# October 23 Court-one set of hearing fees. Appeal allowed. CHAMPAKLAL CHIMANLAL SHAH v. THE UNION OF INDIA

- **Citation:** [1964] 5 S.C.R. 190
- **Court:** Supreme Court of India
- **Decided:** 1964
- **Bench:** P.B. Gajendragadkar, K. Subba Rao, K.N. Wanchoo, N. Rajagopala Ayyangar, J.R. MuDHOhKAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/october-23-court-one-set-of-hearing-fees-appeal-allowed-champaklal-chimanlal-2970
- **Pages:** 27

## Headnote

Government Servant-Central Civil Service-When is he
quasi-permanent-Permanent and Temporary servants-Termination of service-Difference in mode not discriminatory-Action
by way of punishment-Even temporary servant entitled to benefit
of Art. 311-Pre/iminary enquiry and departmental enquiry-Latter
does not attract Art. 311(2)-Constitution of India, Art. 311Central Civil Service (Temporary Service) Rules, 1949, rr. 3 and 5.
The appellant was in the service of Union of India, his appointment being temporary liable to be terminated on one month's
notice on either side. He was appointed in June 1949. On August
1954 he was informed that his services would be terminated from
September 1954. No cause was assigned for the termination of
his services and no opportunity was given to him of showing cause
against the action taken against him.
Before such termination
the appellant was called upon to explain certain irregularities
and was also asked to submit his explanation and to state why
disciplinary action should not be taken against him. Certain
preliminary enquiries were held against him but he was not heard
therein. No regular departmental enquiry however followed
and the proceedings were dropped. Claiming that he is a quasipermanent servant he brought a suit against the Union of India
alleging that the termination of his service was not justified. He
prayed in the suit for a declaration that the termination of his
service was illegal. He also claimed arrears of salary. The
trial Court dismissed the suit and he appealed to the High Court •
..
•
5 S.C.R.
SUPREME COlJRT REPORTS
191
without success. The present appeal was filed on a certificate
1963
granted by the High Court.
The first contention raised by the appellant was that he was
Champaklal
a quasi-permanent employee and r. 5 of the Central Civil Service Chimanlal Shah
(Temporary Service) Rules, 1949 did not apply to him. Secondly
v.
it was contended that r. 5 was invalid as it was hit by Art. 16 of the
The Union of
Constitution and in any event the action taken against him
was discriminatory and therefore hit by Art. 16. It was further
India
contended that even if the appellant was a temporary servant he
was entitled to the protection of Art. 311 (2) of the Constitution.
Held : (i) Sub-els. (1) and (2) of r. 3 should be read conjunctively and not disjunctively and both the conditions contained
therein should be fulfilled before a Government servant can be
deemed to be in quasi-permanent service. The Government
servant has to show that he has been in continuous Government
service for more than three years and that the appointing authority
has made a declaration under sul>-cl. (2) of r. 3. This being the
position, since no declaration has been made in his case, the appellant
cannot claim the benefits of r. 6 which places a quasi-permanent
servant and a permanent servant on the same footing in the matter
of termination of service. Hence he cannot claim the protection
of Art. 311(2) on the ground that he must be deemed to be in quasipermanent service.
B.M. Pandit v. Union of India, A.LR. 1962 Born. 45, Purshottam Lal Dhingra v. Union of India, [1958] S.C.R. 828 and K.S.
Srinivasan v. Union of India, [1958] S.C.R. 1295, distinguished.
(ii) R. 5 which provides for termination of the services of a
temporary Government servant by giving him one month's notice
is not hit by Art. 16. The classification of Government servants
into permanent, quasi-permanent and temporary is reasonable
and differences in the matter of termination of service between
these classes cannot be said to be discriminatory.
(iii) Where termination of service of a temporary Government
servant takes place as it has taken place in the present case, on the
ground that his conduct is not satisfactory there cannot be any
question of any discrimination. The contention of the appellant
that he was denied the protection of Art. 16 and was treated in
a discriminatory manner is rejected.
(iv) Temporary Government servants are a

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190
SUPREME COURT REPORTS
[1964]
1963
to collect the tax as assessed and as decided in its
favour.by the High Court. But when the respondent fails
Thun~abhadra in the objections raised to prevent the matter coming to
Industries Ltd. this Court, we do not see any justification for the plea
v.
that costs should not follow the event but that the
The Government appellant should be deprived of it 5right to sosts.
of Andhra PraIn the result the appeal is allowed and the comdesh
mon judgment of the High Court in the three appeals
is reversed and the petitions for review-C.M.Ps
Ayyangar J.
4672, 4673 and 4674 of 1959 on the file of the High
Court are allowed with costs here and in the High
1963
October 23
Court-one set of hearing fees.
Appeal allowed.
CHAMPAKLAL CHIMANLAL SHAH
V.
THE UNION OF INDIA
(P.B. GAJENDRAGADKAR, K. SUBBA RAO,
K.N. WANCHOO, N. RAJAGOPALA AYYANGAR AND
J.R. MuDHOhKAR JJ.)
Government Servant-Central Civil Service-When is he
quasi-permanent-Permanent and Temporary servants-Termination of service-Difference in mode not discriminatory-Action
by way of punishment-Even temporary servant entitled to benefit
of Art. 311-Pre/iminary enquiry and departmental enquiry-Latter
does not attract Art. 311(2)-Constitution of India, Art. 311Central Civil Service (Temporary Service) Rules, 1949, rr. 3 and 5.
The appellant was in the service of Union of India, his appointment being temporary liable to be terminated on one month's
notice on either side. He was appointed in June 1949. On August
1954 he was informed that his services would be terminated from
September 1954. No cause was assigned for the termination of
his services and no opportunity was given to him of showing cause
against the action taken against him.
Before such termination
the appellant was called upon to explain certain irregularities
and was also asked to submit his explanation and to state why
disciplinary action should not be taken against him. Certain
preliminary enquiries were held against him but he was not heard
therein. No regular departmental enquiry however followed
and the proceedings were dropped. Claiming that he is a quasipermanent servant he brought a suit against the Union of India
alleging that the termination of his service was not justified. He
prayed in the suit for a declaration that the termination of his
service was illegal. He also claimed arrears of salary. The
trial Court dismissed the suit and he appealed to the High Court •
..
•
5 S.C.R.
SUPREME COlJRT REPORTS
191
without success. The present appeal was filed on a certificate
1963
granted by the High Court.
The first contention raised by the appellant was that he was
Champaklal
a quasi-permanent employee and r. 5 of the Central Civil Service Chimanlal Shah
(Temporary Service) Rules, 1949 did not apply to him. Secondly
v.
it was contended that r. 5 was invalid as it was hit by Art. 16 of the
The Union of
Constitution and in any event the action taken against him
was discriminatory and therefore hit by Art. 16. It was further
India
contended that even if the appellant was a temporary servant he
was entitled to the protection of Art. 311 (2) of the Constitution.
Held : (i) Sub-els. (1) and (2) of r. 3 should be read conjunctively and not disjunctively and both the conditions contained
therein should be fulfilled before a Government servant can be
deemed to be in quasi-permanent service. The Government
servant has to show that he has been in continuous Government
service for more than three years and that the appointing authority
has made a declaration under sul>-cl. (2) of r. 3. This being the
position, since no declaration has been made in his case, the appellant
cannot claim the benefits of r. 6 which places a quasi-permanent
servant and a permanent servant on the same footing in the matter
of termination of service. Hence he cannot claim the protection
of Art. 311(2) on the ground that he must be deemed to be in quasipermanent service.
B.M. Pandit v. Union of India, A.LR. 1962 Born. 45, Purshottam Lal Dhingra v. Union of India, [1958] S.C.R. 828 and K.S.
Srinivasan v. Union of India, [1958] S.C.R. 1295, distinguished.
(ii) R. 5 which provides for termination of the services of a
temporary Government servant by giving him one month's notice
is not hit by Art. 16. The classification of Government servants
into permanent, quasi-permanent and temporary is reasonable
and differences in the matter of termination of service between
these classes cannot be said to be discriminatory.
(iii) Where termination of service of a temporary Government
servant takes place as it has taken place in the present case, on the
ground that his conduct is not satisfactory there cannot be any
question of any discrimination. The contention of the appellant
that he was denied the protection of Art. 16 and was treated in
a discriminatory manner is rejected.
(iv) Temporary Government servants are also entitled to the
protection of Art. 311 (2) in the same manner as a permanent
Government servants, if the Government takes action against
them by meting out one of the three punishments i.e. dismissal,
removal or reduction in rank.
Purshottam Lal Dhingrav. Unionofindia, [1958]S.C.R.828.
Held, that when a preliminary enquiry is held to determine
whether a prima facie case for a formal departmental enquiry is
made out in the case of a temporary employee or a Government
servant holding a higher rank temporarily there is no question
192
SUPREME COURT REPORTS
[1964]
of its being governed by Art. 311(2). Such a preliminary enquiry
may even be held ex parte. It is only when the Government decides
Champaklal
to hold a regular departmental enquiry for the purpose of infiicChimanlal Shah ting one of the three _major punishments that the Government
servant gets the protec!ton of Art. 31 I.
v.
1963
The Union of
Shyam/a/ v. State ~f U.P. [1955] 1 S.C.R. 26 and Purshottam
, d'
Lal Dhingra v. Union of India, [1958] S.C.R. 828, explained.
in IQ
Held, that even if a departmental enquiry against the appellant
was contemplated it was not pursued and no punitive action was
taken against him on the basis of the memorandum issued to him.
Simply because the Government issued such a memorandum but
later decided not to hold a departmental enquiry for taking punitive
action, it cannot be said that the Government can never thereafter
proceed to take action under the terms of r. 5 even though it is
satisfied otherwise that the appellant's conduct and work are
unsatisfactory.
Madan Gopal v.
State of Punjab, [1963] 3 S.C.R.
716,
State of Bihar
v.
Gopi Kishore Prasad, A.I.R. 1960 S.C. 689,
State of Orissa
v. Ram Narayan D:·s, [1961] 1 S.C.R. 606 and,
Jagdish Mitter v. Union of India, A.I.R. 1964 S.C. 449 distinguished.
CIVIL APPELtATE JURISDICTION : Civil Appeal
No. 472 of 1962.
Appeal from the judgment and decree dated
December 23, 1960, of the Bombay High Court
in First Appeal No. 464 of 1958.
R.K. Garg, S.C. Agarwala, D.P. Singh and M.K.
Ramamurthi, for the appellants.
S. V. Gupte, Additional Solicitor General,
V.D.
Mahajan and R.N. Sachthey, for the respondent.
October 23, 1963. The Judgment of the Court
was delivered by
Wanchoo J.
WANCHOO J. This is an appeal against the
judgment and decree of the Bombay High Court
on a certificate granted by that Court. The appellant
was in the service of the Union of India. He was
appointed on June 11, 1949 as an officiating Assistant
Director Grade II in the office of the Textile Commissioner, Bombay and was working as such till September 15, 1954. The appointment was temporary and
his services were liable to be terminated on one month's
notice on either side.
He was posted after the date
of his appointment in the Textile Commissioner's
office at Ahmedabad and continued to work there
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5 S.C.R.
SUPREME COURT REPORTS
193
till Pebruary 1954. He was transferred to Bombay
1963
in February 1954 and was informed in August 1954
that his services would be terminated from September
~hampaklal
15, 1954. No cause was assigned for the termination Chimanlal Shah
of his services and no opportunity was given to him
v ..
of showing cause against the action taken against
The Union of
him. He therefore brought a suit in the City Civil
India
Court at Bombay, and his contention was that his
services had been terminated unjustifiably and mallWanchoo l.
ciously as the Regional Director of Production in
the Textile Commissioner's office at Ahmedabad
was against him. Because of this on December
29, 1953, the appellant was called upon to explain
certain irregularities and was also asked to submit
his explanation and to state why disciplinary action
should not be taken against him. The appellant
went on to state in the plaint that certain enquiries
were held against him behind his back but the matter
was not pursued and he was transferred to Bombay
in February 1954. While he was at Bombay he recieved
the notice terminating his services. He claimed that
he was a quasi-permanent employee under the Central
Civil Services (Temporary Service) Rules, 1949, (hereinafter referred to as the Rules) and no action under
r. 5 of the Rules could be taken against him. He was
further entitled to the protection of Art. 311 of the
Constitution and as his services were terminated
without complyinp: with that provision the order
was bad and liable to be set aside. It was further contended that if r. 5 applied to him, it was bad inasmuch
as it was hit by Art. 16 of the Constitution and in
any case the order passed against him was bad as
it was discriminatory. The appellant therefore prayed
that the order of August 13, 1954 by which his services
were terminated be declared illegal and inoperative
and he be declared a quasi permanent employee and
reinstated in &ervice. There was also a claim for
arrears of sala1 y and costs of the suit and such other
consequential reliefs as the court might deem fit to give.
The suit was opposed by the Union of India
and its main defence was that the appellant was not
a quasi permanent employee and that r. 5 of the Rules
1 SCI/64-13
194
SUPREME COURT REPORTS
[1964]
1963
applied to him and that action was properly taken
.
under that rule when terminating the appellant's
Champaklal services by order dated August 13, 1954. It was
Chimanlal Shah also contended that r. 5 was perfectly valid and that
v.
there was no discrimination practised against the
The Union of appellant when his services· were terminated. It was
India
admitted that the memo. dated December 29, 1953
was issued to the appellant and he was directed to
Wanchoo J.
submit his explanation in respect of the irregularities mentioned therein to the Under Secretary, Government of India, New Delhi and to state why disciplinary
action should not be taken against him. It was
also admitted that from December 1953 onwards
some departmental inquiry was conducted against
the appellant but it was averred that the said departmental inquiry was not pursued as the evidence against
him was not considered to be conclusive. But as
the appellant's work was not found satisfactory,
be was transferred to Bombay in February 1954
to give him a chance of improvement.
