Madan Mohan Prasad vs State Of Bihar & Ors on 23 February, 1973 Equivalent citations: AIR 1973 SUPREME COURT 1133, 1973 LAB. I. C. 918, 1973 (1) LABLJ 411, 1973 (1) SCWR 444, 1973 (1) SERVLR 630, 1973 4 SCC 166 Bench: A.N. Ray, D.G. Palekar, M.H. Beg, S.N. Dwivedi CASE NO.: Writ Petition (civil) 121 of 1972 PETITIONER: MADAN MOHAN PRASAD RESPONDENT: STATE OF BIHAR & ORS. DATE OF JUDGMENT: 23/02/1973 BENCH: S.M. SIKRI (CJ) & A.N. RAY & D.G. PALEKAR & M.H. BEG & S.N. DWIVEDI JUDGMENT: JUDGMENT 1973 AIR 1133 = 1973 (4) SCC 166 The Judgment was delivered by SIKRI, C.J Per Sikri, C.JIn this petition under Art. 32 of the Constitution, the petitioner, Madan Mohan Prasad, challenges the order of the Government of Bihar, dated January 15, 1972, terminating his services. He urges that this order violates Art. 311(2) of the Constitution and also violates his fundamental right under Arts. 19(1)(f) and 31(1) of the Constitution because the order, in effect, amounts to forfeiture of the pension earned by him. 2. The relevant facts are these. In response to an advertisement in the Bihar Gazette, dated April 28, 1954, the petitioner applied for one of the posts of munsifs. The relevant portion of the advertisement runs as follows : "The appointment will be made for a period of one year terminable at one month's notice on either side but the candidate appointed will have prospects of being absorbed later in permanent cadre of the Bihar Civil Service (Judicial Branch)" . 3. By notification dated January 5, 1955, the petitioner, along with others, was appointed as a temporary munsif. In para 2 of the notification it was stated as follows : Madan Mohan Prasad vs State Of Bihar & Ors on 23 February, 1973  1 "These appointments have been made against the temporary posts sanctioned in Government Order No. IGI 502/544-1197 dated 9-2-1954. The term of appointment of these temporary munsifs can be terminated at any time by either party giving notice of one month." 4. These posts have since been made permanent and the petitioner continued to serve against a permanent post till his services were terminated. 5. The petitioner, in due course, passed all the departmental examinations. He also passed the examination of tribal language and received Rs. 1, 000 as reward. 6. The petitioner became eligible for pension under Rule 59 of the Bihar Pension Rules, 1950. It is stated under Rule 59 as follows : "3. The State Government after careful consideration have, therefore, been pleased to decide that, if the service of the temporary or officiating Government servant who is not confirmed in any post is continuous and is more than 15 years it will be considered as pensionable under Rule 59 of the Bihar Pension Rules." 7. Under Rules 46" no pension may be granted to a Government servant dismissed or removed, for misconduct, insolvency or inefficiency, but to Government servants so dismissed or removed compassionate allowances may be granted when they are deserving of special consideration provided that the allowance granted to any Government servant shall not exceed two thirds of the pension which would have been admissible to him if he had retired on medical certificate." 8. In answer to a question in the Bihar Legislative Assembly relating to the petitioner the Chief Minister, Shri Kedar Pandy, stated : "It is true that having put in 15 years of temporary service he is entitled to pension but on the other hand since his service was not satisfactory he can be removed on one month's notice. On reconsideration of the matter the Government feels that he should be served show-cause notice. Therefore, the Government is reconsidering the matter." 9. In the affidavit in reply filed on behalf of the State it is stated that the petitioner remained a temporary munsif and was not absorbed at any time in a permanent cadre and his employment all along had continued on the basis of his original appointment. It is further stated that "the petitioner's contention that he acquired a right of pension or that he was getting increments in due course, is entirely irrelevant for the purpose of determining the character of his appointment inasmuch as increments are allowable also to a person holding a temporary post, and on his own showing in certain circumstances a continuous service for 15 years might qualify the holder of a temporary post for pension." Madan Mohan Prasad vs State Of Bihar & Ors on 23 February, 1973  2 10. With reference to the petitioner's claim that the impugned order had resulted in penal consequences, it was stated : "The High Court and the State indeed took into consideration the quality of the petitioner's service with a view to decide whether he should be retained or not and since it was decided to terminate his services in terms of his conditions of service without visiting him any penal consequences, or casting any stigma it was not necessary to draw up any proceedings against the petitioner" . It seems to us that on the facts of this case, the order dated January 15, 1972, violates Art. 311(2) of the Constitution. The petitioner had first been holding a temporary post and then a permanent post for nearly 17 years. The Chief Minister's statement in the Assembly that his service were not satisfactory and the Government was considering serving show-cause notice and the fact that his service were terminated without any enquiry being held would inevitably lead the public to believe that his services had been terminated on account of inefficiency or misconduct. This did cast a stigma on his character. 11. It may be mentioned that it has been contended that the petitioner would lose his pension because pension which he had earned after more than 15 years service could only be granted under Rules 59 if he retired and not if his service were terminated. 12. The Additional Solicitor-General brought to our notice the decision of this Court in State of Nagaland v. G. Vasantha, 1970 AIR(SC) 537. The facts in that case were quite different and the Court came to the conclusion on those facts that the termination was not by way of punishment. 13. In view of this conclusion we need not go into the question whether the petitioner should be deemed to have been confirmed because he held a permanent post for such a long period. We also need not consider whether the condition set out above in the notification dated January 5, 1955 that "the term of appointment of these temporary munsifs can be notice of one month" had ceased to operate when the post were made permanent. 14. In the result the petition is allowed and the order January 15, 1972, is quashed. The petitioner will bear his cost. Madan Mohan Prasad vs State Of Bihar & Ors on 23 February, 1973  3