S. BALASUNDARAM Vs. ADMINISTRATIVE STAFF COLLEGE OF INDIA REP. BY ITS REGISTRAR AND SECRETARY, HYDERABAD

JUDGEMENT

(1.) The petitioner was initially appointed as Private Secretary to the Director of Consulting and Applied Research on a pay scale of Rs. 300-600. Thereafter, he was promoted as Administrative Officer on Dec. 23, 1976 on a pay- scale of Rs. 800-1400. He was further promoted as Assistant Registrar (Establishment) on a pay scale of Rs. 1250-1850.00, with effect from Aug. 26, 1982,for term of five years. Then he was shifted as Assistant Registrar (Development). During the five years term, he was put on probation of one year; the probation was also declared on Oct. 15,1983. Thereby it is his case that he is a confirmed probationer in the Cadre of Assistant Registrar, initially in Establishment and thereafter in Development. It is his case that an attempt was made to transfer him to Delhi and that was thwarted by him by filing a writ petition in this Court. When that attempt was failed, the impugned proceedings were issued terminating his services with effect from Aug. 25, 1987. It is his case that the said action is arbitrary, discriminatory and also mala fide. The petitioner gives certain reasons for his apprehension that the action is vitiated by actuation of alleged mala fides. But on my going through the record, I am not going minutely into the allegations of mala fides. I directed the learned Counsel for the petitioner Sri Gururaja Rao to concentrate on the validity of termination under Articles 14 and 16 of the Constitution. Sri Chennakesava Rao, learned counsel for the respondent raised a preliminary objection that the respondent is a society registered under the Societies Registration Act; it is not a 'State' within the meaning of Art. 12 of the Constitution. Therefore the writ petition is not maintainable, it is further contended that the respondent is not receiving any aid from the State Government or Central Government, therefore, it is not an instrumentality to come within the meaning of Art. 12. This point is no longer resintegra. This Court in W.P. No. 2051/80 dated Jan. 20, 1984, has held that the respondent is a 'State' within the meaning of Art. 12 of the Constitution. Therefore it is a 'State' amenable to the rights engrafted under Part III of the Constitution. Against the judgment in W.P. No. 2051/80, Writ Appeal No. 337/84 was filed and it is pending. I respectfully agree with the ratio of the learned single Judge, more particularly in view of the march of law made by the decisions of the Supreme Court in Ajay Hasia Vs. Khalid Mujib Sehravardi, AIP. 1981 SC 497 ; and the latest decision in Central Inland Water Transport Corporation Ltd. Vs. Brojo Nath, AIR 1986 SC 1571 . Accordingly, I hold that the respondent is an instrumentality within the meaning of Art. 12 of the Constitution. Therefore the writ petition is maintainable.

(2.) Sri Gururaja Rao, contends that the petitioner is an approved probationer in the Cadre of Assistant Registrars, several persons have been promoted as Assistant Registrars subsequent to the petitioner as mentioned in paragraph 9 of the affidavit during Oct. 1986 viz., Sri N.P. Ramadas, Sri Jayachandra, Sri I. S'vamy and Miss R.M. Wadia and they have been continuing in the cadre of Assistant Registrars; the petitioner has been singled out and therefore it is an arbitrary exercise of power. Sri Chennakesava Rao, resisted this contention stating that the petitioner's appointment is a tenure appointment for five years; before expiry thereof, the Court of Governors considered case of the and found it not expedient to continue the petitioner in the promotion post. Therefore, the action is neither discriminatory nor violative of any principles of law. In Govt. Branch Press Vs. D.B. Belliappa, AIR 1979 SC 429 , Sarkaria, J. considered the case of temporary employees whose services were terminated in terms of the appointment and held that "the protection of Articles 14 and 16 (1) will be available even to such a temporary Government servant if he has been arbitrarily discriminated against and singled out for harsh treatment in preference to his juniors, similarly circumstanced. It is true that the competent authority has the discretion under the conditions of service governing the employee concerned to terminate the latter's employment without notice. But, such discretion has to be exercised in accordance with reason and fair play and not capriciously. Bereft of rationality and fairness, discretion degenerates into arbitrariness which is the very anti thesis of the rule of law on which our democratic polity is founded. Arbitrary invocation or enforcement of a service condition terminating the service of a temporary employee may itself constitute denial of equal protection and offended the equality clause in Articles 14 and 16 (1). Art. 16 (1) guarantees ''equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State". Moreover, according to the principle underlying Sec. 16 of the General Clauses Act, the expression 'appointment' used in Art. 16(1) will include termination of or removal from service also. It is further held that Art. 16 (1) is not confined to initial matters prior to the act of employment, but comprehends all matters in relation to employment both prior and subsequent, to the employment which are incidental to the employment and form part of the terms and conditions of such employment, such as, provisions of to salary, increments, leave, gratuity, pension, age of superannuation, promotion and even termination of employment." In West Bengal State Electricity Board Vs. Desh Bandhu Ghosh, AIR 1985 SC 722 , termination of employment was made in terms of order of appointment by giving one month's notice. When it was challenged in the High Court, it was held that the Management has no power to terminate in terms of employment which is offending Art. 14. On appeal, Chinnappaj Reddy, J. speaking for the Court held thus: