PETITIONER: SATISH CHANDRA ANAND Vs. RESPONDENT: THE UNION OF INDIA. DATE OF JUDGMENT: 13/03/1953 BENCH: BOSE, VIVIAN BENCH: BOSE, VIVIAN SASTRI, M. PATANJALI (CJ) MUKHERJEA, B.K. HASAN, GHULAM BHAGWATI, NATWARLAL H. CITATION: 1953 AIR 250 1953 SCR 655 CITATOR INFO : R 1954 SC 369 (15,16) RF 1957 SC 886 (5) E&F 1958 SC 36 (27,28,33,39,40) R 1958 SC 232 (18) F 1958 SC 905 (6) RF 1961 SC 177 (11) R 1963 SC 602 (4) RF 1964 SC 600 (34,42,45,127,134,148) R 1964 SC1585 (11) RF 1971 SC1516 (7) RF 1973 SC2641 (21) RF 1975 SC2045 (6) RF 1976 SC1766 (14) RF 1976 SC2547 (8,9) RF 1982 SC1107 (30) F 1985 SC 551 (29) ACT: constitution of India, 1950, Arts. 14, 16, 311-Civil servant-Appointment on contract for 5 years-Continuation of appointment on temporary service basis-Termination of service on one month's notice-Legality--Fundamental rights- Central Civil Services (Temporary Service) Rules, 1949, r. 5. HEADNOTE: The petitioner was employed by the Government of India on a five year contract in the Resettlement and Employment Directorate of the Ministry of Labour. When his contract was due to expire the Government made him a new offer to continue him in service in his post temporarily for the period of the Resettlement and Employment Organisation on the condition that he will be governed by the Central Civil Services (Temporary Service) Rules, 1949, which provided for termination of the contract by month's notice on either side. He accepted the offer and continued in service, but subsequently his services were terminated after giving him one month's notice, The petitioner applied for relief under Art. 32 (1) of the Constitution alleging that his funda- mental rights under Arts. 311, 14 and 16 (1) of the Constitution were infringed: Held, (i) that Art. 311 had no application as this was not a case of dismissal or removal from service nor a reduction in rank but only an ordinary case of a contract being terminated by notice under one of its clauses, the difference between dismissal and 656 removal being that the former ordinarily disqualifies from future employment but not the latter; (ii) Art. 14 had no application as he had not been discriminated against and had not been denied the protection of any laws which others similarly situated could claim; (iii) Art. 16 was equally inapplicable as the petitioner was not denied equal opportunity in a matter relating to appointment or employment but had been treated just like any other person to whom an offer of temporary employment under these conditions was made. The State can enter into contracts of temporary employment and impose special terms in each case, provided they are not inconsistent with the Constitution, and those who choose to accept those terms and enter into the contract are bound by them, even as the State is bound. JUDGMENT:
ORIGINAL JURISDICTION: Petition (No. 201 of 1952) under Art.
32 of the Constitution for the enforcement of fundamental
rights.
B. K. Varma.and G. C. Mathur for the petitioner.
M.C. Setalvad, Attorney-General for India, (Porus A. Mehta,
with him) for the respondent.
1953. March 13. -The Judgment of the Court was delivered by
BOSE J.-This is a petition under article 32 of the
Constitution in which the petitioner seeks redress for what,
according to him, is a breach of his fundamental rights
under articles 14 and 16(1) of the Constitution. It was
argued at considerable length by the petitioner in person.
Then, when our judgment was nearly ready, he put in a
petition asking for a rehearing and for permission to file
some fresh papers. When that was refused he came again on
another,day and asked for leave to engage an agent and
appear through counsel as he felt he had not been able to do
justice to his case in person. (It may be mentioned that
though he had originally engaged an agent he dismissed him
before the hearing when he appeared in person.) We granted
his request and counsel reargued the case for him but has
not carried the matter any further. The facts are these.
657
In October,1945, the petitioner was employed by the
Government of India on a five year contracting, the
Directorate General of Resettlement and Employment of the
Ministry of Labour. This was after selection by the Federal
Public Service Commission. After a short period of
practical training, he was posted in January, 1946, at
Jabalpur as the Manager of the Sub-Regional Employment
Exchange and was later confirmed in this appointment.
This contract of service was due to expire in 1950.
Shortly before its expiration the Government of India made
him a new offer, embodied in its letter dated the 30th June,
1950, to continue him in service on the expiry of his
contract on the terms specified in that letter. Among them
were the following:
(3) Other conditions of service:-On the termination of
your contract you will be allowed to continue in your post
temporarily for the period of the Resettlement and
Employment Organisation and will be governed by the Central
Civil Services (Temporary Service) Rules, 1949, unless you
are a permanent Government servant.”
He was asked in the letter to intimate to the Ministry of
Labour whether he was willing to continue in service on
those terms and he admits that he accepted the offer and
continued in service, He was not a permanent Government
servant though it was contended in argument that he was, for
he was on a five year contract and the work for which he was
employed, namely Resettlement and Employment, was itself
only of a temporary character. Therefore, the Temporary
Service Rules applied.
On those rules,’ rule 5 is material. It runs as follows:
5 (a) The service of a temporary Government servant who is
not in quasi-permanent service shall be liable to
termination at any time by notice in writing given either by
the Government servant to the appointing authority, or by
the appointing authority to the Government servant.
