S C KAUSHIK DR Vs. UNION OF INDIA

JUDGEMENT

(1.) Replacing an officer who has not been selected by another who has been selected by the Selection Committee is understandable and accords with principle and policy. But to replace an official who has acquired 5 years experience but has not been successful at the selection by a fresh recruit who has not yet been selected so far smacks of irrationality arbitrariness and caprice which are frowned upon by Articles 14 & 16 of the Constitution or India. Such is the proposition canvassed by two Assistant Medical Officers employed by the Railway Administration who have instituted these two allied petitions under Article 226 of the Constitution of India raising identical questions on similar facts.

(2.) The facts which are not in dispute in both the petitions are as under:-

(3.) What is obvious need not be stressed. Neither logic nor principle can justify replacement of one unselected person by another. Nor fair play or public interest or expediency can come to the rescue. What public good is served when a tried and tested Medical Officer who has not been found wanting in any respect for 5 years or more is Replaced by a fresh recruit who has yet to be tried and tested and has yet to gain experience ? And which is the principal to which obeisance is made ? A search for a rational justification leads one to a blind alley. No further test is necessary to uphold the charge of arbitrariness for the services of a public servant even if appointed on an ad hoc basis cannot depend on the whim or caprice of the appointing authority. Discrimination can be easily practiced and practiced with impunity if such a situation were to be countenanced. Counsel for the Railway Administration is unable to show even today in July 1980 3 years after the impugned order of termination and 3 years after the institution of these petitions that any doctors selected by public Service Commission are available even now to replace the doctors who have not been successful at the selections. Will they go on replacing unselected doctors by unselected doctors every three years ? They may do so on one occasion in respect of one lot or some of them. They may not do so in respect of another lot or some of them. On what principle will it be done ? The posture assumed by the respondent is:- the petitioner has been engaged on a contract of service which entitles us to terminate his service without reasons. it is therefore not the concern of the Courts and no question of offending the Constitution can arise if we act according to the contract. What one of us (Thakkar J.) had an occasion to say on an earlier occasion under similar circumstaaces may be reiterated in the present context. The argument advanced by the respondent virtually amounts to saying that it is none of the business of the courts and it has no constitutional dimension. This argument completely ignores the real content of Article 16(1) of the Constitution and the spirit underlying it. Of what use is the guarantee enshrined in Article 16 of the Constitution if it can be set at naught merely by entering into a contract which virtually enables the State to do what it is prohibited from doing ? Surely considerations relating to the law of contract cannot wipe out the constitutional safeguard relating to a fundamental right guaranteed by the Constitution. In order to accept the contention of the respondent it will have to be held that the tenure of service of a citizen who takes up employment with the State will depend on the pleasure or whim of the competent authority unguarded by any principle or policy. One would also have to come to the conclusion that the service of a citizen employed by the State can be terminated even though there is no rational ground for doing so (apart from the argument that the contract of employment so empowers the State to terminate the employment) even arbitrarily or capriciously. To uphold this right is to accord magna carta to the officers invested with these powers to practice uncontrolled discrimination at their pleasure and caprice on considerations not based on the welfare of the State but based on personal likes and dislikes personal sympathies and prejudices. The competent authority would then have a charter to indulge in unbridled arbitrariness. An employee may be retained solely on the ground that he is a sycophant and indulges in Battery whereas the services of one who is senior to him and more meritorious (but who is wanting in the art of sycophancy and temperamentally incapable of indulging in flattery) may be terminated. The competent authority may even prefer to retain a junior employee whilst terminating the services of his more meritorious senior solely on the ground that the former belongs to the same religious faith or is the disciple of the same teacher or holds opinions congenial to hire. The competent authority may even do so on the ground that an employee belongs to his region or his caste or is related to him while the other is not though he is senior and efficient. Provincialism castism nepotism religious phantasm and several other Annexes factors may in that case freely operate on the mind of the competent authority in deciding whom to retain and whom to get rid of. An employee may be got rid of merely to make way for the favorite of the competent authority. And these dangers are not imaginary ones. They are very much real in an organization like Western Railway where there is a confluence of employees streaming in from different States. It is therefore not possible to uphold the view propounded by the learned counsel for the respondent as it would result in robbing a citizen of India (who takes up an employment with the State) of security of service and even his individual dignity. It would make him a supine person whose destiny is at the mercy of his superior officer (whom he must humor) notwithstanding the constitutional guarantee enshrined in Article 16 which enures during his continuation in office and does not stop short at the initial stage of obtaining apartment or employment ewith the State. To hold otherwise is to hold that the fundamental right embedded in Article 16(1) is a mere paper tiger and that it is so ethereal that it can be voided or eschewed by a simple device of obtaining from each employee a signature on a contract of service containing a stipulation similar to the one in the present case.