Geeta Shrivastava Vs State of Madhya Pradesh and others

@JUDGMENTTAG-ORDER

Dr. T.N. Singh, J.

As an Assistant Professor, the petitioner came to be appointed under orders of Joint Director of Collegiate Education, Madhya Pradesh, Bhopal, as per Annexure P/1. True, her appointment was made on ad hoc basis for a period of six months and another condition of her appointment was that she would be reappointed after break of three days. Alas, trouble arose too early for her to continue and indeed before she completed even six months'' period, she was told by the Principal Government M.J.S. College, Bhind, to check out. Whether the order Ex. P/16 is a cancerous order is a question which arises primarily for our consideration in this case.

We read, therefore, the order and extract its text in extenso:

KU. GEETA SHRTVASTAVA, TADARTHASAHAYAK PRADHYAPAK SAMAJSHASTRA SHASAKIYA M.J.S. MAHAVIDYALAYA BHIND KI PURNATAH TADARTHA ASTHAYI NIYUKTI UNKE NIRANTAR LAMBE ARSE SE ANUPASTHIT RAHANE TATHA KARYA EVAM VYAVAHAR NITANTA ASANTOSHJANAK HONE KE KARAN TATKAL PRABHAV SE SAMAPTA KI JATI HAIN".

Two things which appear very clear in the language used in the extract aforesaid cannot escape our notice. Indeed, two clear and definite charges are mentioned in categorical terms indicating if anything, petitioner''s misconduct for which she was punished by the impugned order resulting in termination of her services. She was told that she was continuously absent for a long period and she was further told that her work and conduct was found wholly unsatisfactory.

No labour indeed we are required to expend to accept petitioner''s contention that the above order stigmatised her and made it impossible for her to secure employment under the State in future, anywhere and in any manner. On facts, unfortunately for the Stat, it is not disputed that no opportuntiy was afforded to her to satisfy authorities that she did not deserve the stigma, and the impugned order was passed without hearing her at any stage and in any manner. What rather passes our comprehension is that though on the same date, by two separate orders (Nos. 2644 and 2645), show-cause notices as per Annexures P/4 and P/6 were addressed to her and she submitted explanation thereto (Annexures P/5 and P/7), she was not heard in the matter and indeed, there was no enquiry of any sort on the allegations made in those notices. In one notice, it was alleged that on 16-10-1985 and 17-10-1985, she did not hold classes while in the second notice, the same charge is repeated in respect to 18-11-1985, 19-11-1985 and 20-11-1985, saying that she was not regular in teaching work. Strangely enough, as per Annexure P/8, another charge was made against her that she had not submitted explanation as to why she was absent in the months of October and November on 16-10-1985.17-10-1985 and 18-11-1985 to 20-11-1985. It is in this notice she was warned that not only deduction shall be made from her salary, but her services would also be terminated if proper cause was not shown. To this, she replied as per Annexure P/9. We have before us also the copies of medical certificates which the petitioner submitted, namely, Annexures P/10 and P/11 while Annexure P/12 is an application for leave for 15 days and Annexure P/13 is a "Fitness Certificate". It is dated 10-1-1986 and Annexure P/14 is the Joining Report which was submitted with it. It is not disputed that she was not allowed to join and as per Annexure P/14, she accordingly made a complaint on 15-1-1986 to the Commissioner, Collegiate Education, Bhopal. About her formal termination of services, we have mentioned already above which is Annexure P/16, dated 30-1-1986.

A three-fold contention is urged validly and forcefully, challenging the impugned order afore-quoted. Firstly, it is contended that the impugned order ex facie, stigmatises the petitioner and as such termination of her services without holding an enquiry as contemplated under Article 311(2) of the Constitution must kill the order without much ado. Secondly, petitioner''s ad hoc appointment being guaranteed for a period of six months, without that period being completed, her services could not be prematurely terminated in violation of the condition of her appointment and indeed, only at the completion of six months'' period of her service, it could be competent for the authority to decide whether her services were satisfactory during that period. Thirdly, relying on Annexure P/19, it is further contended that the right of the petitioner to be regularised in virtue of the statutory Rule, namely, Madhya Pradesh Tadartha Niyuktiyon ka Niyamitikaran Niyam, 1986, was defeated by the impugned order which cannot be constitutionally countenanced. In this connection, it is submitted that there is no denial of the fact that pursuant to the order of appointment passed as per Annexure P/1, the petitioner was allowed to join her duties on 23-9-1985 when the Principal made the necessary order in that regard as per Annexure P/2. Accordingly, as per condition No. 4 of the appointment (Annexure P/1), she should continue to be in service in June, 1986 when those Rules came into force it her services had not been terminated illegally. Accordingly, her services could be dealt with in accordance with those Rules only as soon as in virtue of her entitlement of being re-appointed for second term of six months after three days'' break, she would have been in service in June, 1986 to claim benefit of the Rules.

