1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : O R D E R : S.B. Civil Writ Petition No.562/2005. (Kayam Ali Vs. District Judge, Bhilwara & Another) DATE OF ORDER : October 14th, 2008 P R E S E N T HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS ____________________________________ Mr. K.K. Vyas for the petitioner. Mr. Deepak Choudhary, Dy. Govt. Counsel. BY THE COURT : In this writ petition, the petitioner has prayed for quashing orders dated 20.03.2001 and 31.03.2001 and to call record and examine the basic reason for which order dated 20.03.2001 was passed. Further, it is prayed that veil may be lifted and it be seen why person with lower merit was kept whereas petitioner was terminated. Brief facts of the case are that the posts of Class IV employees were advertised by the District & Sessions Judge, Bhilwara in accordance with the Rajasthan Class IV Service (Appointment & Other Conditions of Service) Rules, 1963. The petitioner being eligible for appointment as Class IV servant filed application for recruitment to the post of Class IV employee. The post for which the petitioner applied was substantive in nature, therefore, for 2 recruitment, procedure laid down in the Rules of 1963 was followed and petitioner alongwith other persons was called for interview. After scrutiny of the candidature, the petitioner was selected and after following the 100 point roster merit was prepared and petitioner was provided appointment vide order Annex.-1 dated 18.12.2004 in which name of the petitioner appears at S.No.8 and it is specifically mentioned in the order that the petitioner is appointed against the vacancy of Other Backward Classes. In all, 10 persons were appointed after following due process of law in the pay-scale of Rs.2550-3200. However, initial appointment was made purely on temporary basis for three months but, later on, as per terms and conditions of service, his services were extended from time to time. All of a sudden, on 31.03.2001, the petitioner was terminated from service in pursuance of order dated 20.03.2001 passed by the District & Sessions Judge, Bhilwara. The said order was passed by the Civil Judge (Jr. Dn.) cum Judl. Magistrate, Mandalgarh. The case of the petitioner is that he was substantively appointed after due process of law and other persons who were appointed like the petitioner are still continuing in service but without assigning any reasons the petitioner was discharged from service even without giving any notice. It is argued by learned counsel for the petitioner that once the appointment was given after following due procedure of law then it is obvious that the appointment was substantive in nature although the initial appointment was temporary. It is argued that no reasons whatsoever 3 have been assigned for discharging him from service, therefore, the order is against the principles of natural justice and illegal being violative of Article 14 of the Constitution of India because all the persons who were appointed like the petitioner are still continuing in service and the petitioner was discharged from service by the Civil Judge (Jr. Dn.) in pursuance of the order passed by the District & Sessions Judge, Bhilwara dated 20.03.2001. Learned counsel for the petitioner vehemently argued that in this case the respondents have violated all the provisions of law and the petitioner who is meritorious candidate has been thrown out of job while allowing the similarly situated persons to wok on the posts, therefore, the impugned order deserves to be set aside and the petitioner may be reinstated in service. In reply to the notice, it is stated by the respondents that the petitioner was appointed purely on temporary basis for a period of three months and in the appointment order it is mentioned that if the services and conduct of the petitioner are found to be unsatisfactory then his services may be terminated without any notice. As per the respondents, work of the petitioner was not satisfactory. In this regard, letter dated 07.03.2001 was written by the Civil Judge, Mandalgarh to the District & Sessions Judge, Bhilwara in which it has been clearly mentioned that the work of the petitioner is not satisfactory and the same needs to be improved. The said communication is placed on record as Annex.-R/1. It is further replied that since the work and behaviour of the petitioner was not satisfactory, therefore, he was discharged from service and 4 the contention of the petitioner is baseless that he was assured by the respondents to give sympathetic consideration for his re-employment, therefore, the writ petition deserves to be dismissed because the appointment was on temporary basis and he was discharged from service upon unsatisfactory work report by his immediate superior. Learned counsel for the respondents vehemently argued that this writ petition has been filed in the year 2005 whereas the petitioner was discharged from service with effect from 31.03.2001 and no explanation with regard to delay has been given by the petitioner, therefore, this writ petition may be dismissed on this ground alone. It is also argued that the petitioner himself accepted the appointment order in which terms and conditions of service were imposed which the petitioner accepted with open eyes, therefore, he cannot be permitted to take the plea that his services were terminated without assigning any reasons. The respondents have rightly terminated the services of the petitioner on the basis of the report submitted by the Civil Judge (Jr. Dn.), Mandalgarh. It is also submitted that upon perusal of Annex.