C.R v. THE UNION OF iNDIA

In October, 1945, the petitioner was employed by the Government of India on a five year contract in . the Directorate· General of Resettlement and Employ..J''h'~ Oh~ndro men\ of the Ministry of Labour. This was after selec- tiou by the Federal Public Service Commission. The U•ion of After a short period of practical training, he was posted in January, 1946, at Jabalpur as the Manager of the Sub-Regional Employment Exchange and was later confirmed in this appointment. Bose J. ::• . - 1968 • This contract of service was due to expire in 1950. Shortly before its expiration the Government of India made him a new offer, embodied in its letter dated the 30th June, l 950, to continue him in service on the expiry of his contract on the terms specified in that letter. Among them were the following: "(3) Other conditions of service :-On the termi- . nation of your contract you will be allowed to continue in your post temporarily for the period of the Resettlement and Employment Organisation and will be governed by the Central Civil Services (Temporary Service) .Kules, 1949, nnless you are a per manent Government servant." He was asked in the letter to intimate to the Minis try of Labour whether he was willing to continue in service on those terms and he admits that he accepted the offer and continued in service. Heiwas not a permanent Government servant though it was con tended in argument that he was, for he was Oil a five year contract and tlie work for which he was employ ed, namely Hesettlement alld Employment, was itself only of a Temporary Service Rules applied. temporary character. Therefore, On those rules, rule 5 is material. It runs as follows: "5. (a) '.!.'he service of· a temporary Government servant who is not in quasi-permanellt service shall be liable to terminatioll at any time by notice ill writing given either by the Government servant to the ap pointillg authority, or by tbe appointing authority to the Government senant. 658 SUPREME COURT REPORTS [1953j 1959 (b) The period of such notice shall be one month, . , Ck a unless otherwise agreed to by the Government and Ana"d t " ..,y t e Government servan . an .ra..i.. h S t a u·ri v. India 80,. J. Quasi-permanent service is defined in the rules and Tk• Union °1 it is clear that the petitioner does not come within that class. It is also an undisputed fact that there was no agreement between the petitioner and Govern ment regarding the period of the notice. 'rherefore, according to this rule, which was a term in the peti tioner's contract of further service, his services were liable to termination at any time by one month's notice in writing. 'rhis notice was given on 25th November, 1950, and he was told that his services would terminate on the expiry of one month from 1st December, 1950. • A large field was cove.red in the course of the argu ments, and had the matter not been re-argued we would, for the petitioner's satisfaction, have dealt with the contentions raised more fully than will be necessary now that counsel has appeared. The petition is under article 32(1) of the Constitu tion and so it must be shown that a fundamental It was argued that the right has been infringed. rights infringed are the ones conferred by articles l 4 and 16(1). Taking a:rticle 14 first, it must be shown that the petitioner has been discriminated against in. the exer cise or enjoyment of some legal right which is open to others who are similarly situated. The rights which he says have been infringed are those confer ed by article 311. He says he has either been dismiss ed or removed from service without the safeguards which that article confers. In our opinion, article 311 has no application because this is neither a dismissal .nor a removal from service, nor is it a reduction in rank. It is au ordinary case of a contract being termi nated by notice under one of its clauses. The services in lndi~ have long been afforded certa.in statutory guarantees and safeguards against reduction in rank. Under arbitrary dismissal or • S.C.R SUPREME COURT REPOR'l'S 659 . C h' d section 240 of the Government of India Act, 1935, the safeguards were limited to those two cases .. Under 8 l . e preseut onst1tut10n, a t tr was a e , name y removal from service. In order to understand the difference between "dismissal" and "removal" from Th• Union of service, it will be necessary to turn to the Rules which governed, and with modifications still govern, the "services" in India. because of article 313 of the Con stitution. 1958 . k-O d Anand v, dd d Bose J. kan ra Part XII of the Civil Services (Classification, Con trol and Appeal) Rules relating to Conduct and Disci pline includes rule 49 which sets out the various penalties to which a member of the services can be subjected for indiscipline and misconduct. They are seven in number and include censure, suspension, reduction in rank, removal from service and dismissal from service. The Act of 1935 selected only two of these possible penalties as serious enough to merit statutory safeguards, namely reduction in rank and dismissal from service. The Constitution has added a third to the list. The distinction which is drawn between the two is explained in rule 49. There is first removal from service "which does not disqualify from futu.re employment" and there is next dismissal from service "which ordinarily disqualifies from future employment." Then follows an Explanation: "The discharge- (c) of a person engaged under contract, in ac- · cordance with the t,erms of his contract, does not amount to removal or dismissal within the meaning of this rule." These terms are used in the same sense in article311. It follows that the article has no application here and so no question of discrimination arises, for the "law" whose protection the petitioner seeks has no application to him. There was no compulsion on the petitioner to enter into the contract he did. He was as free under the law as any other person to accept or to reject the 660 SUPREME COURT REPORTS (1953] v. ·z9;s offer which was made to him. Havi~g a,ccepted, he . h-Ch a still has open to him all the rights and remedies S t a" Anan~n '"available to other persons similarly situated to en force any rights under bis coritract which have been Th• Union of denied to him, assuming tbere are any, and to pursue in tbe .ordinary courts of the land such remedies for a breach as are open to him to exactly the· same extent as other persons similarly situated. He has not been discriminated against and he has not been denied the protection of any laws which others similarly situated could claim. 'I'he remedy of a writ is misconceived. Bose J. I.idi• Article 16(1) is equally inapplicable. The whole matter rests in contract. 'When the petitioner's first contract (tbe five year one) came to· an end, he was not a permanent Government servant and Govern ment was not bound either to re-employ him or to continue him in service. On the other hand, it was open to Government to make him the offer it did of a continuation of l)is employment on a temporary and contractual basis. Though the employment was con tinued, it was iu point of fact, and in the eyes of the law, under a new and fresh contract which was quite separate and distinct from the old eveu though many . of its terms were the same. Article 16(1) deals with equality of opportunity in all matters relatiug to employment or appointment to any office under the '11he petitioner has not been denied any State. opportunity of employment or of appointment. He has been treated just like any other person to whom au offer of temporary employment under these condi tions was made. His grievance, when flnalysed, is nob one of personal differentiation but is against an offer of temporary employment; ou special terms as opposed to permanent employment. But of comse the State temporary employment can enter into contracts of and impose special terms in each cas·e, provided they are not inconsistent with the Constitution, and those who choose to accept those terms and enter into the contract are bound by them, even as the State is bound. When the employment is permanent there are certain statutory guarantees but in the absence of S.C.R. SUPREME COURT REPORTS 661 any such limitations Government is, subject to the qualification mentioned above, as free to make special contracts of service with temporary employees, engag- in works of a temporary nature, as any other employer. . . 1958 . h-C d han ra 8 Anand v. The Union of India. Bo" J. Various matters .relating to the merits·of the case were referred to but we express no opinion about whether the petitioner has other rights which he can enforce in other ways. We are dealing here with a writ under article 32 to enforce a fundamental right and the only point we decide is that no fundamental right bas been infringed. When the matter was first argued we had decided not to make any order about costs but now that the petitioner has persisted in reopening the case and calling the for a second time, we have no alternative but to dismiss the petition with costs. learned Attorney-General here Petition dismissed. Agent for the petitioner: Rajinder Narain. Agent for the respondent: G. H. Rajadhyaksha . • HABF,.EB MOHAMED ·v. • ·rHE STA'rE OF HYDERABAD. 1953 March 30. [PATAl\JALI SAS1'RI C.J., MUKHERJEA, S.R. DAS, Gm;LAM HASAN and BHAGWATI JJ.] Constitution of India, 1950, Arts. 13, 14- Hyderabad Regula· tion X of 1359 F.-Trial by special jwlqe under Reg•tlation X after 26th January, 1950-Provisions of Regulation different from Cri minal Procedure Code-Equal protection of the· law - Validity of trial-Tests of validity- Effect of cu.rtailment of committal proceed· ings and of right to transfer, revision, confinnation of death sentence. In determining the validity or otherwise of a pre. Constitution statute on the ground of any of its provisions being repugnant to the equal protection clause of the Constitution, two principles 86