658
(b) The period of such notice shall be one month, unless
otherwise agreed to by the Government and by the Government
servant.”
Quasi-permanent service is defined in-the rules and it is
clear that the petitioner does not come within that class.
It is also an undisputed fact that there was no agreement
between the petitioner and Government regarding the period
of the notice. Therefore, according to this rule, which was
a term in the petitioner’s contract of further service, his
services were liable to termination at any time by’ one
month’s notice in writing. This notice was given on 25th
November, 1950, and he was told that his services would
terminate on the expiry of one month from 1st December,
1950.
A large field was covered in the course of the arguments,
and had the matter not been re-argued we would, for the
petitioner’s satisfaction, have dealt with the contentions
raised more fully than will be necessary now that counsel
has appeared.
The petition is under article 32(1) of the Constitution
and so it must be shown that a fundamental right has been
infringed. It was argued that the rights infringed are the
ones conferred by articles 14 and 16(1).
Taking article 14 first, it must be shown that the
,petitioner has been discriminated against in the exercise
or enjoyment of some legal right which is open to others who
are similarly situated. The rights which he says have been
infringed are those confered by article 31 1. He says he has
either been dismissed or removed from service without the
safeguards which that article confers. In our opinion,
article 31 1 has no application because this is neither a
dismissal nor a removal from service, nor is it a reduction
in rank. It is an ordinary case of a contract being termi-
nated by notice under one of its clauses.
The services in India have long been afforded certain
statutory guarantees and safeguards against arbitrary
dismissal or reduction in rank Under
659
section 240 of the Government of India Act, 1935, the
safeguards were limited to those two cases. Under. the
present Constitution, a third was added, namely removal from
service. In order to understand the difference between
“dismissal” and “removal” from service, it will be necessary
to turn to the Rule,; which governed, and with modifications
still govern, the “services” in India because of article 313
of the Constitution.
Part XII of the Civil Services (Classification, Control
and Appeal) Rules relating to Conduct and Discipline
includes rule 49 which sets out the various penalties to
which a member of the services can be subjected for
indiscipline and misconduct. They are seven in number and
include censure, suspension, reduction in rank, removal from
service and dismissal from service. The Act of 1935
selected only two of these possible penalties as serious
enough to merit statutory safeguards, namely reduction in
rank and dismissal from service. ‘The Constitution has
added a third to the list. The distinction which is drawn
between the two is explained in rule 49. There is first
removal from service “which does not disqualify from future
employment ” and there is next dismissal from service “which
ordinarily disqualifies from future employment.”
Then follows an Explanation:
The discharge-
(c) of a person engaged under contract, in accordance
with the terms of his contract, does not amount to removal
or dismissal within the meaning of this rule.”
These terms are used in the same sense in article 3ll.
It follows that the article has no application here and so
no question of discrimination arises, for the “law” whose
protection the petitioner seeks has no application to him.
There was no compulsion on the petitioner to enter into
the contract he did. He was as free under the law as any
other person to accept or to reject the
660
offer which was made to him. Having accepted, he still has
open to him all the right-, and remedies available to other
persons similarly situated -to enforce any rights under his
contract which have been denied to him, assuming there are
any, and to pursue in the ordinary courts of the land such
remedies for a breach as are open to him to exactly the same
extent as other persons similarly situated. He has not been
discriminated against and he has not been denied the
protection of any laws which others similarly situated could
claim. The remedy of a writ is misconceived.
Article 16(1) is equally inapplicable. The whole matter
rests in contract. When the petitioner’s first contract
(the five year one) came to an end, he was not a permanent
Government servant and Government was not bound either to
re-employ him or to continue him in service. On the other
hand, it was open to Government to make him the offer it did
of a continuation of his employment on a temporary and
contractual basis. Though the employment was continued, it
was in point of fact, and in the eyes of the law, under a
new and fresh contract which was quite separate and distinct
from the old even though many of its terms were the same.
Article 16(1) deals with equality of opportunity in all
matters relating to employment or appointment to any office
under the State. The petitioner has not been denied any
opportunity of employment or of appointment. He has been
treated just like any other person to whom an offer of
temporary employment under these conditions was made. His
grievance, when analysed, is not one of personal
differentiation but is against an offer of temporary
employment on special terms as opposed to permanent
employment. But of course the State can enter into
contracts of temporary employment and impose special terms
in each case, provided they are not inconsistent with the
Constitution, and those who choose to accept those terms and
enter into the contract are bound by them, even as the State
is bound. When the employment is permanent there are
certain statutory guarantees but in the absence of
661
any such limitations government is, subject to the
qualification mentioned above, as free to make special,
contracts of, service with temporary employees, engaged in,
works of a temporary nature, as any other employer.
Various matters relating to the merits of the case were
referred to but we express no opinion about whether the
petitioner has other rights which he can enforce in other
ways. We are dealing here with a writ under article 32 to
enforce a fundamental right and the only point we decide is
that no fundamental right has been infringed.
When the matter was first argued we had decided not to
make any order about costs but now that the petitioner has
persisted in reopening the case and calling the learned
Attorney-General here for a second time, we have no
alternative but to dismiss the petition with costs.
Petition dismissed.
Agent for the petitioner: Bajinder Narain.
Agent for the respondent: G. H. Rajadhyaksha,