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PETITIONER: SATISH CHANDRA ANAND

       Vs.

RESPONDENT: THE UNION OF INDIA.

DATE OF JUDGMENT: 13/03/1953

BENCH: BOSE, VIVIAN BENCH: BOSE, VIVIAN SASTRI, M. PATANJALI (CJ) MUKHERJEA, B.K. HASAN, GHULAM BHAGWATI, NATWARLAL H.

CITATION:  1953 AIR  250            1953 SCR  655  CITATOR INFO :  R          1954 SC 369  (15,16)  RF         1957 SC 886  (5)  E&F        1958 SC  36  (27,28,33,39,40)  R          1958 SC 232  (18)  F          1958 SC 905  (6)  RF         1961 SC 177  (11)  R          1963 SC 602  (4)  RF         1964 SC 600  (34,42,45,127,134,148)  R          1964 SC1585  (11)  RF         1971 SC1516  (7)  RF         1973 SC2641  (21)  RF         1975 SC2045  (6)  RF         1976 SC1766  (14)  RF         1976 SC2547  (8,9)  RF         1982 SC1107  (30)  F          1985 SC 551  (29)

ACT:   constitution  of  India, 1950, Arts.  14,  16,  311-Civil servant-Appointment on contract for 5 years-Continuation  of appointment   on  temporary  service  basis-Termination   of service on one month’s notice-Legality--Fundamental  rights- Central  Civil Services (Temporary Service) Rules, 1949,  r. 5.

HEADNOTE:   The petitioner was employed by the Government of India  on a  five  year contract in the  Resettlement  and  Employment Directorate  of the Ministry of Labour.  When  his  contract was  due  to expire the Government made him a new  offer  to continue  him  in service in his post  temporarily  for  the period  of the Resettlement and Employment  Organisation  on the condition that he will be governed by the Central  Civil Services (Temporary Service) Rules, 1949, which provided for termination  of  the contract by month’s  notice  on  either side.   He accepted the offer and continued in service,  but subsequently  his services were terminated after giving  him one month’s notice, The petitioner applied for relief  under Art.  32  (1) of the Constitution alleging that  his  funda-

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mental  rights  under  Arts.  311, 14  and  16  (1)  of  the Constitution were infringed:    Held,  (i) that Art. 311 had no application as  this  was not  a  case  of dismissal or removal  from  service  nor  a reduction  in rank but only an ordinary case of  a  contract being  terminated  by notice under one of its  clauses,  the difference between dismissal and 656 removal  being that the former ordinarily disqualifies  from future employment but not the latter;   (ii)  Art.  14  had  no application as  he  had  not  been discriminated against and had not been denied the protection of any laws which others similarly situated could claim; (iii)     Art. 16 was equally inapplicable as the petitioner was  not  denied equal opportunity in a matter  relating  to appointment or employment but had been treated just like any other person to whom an offer of temporary employment  under these conditions was made. The  State can enter into contracts of temporary  employment and impose special terms in each case, provided they are not inconsistent with the Constitution, and those who choose  to accept those terms and enter into the contract are bound  by them, even as the State is bound.

