SATISH CHANDRA ANAND versus THE UNION OF INDIA

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feel called upon to deprive other persons of their persoi;ial liberty in the discharge ·of what they conceive to be then· duty, must strictly and scrupu-lously observe the forms and rules of the law. That . has not been done in this case. The petitioners now before us are therefore entitled to be released and they are set at liberty forthwith. '

Petition allowed.

Agent for the petitioner: Ganpat Rai.

Agent for the respondents: G. H. Rajadhyakshri.

Rani Narayan. Singh v • Th• Stat• of Delhi and Othsr3.

Patanja.lS Sa~tl'i 0. I.

SATISH CHANDHA ANAND

THE UNION OF iNDIA.

(PATANJALI SASTRI 0.J.,'MUKHEHJEA, VIVIAN BOSE, GHULA~I HASAN and BHAGWATI JJ.]

Constitution of India, 1050, Arts. 14, 16, 311- Civil servant-Appointment on contract for 5 years-Continuation of appointment on temporary service basis-Tarrnination of service on one month's notice-Legality·- Fundamental rights-Central Civil Services (Temporary Service) Rules, 1949, r. fi.

The petitioner was employed by the Government of India on . five year contract in the Resettlement and Employment Direc-torate of the Ministry of Labour. When bis contract was due to expire the Government made him n.ew offer to continu~ him ~n 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 Ciyil Services (Temporary Service) Rules, 1949, which provided for termination of the contract by one month's notice on either side. He accepted \be offer and continued in service, but subsequently his services were terminated after giving him one month's notice. The- petitioner applied for reiief under Art. 32 (1) of the Constitution alleging Iba\ his funda-mental rights under Arts. 311, 14 and 16 (1) of the Constitution were infringed:

Held, (i) that Art. 311 bad no application as this was not case of dismissal or removal from service nor reduction in rank but only an ordinary case of contract being terminated by notice under one of its clauses,· the difference between dismiesal and

1968 Mar•k la

removal being that the former ordinarily disqualifies from future employment but not the latter;

(ii) Art. 14 had no application as he bad not been discrimin-ated against and had not been denied the protection of any laws which others similarly situated could claim ;

Batish Chandra

Anand v, The Union of India

(iii) Art. 16 was equally inapplicable as the petitioner was not denied equal opportunity in matter relating to appointment or employment but had been treated just like any other person to whom an offer of temporary· _employment under these condi-tions was made.

The State can enter into contracts of temporary employment and impose special terms in each case, provided they are not in-consistent 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. 201of1952) under Art. 32 of Lhe Oomtitution for the enforce-ment of fundamental rights.

R. K. Varma and G. 0. Mrithur for the petitioner.

M. 0. Setalvad, Attorney-General for India, (Por1is

A. Mehta, with him) for th·~ -respondent.

1953. March 13. The Judgment of the Court was delivered by

BosE J.-'l'his is petition under article 32 of the Constitution in which the petitioner seeks redress for what, according to bim, is breach of bis funda-mental rights under articles 14 aud 16(1) of the Con-stitution. It was argued at considerable length by the petitioner in person. Then, wben our judgment was nearly ready, he put in petition asking for rehear-ing aud for permission to file some fresh paper,;. Wben that was refused be came again on another day and asked for leave to engage an agent and appear through counsel as he felt he bad not been able tO do justice to bis case in person. (It may be mentioned that tbougb he had originally engaged an agent he dismissed him before the bearing when he appeared in person.) vVe granted bis request and counsel ro-argued the case for him but has not carried the matter any funher. The facts are these .•

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In October, 1945, the petitioner was employed by 1968 the Government of India on five year contract in . -. the Directorate· General of Resettlement and Employ..J''h'~ Oh~ndro men\ of the Ministry of Labour. This was after selec-::• tiou by the Federal Public Service Commission. The U•ion of After short period of practical training, he was fodia posted in January, 1946, at Jabalpur as the Manager of the Sub-Regional Employment Exchange and was Bose J. 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 new offer, embodied in its letter dated the 30th June, l 950, 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 termi-

. nation 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) .Kules, 1949, nnless you are per-manent Government servant." He was asked in the letter to intimate to the Minis-try 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. Heiwas not permanent Government servant though it was con-tended in argument that he was, for he was Oil five year contract and tlie work for which he was employ-ed, namely Hesettlement alld Employment, was itself only of temporary character. Therefore, the Temporary Service Rules applied.

On those rules, rule 5 is material. It runs as follows:

"5. (a) '.!.'he service of· temporary Government servant who is not in quasi-permanellt service shall be liable to terminatioll at any time by notice ill writing given either by the Government servant to the ap-pointillg authority, or by tbe appointing authority to the Government senant.