-3 dated 20.03.2001 it is clear that the District & Sessions Judge, Bhilwara has specifically mentioned in the order that the tenure of the petitioner was extended upto 31.03.2001, therefore, he may be discharged from service because his tenure is going to expire on 31.03.2001. I have perused the entire pleadings of the case. 5 It is replied by the respondents that the services of the petitioner were terminated on the ground that his services were not found satisfactory as reported by the Civil Judge (Jr. Dn.), Mandalgarh vide Annex.-R/1. In para 7, there is assertion with regard to the performance of the petitioner and the Civil Judge (Jr. Dn.), Mandalgarh reported that work and behaviour of Kayam Ali, Class IV servant is not satisfactory and it requires improvement; meaning thereby, it is nowhere stated that his services are not required as his work is not satisfactory. The said communication was sent on 07.01.2001 and, upon this communication, impugned order dated 20.03.2001 was passed by the District & Sessions Judge, Bhilwara. Upon perusal of Annex.-3 also, it is nowhere stated therein that the petitioner’s services were discharged due to unsatisfactory work, therefore, the whole of the reply filed by the respondents is baseless; and, more so, not in consonance with the documentary evidence on record vide Annex.-R/1 and Annex.-R/3. In whole of the reply, it is emphatically stated by the respondents that the work of the petitioner was not satisfactory, therefore, in terms of the appointment order his services were discharged. But, upon perusal of the order it is not clear that the reason for discharging him from service was unsatisfactory service. The Judl. Magistrate, Mandalgarh only observed in the work report that there is need of improvement and he did not recommend for discharging the petitioner from service. Similarly, there is no assertion in the order dated 20.03.2001 that the petitioner’s services were not satisfactory as reported by the Judl. Magistrate. In this 6 view of the matter, in my opinion, the petitioner was wrongly discharged from service while retaining all the other persons who were appointed in service like the petitioner after following due process of law. In the impugned order Annex.-4 also, the Civil Judge (Jr. Dn.) cum Judl. Magistrate, Mandalgarh has only observed that in pursuance of the order passed by the District & Sessions Judge, Bhilwara the petitioner is discharged from service. In this order also, it is nowhere stated that the petitioner’s service was not satisfactory, therefore, he is discharged from service. In the present case, one important aspect of the matter is required to be seen that the respondents are not disputing that there are no vacancies or vacancies upon which the petitioner and other persons were appointed are temporary in nature. The whole contention of the respondents is that the services of the petitioner were not satisfactory, therefore, in terms of the appointment order, he was discharged from service. In my opinion, the petitioner was discharged from service arbitrarily and illegally in violation of Article 14 of the Constitution of India. The ground for termination of the services of the petitioner is, therefore, not sustainable. More so, it is case of discrimination and high-handed practice of the respondents while retaining other persons in service and not granting any opportunity to the petitioner for improvement of his behaviour. Therefore, the impugned order dated 20.03.2001 and consequential order Annex.-4 dated 31.03.2001 are arbitrary and illegal being against the principles of natural justice because the petitioner has 7 been discharged from service without providing him any opportunity which is not permissible in law. With regard to delay in filing the writ petition, it may be observed that the respondents are Judicial Officers and at the time of passing the impugned orders it is expected of them to act in fairness and accordance with law. Order impugned dated 20.03.2001 seems to have been passed without application of mind by the District & Sessions Judge and, that too, in very casual manner. It is specifically stated in para 2 of the reply that the conduct of the petitioner was not found satisfactory, therefore, his services were terminated without any notice. In my opinion, if the order impugned is based on Annex.-R/1 which is said to be a report, then, it cannot be said that any recommendation was made by the concerned officer for discharging the petitioner from service. More so, the reporting officer emphasized the need for improvement in his behaviour, therefore, the petitioner ought to have been provided opportunity of improving his work and behaviour. But, the learned District Judge, without application of mind, straight away ordered for discharge of the petitioner from service. In the facts and circumstances of the present case, the delay will not come in the way of continuity in service. In this view of the matter, the objection with regard to delay is rejected. This writ petition is pending since 2005 and it has come to be decided by this Court in the year 2008. In view of the fact that obviously there was no apparent occasion for termination of the services of the petitioner, the petitioner deserves to be reinstated in service forthwith. 8 As a result of the foregoing discussion, this writ petition is allowed. Orders impugned dated 20.03.2001 and 31.03.2001 are hereby quashed and set aside. The respondents are directed to reinstate the petitioner in service forthwith. However, the petitioner will not be entitled to backwages from the date of discharge until the date of filing the writ petition before this Court. The petitioner shall be entitled to 50 per cent back-wages with effect from the date of filing the writ petition i.e., 25.01.2005 till actual reinstatement with all other consequential benefits. There shall however be no order as to costs. (Gopal Krishan Vyas) J. Ojha, a.