JUDGMENT: ORIGINAL JURISDICTION: Petition (No. 201 of 1952) under Art. 32  of the Constitution for the enforcement  of  fundamental rights. B. K. Varma.and G. C. Mathur for the petitioner. M.C. Setalvad, Attorney-General for India, (Porus A.  Mehta, with him) for the respondent. 1953.  March 13. -The Judgment of the Court was delivered by BOSE  J.-This  is  a  petition  under  article  32  of   the Constitution in which the petitioner seeks redress for what, according  to  him, is a breach of  his  fundamental  rights under  articles  14 and 16(1) of the Constitution.   It  was argued  at considerable length by the petitioner in  person. Then,  when  our  judgment was nearly ready,  he  put  in  a petition  asking for a rehearing and for permission to  file some  fresh papers.  When that was refused he came again  on another,day  and  asked  for leave to engage  an  agent  and appear through counsel as he felt he had not been able to do justice  to  his case in person. (It may be  mentioned  that though  he had originally engaged an agent he dismissed  him before  the hearing when he appeared in person.) We  granted his  request and counsel reargued the case for him  but  has not carried the matter any further.  The facts are these. 657 In   October,1945,  the  petitioner  was  employed  by   the Government  of  India  on  a  five  year  contracting,   the Directorate  General of Resettlement and Employment  of  the Ministry of Labour.  This was after selection by the Federal Public   Service  Commission.   After  a  short  period   of practical  training,  he  was posted in  January,  1946,  at Jabalpur  as  the  Manager of  the  Sub-Regional  Employment Exchange and was later confirmed in this appointment.  This  contract  of  service was due  to  expire  in  1950. Shortly  before its expiration the Government of India  made him a new offer, embodied in its letter dated the 30th June, 1950,  to  continue  him in service on  the  expiry  of  his contract on the terms specified in that letter.  Among  them were the following:  (3)  Other  conditions of service:-On the  termination  of

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your  contract you will be allowed to continue in your  post temporarily   for  the  period  of  the   Resettlement   and Employment Organisation and will be governed by the  Central Civil  Services (Temporary Service) Rules, 1949, unless  you are a permanent Government servant."  He was asked in the letter to intimate to the Ministry  of Labour  whether  he was willing to continue  in  service  on those  terms  and he admits that he accepted the  offer  and continued  in  service, He was not  a  permanent  Government servant though it was contended in argument that he was, for he was on a five year contract and the work for which he was employed,  namely  Resettlement and Employment,  was  itself only  of  a temporary character.  Therefore,  the  Temporary Service Rules applied. On those rules,’ rule 5 is material.  It runs as follows:  5 (a) The service of a temporary Government servant who is not   in   quasi-permanent  service  shall  be   liable   to termination at any time by notice in writing given either by the  Government servant to the appointing authority,  or  by the appointing authority to the Government servant. 658 (b)  The  period of such notice shall be one  month,  unless otherwise agreed to by the Government and by the  Government servant."  Quasi-permanent service is defined in-the rules and it  is clear  that the petitioner does not come within that  class. It  is also an undisputed fact that there was  no  agreement between  the petitioner and Government regarding the  period of the notice.  Therefore, according to this rule, which was a term in the petitioner’s contract of further service,  his services  were  liable to termination at any  time  by’  one month’s  notice in writing.  This notice was given  on  25th November,  1950,  and he was told that  his  services  would terminate  on  the expiry of one month  from  1st  December, 1950.  A large field was covered in the course of the  arguments, and  had  the matter not been re-argued we  would,  for  the petitioner’s  satisfaction, have dealt with the  contentions raised  more fully than will be necessary now  that  counsel has appeared.  The  petition is under article 32(1) of  the  Constitution and  so it must be shown that a fundamental right  has  been infringed.  It was argued that the rights infringed are  the ones conferred by articles 14 and 16(1).  Taking  article  14  first,  it must  be  shown  that  the ,petitioner  has been discriminated against in the  exercise or enjoyment of some legal right which is open to others who are similarly situated.  The rights which he says have  been infringed are those confered by article 31 1. He says he has either  been dismissed or removed from service  without  the safeguards  which  that article confers.   In  our  opinion, article  31 1 has no application because this is  neither  a dismissal nor a removal from service, nor is it a  reduction in rank.  It is an ordinary case of a contract being  termi- nated by notice under one of its clauses.  The  services  in India have long  been  afforded  certain statutory   guarantees  and  safeguards  against   arbitrary dismissal or reduction in rank Under 659 section  240  of  the Government of  India  Act,  1935,  the safeguards  were  limited to those two  cases.   Under.  the present Constitution, a third was added, namely removal from service.   In  order to understand  the  difference  between "dismissal" and "removal" from service, it will be necessary to turn to the Rule,; which governed, and with modifications

