Holding

A temporary employee without a substantive lien and not on deputation may be lawfully terminated; the termination order was not punitive or arbitrary.

Summary

Triveni Shankar Saxena, originally appointed as a temporary Lekhpal in 1953, later served as a Consolidator and Assistant Consolidation Officer for about 17 years before being terminated on 16 October 1971 without reason and with one month's salary in lieu of notice. He claimed he was on deputation, had a lien on his original Lekhpal post under Rules 14‑A and 14‑B of the Uttar Pradesh Fundamental Rules, and that the termination was punitive and violative of Article 311 of the Constitution. The Uttar Pradesh Services Tribunal held the termination illegal; the Allahabad High Court reversed that decision, holding the termination non‑arbitrary and non‑punitive. The Supreme Court examined whether the appellant had a substantive lien, whether he was on deputation, and whether the termination was punitive. It found that his original appointment was temporary, he never acquired a lien, and there was no evidence of deputation; consequently, the termination of a temporary employee under the service rules was lawful and not punitive. The Court dismissed the appeal but awarded an ex‑gratia payment of Rs. 50,000 to the appellant.

Issues considered

Whether the appellant had acquired a lien on the post of Lekhpal under Rules 14‑A and 14‑B of the Uttar Pradesh Fundamental Rules.
Whether the appellant was on deputation to the Consolidation Department, entitling him to revert to his original post.
Whether the termination order was punitive, arbitrary, or violative of Article 311 of the Constitution.
Whether a temporary government servant can be terminated without notice under the applicable service rules.

Legislation cited

Constitution of Indias. Article 311

Subjects

lientemporary employeedeputationtermination of serviceArticle 311U.P. Fundamental Rulesex-gratiacivil servicepunitive termination

Judgment

A TRIVENI SHANKAR SAXENA
V.
·~
STATE OF UP. AND ORS.
\..·

DECEMBER 20, 1991

B [S. RATNAVEL PANDIAN AND K. JAYACHANDRA REDDY, JJ.]

Civil Services

U.P. Fundamental Rules
.~

c Rules 9(13),14-A and 14-8-Lien-When can be acquired-Employee
appointed on temporary basis in one department selected and appointed
de novo in another department-Whether entitled to retain lien in the original
department.
Constitution of India, 1950
D
Article 311-Termination of service-Temporary Govrenment servant-
Order of termination (simpliciter) on grounds of unsuitabilitY-Whether puni-
tive in nature and invalid. r
Words and Phrases-Word 'lien'-Meaning of
E The appellant, who was working as Lekhpal, was selected and
appointed as a Consolidator in the Department of Consolidation. Subse-
quently, he was also promoted as Assistant Consolidation Officer. After
about 17 years' service in that Department, he received an order from the
Consolidation Commissioner terminating his services, without assigning
any reasons.
F
Aggrieved, the appellant filed a civil suit for a declaration that the
order of termination was illegal, void and ineffective and that, having been
on deputation, he was entitled to his original substantive post of Lekhpal
on which he was having lien. The appllant claimed that since he was on
deputation, he should have been reverted back to his original department
~·
G and the termination was violative of Rules 14-A and 14-B of the U.P.
Fundamental Rules.
t{;4olll
The appellant's claim was denied by the first rspondent State. It con- ''
tended that the appellant held the post of Lekhpal in an officiating
capacity and not in substantive capacity, and that he had no lien on that
H post at the time of his appointment as Consolidator in the Department of

534
T.S. SAXENA v. STATE 535

Consolidation, and that his appointment as Consolidator and as A.C.O. A
1as quite temporary and his services were terminated under the rules
after paying one month's salary.

The U.P. Services Tribunal, to which the suit was transferred, held
that the order of termination of the appellant's services bad been passed
arbitrarily and whimsically by the authorities, and that it was illegal and B
void, and that the appellant would be entitled to get all the benefits
according to the rules.

Allowing the respondent-State's Writ Petition against the Tribunal's
order, the High Court held that the termination order was not arbitrary
or whimsical, nor was it passed to impose any penalty on the appellant. C

· In the appeal before this Court, on behalf of the employee it was
contended that the appellant should have been reverted back to his
original department and that his services should not have been terminated
merely on the ground of adverse entries in his personal file without com-
plying with the provisions of Article 311 of the Constitution, and that the D
termination order was a punitive act.ion casting stigma on him.