Ashia work
and conduct were ultimately found to be unsatisfactory, his employment was terminated under r. 5
of the Rules as he was a temporary employee.
On these pleadings three main questions arose
for decision before the trial court, namely, (i) whether
the appellant was a quasi permanent employee and
r. 5 of the Rules did not apply to him; (ii) whether
r. 5 was invalid as it was hit by Art. 16 of the Constitution and in any case whether the action taken against
the appellant was discriminatory, and therefore hit
by Art. 16 of the Constitution, and (iii) even if the
appellant was a temporary
government servant,
whether he was entitled to the protection of Art.
311 (2) of the Constitution in the circumstances
of this case. The trial court held on all these points
against the appellant and dismissed the suit. The
appellant then went in appeal to the High Court.
The High Court agreed with the trial court and dismissed the appeal. The appellant then applied for
a certificate to appeal to this Court, which was granted;
and that is how the matter has come up before us.
I
'
' 4
j
f.
..
l
5S.C.R.
SUPREME COURT REPORTS
195
The first question that falls for consideration
1963
is whether the appellant was a quasi permanent employee and r. 5 did not apply to him. If the appellant
~hampaklal
is held to be a quasi permanent employee, he will Chimanlal Shah
be entitled to the protection of Art. 311(2) and as
v.
admittedly the provisions of Art. 311 (2) were not The Union °1
complied with in the present case, his suit would have
India
to be decreed and no further question would arise
for decision. Rule 3 of the Rules, which falls for
Wanchoo J.
consideration in this connection, is as follows:-
"A Government servant shall be deemed to be
in quasi-permanent service:-
(i) if he has been in continuous Government
service for more than three years;
(ii) if the appointing authority, being satisfied as
to his suitability in respect of age, qualifications,
work and character, for employment in a quasipermanent capacity has issued a declaration to that
effect, in accordance with such instructions as the
Governor-General may issue from time to time."
The contention on behalf of the appellant is
that as there is no conjunction "and" between the
two sub-clauses of r. 3, a Government servant must
be deemed to be quasi-permanent if he complies
with either of the two sub-clauses. It is urged that
a temporary government servant will become quasipermanent if he has been in continuous government
service for more than three years or if a declaration
is made in his favour as required by sub-cl. (ii). The
appellant thus reads the word "or " between the two
sub-clauses. On the other hand, the respondent
contends that looking at the scheme of the Rules
the word "and" should be implied between the two
sub-clauses and that both the clauses must be fulfilled
before a Government servant can be deemed to be
in quasi-permanent service.
In this connection our attention was drawn to
two cases of this Court in which this rule was mentioned. InParshotamLal Dhingra~v. Union of India,(1)
this Court, when referring to r. 3 at p. 858, used
(I) [1958) S.C.R. 828.
196
SUPREME COURT REPORTS
[1964)
1963
the conjunction "or" between the two sub-clauses.
Learned counsel for the appellant relies on this to
Champaklal show that we should read the word "or" between
Chimanlal Shah the two sub-clauses. We are however of opinion
v.
that this Court was not specifically dealing with the
The Union of interpretation of r. 3 in that case and what has been
India
said there about r. 3 was merely for purposes of illustration. The other case of this Court to which referWanchoo J. ence has been made is K.S. Srinivasan v. Union of
India.(1)
There while quoting r. 3 at p. 1307, this
Court used the word "and" between the two subclauses. That is probably due to the fact that the
brochure on "Central Civil Services
(Temporary
Services) Rules 1949" printed by the General Manager,
Government of India Press, New Delhi, 1959, contains
the word "and" between the two sub-clauses in r. 3.
That also in our opinion is not conclusive in favour
of the respondent, because it is not disputed before
us that in the Government gazette where the Rules
were first published, neither the word "and" nor
the word "or " appears between the two sub-clauses
of r. 3. This aspect of the matter was considered
by the Bombay High Court in B.M. Pandit v. Union
of India(") where the learned Judges pointed out
at p. 48 that they found from the copy of the gazette
of the Government of India in which these Rules
were :first published that neither the word "and"
nor the word "or" appeared between the two subclauses and this position is accepted on behalf of the
respondent before us. The question therefore arises
whether we have to read the two sub-clauses conjunctively or disjunctively. We may add that the Bombay
High Court in the case mentioned above read the
two sub-clauses conjunctively and we are of opinion
that that view is correct.
The object of these Rules obviously was to provide for some security of tenure for a large number
of temporary goverment servants who had to be
employed in view of World War II and also to provide
for former employees of the Governments of Sind,
the North West Frontier Province and Baluchistan
(1) [1958] S.C.R. 1295.
(2) A.I.R. 1962 Born. 45.