We have no hesitation to hold atonce that the several contentions of the petitioner are indeed unanswerable and are duly supported by authorities to which a brief reference only is necessary. Jagdish Mitter Vs. The Union of India (UOI), , is a decision of the Constitution Bench wherein, long ago, it was held that Article 311(2) is attracted when the order of discharge of a temporary Government servant states that he was found undesirable to be retained in service. Indeed, the causa celebra is Samsher Singh Vs. State of Punjab and Another, , wherein, seven eminent Judges of the Apex Court reiterated the position that the question whether Article 311(2) can be said to be infringed has to be determined with reference to the factual position as to whether the services of the aggrieved person have been terminated by way of punishment for any kind of misconduct. It was lucidly stated then that before a probationer is confirmed, his services could be terminated on account "of inadequacy for the job or for any temperament or other object not involving moral turpitude". But such an "order of discharge" could not be an order of termination simpliciter if in such an order, a "stigma" is attached to the government servant. The case of Usha Rani, 1984 Lab. I.C. 1411, is one of an ad hoc appointee and the learned Single Judge of the Punjab & Haryana High Court took the view that her termination of service without giving her reasonable opportunity of hearing was illegal because she was also entitled to claim protection of Article 14 of the Constitution. Reliance indeed is placed also on the case of Rattan Lal and Others Vs. State of Haryana and Others, , wherein it was held that ad hoc teachers could not be subjected to unreasonable and arbitrary "hire and fire" policy by contemplating "breaks" in their service, as in the instant case. Two decisions of this Court are also cited. The latest is of Jiwanlal Pathak, 1987 MPLJ 376, wherein the latest development in the field of Service Jurisprudence was noted and para 107 of P.W.D. Manual providing for termination of service even in case of serious misconduct on one month''s notice was viewed as an unconstitutional provision. The other decision is that of Madan Kumar Gautam, 1986 MPLJ 364 : 1985 JLJ 783, wherein also the question of ad hoc appointement was considered, albeit in the context of State Civil Services (Executive) Classification, Recruitment and Condtitions of Service Rules, 1975. It was held that even ad hoc appointees are entitled to the protection of Articles 14 and 16 and they are to be considered for promotions.

State Counsel Shri Sinha''s strong reliance on a decision of a learned Single judge of the Calcutta High Court in the case of P. Shyama Prasad, 1969 Lab. I.C. 721 must be deemed misconceived. A Government servant sent on deputation for stipulated period, it was held, had no right to hold that post for all times and he could be validly reverted to his substantive post and such order would not incur the infringement of Article 311(2) on the ground that he had been reduced in rank without being heard. If we have to make anything clear in regard to this decision, it is only to be stated emphatically that the question of stigmatising and punishing a Government servant has nothing to do with his right to hold the post; it is not his right to continue in service that may be affected by such action, but such an action would disable him permanently to apply for any future employment under the State. There lies the vice of the action which is constitutionally prohibited and it is founded on sound public policy. Reliance on S.P. Vasudeva Vs. State of Haryana and Others, , we have failed to understand because in clear and categorical terms, their Lordships observed in that case that the order did not "show ex facie that he was being reverted as a measure of punishment or does not cast any stigma on him." Nepal Singh Vs. State of Uttar Pardesh and Others, , is indeed a decision of their Lordships of the Supreme Court, but that would not avail to the benefit of the respondents as in that case too, the impugned order was "ex facie innocuous in that it does not cast any stigma on the Government servant or visits him with penal consequences" the mere fact that the petitioner was a temporary Government servant indeed matteredlittle to the contention pressed. Indeed, if we have to say anything on the another decision in the case of Commodore Commanding, Southern Naval Area, Cochin Vs. V.N. Rajan, , relied on by Shri Sinha, the least we can do is to commend counsel''s courage to undertake the misadventure. Herein also, their Lordships have stated that even a temporary Government servant is entitled to the protection of Article 311(2) where the termination of his services involves a stigma or when it amounts to punishment. In the same volume at p. 1595 is a decision F.R. Jesuratnam, but the case being under the Industrial Disputes Act, we consider it wholly unnecessary to say anything about that. In Uttar Pradesh Mahavidyalaya Tadarth Shikshak Niyamitikaran Abhiyan Samiti, Varanasi Vs. State of U.P. and Others, , the question was whether the cut-off date for regularisation of ad hoc teachers was arbitrary and nothing else. Reliance thereon would also not avail learned counsel.

We have no doubt that conspectus of judicial opinion tilts the balance conclusively and finally in petitioner''s favour and in the facts and circumstances of the case, it is not possible at all on our part to accept State Counsel''s plea that impugned order be upheld. The petitioner has been stigmatised in clear terms and the termination of her service being by way of punishment, the impugned order must go. Annexure P/16, dated 30-1-1986 is accordingly quashed. We direct the petitioner to be reinstated in service with consequential benefits thereof. We further direct that her case for regularisation in terms of the Rules aforesaid (Annexure P/19) be considered.

In the result, the petition succeeds and is allowed to the extent herein indicated. However, there shall be no order as to costs.