Dismissing the appeal, this Court,

HELD : 1. Even on the appellant's own showing he was appointed
as a Lekhpal on 6.4.1953 and held the same till 15.11.1954, for a period of E
one year and seven months. His appointment order unambiguously shows
that it was only on a temporary basis. The appellant has not shown that
he had been confirmed in a premanent post and that he was holding that
appointment substantively either immediatley or on the termination of a
period so as to make a claim of lien to the post of Lekhpal by a\·ailing the F
benefit of Rules 14-A and 14-8 of the U.P. Fundamental Rules. A person
can be said to acquire a lien on a post only when he is confirmed and made
permanent on that post and not earlier. [544 B, CJ

M.P. Tewari v. Union of India, 1974 A.L.J. 427, approved.
G
Paresh Chandra v. Controller of Stores, AIR 1971 S.C. 359; P.L.
Dhingra v. Union of India, AIR 1958 S.C. 36, referred to.

Ilalsbury' s laws of England, Fourth Edition, Volume 28 at page 221,
para 502; Words and Phrases, Permanent Edition Vol. 25, pages 393, 399,
referred to. · H
536 SUPREME COURT REPORTS [1991] SUPP. 3 S. C.R.

A 1.2 Therefore, it canot be said that the appellant held the post in a
substantive capacity on. permanent basis on the date when he was ap-
pointed as a Consolidator. In the absence of any such proof in this regard,
the appellant was employed as Lekhpal on a temporary basis and there-
after appeared before the Selection Board an·d was selected denovo as a
Consolidator in the Consolidation Department. [544 DJ ·
B
2. There is· nothing on record to show that the appellant was on
deputation except his unsubstantiated statement. The case of deputation is
totally denied by the respondents all through, which denial is not refuted !"
by any acceptable proof. Under the circumstances, the claim of the appel-
lant that be was deputed is rejected. [544 F)
c
3.1 The termination of the appellant is not a punitive action. Accord-
ing to the respondent-State, the services of the appellant were terminated
as per rules on account of his unsuitability by giving him one month's
salary in lieu of notiee. This iitatement is not challenged before this Court.
Several adverse entries are found in the Character Roll of the appellant
D about the unsatisfactory performance of his work throughout. .
{545 H, 546H) .t

3.2 It is settled that if on persual of the character roll entries or on
the basis of preliminary enquiry on the allegations made against an
E employee, the c~mpetent authority is satisfied that the employee is not
suitable for service, and the services of the temporary employee are
terminated, no exception can be taken to such an order of termination.
[546E, 547A) ,_

State of Uttar Pradesh and Another v. Kaushal Kishore Shukla, [1991)
1 S.C.C. 691, applied.
F
3.3 The termination order clearly spells out that it is an order of
termination (simpliciter) passed against a temporary employee not casting
any stigma on him or disclosing penal consequences. The order shows that
the appellant's services were no more required and that be was paid one
month's salary in lieu of notice. In these circumstances, the order of
G termination (simpliciter) cannot be challenged. [545E, H, 546-A)
Om Prakash Goel v. Himachal Pradesh Tourism Development Corpora-
tion Ltd., AIR 1991 S.C. 1490, referred to.
·4.-The appellant was allowed to continue in service for more that 18'
H · years indifferent capacities and the competent authority did not think of
T.S. SAXENAv. STATE [PANDIAN, J.] 537

... terminating his. service in spite or a number or adverse entr;ies in his A
-' Character Roll and allowed him to continue to work. Had the termination
been effected at the earlier point or time, the appellant could have possibly
secured some other employment•. Having regard to the special facts and
circumstances of the case and considering the equities arising in this
matter, an amount of Rs. 50,000/- should be paid as an ex-gratia payment.
[547 BJ B

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3460of1982.
•
From the Judgment and Order dated 23.8.1982 of the Allahabad High
Court in Writ Petition No. 226 of 1980.
c
Yogeshwar Prasad, K.K. Gupta, Gopal Subramanium, Arvind Verma
and Mrs. Shobha Dikshit for the appearing parties.

The Judgment of the Court was delivered by

S. RATNAVEL PANDIAN, J. This appeal is filed by the appellant D
Triveni Shankar Saxena que8tioning the correctness of the judgment dated
23.8.1982 rendered by the High Court of Allahabad, Lucknow Bench in Writ
Petition No. 226of1980 allowing the said Writ Petition and quashing the order
of the Uttar Pradesh Serv,ices Tribunal dated 6.10.1979. A few facts of the case
as set out in Suit No. 367n4 filed before the Court of the Civil Judge,
Moradabad may be stated.: E

The appellant was appointed as a Lekhpal by the Sub-Divisional Mag-
istrate, Moradabad on 6.4.1953 at the circle of Village Tilokpur, Pargana in
Moradabad District, which post he held from 6.4.53 to 12.3.54 at Tilokpur and
thereafter from 13.3.54 to 15.11.54 in Village Thonda in Tehsil Moradabad.
F
In the wake of consolidation proceedings in the State of U.P., the
appellant was selected as a Consolidator on 5.11.1954 and was sent for training
.....___
as a Consolidator at Rampur Training College, which he joined on 16.H.1954
and after completing the training he again joined his original posting on
12.2.55.
G
On 24.3.55 the appellant was appointed as a Consolidator in Saharanpur
by the Commission of Consolidation, U.P. Government, Lucknow through the
,. S.D.M. Moradabad and was relieved and sent on deputation. As a Consolida-
tor the appellant was transferred from plac~ to place in the normal course. He
was transferred from Pilibhit on promotion as an Assistant Consolidation
Officer (for short A.C.0.) at Azamgarh on 7.6.1967 and therafter to Agra and H
538 SUPREME COURT REPORTS (1991] SUPP. 3 S. C.R.

\.
A to Lakhimpur. He was once again posted in Azamgarh as A.C.O. While it was .;:
so, the appellant received the orderof termination Of his services on 16.10.1971 'i-

from the Consolidation Commissioner, which order did not assign any reason.
His case is that he was on deputation. According to the appellant, the only
course left open to the Consolidation Commissioner was to revert him bac]\ to
his substantive post, namely, Lekhpal to which he was having a lien in the
B District of Moradabad and that he was not given any opportunity of represent-
ing his case and was not served with any memo of charge for terminating him
though he had put in 19 years of service without a break and that the order of
termination is bad in law as being violative of Rules 14-A and 14-B of the Uttar t
Pradesh Fundamental Rules contained in Part-II of the Financial Handbook
Volume II.
c
Being aggrieved by the order of termination (simpliciter), the appellant
served a notice under Section 80 C.P.C. upon the Government and thereafter
filed a Civil Suit No. 367 of 1974 in the court of Civil Judge, Moradabad to
declare that the order of termination dated 16.10.71 passed by the Commis-
sionerofConsolidation was illegal, void and inffectiveand theappellant,having
D been being on deputation, was entitled to his original substantive post with full
emoluments. t

The claim of the appellant was denied by the first respondent (State of
U.P.) inter alia submitting that the appointment of the appellant as Consolida-
tor and thereafter as A.C.O. was quite temporary, that the services .of the
E appellant were terminated only under the rules after paying one month's salary,
that the claim of the appellant is not justifiable. Further, the case of the
respondents is that the appellant held the post of Lekhpal in an officiating
capacity and not in substantive capacity, that thereafter he applied for the post
of Consolidator for which he was selected and posted on temporary basis and
that he had no lien on the post of Lekhpal at the time of his appoinunent as
F
Consolidator in the Department of Consolidation. "
While the suit was pending before the civil court, the U.P. Public
Services (Tribunals) Ordinance came into force and hence it was transferred to ./-
the U.P. Public Services Tribunal No. 1, Lucknow (hereinafter referred to as
G the 'Tribunal'). Before the Tribunal an affidavit, counter and rejoinder affidavit
were filed by the parties in support of their respective cases. The Tribunal for
the reasons assigned in its judgment held that the order of termination of the
appellant's services had been passed arbitrarily and whimsically by the au.thori-
ties concerned without any rhyme or reason and concluded its final order which
· reads thus :
H
T.S. SAXENAv. STATE [PANDIAN, J.] 539

