Y K BHATIA Vs. STATE OF HARYANA

JUDGEMENT

(1.) THESE three Writ Petitions (C. W. P. Nos. 127, 29 and 2236 of 1976) raise a common question, whether the termination of the services of a Government employee temporarily appointed to a post or the reversion of an employee temporarily promoted to a higher post offends Article 16 (1) of the Constitution, if his juniors, also appointed temporarily, are continued in service, or if his juniors, also promoted temporarily, are continued in higher posts. Shri Jawahar lal Gupta, learned counsel, argued that the Fundamental Right guaranteed by article 16 (1) of the Constitution was available not only at the stage of initial recruitment but at all subsequent stages incidental to employment such as promotion, reversion, termination of service etc. He urged that the rule of 'last come, first go' was essentially a rule of 'fair play' which was required by law to be observed as much in Government employment as in Industrial employment. If without adequate explanation the rule was departed from and a senior temporary employee's services were terminated while retaining his juniors, there was a violation of the Fundamental Right of equality of opportunity guaranteed by Article 16 (1) of the Constitution. According to the learned counsel whenever a temporary employee's services were to be terminated, the claims of all temporary employees for retention in service had to be considered and thereafter only it was to be determined as to who was to go. Shri Jawahar lal relied upon certain decisions to which we shall presently refer.

(2.) A certain amount of confusion has been created by the occasional importation of the principle of last come, first go from Industrial Law into the law relating to public servants. The primary interest of Industrial Law is the ensuring of industrial peace. A frequent cause of labour unrest being the victimization of employees in the guise of retrenchment, the rule of 'last come, first go' has been evolved. The primary object of the law relating to public servants is the securing of efficiency in public service, the interest to be served being the public interest. There is thus a basic difference between the goals of industrial law and the law relating to public servants. It will not therefore be right to import, rigidly, into the law relating to public servants the principles applied in Industrial Law, however salutary they may be. The rule 'last come, first go', so well recognised in Industrial Law, is undoubtedly a salutary rule. It is perhaps desirable to apply it to public servants too. Indeed, very often it is so applied. But it is one thing to say that it is desirable to apply the rule of 'last come, first go' in given situations and that it is often so applied, it is quite a different thing to say that the failure to apply the rule leads to the necessary inference of denial of equal opportunity under Article 16 (1 ). To say so would be to elevate the rule to a rule of universal application, which it is not. The supreme Court did not say anything different in Ramaswamy v. I. G. of Police, air 1966 SC 175 on which Shri Jawahar Lal Gupta placed considerable reliance. The observations on which the learned counsel relied were:--

(3.) SHRI Jawahar Lal placed very strong reliance on State of Mysore v. Kulkarni, 1972 Serv LR 795 = (1972 Lab IC 1280) (SC) and State of Uttar Pradesh v. Sughar Singh, (1974) 1 Serv LR 435 = (1914 Lab IC 353) (SC ). In the first case, which was decided by Ray C. J. and Beg J. , it was found, on the facts that officers who were junior to and less meritorious than the respondents had stolen a march over them, because of a certain misapprehension in the mind of the Government The order of reversion of the respondents was, therefore, held to be based on legally extraneous grounds and in violation of Article 16 (1 ). The decision is of no help to the petitioner. In the second case which was decided by mathew and Beg JJ. , the facts, as the learned Judges themselves said, were very peculiar. From out of a group of about 200 officers most of whom were junior to Sughar Singh, he alone was reverted, not for any administrative reason but because of an adverse entry made in his confidential character roll. On the facts and circumstances of the case it was found that the reversion was in truth a measure of punishment which was imposed without observing the requirements of Article 311. Some observations were also made suggesting that there was an infringement of Articles 14 and 16 of the Constitution. It was said:--