'
.. '
«
I
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'
5 S.C.R.
SUPREME COURT REPORTS
197
who had come to India on account of the Partition.
1963
This protection was afforded to temporary government servants and the government servants of the
Champaklal
other type by the device of creating quasi-permanent Chimanlal Shah
service. Rule 3 provided in what circumstances a
v.
government servant shall be deemed to be quasiThe Union of
permanent. Quasi-permanent service is defined in
India
r. 2(2) as meaning "temporary service commencing
from the date on which a declaration issued under
Wanchoo J.
r. 3 takes effect and consists of periods of duty and
leave (other than extraordinary leave) after that date."
R•1lc 3 therefore must be read with r. 2(b) which
defines "quasi-permanent service".
Under r. 2(b),
quasi-permanent service begins from the date on which
a declaration is issued under r. 3. It follows therefore that before a government servant can be deemed
to be in quasi-permanent service a declaration must
be issued under the second sub-clause of r. 3, for
that is the sine quo non for the commencement of
quasi-permanent service. Without such a declaration quasi-permanent service cannot begin. If therefore the appellant's contention were to be accepted
and a temporary government servant can be deemed
to be in quasi-permanent service, if only the first
sub-clause has been fulfilled, viz., that he has been
in continuous government service for more than
three years, there will be complete irreconcilability
between r. 2(b) and the first clause of r. 3. Therefore,
reading these two rules together the conclusion is
inevitable that we must read the two sub-clauses conjunctively and hold that both conditions must be
fulfilled before tr Government servant can be deemed
to be in quasi-permanent service, namely, (i) that he
has been in continuous government service for more
than three years, and (ii) that the appointing authority
after satisfying itself as to suitability in various respects for employment in quasi-permanent capacity
has issued a declaration to that effect. It is however
urged that the definitions in r. 2 have to be read subject
to there being nothing repugnant in the subject or
context and it is contended that in the context of
· r. 3 the two sub-clauses must be read disjunctively.
198
SUPREME COURT REPORTS
[1964]
/963
We are of opinion that there is no force in this argument, and as a matter of fact the context of r. 3 itself
Champaklal requires that that rule must be read in harmony
Chimanlal Shah with the definition of "quasi-permanent service" in
v.
r. 2(b), for it could not possibly be the intention of
The Union of the rule making authority to create disharmony
India
between the definition in r. 2(b) and the provision
in r. 3.
The contention on behalf of the appellants
Wanchoo J. that the two sub-clauses are independent and have
to be read disjunctively must be rejected and it must
be held that both the conditions in r. 3 must be satisfied before a government servant can be deemed to be
in quasi-permanent service.
·
This will in our opinion also be clear from the
scheme of the Rules following r. 3. Rule 4 provides
that "a declaration issued under r. 3 shall specify
the particular post or the particular grade of posts
within a cadre in respect of which it isr issued, and
the date from which it takes effect." This rule is
clearly meant to apply to all quasi-permanent employees and shows that no government servant can
be deemed to be in quasi-permanent service until
a declaration has been issued. Rule 6 provides that
"the service of a Government servant in quasi-permanent service shall be liable to termination in the same
circumstances and in the same manner as a government servant in permanent service." Now under
the definition of r. 2(b), quasi-permanent service
begins with a declaration issued under sub-cl. (ii) of
r. 3. Therefore the protection ofr. 6 can only be given
to a quasi-permanent employee after a declaration
has been made. This again shows that a declaration
is necessary before a Government servant can claim
to be in quasi-permanent service. Rule 7 provides
that a ~overnment servant in respect of whom the
declaration has been issued under r. 3, shall be eligible
for permanent appointment on the occurrence of a
vacancy in the specified posts which may be reserved
for being filled from among persons in quasi-permanent
service. This again shows that a quasi-permanent
employee can become eligible for permanent appoint- .
ment only when a declaration has been issued under
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5 S.C.R.
SUPREME COURT REPORTS
199
r. 3. Again r. 8 provides that a government servant
1963
in quasi-permanent service shall as from the date on
which his service is declared to be quasi-permanent
Champaklal
be entitled to the same conditions of service in respect Chimanlal Shah
of leave, allowances and disciplinary matters as a
v.
government servant in permanent service holding The Union of
the specified post. Here again the benefit of r. 8
I11dia
can only be availed of by a quasi-permanent government servant in whose favour a
declaration has
Wanchoo J.
been made. Then r. 9 provides that a government
servant in quasi-permanent service shall be eligible
for a gratuity under certain circumstances. This
gratuity will be at the rate of half a month's pay for
each completed year of quasi-permanent service, such
gratuity being payable on the basis of the pay admissible to such government servant in respect of the
specified post on the last day of his service. This
again contemplates a declaration before the benefit
of r. 9 can be claimed by a quasi-permanent employee.
