ZILEY SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) By this petition the petitioner has challenged the order by which his services were terminated. The petitioner obtained a Certificate of passing Matriculation Examination from the Board of School Education Haryana and then acquired a Diploma in physical education. He was then called for selection in 1984 by a regular Selection Committee and after the process of selection was over he was appointed on a temporary basis as a Physical Training Instructor Grade III by an order 27-12-84. According to the petitioner, his appointment is, therefore, to a substantive post, though temporarily made. The wordings of the order of appointment were beyond the control of the petitioner and he was not in a position to require the state to write the order in a particular manner. Assailing the order, it was submitted that persons appointed after the petitioner, were continued in service and, therefore, the statement in the termination order that his services are terminated because they were temporary and were not required after the specified period appears to be incorrect. According to the learned counsel, continuance or re-appointment of other teachers after the termination of the petitioner indicates that there were always vacancies in the post of Physical Training Instructors. The petitioner could not have been arbitrarily chosen for termination in such circumstances. According to the learned Counsel, the termination of his service was a colourable exercise of power. It was not undertaken because the temporary services of the petitioner were no longer required but it was undertaken for the reason that the certificate on the basis of which the petitioner acquired the employment was not recognised by the Department. He drew my attention to Anx. 3 page 22 which is the impugned order. In the caption "Subject", it is mentioned that the subject is in relation to appointment of persons holding a certificate from Maharashtra State. However, the text of the letter states that since the appointment of the petitioner was till the end of the Session, the same was being terminated at the end of the Session with effect from 18.5.85. According to the learned counsel, this is colourable exercise of power. He relied on Annxs. 5 and 6 to show that persons appointed with him were continued and several persons were appointed after his termination.

(2.) Opposing the submissions of the petitioner, it was submitted by the learned advocate for the State that the appointment therefore, is preferably legal and valid. The appointment of the petitioner was till the end of the academic Session and hence, it was terminated at the end of the Session. The submission of re-employment or fresh employment cannot render the order bad. Therefore, he maintains that the same is liable to be affirmed.

(3.) Reliance was placed by the learned counsel for the petitioner on two judgments of this Court - (1) Devki Nandan Saraswat Vs. The Rajasthan High Court, (S.B.C.W. Pet. No. 86/83) decided on 17-12-84 , (2) Sohan Chand Singhvi Vs. The Rajasthan State Electricity Board, (S.B.C.W. Pet. No. 121/76) decided on 22-8-84. Both the judgments have been delivered by Honourable Mr. Justice S.C. Agrawal as he then was of this Court. In the case of Devki Nandan it has been observed that removal even of the temporary employee if done arbitaraily, while retaining other similarly situated or immediately thereafter employing persons similarly qualified, amounts to discriminatory exercise of the power and the termination is vitiated. In the present case, it is undisputed that there has been retention of similarly appointed workmen instructors and a fresh recruitment of about 31 people. It, therefore, appears that there was some doubt regarding the Certificate of the petitioner and, therefore, a resort was taken to his appointment being temporary for throwing him out of job and then recruiting identically situated and qualified persons, some holding Certificates like that of the petitioner. In such circumstances, in my opinion, it would be unjust to permit arbitrary termination of service apparently for a cause not supported by record as also in colourable exercise of power. The impugned order states that the services of the petitioner are terminated as they were temporary and till the end of the Sec. but the caption "Subject" tells a different story. It lends credence to the allegation of arbitrary action. These allegation are further verified by the subsequent re-employment of one person and fresh appointment of 31 persons, which further leads to a conclusion that end of the Session was not the reason for terminating the service of the petitioner. It is not the case of the services not being required any longer and hence it appears to be colourable exercises of power. For these reasons I find it difficult to sustain the order of termination.