Writ Appeal No.85 of 2006 Per G.S. Singhvi, CJ Whether the appellant, who was appointed as Managing Trustee of Anumasamudram Peta Mosque and Tomb Estate, Nellore District (for short ‘the mosque’) for a fixed period of six months, has the right to continue in that position after expiry of the term specified in the order of appointment is the question which arises for determination in this appeal filed against the order dated 23.11.2005 passed by the learned Single Judge in Writ Petition No.12141 of 2005. For deciding the aforementioned question, we may briefly notice the facts: In pursuance of the notices issued by the Administrator of A.S. Peta Mosque and Tomb Estate-cum-Additional Senior Civil Judge, Nellore (respondent), the appellant applied for appointment as Managing Trustee of the mosque. He was interviewed by the selection committee, which recommended his name. Thereafter, vide order dated 10.9.2004, the respondent appointed the appellant as Managing Trustee of the mosque for a fixed period of six months. For the sake of convenient reference, the relevant portions of that order are re-produced below: “Consequent upon the selection held on 8.9.2004, Mr. Syed Aqueel, H.No.9-4-87/B/21, Minor Colony, Tolichowki, Hyderabad has been selected for appointment as Managing Trustee of A.S. Peta Mosque and Tomb Estate, A.S.Peta. He is hereby appointed as Managing Trustee of A.S. Peta Mosque and Tom Estate subject to the condition of the Scheme dated 25.4.1918 passed in O.S.No.50/1913 and Rules framed thereunder tentatively for a period of six months from the date of assumption of charge. His appointment is purely temporary and his services are liable to be terminated at any time without notice if his services are found unsatisfactory. If his services are found satisfactory during the said period of six months, he will be considered for extension pursuant to the Scheme and the Rules. He should furnish security for Rs.20,000/- (Rupees twenty thousand only) before he assumes charge of the Office of the Managing Trustee, A.S.Peta Mosque and Tomb Estate, A.S. Peta from the present in charge Trustee i.e. Peish-Imam and this terminates the services of Peish-Imam as in charge Trustee.” The appellant assumed the charge on 16.9.2004 and continued to work as Managing Trustee till 10.1.2005, on which date he was forced to handover charge in compliance of interim order dated 22.12.2004 passed in W.P.M.P.No.24736 of 2004 in Writ Petition No.18802 of 2004 – Mohammad Anwar Basha vs. Administrator of Anumasamudrampeta Mosque & Tomb Estate-Cum-Additional Senior Civil Judge, Nellore, Nellore District and another. That petition was finally dismissed by the learned Single Judge, vide his order dated 1.3.2005 and Letters Patent Appeal No.423 of 2005 against that order was summarily dismissed by the Division Bench on 15.3.2005. Thereafter, the appellant approached the respondent for being allowed to function as Managing Trustee of the mosque, but the latter did not accept his request, apparently because the tenure of his appointment had ended. In the meanwhile, on receipt of some complaint against the functioning of the appellant as Managing Trustee of the mosque, the respondent got an enquiry conducted through Shaik Abdul Jameel, Junior Assistant of Court of Additional Senior Civil Judge. In his report, Shri Shaik Abdul Jameel observed that if the appellant is reappointed as Managing Trustee of the mosque, the peace and tranquility of the Darga will be disturbed. It was further observed that the appellant was sowing communal differences between the Hindus and Muslims. On receipt of the report, respondent passed order dated 17.5.2005 whereby he declined to give fresh appointment to the appellant. Paragraphs 2 and 3 of that order are reproduced below: “Consequent upon the suspension of the operation of the order of the under-signed, dated 10.9.2004 by the Hon’ble High Court of A.P. in W.P.M.P.No.24736 of 2004 in W.P.No.18802 of 2004, Sri Sd. Aqueel was directed to handover charge of his post to Peish-Imam with immediate effect pending disposal of the Writ Petition No.18802 of 2004 on the file of High Court of A.P. vide 3rd reference cited. Sri Md. Abdul Pasha, Peish-Imam, A.S. Pet Mosque & Tomb Estate took complete charge of the post of Trustee from Sd. Acqueel by 10.01.2005. Sri Sd. Aqueel had discharged his functions from 16.9.2004 till 10.1.2005 as Managing Trustee of A.S. Pet Mosque & Tomb Estate. There were allegations made against him that he, who hails from Hyderabad, was creating Hindu-Muslim communal differences and discriminating Hindu devotees. Sri Sk. Abdul Jameel, Junior Assistant of Addl. Senior Civil Judge’s Court, Nellore was deputed to inquire into the allegations made against the then Trustee and also against in charge Trustee. He enquired and submitted his report 5th cited. As per his report, if Sd. Aqueel is re-appointed as regular Trustee to aspect Mosque & Tomb Estate, the peace and tranquility will be disturbed to the Darga. It further reveals that Aqueel was sowing communal differences between Hindus and Muslims and that the in charge Trustee is unable to perform his duties as Peish-Imam as well as Trustee. On the basis of his report, the services of Syed Aqueel are not satisfactory, that fresh appointment for the post of Trustee requires immediately, and accordingly, Syed Aqueel is terminated from Trusteeship.” The appellant represented against the observations contained in the aforementioned order, but could not persuade the respondent to re-appoint him. He then filed Writ Petition No.12141 of 2005 for quashing order dated 17.5.2005 by asserting that the same is vitiated due to violation of the rules of natural justice and mala fide exercise of power. He pleaded that after dismissal of Writ Petition No.18802 of 2004 filed by Mohammad Anwar Basha, there could be no justification to deny appointment to him and, in any case, the impugned order could not have been passed without holding enquiry and without giving him reasonable opportunity of hearing. The learned Single Judge dismissed the writ petition by observing that even though the order impugned by the petitioner is vitiated due to violation of the rules of natural justice, a writ of mandamus cannot be issued in his favour because the term of his appointment has already ended. Shri Mirza Nissar Ahmad Baig, learned counsel for the appellant reiterated that order dated 17.5.2005 is vitiated due to gross violation of the rules of natural justice, inasmuch as the appellant was condemned unheard and argued that the learned Single Judge committed a serious error by refusing to nullify that order and issuing direction to the respondent to reappoint the appellant. He further argued that even though the appellant was appointed on temporary basis for fixed period of six months, he should be deemed to be on probation and the respondent could not have terminated his services by a stigmatic order and that too without holding an enquiry and without giving reasonable opportunity of hearing. Another argument of the learned counsel is that even though the term of the appellant’s appointment came to an end on 9.3.2004, he was entitled to be reappointed because no other person had been selected by the competent authority. In our opinion, there is no merit in either of the arguments of the learned counsel. A reading of order dated 10.9.2004, of which the extracts have been reproduced above, makes it clear that the appellant was appointed for a fixed term of six months from the date of assumption of the charge. His appointment was treated as purely temporary with the rider that his services are liable to be terminated at any time without notice, if the same were found unsatisfactory. His case for extension could be considered if his services were found satisfactory. There is nothing in the language of that order from which it can be inferred that he was appointed on probation. That apart, learned counsel for the appellant could not show that in terms of the scheme dated 25.4.1918 passed in O.S.No.50 of 1913 and rules framed thereunder, an appointment made on temporary basis for a fixed period can be treated as one made on probation. Therefore, it is not possible to use the judicial process for bringing out deemed change in the texture and contents of the order of appointment and then declare the action of the respondent as nullity on the ground of violation of the rules of natural justice. We are further of the view that even if the appellant is treated as appointed on probation, the same will be deemed to have come to an end on 15.3.2005 because he had assumed charge on 16.9.2004. It is true that on account of interim order dated 22.10.2004 passed in W.P.M.P.NO.24736 of 2004 in W.P.No.18802 of 2004, the appellant could not serve for full term of six months, but that itself cannot justify issuance of a mandamus to the respondent to extend the term of his appointment. At best, he can claim monetary benefits in respect of the remaining period of his six months tenure. The argument of the learned counsel that order dated 17.5.2005 is punitive and the same is liable to be nullified on the ground of violation of the principles of natural justice, which was accepted by the learned Single Judge, sounds attractive, but, on a closer scrutiny, we are unable to agree with the learned Single Judge and accept the argument of the learned counsel. Even if the period when the order of stay passed in W.P.M.P.No.24736 of 2004 was in operation is excluded, the term of the appellant’s appointment (six months) would have ended on 5.5.2005. For the purpose of extending the term of the appellant’s appointment, the respondent was duty bound to consider his past service record and conduct. During the period of his working as Managing Trustee, some complaints were received containing the allegation that he was creating communal differences between the Hindus and Muslims and discriminating Hindu devotees. For verifying this allegation, the respondent asked Shaik Abdul Jameel, Junior Assistant attached to the Court of Additional Senior Civil Judge, Nellore to enquire into. The latter reported that the allegation was correct. Thereafter, the respondent passed order dated 17.5.2005 refusing to give fresh appointment to the appellant. While doing so, he did refer to the observations contained in the report of Shaik Abdul Jameel, but this cannot lead to an inference that the order is punitive or stigmatic and calls for interference by the Court on the ground of violation of the rule of audi alterm partem. The width of the rights of an employee who holds civil post and that of the employer to terminate the services of the employee appointed on permanent or temporary basis or on probation have become subject matter of litigation in different courts including the Supreme Court. In Parshotam Lal Dhingra vs. Union of India, the Constitution Bench of the Supreme Court considered the various facets of this issue. The majority of the Constitution Bench referred to the provisions of Articles 309, 310 and 311 of the Constitution of India along with Section 96B(1) of the Government of India Act, 1915 and Section 240(1) of the Government of India Act, 1935 and held: “Shortly put, the principle is that when a servant has right to a post or to a rank either under the terms of the contract of employment, express or implied, or under the rules governing the conditions of