(b) The period of such notice shall be one month,

S t u·ri [. ][, ][Ck ]an [a ].ra..i.. [unless otherwise agreed to by ]h t " [the ][Government ][and ]Ana"d ..,y t Government servan . v. Quasi-permanent service is defined in the rules and Tk• Union °1 it is clear that the petitioner does not come within India that class. It is also an undisputed fact that there 80[,. ][J. ]was no agreement between the petitioner and Govern-ment regarding the period of the notice. 'rherefore, according to this rule, which was term in the peti-tioner's contract of further service, his services were liable to termination at any time by one month's notice in writing. 'rhis 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.

large field was cove.red in the course of the argu-ments, 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 Constitu-tion and so it must be shown that fundamental right has been infringed. It was argued that the rights infringed are the ones conferred by articles l 4 and 16(1).

Taking a:rticle 14 first, it must be shown that the petitioner has been discriminated against in. the exer-cise 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 confer-ed by article 311. He says he has either been dismiss-ed or removed from service without the safeguards which that article confers. In our opinion, article 311 has no application because this is neither dismissal .nor removal from service, nor is it reduction in rank. It is au ordinary case of contract being termi-nated by notice under one of its clauses.

The services in lndi~ have long been afforded certa.in statutory guarantees and safeguards against arbitrary dismissal or reduction in rank. Under

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section 240 of the Government of India Act, 1935, the 1958 safeguards were limited to those two cases .. Underk-O th preseut onst1tut10n, t . . h' tr was dd , name y l 8 . atu Anand kan Anand kan kan removal from service. In order to understand the v, difference between "dismissal" and "removal" from Th• Union of of service, it will be necessary to turn to the Rules which fodia governed, and with modifications still govern, the Bose J. "services" in India. because of article 313 of the Con-stitution.

atu Anand kan Anand kan kan ra v, Th• Union of of fodia Bose J.

Part XII of the Civil Services (Classification, Con-trol and Appeal) Rules relating to Conduct and Disci-pline includes rule 49 which sets out the various penalties to which 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 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 futu.re employment" and there is next dismissal from service "which ordinarily disqualifies from future employment."

Then follows an Explanation:

"The discharge-

(c) of person engaged under contract, in ac- · cordance with the t,erms 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 article311. 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

·z[9];s offer which was made to him. Havi~g a,ccepted, he S a" t [. ][h-Ch ]Anan~n [a ]'"available [still ][has ][open to him all ]to other persons similarly situated [the ][rights ][and ][remedies ]to en-v. force any rights under bis coritract which have been Th• Union of denied to him, assuming tbere are any, and to pursue I.idi• in tbe .ordinary courts of the land such remedies for Bose J. 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. 'I'he remedy of writ is misconceived.

Article 16(1) is equally inapplicable. The whole matter rests in contract. 'When the petitioner's first contract (tbe five year one) came to· an end, he was not permanent Government servant and Govern-ment 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 continuation of l)is employment on temporary and contractual basis. Though the employment was con-tinued, it was iu point of fact, and in the eyes of the law, under new and fresh contract which was quite separate and distinct from the old eveu though many . of its terms were the same. Article 16(1) deals with equality of opportunity in all matters relatiug to employment or appointment to any office under the State. '11he petitioner has not been denied any opportunity of employment or of appointment. He has been treated just like any other person to whom au offer of temporary employment under these condi-tions was made. His grievance, when flnalysed, is nob one of personal differentiation but is against an offer of temporary employment; ou special terms as opposed to permanent employment. But of comse the State can enter into contracts of temporary employment and impose special terms in each cas·e, 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

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any such limitations Government is, subject to the 1958 qualification mentioned . . above, as free to make special 8 atis . h-C contracts of service with temporary employees, engag-Anand ed in works of temporary nature, as any other v. employer. The Union

atis . han ra Anand v. The Union of India. Bo" J.

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 writ under article 32 to enforce fundamental right and the only point we decide is that no fundamental right bas 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 second time, we have no alternative but to dismiss the petition with costs.

Petition dismissed.

Agent for the petitioner: Rajinder Narain.

Agent for the respondent: G. H. Rajadhyaksha .

HABF,.EB MOHAMED

·rHE STA'rE OF HYDERABAD.

[PATAl\JALI SAS1'RI C.J., MUKHERJEA, S.R. DAS,

Gm;LAM HASAN and BHAGWATI JJ.]

Constitution of India, 1950, Arts. 13, 14-Hyderabad Regula· tion X of 1359 F.-Trial by special jwlqe under Reg•tlation X after 26th January, 1950-Provisions of Regulation different from Cri-minal Procedure Code-Equal protection of the· law - Validity of trial-Tests of validity-Effect of cu.rtailment of committal proceed· ings and of right to transfer, revision, confinnation of death sentence.

In determining the validity or otherwise of pre.Constitution statute on the ground of any of its provisions being repugnant to the equal protection clause of the Constitution, two principles 86

1953 March 30.