~
"We accordingly allow this claim petition and declare that the A
::
-! order dated 16.10.71 terminating the services of the petitioner
passed by the Commissioner Consolidation, Luknow is illegal and
void and set aside the same. The petitioner shall be entitled to get
all the benefits arising out of it according to rules. In the circum-
:... stances of the case we make no order as to costs."
B
The State ofU.P., respondent herein on being dissatisfied with the order
of the Tribunal filed Writ Petition No. 226/80 before the High Court at
Allahabad, Lucknow Bench. The High Court by its judgment allowed the Writ
Petition and quashed the order of the Tribunal observing thus :
"It is, therefore, not correct to say that there was no material for
terminating the employment of the petition nor it can be accepted
c
that the impugned order against the petitioner was passed to
impose any penalty on him. The order also cannot be said to be
arbitrary or whimsical."
Hence the present appeal by the appellant.
D
~
The pivotal questions on which the claim of the appellant revolve are (1)
' whether the appellant was having lien in the post of Lekhpal; and (2) whether
he entered into the service in.the Consolidation Department on deputation and
as such was entitled to be sent back only to his substantive post, namely, the
post of Lekhpal, but not 'to be termmated.
.
E
The case of the appellant is that while he was holding the substantive post
of Lekhpal, he entered into service in the Consolidation Department only on
deputation, that the··communication dated 10.6.63 sent from the office of
Collector ofMoradabad and signed by the Land Records Officer would clearly
show that his lien had been fixed in Amroha Tehsil in the vacancy of Shri
Harish Chandra. The counter case of the respondent is that the appellant was F
never holding the post of Lekhpal in. a substantive capacity and that his
appointment in the Consolidation Department as Consolidator was never on
deputation, but on the other hand, it was on a selection by the Selection Board,
-">. that he was holding that post of Consolidator on temporary basis and that he
was holding no lien to the post of Lekhpal.

At the outset it may be mentioned that the appellant has not satisfactorily
G
substantiated his claim that he was holding the post of Lekhpal in a substantive
capacity except placing reliance on a letter dated 10.6.63 which letter is
purported to have been sent to him after nearly 9 years of his selection as
Consolidator. The relevant portion of the order of appointment as Lekhpal
which is annexed to the appeal records as Annexure P-12 reads: H
540 SUPREME COURT REPORTS [1991] SUPP. 3 S. C.R.
\
'r
A "Order
-
'-
Shri Triveni Shankar is appointed Lekhpal on temporary basis.

Sd/- M.A. Zaidi
S.D.O. Moradabad
B 6.4.1953"

Thereafter the appellant was selected as Consolidator on 5.11.1954.

The relevant portion of the letter dated 10.6.63 purported to· have been
sent to the appellant after 9 years of his selection as Consolidator is as follows:
c
"Moradabad Collectorate

Dated : 10.6.63

Shri Triveni Shankar Saxena, Consolidation Baraut c/o Settlement Offi-
D cer, Begum Bagh, Meerut.
r
Please refer ,to your application dated 4.3.63 your lien has been
fixed in Amioha Tehsil in the vacancy of Sri Harish Chandra who
has been absorbed in Collection.
E sd/- H.D. Pande
Land Records Officer"

· A copy of the application dated 4.3.63 referred to in the letter emanated
from the office of the Moradabad Collectorate is not placed before this Court
·F nor is it available on the file produced by the respondents. In the absence of the
original or copy of the appellant's application we are at a loss to know as to
what was the nature of the claim he made since he continued his temporary
service in the Consolidation department till 1971 for about 17 years from the
date of joining service as Consolidator and for 8 years even after receipt of the
,,..
communication from the Collectorate. Further, though the letter of the Collec-
G torate shows that his lien has been fixed in the vacancy of Shri Harish Chandra,
who is said to have been absorbed in collection, we are not in a position to find
out as to whether Shri Harish Chandra was on deputation or transferred to other
service or whether he had been permanently appointed to some other post or
whether the post of Lekhpal, Shri Harish Ch~dra. held, fell as a permanent
vacancy or a temporary one. Moreover, when the appellant is not shown to
H
T.S. SAXENA v. STATE [PANDIAN, J.] 541

... ....,;
have been appointed to the post of Lekhpal on a permanent basis and to have
held substantively that post, this letter dated 10.6.63 does not assume much
A
significance and relevance. But, on the other hand,· when the appellant was
appointed only on temporary basis as it is evident from his order of appoint-
ment dated 6.4.53 and thereafter newly appointed in some other post, the
question of lien does not arise, even on the basis of the letter dated 10.6.63.
B
Mr. Gopal Subramanium appearing for the appellant took. much pain in
construing the expression 'lien' with reference to the definition of that word as
,. found in the "U.P. Fundamental Rules" and contended that the appellant should
have been reverted back only to his original post·and not terminated. In the
counter affidavit (Ann·exure P. IV) filed on behalf of the second respondent,
namely, S.D.M., Moradabad before the Tribunal, it is stated thus: c
"The petitioner did work as Lekhpal iri an officiating capacity from
6.4.1953 to 15.11.1954 iri Tilokpur Ghond District Moradabad
.........................................................................................................
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . the petitioner was selected for the post of D
'f Consolidator in the Consolidation Department and he took training
' in Training Centre Rampur since 16.11.1954 to 11.2.1955. But it
is absolutely wrong to say that he held a lien on the post ofLekhpal
at the time of his appointment as Consolidator in the Department
of Consolidation. As a matter of fact, he held regular post of a
Lekhpal in a very short period in an officiating capacity and E
thereafter it so transpired that he had applied for the post of
Consolidator for which he was selected and joined the post di-
rectly. No deputation was granted to him simply because of the fact.
he was not holding the post of Lekhpal in a substantive capacity.

