Case: State of Nagaland Vs. G. Vasantha

4. The State of Nagaland, the appellant, controverted the claim of the respondent that her services had been made permanent and that there had been a violation of Article 311.

Reasoning:
9. In our opinion, the High Court has committed a fundamental error in proceeding on the basis that Article 311 applies to the respondent. The High Court has also committed another serious mistake in proceeding on the basis that the order dated November 10, 1966 of the State Government made the respondent at government servant. The order dated October 23, 1962 appointing the respondent as an Assistant Teacher clearly says that the post to which she is appointed is a temporary one and that her appointment itself is made on a purely temporary basis. The order further states that the services of the respondent may be terminated by one calendar months notice in writing on either side. No doubt the respondent was in service till the impugned order was passed10. Rules 2 (b), 3 and 4 of the Central Services (Temporary Services) Rules, 1949 read together show that a government servant shall be deemed to be int service if the said government servant has been in continuous government service for more than three years and the appointing authority is satisfied regarding the matters relating to the said employee referred to in Rule 3, and issues a declaration to that effect. The State Government, no doubt appears to have taken a decision on August 17, 1966 to make certain temporary employeest and accordingly certain posts also were made permanent. The Government also issued a Circular, dated October 10, 1966 making the temporary posts in the Schedules attached to that order into permanent posts under the Education Department. But it will be seen that except making those posts permanent, the services of the incumbents of such posts had not been made permanent, as wrongly assumed by the High Court. On the other hand, by order dated September 14, 1967 the State Government made various temporary employees permanent.No such notification had been issued in respect of the respondent, i.e., no declaration in respect of the respondent, as required under Rule 3 (2) of the Central Services (Temporary Services) Rules, 1949 has been issued. Therefore the position was that the respondent continued to be a temporary servant on the date when the order under attack was passed11. The High Court itself has stated. "It is true that the termination appears to be innocuous and not on any disciplinary or punitive grounds". After this finding and in view of the fact that the respondent was only a temporary government servant, whose services had been terminated under the contract of service, no further question regarding the validity of the order arises at all. But the High Court has expressed the opinion that Article 311 has been violated because it must be inferred that the order has been passed by way of punishment, especially when the respondent has been in service for over five years. This reasoning, in our opinion, is erroneous. In fact the High Court has recorded two inconsistent findings: (i) that the termination is incases and not on any disciplinary or punishment grounds; and (ii) that the order of termination must be considered to have been passed by way of punishment. Even the respondent, so far as we could see, has not taken up any plea tot he effect that the order terminating her services was by way of punishment12. No doubt the High Court has referred to certain passages in the decision of this Court in Parshotam Lal Dhingra v. Union of India, (1958) SCR 828   = (AIR 1958 SC 36  ) but those principles have no application to the facts of the present case. Reviewing thew on the subject, the recent decision of this Court in State of Punjab v. Sukh Raj, AIR 1968 SC 1089   has laid down several propositions of which proposition No. 1 is as follows:"On a conspectus of these cases, the following propositions are clear:1. The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Article 311 of the Constitution."As we have already pointed out, the services of the respondent have been terminated according to the terms of the contract of service and the order terminating the service is one simpliciter and not by way of punishment. If so, the matter comes squarely within the proposition No. 1 set out above and it follows that Article 311 has no application at all13. As we have mentioned earlier, the respondent has raised a contention that as she was appointed by the Chief Secretary, the order terminating her services passed by the Deputy Director of Education, a subordinate authority, is not valid. But that contention, again was on the basis that Article 311 has been violated in this regard. The appellant State has taken the stand that the power of appointment had been subsequently vested in the Director of Education and that there has been a delegation in favour of the Deputy Director of Education to exercise all the powers of the Director in this regard. In the view that we take that Article 311 has no application to the case of the respondent, it becomes unnecessary to consider this aspect.