COMMODORE COMMANDING, SOUTHERN NAVAL AREA, COCHIN versus V. K. RAJAN

Citation: [1981] 3 S.C.R. 165 · Decided: 10-03-1981 · Supreme Court of India · Bench: S. MURTAZA FAZAL ALI · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · cites 4 · see the full citation network in Lexace

Judgment (excerpt)

, 
COMMODORE COMMANDING, SOUTHERN 
NAVAL AREA, COCHIN 
v. 
V. K. RAJAN 
March 10, 1981 
165 
[S. MURTAZA FAZAL ALI, A. VARADARAJAN AND A.N. SEN} 
Service matter-Article 16-Service of a temporary government servant termi· 
nated by a termination order simpliciter-Article 16, if attracted. 
The respondent, in the first instance, was appointed as a casual labourer for 
a month but was continued against an existing vacancy. He was later appointed 
as a labourer in a regular cadre in an existing vacancy. Sometime later he was 
promoted and appointed as Ammunition Repair Labourer, Grade II. Three 
years thereafter his services were terminated. 
In a petition under Article 226 of the Constitution the respondent impugned 
A 
B 
c 
the order of termination of his services on the ground that he was appointed 
D 
permanently to the post of Ammunition Repair Labourer Grade II and that the 
termination of his services, when juniors were retained in service, was discrimina-
tory and was in contravention of Article 16 of the Constitution. 
The appellant contended before the High Court that the term "regular 
cadre" did not imply as in other instances in the employment of government a 
substantive post, but that the post in the regular cadre is a purely temporary 
E 
one. 
A single Judge of the High Court rejected the respondent's claim that 
he was appointed permanently to the post but held that since persons junior 
to him had been retained in service, termination of his services without assign-
ing any reason was discriminatory and, therefore, the order was bad in 
law. 
Agreeing with the view of the single Judge a Division Bench of the High 
Court dismissed the appellant's appeal. 
Allowing the appeal 
HELD : A perusal of the file relating to the termination of the services 
of the respondent shows that the decision to terminate his services had been 
taken at the highest level on the ground of his unsuitability in relation to the 
post held by him and that it was not by way of any punishment and no 
stigma was attached to the respondent by reason of the termination of his 
services. (172 G-H) 
The well settled position in law in this regard is that (i) if the services 
of a temporary government servant are terminated in accordance with the 
conditions of his service on the ground of unsatisfactory conduct or his un-
F 
G 
H 
A 
B 
c 
166 
SUPREME COURT REPORTS 
[1981] 3 S.C.R. 
suitability for the job and/or for his work being unsatisfactory or for a like 
reason which marks him off in a class apart from other temporary servants 
who have been retained in service, there is no question of the applicability of 
Article 16; (ii) where the services of a temporary government servant or a proba-
tioner government servant are terminated by an order which does not ex-!acie 
disclose any stigma or penal consequences against the government servant and is 
merely a termination order simpliciter there is no case ordinarily for assuming that 
it is anything but what it pmports to be; (iii) before Article 16 is held to have 
been violated by some action there must be a clear demonstration of discrimina-
tion between one government servant and another similarly placed, which cannot 
be reasonably explained except on an assumption or demonstration of "malice in 
Jaw" or "malice in fact". Acting on legally extraneous or obviously miscon-
ceived grounds of action would be a case of "malice in law"; (iv) it is open to 
the employer to terminate the services of a temporary employee on probation 
at any time before he was confirmed if the employer was satisfied that he was 
not suitable for being retained in service. [E 169 D; 170 C; 171 C; 172 BJ 
Jn the instant case the respondent was a temporary government servant. 
No stigma is attached to the termination of his services. His services had been 
terminated for unsuitability in relation to the post held by him. (171 F-G] 
D 
C1vrL APPELLATE JURISDICTION: 
Civil Appeal No. 1154 of 
E 
F 
G 
H 
1970. 
Appeal by special leave from the Judgment and Or.der dated 
18.7.1969 of the Kerala High Court in Writ Appeal No. 620/69. 
M.M. Abdul Khader, K.S. Gurumurthy and R.N. Podar for the 
Appellant. 
T.C. Raghavan and N. Sudhakaran for the Respondent. 
The Judgment of the Court was delivered by 
VARADARAJAN, J. 
This appeal 
by special leave is directed 
against the judgment of a Division Bench of the Kerala High Court 
in Writ Appeal No. 620 of 1969, which had been filed by the appel-
lant against the judg

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