.... In 1966, vide Letter No: 959nSK-65 datd 25.3.1966 and 206In F
SK-65, dated 23.6.66 the petitioner was asked by the Department
to submit any proof if he had by which it could be proved that he
was holding the post of rgular Lekhpal prior to his appointment as
~ Consolidator and that he held any lien to the post of regular
/ Lekhpal. Neither any proof was available in the office of the
deponent nor could be supplied by the claimant himself. Therefore, G
the matter was finally decided that he had no lien on the post of
Lckhpal whatsoever."
Rules 14-A and 14-B of the U.P. Fundamental Rules read as follows:
"14-A. (a) A Government servant's lien on a post may in no
circumstances be terminated, even with his consent, if the result H
542 SUPREME C:OURT REPORTS [1991] SUPP. 3 S. C.R.

A will be to leave him without -a. lien or a suspended lien upon a
permanent post

(b) In a case covered by sub-clause (2) of clause (a) of rule 14,
the sus~ndcd lien may not, except on it(e' written request of the
Government servant concerned, be terminated while the Govern-
B ment servant remains in Government service.

14-B. Subject to the provisions of rule 15, the Government may
transfer to another permanent post in the same cadre the lien of a t ·
Government servant who is not performing the duties of the post
to which the lien relates, even if that lien has been suspended."
c
There cannot be any controversy that unless the appellant shows to the
satisfaction of the Court that he was having a lien on the post of Lekhpal, he
cannot make a grievance of any violation having been perpetrated under the
·above said rules. The word ~'lien" is defined in Rule 9(13) of the above said
rules as follows :
D
"Lien means the title of a Government srevant to hold substan- 1
tively, either immediatley or on the termination of a period or
a
periods of absence, pennanent post, including a tenure post, to
which he has been appointed substantively."
E We shall now examine what the word 'lien' means. The word 'lien'
originally means "binding" from tht· Latin ligamen. Its lexical meaning is
"right to retain". The word 'lien' is now variously described and used undei: .....
different context such as 'contractual lien', 'equitable lien', 'specific lien',
'general lie~·, 'partners lien', etc. etc. in Halsbury' s Laws of England, Fourth
Edition, Volume 28 at page 221, para 502 it is stated : .
F
"In its primary or legal sense "lien" means a right at common law
in one man to retain that which is rightfully and continuously in his
possession belonging to another until the present and accured ;. .
claims are satisfied."
G
In Stroud's Judicial Dictionary, 5th Edition, Volume 3 at page 1465 the
following passage is found :
~·
"LIEN. (1) A lien-(without effecting a transference of the prop-
erty in a thing)-is ·the right to retain possession of a thing until a
H claim be satisfied; and it is either particular or genral. So, as rgards
T.S. SAXENA v. STATE [PANDIAN, J.] 543

Scotland, "lien" is defined as including "the right of retention" A
... -'" (Sale of Goods Act 1893 (c. 71), s. 62), or it "shall mean and
include right of retention" (Factors (Scotland) Act 1890 (c. 40), s.

-
1); see hereon Great Eastern Railway v. Lords Trustees, (1909)
A.C. 109"

In words and Phrases, Permanent Edition Vol. 25 the definition of word B
'lien' when used to explain the equitable lien, is given thus :

- ._... "A 'lien' from a legal standpoint, embodies the idea of a deed or
bond, and necessarily implies that there is something in existence
to which it attaches."
c
At page 393 of the same Volume it is stated :

"The word 'lien' has a well-known signification. In law it signifies
an obligation, tie, or claim annexed to or attaching upon any
property, without satisfying which such property cannot be de-
manded by its owner, vide Storm v. Waddell, N.Y., 2 Sandf. Ch. D
~
\
494, 507, 508."