his service, the termination of the service of such a servant or his reduction to a lower post is by itself and prima facie a punishment, for it operates as a forfeiture of his right to hold that post or that rank and to get the emoluments and other benefits attached thereto. But if the servant has no right to the post, as where he is appointed to a post, permanent or temporary either on probation or on an officiating basis and whose temporary service has not ripened into a quasi-permanent service as defined in the Temporary Service Rules, the termination of his employment does not deprive him of any right and cannot, therefore, by itself be a punishment. One test for determining whether the termination of the service of a government servant is by way of punishment is to ascertain whether the servant, but for such termination, had the right to hold the post. If he had a right to the post as in the three cases hereinbefore mentioned, the termination of his service will by itself be a punishment and he will be entitled to the protection of Article 311. In other words and broadly speaking, Article 311(2), will apply to those cases where the government servant, had he been employed by a private employer, will be entitled to maintain an action for wrongful dismissal, removal or reduction in rank. To put it in another way, if the government has, by contract, express or implied, or, under the rules, the right to terminate the employment at any time, then such termination in the manner provided by the contract or the rules is, prima facie and per se, not a punishment and does not attract the provisions of Article 311. The majority of the Constitution Bench then considered the eventualities in which the termination of the services of an employee can be termed as punitive and held: “Any and every termination of service is not a dismissal, removal or reduction in rank. A termination of service brought about by the exercise of a contractual right is not per se dismissal or removal, as has been held by this Court in Satish Chander Anand v. Union of India, AIR 1953 SC 250 (supra). Likewise the termination of service by compulsory retirement in terms of a specific rule regulating the conditions of service is not tantamount to the infliction of a punishment and does not attract Article 311(2), as has also been held by this Court i n Shyam Lal v. State of Uttar Pradesh, 1955-I SCR 26 : (AIR 1954 SC 369). . . . .In short, if the termination of service is founded on the right flowing from contract or the service rules then, prima facie, the termination is not a punishment and carries with it no evil consequences and so Article 311 is not attracted. But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Article 311 must be complied with. As already stated, if the servant has got a right to continue in the post, then, unless the contract of employment or the rules provide to the contrary, his services cannot be terminated otherwise than for misconduct, negligence, inefficiency or other good and sufficient cause. A termination of the service of such a servant on such grounds must be a punishment and, therefore, a dismissal or removal within Article 311, for it operates as a forefeiture of his right and he is visited with the evil consequences of loss of pay and allowances. It puts an indelible stigma on the officer affecting his future career….. But the mere fact that the servant has no title to the post or the rank and the Government has, by contract, express or implied, or under the rules, the right to reduce him to a lower post does not mean that an order of reduction of a servant to a lower post or rank cannot in any circumstances be a punishment. The real test for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences…. . . The use of the expression “terminate” or “discharge” is not conclusive. In spite of the use of such innocuous expressions, the court has to apply the two tests mentioned above, namely, (1) whether the servant had a right to the post or the rank, or (2) whether he has been visited with evil consequences of the kind hereinbefore referred to? If the case satisfies either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service . . . . . . .” (underling is ours) The above exposition of law has been reiterated and followed in almost all subsequent decisions of the Supreme Court and various High Courts, which have been rendered in the cases involving challenge to the termination of the services of the employees appointed on temporary basis or on probation. In State of Orissa vs. Ram Narayan Das, another Constitution Bench considered the question whether a probationer can be discharged in the manner provided by Rule 55B of the Civil Services (Classification, Control and Appeal) Rules, and held: “A probationer can be discharged in the manner provided by R. 55B of the Civil Services (Classification, Control and Appeal) Rules. Mere termination of employment does not carry with it “any evil consequences” such as forfeiture of pay or allowances, loss of seniority, stoppage or postponement of future chances of promotion, etc., An order discharging a public servant, even if a probationer, in an enquiry on charges of misconduct, negligence, inefficiency or other disqualification, may appropriately be regarded as one by way of punishment, but an order discharging a probationer following upon an enquiry to ascertain whether he was fit to be confirmed, is not of that nature. And to such a case Art. 311(2) does not apply.” (Emphasis added) I n I.N. Saksena vs. State of Madhya Pradesh, their Lordships of the Supreme Court held that when there are no express words in the impugned order itself which throw a stigma on the Government servant, the