ORDER
K. Ramamoorthy, J.
1. The petitioner was appointed as work assistant Engineer (Civil) in the scale of Rs.110-200 in December 1968. Though stated as temporarily appointed, he continued to be in the employment of the respondents. On 23.09.1976, the petitioner was placed under suspension by Vice-Chairman DDA on the ground that the prosecution was launched against the petitioner under Section 302/203 IPC as having been responsible for causing murder of his wife.
2. The DDA having regard to the fact that the petitioner was accused in criminal case involving a serious charge had to decide whether to keep him under suspension or terminate his service, as his appointment was under Rule 5(1) of the Temporary service Rules, 1949. The DDA had decided and it is on record, to dispense with the service of the petitioner because the alleged person had committed the extreme offence of murder. Perhaps it was thought that the payment of subsistance allowances would be for indefinite period because normally such criminal cases take a very long time. It is clear from the file that it is only on account of the pendency of criminal case that the services of the petitioner were dispensed with. This is reiterated from the fact that the petitioner made a representation dated 19.2.1977 against his order of termination dated 6.12.1976. The DDA sent a reply stating that “with reference to his application dated 19.02.1977 written to the Vice Chairman, DDA dated 9.11.1977, I am directed to state that it has been decided that your request for reinstatement cannot be considered till the appeal is decided”.
3. From the record, it is clear that the services of the petitioner were dispensed with on account of the criminal case pending against the petitioner.
4. By a judgment dated 26.09.1997 of the Session Court in case No. 106 of 1976 State Vs. S.P. Jain the petitioner was acquitted. There was an appeal against the said judgment in this court and the judgment of the Session Court was reversed and the petitioner was convicted and sentenced. The petitioner took up the matter to the Supreme Court and the Supreme Court restored the judgment of the Session reversing the judgment of the High Court Judge. The Supreme Court rendered the judgment on 05.03.1993. The petitioner instituted the writ petition on 19.12.1978 praying for the following reliefs:
i) A writ, order or direction and more particularly a writ in the nature of certiorari quashing Annexure P-2, P-4 and P-7A;
ii) A writ, order or direction more particularly a writ in the nature of mandamus directing the Respondents to withdraw the impugned termination letter Annexure P-2 and take back the petitioner in service by maintaining the status quo;
5. The learned counsel for the DDA Mr. Verma submitted that the order of dispensing with the services of the petitioner was only an order of termination simpliciter as no stigma was involved. Even though the petitioner was acquitted by the Supreme Court, the petitioner cannot claim for reinstatement as a matter of fact, when there is no stigma and the order does not disclose one. The petitioner who was only a temporary employee cannot challenge the order of termination. Mr. Gupta, the learned counsel for the petitioner pointed out that the order cannot be an order of termination simpliciter on the ground of the petitioner being a temporary employee because more than 246 employees of similar nature had been retained by the DDA. Mr. Gupta also pointed out it is not a case where the petitioner was not found suitable to the post. In answer to this Mr. Verma learned counsel for the DDA, the fact that the juniors of the petitioner were retained in service is not a matter of any moment and when there is a power to dispense with the services of a temporary employee, the fact that the juniors were retained cannot put forth as a ground by the temporary employees whose services have been dispensed with. Mr. Verma, learned counsel for the DDA, referred to number of judgments of the Supreme Court reported in State of Uttar Pradesh and another Vs. Kaushal Kishore Shukla a (1991)1 S 691 and Union of India and Ors. Vs. Shri Bihari Lal Sidhana 1997 Lab. I.C. 2077.
6. I have gone through this judgment and the facts are not similar to the facts of this case and the ratio laid down by the Supreme Court would not apply to the facts of this case. Mr. Verma, learned counsel for the respondents vehemently contended that the reason to dispense with the service of the petitioner is not relevant for reference and that cannot be gone into by this court. Learned counsel for the DDA referred to the judgements of the Supreme Court reported in Union of India and others Vs. R.S. Dhaba 1969(3) S 603, Ravindra Kumar Misra Vs. U.P. State Handloom Corpn. Ltd. and another 1987(Supp) S 739, Hukam Chand Khundia Vs. Chandigarh Administration and another (1995) 6 S 534 and Union of India and Another Vs. K. Balakrishanan Kani 1990(Supp) S 283.
7. If these judgments are carefully perused one can see the common thread as temporary employees are dispensed with on the ground that he being not a suitable person and without disclosing the same at all, without causing any stigma, the employees cannot be heard to contend that the order was motivated and therefore, it is liable to be quashed.
8. Therefore, the first respondent cannot call in aid the judgment of the Supreme Court in these cases. The petitioner had been acquitted by the Supreme Court and that the prosecution may resort for call not a suitability or any other reason as per the records.
9. Under these circumstances, the order of respondents terminating the services of the petitioner is not in accordance with law and is liable to be set aside. Accordingly, it is stand quashed. The petitioner shall be reinstated in service but regarding the back wages he shall be entitled only from the date of the judgment of the Supreme Court i.e. 05.03.1993. But for the purpose of promotion, his service would be counted from 1968. The writ petition stands allowed. There shall be no order as to costs.
10. The other contentions relating to the payment of monthly salary along with termination, I am not dealing with this because it is unnecessary. The respondents shall calculate the pay from the year 1993 on the basis of his continuous and shall pay the same on or before 31.07.1998.