Satish Chandra Anand Vs. The Union of
India [1953] INSC 21 (13 March 1953)
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 rightsCentral Civil Services (Temporary Service)
Rules, 1949, r.
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
fundamental 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.
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 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 conferred 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 terminated 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 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 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.
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