Court would not delve into secretariate files to discover whether some kind of stigma could be inferred on such research. In Shamsher Singh vs. State of Punjab (1974) 2 SCC 831, the Seven Judges Bench of the Supreme Court considered the question whether the services of the appellants who were serving as judicial officers on probation could be terminated on the basis of an enquiry got conducted by the High Court through the vigilance department of the State. While criticizing the High Court’s approach in handing over the enquiry to an outside agency, their Lordships held that action taken on the basis of the vigilance report which contained finding of guilty in respect of specific charges of misconduct levelled against the officers amounted to stigma. Their Lordships further held that form of the order is not conclusive and in appropriate case the Court can lift the veil to find out the true character of the order terminating the services of the employee. Speaking for the Bench, Ray C.J. observed: “The form of the order is not decisive as to whether the order is by way of punishment and that even an innocuously worded order terminating the services may in the facts and circumstances of the case establish that an enquiry into the allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provision of Article 311(2).” In State of Maharashtra vs. Veerappa R. Saboji (1979) 4 SCC 466, the Supreme Court upheld the termination of the services of the respondent who was working as a judicial officer on probation and observed: “Ordinarily and generally the rule laid down in most of the cases by this Court is that you have to look to the order on the face of it and find whether it casts any stigma on the Government servant. In such a case there is no presumption that the order is arbitrary or mala fide unless a very strong case is made out and proved by the government servant who challenges such an order.” In Oil and Natural Gas Commission vs. Dr. M.D.S. Iskender Ali, the Supreme Court held that even if misconduct, negligence and inefficiency may be the motive or the inducing factor which influences the authority to terminate the service of the employee on probation, such termination cannot be termed as penalty or punishment. In Union of India vs. P.S. Bhatt the Supreme Court reversed the order of Andhra Pradesh High Court which had quashed the termination of the respondent’s service on the ground of violation of the rules of natural justice and held as under: “Even if misconduct, negligence, inefficiency may be the motive or the inducing factor which influences the authority to terminate the service of the employee on probation, such termination cannot be termed as penalty or punishment. Loose talks and filthy and abusive language which had been used against the Station Director and the other officers may legitimately in the facts and circumstances of the case lead to the formation of a reasonable belief in the minds of the authorities that the person behaving in such fashion is not a suitable person to be employed as a Producer. Even if this undesirable conduct on the part of the respondent may be considered to the motive or the inducing factor which influenced the authorities to pass the impugned order, the said order cannot be said to be by way of punishment.” (emphasis added) The facts of that case were that the respondent while he was holding the post of Producer, the Station Director submitted a report to the Director General, All India Radio casting adverse reflection on the respondent’s conduct. The Station Director reported that respondent had conducted himself in a manner not conducive to the discipline of the office and had indulged in loose talks and use of filthy language. In the backdrop of this report, the respondent was reverted to the post of Announcer. The Andhra Pradesh High Court quashed the order of reversion on the ground that it was punitive and was not preceded by an inquiry. Their Lordships of the Supreme Court noted the contents of the report and then observed at page 765: “On a proper consideration of these facts, in our opinion, it cannot be said that the impugned order was passed by way of punishment; and, in our view, the High Court was in error in arriving at the finding that the impugned order was by way of punishment, as the report of the Station Director had influenced the Director General to pass the said order. Loose talks and filthy and abusive language which had been used against the Station Director and the other officers may legitimately in the facts and circumstances of the case lead to the formation of a reasonable belief in the minds of the authorities that the person behaving in such fashion is not a suitable person to be employed as a Producer. This undesirable conduct on the part of Shri Bhatt might have been the motive for terminating the employment on probation and for reverting him to his old post of Announcer.” I n Anoop Jaiswal vs. Government of India and another, the Supreme Court referred to the earlier judgments in State of Punjab vs. Sukh Raj Bahadur, Union of India vs. R.S. Dhaba, State of Bihar vs. Shiva Bhikshuk Misra R.S. Sial vs. State of U.P., State of U.P. vs. Ram Chandra Trivedi, I.N. Saksena vs. State of Madhya Pradesh (3 supra) and Samsher Singh vs. State of Punjab (4 supra) and held: “It is, therefore, now well settled that where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the Court before which the order is challenged to go behind the form and ascertain the true character of the order. If the Court holds that the order though in the form is merely a determination of employment is in reality a cloak for an order of punishment, the Court would not be debarred, merely