is valid and does not attract the provi-
sons of Article 311 of the Constitution."

We agree with the learned Judges who constituted the Divi-
sion Bench of the K erala High Court that the respondent was only
a temporary government servent and that even as a temporary
government servant he is entitled to the protection of Art. 311 (2) of
the Constitution where termination involves a stigma or amounts to
G punishment. We looked into the file relating to the respondent
ending with order of termination of his service (Ex-P-8). We are r
satisfied that the decision to terminate the services of the respondent
had been taken at the highest level on the ground of unsuitability of
the respondent in relation to the post held by him and it is not by
way of any punishment and no stigma is attached to the respondent
H
(I) [1980] 3 S.C.R. 603.

,
COMMODORE COMMANDING v. V.K. RAJAN (Vardarajan, J.) 173

by reason of the termination of his service. In these circumstances A
we allow this appeal and set aside the judgment of the High Court
and confirm the appellant's order, Ex. P.B. terminating respondent's ·
services. The appellant shall bear · his own costs and pay respon-
dent's costs.

P.B.R. Appeal allowed. B
,