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still govern, the "services" in India because of article 313 of the Constitution.  Part  XII of the Civil Services  (Classification,  Control and  Appeal)  Rules  relating  to  Conduct  and   Discipline includes  rule  49 which sets out the various  penalties  to which  a  member  of  the  services  can  be  subjected  for indiscipline  and misconduct.  They are seven in number  and include censure, suspension, reduction in rank, removal from service  and  dismissal  from  service.   The  Act  of  1935 selected  only  two of these possible penalties  as  serious enough  to merit statutory safeguards, namely  reduction  in rank  and  dismissal from service.   ’The  Constitution  has added  a third to the list.  The distinction which is  drawn between  the  two is explained in rule 49.  There  is  first removal from service "which does not disqualify from  future employment " and there is next dismissal from service "which ordinarily disqualifies from future employment." Then follows an Explanation: The discharge-   (c)   of a person engaged under contract,  in  accordance with  the terms of his contract, does not amount to  removal or dismissal within the meaning of this rule."   These  terms are used in the same sense in  article  3ll. It  follows that the article has no application here and  so no  question of discrimination arises, for the  "law"  whose protection the petitioner seeks has no application to him.  There  was no compulsion on the petitioner to  enter  into the  contract he did.  He was as free under the law  as  any other  person to accept or to reject the 660 offer which was made to him.  Having accepted, he  still has open to him all the right-, and remedies available to  other persons similarly situated -to enforce any rights under  his contract  which have been denied to him, assuming there  are any,  and to pursue in the ordinary courts of the land  such remedies for a breach as are open to him to exactly the same extent as other persons similarly situated.  He has not been discriminated  against  and  he  has  not  been  denied  the protection of any laws which others similarly situated could claim.  The remedy of a writ is misconceived.  Article  16(1) is equally inapplicable.  The whole  matter rests  in  contract.  When the petitioner’s  first  contract (the  five year one) came to an end, he was not a  permanent Government  servant and Government was not bound  either  to re-employ  him or to continue him in service.  On the  other hand, it was open to Government to make him the offer it did of  a  continuation  of his employment on  a  temporary  and contractual basis.  Though the employment was continued,  it was  in point of fact, and in the eyes of the law,  under  a new and fresh contract which was quite separate and distinct from  the old even though many of its terms were  the  same. Article  16(1)  deals with equality of  opportunity  in  all matters relating to employment or appointment to any  office under  the  State.  The petitioner has not been  denied  any opportunity  of employment or of appointment.  He  has  been treated  just  like  any other person to whom  an  offer  of temporary  employment under these conditions was made.   His grievance,   when   analysed,  is  not   one   of   personal differentiation  but  is  against  an  offer  of   temporary employment   on  special  terms  as  opposed  to   permanent employment.   But  of  course  the  State  can  enter   into contracts  of temporary employment and impose special  terms in  each case, provided they are not inconsistent  with  the Constitution, and those who choose to accept those terms and enter into the contract are bound by them, even as the State

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is  bound.   When  the employment  is  permanent  there  are certain statutory guarantees but in the absence of 661 any   such  limitations  government  is,  subject   to   the qualification  mentioned  above, as free  to  make  special, contracts of, service with temporary employees, engaged  in, works of a temporary nature, as any other employer.  Various  matters relating to the merits of the  case  were referred  to  but we express no opinion  about  whether  the petitioner  has other rights which he can enforce  in  other ways.   We are dealing here with a writ under article 32  to enforce a fundamental right and the only point we decide  is that no fundamental right has been infringed.  When  the  matter was first argued we had decided  not  to make  any order about costs but now that the petitioner  has persisted  in  reopening the case and  calling  the  learned Attorney-General  here  for  a  second  time,  we  have   no alternative but to dismiss the petition with costs.                                  Petition dismissed. Agent for the petitioner: Bajinder Narain. Agent for the respondent: G. H. Rajadhyaksha,