Rule 10 provides that where a government servant
in quasi-permanent service is appointed substantively to a permanent pensionable post, the entire period
of quasi-permanent service rendered by him shall
be deemed to be qualifying service for the grant of
gratuity and pension. Now under r. 2(b) quasipermanent service only commences after the declaration
and therefore unless a declaration is made, the benefit
of r. 10 cannot be taken by a quasi-permanent employee.
The scheme of the rules therefore clearly
shows
that a declaration under r. 3 is necessary before a
temporary government servant can claim to be a
quasi-permanent employee. Otherwise if the two
sub-clauses of r. 3 were to be read disjunctively the
result would be that a person may become a quasipermanent employee under sub-cl. (!) but will get
none of the advantages mentioned above.
We are
therefore satisfied that the scheme of the Rules and
the harmony that is essential between r. 2(b) defining
"quasi-permanent service" and r. 3 laying down how
a government servant can be deemed to be in quasipermanent service require that the two sub-clauses
should be read conjunctively and that two conditions
200
SUPREME COURT REPORTS
[1964]
1963
are necessary before a government servant can be
deemed to be in quasi-permanent service, namely,
~hampaklal (i) continuous service for . more than three years,
Chimanlal Shah and (ii) declaration as required by sub-cl. (ii) of r. 3.
v..
It is. not in dispute that though the appellant had
The Un'.on °1 been in service for more than three years by 1954,
India
no declaration· as required by sub-cl. (ii) of r. 3 has
ever been made in his case. He cannot therefore
Wanchoo I.
claim to be in quasi-permanent service. It follows
therefore that he cannot c:laim the benefit of r. 6,
which lays down that the services of a government
servant in quasi-permanent service shall be liable to
termination in the same circumstances and in the
same manner as government servants in permanent
service. If he could claim the benefit of r. 6, he would
have been certainly entitled to the protection of Art.
311. As he is not entitled to the benefit of r. 6, he cannot claim the benefit of Art. 311(2) on the ground that
he must be deemed to be in quasi-permanent service.
The appellant therefor·e must be held to be still
in temporary service when his services were dispensed
with in August 1954. The rule that applies to a temporary government servant is r. 5 which lays down that--
"(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.
(b) The period of such notice shall be one
month, unless otherwise agreed to by the Government and by the Government servant;
Provided that the service of any such Government servant may be terminated forthwith by
payment to him of a sum equivalent to the amount
of his pay plus allowances, at the same rates
at which he was drawing them immediately
before the termination of his services, for the
period of the notice or, as the case may be, for
the period by which such notice falls short of
one month or any agreed longer period."
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In short r. 5 gives power to the Government to ter1963
minate the services of a temporary
government
servant by giving him one month's notice or on payChampaklal
ment of one month's pay in lieu of notice or such Chimanlal Shah
shorter or longer notice or payment in lieu thereof
v.
as may be agreed to between the Government and The Union of
the employee concerned.
This rule is being attacked
India
on the ground that it is hit by Art. 16, which provides
that "there shall be equality of opportunity for all
Wanchoo J.
citizens in matters relating to employment or appointment to any office under the State". We have not
been able to understand how this rule can possibly be
hit by Art. 16, which provides for equality of opportunity. These Rules show that there are two classes
of employees namely, (i) permanent employees, and
(ii) temporary employees, the latter being divided into
two sub-clauses (a) quasi-permanent, and (b) temporary.
It is well recognised that the Government may have to
employ temporary servants to satisfy the needs of a particular contingency and such employment would be
perfectly legitimate. There can also be no doubt, if such
a class of temporary servants could be recruited that
there would be nothing discriminatory or violative of
equal opportunity if the conditions of service of such
servants are different in some respects from those of permanent employees. Further we see no denial of equal
opportunity if out of the class of temporary employees
some are made quasi-permanent depending on length
of service and their suitability in all other respects
for permanent employment eventually and thus assimilated to permanent employees. It has been urged
OJ?. behalf of the respondent that t-st. 16 in any case
w11!
n~t apply to matters relatmg to termination
of service. We ~o not think it necessary for present
purposes to
~ec1de whether Art. 16 would apply
to rules relatmg to termination of service.
We
shall
ass~me for the purposes of this appeal that
Art. 16 . w1~ apply even in the case of rules relating
th termmat19n of se;vice.
But we fail to see how
t e rule .which applies to one class of government
servants Ill the matter of termination but does not
apply to the other two classes can be said to violate
202
SUPREME COURT REPORTS
[1964]
1963
equality of opportunity provided in Art. 16. The
classification of government servants into these classes
Champak/al is reasonable and differences in the matter of terminaChimanlal Shah tion of service between these classes cannot be said
v.
to be discriminatory in the circumstances. In partiThe Union of cular the very fact that the service of a government
India
servant is purely temporary makes him a class apart
from those in permanent service and such governWanchoo J.
ment servant cannot necessarily claim all the advantages which a permanent servant has in the matter
of security of service. We are therefore of opinion
that considering the nature of the employment of
a temporary government servant, a provision like
that in r. 5 in respect of termination of service is a
reasonable provision which cannot be said to deny
equality of opportunity provided in Art. 16. The
attack therefore on r. 5 on the ground that it is hit
by Art. 16 of the Constitution must fail.
It is next urged that even if r. 5 is good, the order
by which the appellant's services were dispensed with
was bad, because it was discriminatory. In this
connection reference was made in the plaint to a
number of Assistant Directors whose services were
not dispensed with even though they were junior
to the appellant and did not have as good qualifications as he had. We are of opinion that there is
no force in this contention. This is not a case where
services of a temporary employee are being retrenched
because of the abolition of a post.
In such a case
a question may arise as to who should be retrenched
when one out of serveral temporary posts is being
retrenched in an office. In those circumstances,
qualifications and length of service of those holding
similar temporary posts may be relevant in considering whether the retrenchment of a particular employee
was as a result of discrimination. The present however is a case where the appellant's services were
terminated because his work was found to be unsatisfactory.
We shall deal with the question whether
termination in this case is liable to be set aside on the
ground that Art. 311 (2) was not complied with later;
but where termination of the service of a temporary
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5 S.C.R.
SUPREME COURT REPORTS
203
government servant takes place on the ground that
1963
his conduct is not satisfactory there can in our opinion
be no question of any discrimination. It would be
Champaklal
absurd to say that if the service of one temporary Chiman/al Shah
servant is terminated on the ground of unsatisfactory
v.
conduct the services of all similar employees must The Union of
also be terminated along with him, irrespective of
India
what their conduct is. Therefore even though some of
those mentioned in the plaint by the appellant were
Wanchoo J.
junior to him and did not have as good qualifications
as he had and were retained in service, it does not
follow that the action taken against the appellant
terminating his services was discriminatory for that
action was taken on the basis of his unsatisfactory
conduct. A question of discrimination may arise
in a case of retrenchment on account of abolition
of one of several temporary posts of the same kind
in one office but can in our opinion never arise
in the case of dispensing with the services of a particular temporary employee on account of his conduct
being unsatisfactory. We therefore reject the contention
that the appellant was denied the protection of Art.
16 and was treated in a discriminatory manner.
We now come to the last question whether the
appellant was entitled to the protection of Art. 311(2)
of the Constitution, even though he was a temporary government servant. It is well settled that
temporary servants are also entitled to the protection of Art. 311(2) in the same manner as permanent
government servants, if the government takes action
against them by meting out one of the three punishments i.e. dismissal, removal or reduction in rank:
(see Parshotam Lal Dhingra v.
Union of India( 1).
But this protection is only available where discharge,
removal or reduction in rank is sought to be inflicted by way of punishment and not otherwise. It
is also not disputed that the mere use of expressions
like "terminate" or "discharge" is not conclusive
and in spite of the use of such innocuous expressions,
the court has to apply the two tests mentioned in
Parshotam Lal Dhingra's case(1), namely-(!) whether
(I) (1958] S.C.R. 828.
204
SUPREME COURT REPORTS
[1964]
1963
the servant had a right to the post or the rank or
(2) whether he has been visited with evil consequences;
Charnpaklal and if either of the tests is satisfied, it must be held
Chirnanlal Shah that the servant had been punished. Further even
v.
though misconduct, negligence, inefficiency or other
The Union of disqualification may be the motive or the inducing
India
factor which influences the Government to take action
under the terms of the contract of employment or
Wanchoo J.
the specific service rule, nevertheless, if a right exists,
under the contract or the rules, to terminate the service
the motive operating on the mind of the Government
is wholly irrelevant. It is on these principles which
have been laid down in Parshotam Lal Dhingra' s case( 1)
that we have to decide whether the appellant was
entitled to the protection of Art. 3 II (2) in this case.
Before however we consider the facts of this
case, we should like to make certain general observations in connection with disciplinary proceedings
taken against public servants.
It is well known
that government does not terminate the services
of a public servant, be he even a temporary servant,
without reason; nor is it usual for government to reduce
a public servant in rank without reason even though
he may be holding the higher rank only temporarily.