Again at page 399 of the same Volume it is stated:

"Lien" is a term of very large and comprehensive signification, but
which never imports more than security, vide Mobile Building & E
Loan Ass'n v. Robretson, 65 Ala. 382, 383."
__,,

In Black's Law Dictionary, 6th Edition, at page 922 the following
passage is found :

..
m;';

"The word 'lien' is a generic term and, standing alone, includes
F
liens acquird by contract or by operation of law."

J..... Shclat, J. in Paresh Chandra v. Controller of Stores, AIR 1971S.C.359
~
while interpreting clause 14 of Rule 2003 of the Railway Fundamental Rules
which defines lien has observed : G
"Rule 2003 of the Railway Fundamental Rules defines in els. 3 and
14 the terms 'cadre' and 'lien'. 'Lien', as defined in cl. 14 means
:- the title of a railway employee to hold substantively a permanent
post to which he has been permanently appointed. According to
this definition, therefore, the appellant and respondents 4 to 8 were H

'
'
544 SUPREME COURT· REPORTS [1991) SUPP. 3 S. C. R.
I !
fi
A entitled to, with effect from· August 15, 1947 (when all of them 'r
were made pennanent), a lien on the respective posts to which, ·as
from that day, they were confirmed and made. permanent."
'- I' '
-t--

A learned single Judge of the Allahabad High Court in M.P. Tewari v.
Union of India 1974, A.LJ. 427 following the dictum laid down in the above
J'
...
B Paresh Chandra's case and distinguishing the decision of this Court in PL. L
"""'
Dhingra v. Union of India, AIR 1958 S.C. 36 has observed that "a person can <.
be said to acquire a lien on a post only when he has been confirmed and made
permanent on that post and not earlier.. , with which view we are in agreement. l
f
r
Even on the appellant's own showing he was appointed as a Lekhpal on
C 6.4.53 and held the same till 15.11.1954, that is for a period of nearly one year
and seven months. His appointment order unambiguously· shows that it was
only on a temporary basis. The appellant has not shown that he had been \ I'-
confirmed in a permanent post and that he was holding· that appointment
substantively either immediately or on the termin.ation of a period so as to make
a claim of lien to the post ofLekhpal by availing the benefit of Rules 14-A and tc=
D 14-B of the U.P. Fundamental Rules. Therefore, as rightly pointed out by Mr.
Yogeshwar Prasad, it cannot be said that the appellant held the post in a ;
I

substantive capacity on permanent basis on the date when he was appointed as
a Consolidator. In the absence of any such proof on the side of the appellant,
I'
we are constrained to hold that he was employed as Lekhpal on a temporary
E basis and thereafter appeared before the Selection Board and was selected
denovo as a Consolidator in the Consolidation Department. r~

Now we shall pass on to the next question as to whether the appellant was ,,..._l)-
holding the post of Consolidator only on deputation.

F The case of the appellant that he has been deputed to the Consolidation l
Department has not been established by any documentary evidence. There is
nothing on record to show that he was on deputation except his unsubstantiated r ~
statement. The case of deputation is totally denied by the respondents all
through which denial is not refuted by any acceptable proof. Therefore, under ,..-'-
J
the above circumstances, the claim of the appellant that he was deputed is liable
G to be rejected.

Mr. Gopal Subramanium during the course of his argument contended
that the service of the appellant should not have been terminated merely on the
ground of adverse entries in his personal file without complying with the
provisions of Article 311 of the Constitution and that the present termination
H order is a punitive action casting stigma on him. This argument, in our view,
T.S. SAXENA v. STATE [PANDIAN, J.] 545

. is not available to the appellant because the appellant no where in his pleadings A
has raised such a plea and that the order of tennination does not spell out that
it is a punitive action. In order to appreciate the nature of the tennination order,
we shall hereunder reproduce the same, which. is annexed as 'Annexure P-14'

"No. 901/E 304no dated 16th October, 1971 B
OFFICE MEMO

The undersigned issue notice under the General Rules advertised
alongwith the Notification No. 230 (two/kha/1953 dt. 30th Janu-
ary, 1953 of the appointing Department (Kha) to Shri Triveni C
Shankar Saxena, Temporary Assistant Consolidation Offieer, Sagri
Distric~ Azamgarh that his services are no more required and his
service shall be deemed to be terminated after the receipt of this
notice and it is further directed that he will be paid one month
salary in lieu of notice.
D
M.JHIR
Mohamad Jhir
Director-cum-Commissioner of
Consolidation, Uttar Pradesh"

The above order as rightly pointed out by Mr. Yogeshwar Prasad clearly E
spells out that it is an order of termination (simpliciter) passed against a
temporary employee not casting any . stigma on him or disclosing penal
consequences. The High Court in its penultimate paragraph of its judgment has
observed:
F
"Record placed before the court in the instant case shows that the
petitioner had several adverse entries from the year 1956-57 to the
year 1969-70. It is, therefore, not correct to say that there was no
material for tenninating the employment of the petitioner nor it can
be accepted that the impugned order against the petitioner was
passed to impose any penalty on him. The order also cannot be said G
to be arbitrary or whimsical."

We also sent for the original Character Roll of the appellant and waded
through it carefully and found several adverse entries about the unsatisfactory
performance of his work throughout. The order of termination dated 16.10.1971
shows that the appellanl at the relevant time was holding the post of temporary H
546 SUPREME COURT REPORTS [1991) SUPP. 3 S. C.R.

A Assistant Consolidation Officer and that his services were no more required
and that he was paid one month's salary in lieu of notice. As it is not the case
of the appellant that his services alone were terminated whilst some of his
juniors have been retained in service, the dictum laid down in Om Prakash
Goel v. Himachal Pradesh Tourism Development Corporation Ltd., AIR 1991
S.C. 1490 to which we were parties and on which reliance was placed by the
B appellant has no application to the facts of this case. Mr. Yogeshwar Prasad
drew our attention to a recent decision of this Court in State of Uttar Pradesh
and Another v. Kaushal Kishore Shukla, (1991] 1 S.C.C. 691 wherein the
proposition of law regarding the termination of services of adhoc or temporary
Government servants on assessment of suitability on consideration of adverse
entries has been laid down. In that case, this Court after observing that the
C decision in Nepal Singh v. State of U.P. [1985] 1 SCC 56 is per incuriam and
distinguishing the decision inlshwar Chand Jain v. High Court of Punjab and
Haryana, (1988] 3 SCC 370 and following R.K. Misra v. U.P. State Handloom
Corporation, [1987] (Suppl) SCC 739 has ruled thus:

"Under the service jurisprudence a temporary employee has no
D right to hold the post and his services are liable to be treminated in
accordance with the relevant service rules and the terms of contract t
of service. If on the perusal of the character roll entries or on the
basis of preliminary inquiry on the allegations made against an
employee, the competent authority is satisfied that the employee is
not suitable for the service whereupon the services of the tempo-
E rary employee are terminated, no exception can be taken to such an
order of termination.

A temporary government servant has no right to hold the post, his
services are liable to be terminated by giving him one month's
F notice without assigning any reason either under the terms of the
contract providing for such termination or under the relevant
statutory rules regulating the terms and conditions of temporary
government servants."

However, this Court has made it clear that if the competent authority
G decides to take punitive action, it may do so by holding aformal inquiry by
framing charges and giving an opportunity to the Government servant in
accordance with the provision of Article 311 of the Constitution. In the instant
case, as we have already noticed supra, the termination is not a punitive action.
According to the State of U.P. ·the services of the appellant were terminated as
per the rules on account of his unsuitability by giving him one month's salary,
H which statement is not challengd before us. Therefore, we hold that the dictum
T.S. SAXENA v. STATE [PANDIAN, J.] 547

lmd down in the above Kaushal Kishore Shukla' s case will squarely apply to A
"" the facts of the present case and that the order of tennination (simpliciter)
cannot be challenged.

Notwithstanding of the above conclusion, we cannot lose sight of the
patent fact that the appellant was allowed to continue in service for more than
18 years in different capacity and the competent authority did not think of B
terminating his service in spite of a number of adverse entries in his Character
Roll and allowed him to continue to work. Had the tennination been effected
,_ at the earlier point of time, the appellant could have possibly secured some
other employment. Having regard to the special facts and circumstan~s of the
case and considering the equities arising in this matter, we feel that an amount
of Rs. 50,000 should be paid as an ex-gratia payment. We, therefore, direct the C
Government of Uttar Pradesh to make payment of the said sum of Rs. 50,000
to the appellant within 4 months from today.

Subject to the above directions the appeal is dismissed. No order as to
costs.

N.P.V. Appeal dismissed.

...