One reason for terminating the services of a temporary
servant may be that the post that he is holding comes
to an end. In that case there is nothing further to
be said and his services terminate when the post
comes to an end. Similarly a government servant
temporarily officiating in a higher rank may have to
be reverted to his substantive post where the incumbent of the higher post comes back to duty or where
the higher post created for a temporary period comes
to an end. But besides the above, the government
may find it necessary to terminate the services of a
temporary servant if it is not satisfied with his conduct
or his suitability for the job and/or his work. The
same may apply to the reversion of a public servant
from a higher post to a lower post where the post is
held as a temporary measure. This dissatisfaction
with the work and.lor conduct of a temporary servant
(I) [1958] s.c.R. 828.
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5 S.C.R.
SUPREME COURT REPORTS
205
may arise on complaint against him. In such cases
1963
two courses are open to government.
It may decide
to dispense with the services of the servant or revert
Champaklal
him to his substantive post without any action being Chimanlal Shah
taken to punish him for his bad work and/or conduct.
v._
Or the Government may decide to punish such a The Un'.on °1
servant for his bad work or misconduct, in which
India
case even though the servant may be temporary
he will have the protection of Art. 311 (2).
But
Wanchoo 1·
even where it is intended to take action by way of
punishment what usually happens is that something
in the nature of what may be called a preliminary
enquiry is first held in connection with the alleged
misconduct or unsatisfactory work. In this preliminary enquiry the explanation of the government
servant may be taken and documentary and even
oral evidence may be considered. It is usual when
such a preliminary enquiry makes out a prima facie
case against the servant concerned that charges are
then framed against him and he is asked to show cause
why disciplinary action be not taken against him.
An enquiry officer (who may be himself in the case
where the appointing authority is other than the
Government) is appointed who holds enquiry into
the charges communicated to the servant concerned
after taking his explanation and this inquiry is held
in accordance with the principles of natural justice.
This is what is known as a formal departmental enquiry
into the conduct of a public servant. In this enquiry
evidence both documentary and oral may be led against
the public servant concerned and he has a right to
cross-examine the witnesses tendered against him.
He has also the right to give documentary and
oral evidence in his defence, if he thinks necessary
to do so. After the enquiry is over, the enquiry
officer makes a report to the Government or the
authority having power to take action against the
servant concerned. The government or the authority
makes up its mind on the enquiry report as to whether
the charges have been proved or not and if it holds
that some or all the charges have been proved, it
determines tentatively the punishment to be inflicted
206
SUPREME COURT REPORTS
[1964)
1963
on the public servant concerned. It then communicates a copy of the enquiry officer's report and its own:
Champaklal conclusion thereon and asks him to show cause why
Chimanlal Shah the tentative punishment decided upon be not inflicv.
ted upon him. This procedure is required by Art.
The Union of 311(2) of the Constitution in the case of the three
India
major punishments, i.e., dismissal, or removal or
reduction in rank. The servant concerned has then
Wanchoo J. an opportunity of showing cause by making a representation that the conclusions arrived at at the departmental enquiry are incorrect and in any case the
punishment proposed to be inflicted is too harsh.
Generally therefore a preliminary enquiry is
usually held to determine whether a prima facie case
for a formal departmental enquiry is made out, and
it is very necessary that the two should not be
confused. Even where government does not intend
to take action by way of punishment against a temporary servant on a report of bad work or misconduct a preliminary enquiry is usually held to satisfy
government that there is reason to dispense with the
services of a temporary employee or to revert him
to his substantive post, for as we have said already
government does not usually take action of this
kind without any reason. Therefore when a preliminary enquiry of this nature is held in the case of
a temporary employee or a government
servant
holding a higher rank temporarily it must not be
confused with the regular departmental
enquiry
(which usually follows such a preliminary enquiry)
when the government decides to frame charges and
get a departmental enquiry made in order that one
of the three major punishments already indicated
may be inflicted on the government servant. Therefore, so far as the preliminary enquiry is concerned
there is no question of its being governed by Art.
311 (2) for that enquiry is really for the satisfaction
of government to decide whether punitive action
should be taken or action should be taken under
the contract or the rules in the case of a temporary
government servant or a servant holding higher
rank temporary to whilh he has no right. In short
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SUPREME COURT REPORTS
207
a preliminary enquiry is for the purpose of collec1963
tion of facts in regard to the conduct and work of
a government servant in which he may or may not
Champaklal
be associated so that the authority concerned may Chimanlal Shah
decide whether or not to subject the servant concerned
v.
to the enquiry necessary under Art. 311 for inflicThe Union of
ting one of the three major punishments mentioned
India
therein. Such a preliminary enquiry may even be
held ex parte, for it is merely for the satisfaction
Wanchoo J.
of government, though usually for the sake of fairness, explanation is taken from the servant concerned
even at such an enquiry. But at that stage he has
no right to be heard for the enquiry is merely for the
satisfaction of the Government, and it is only when
the government decides to hold a regular departmental
enquiry for the purposes of inflicting one of the three
major punishments that the government servant gets
the protection of Art.