JUDGMENT Ajoy Nath Ray, C.J. and Ashok Bhushan, J.
1. Appeal is taken up and summarily disposed of.
2. As we have not called for affidavits, allegations in the stay application cannot be taken to be admitted.
3. The impugned order has been passed by the Hon'ble Mr. Justice Shishir Kumar on 16.2.2005. His Lordship has been pleased to dismiss the writ petition of the appellant.
4. After a usual selection process, on the 26th November 1991 the writ petitioner was selected along with seven others and given an appointment letter. He joined on the 28th of that month. On 30th i.e. two days after joining, his services were terminated, the notice simply stating that his services were no longer required. The appointment letter dated 26.11.1991 did not confer on the writ petitioner permanent employment. T he posts for which the writ petitioner and seven others along with him were selected, were no doubt permanent posts. But the letter of appointment given to the writ petitioner made the following provisions; (i) that the employment would be for a maximum period of three months and (ii) during that period the employment of the writ petitioner would be terminated even without any notice.
5. It is undisputed fact that at the time the writ petitioner gained employment, he was facing trial along with certain other members of his family under Section 302 of the Indian Penal Code, the charge being the murder of a lady who lived in the neighbourhood. It is also undisputed that this fact of being under trial was not disclosed by the writ petitioner. It is equally undisputed that the writ petitioner and all the other accused have been given the benefit of doubt and have been acquitted in or about 2001.
6. In these circumstances, the writ petitioner first submitted that the letter of termination sought to sut an end to the employment which was for a fixed term, i.e. three months and therefore, the very terminal, on was penal and stigmatic in nature to substantiate this, reliance was placed upon a full Bench decision of the Allahabad High Court reported at (1999) 1 UPLBEC 54 Kumari Mamta Jauhari v. State of U.P. and Anr. and paragraph 38 of the said judgment was placed before us. The said paragraph is quoted below:
"38. For determining whether penal element is involved in termination of service of a Government servant, distinction between two classes of Government Servants, namely, those who have right to or lien upon post held by them and those who have no such right, may be drawn. In case where a Government servant has a right to hold or lien upon the post, mere fact of termination of his service will be deemed to be penal, whether any reason therefor is assigned or not. On the other hand, termination of service of such Government Servant who lids no right to or lien upon the post held by him, without assigning any reason, will not be ipso facto penal. A Government servant appointed to hold a post, temporary or substantive, on temporary basis, acquires no right to or lien upon the post. Therefore, mere termination of such Government servant, except in case or fixed term appointment, without assigning any reason, will not be deemed to be penal."
7. We are of the opinion that the argument does not hold good since the writ petitioner's employment was not for a fixed term. His employment was for a probationary period of three months with a legitimate expectation, since he had gone through the preliminary process of selection, that his services would be made permanent at the end of three months, if nothing adverse were found against him. The argument that the wet petitioner's employment was for a fixed term confuses the preliminary probationary period with an employment which is itself for fixed term. From the very beginning, there were knowledge and expectation on both sides that the fixed said term would, in all likelihood of reasonable future even not be extended at all, but change into something permanent. The second argument of the writ petitioner was that he was entitled to a hearing. Since he was a Government employee and since he had gone through the preliminary process of selection, he simply could not be thrown out of employment without asking him to show cause as to the disqualification, if any, which has been found or apprehended against him.
8. In matters of Government employment, a clear grip has to be taken over the facts to appreciate what type of employment is in issue. Posts can be permanent or temporary. The appointment to these posts themselves can be temporary or permanent. This itself gives ripe to four possibilities. Apart therefrom, there are situations where appointments were made without there being sanctioned of posts at all, but we are not concerned with any such situation yet. The basic law in regard to these matters has been enunciated in P.L. Dhingra's case reported at AIR 1958 SC 36. Paragraph 11 of the said judgment might be referred to in this regard, since that Retains (with respect) the full and clear basic position of the Government Service Law in this regard.
9. If no lien is held on the posts, i.e. if the appointment is not permanent, irrespective of whether the posts arc permanent or not, then and in that event, the Government servant has no right to an enquiry in law before termination. In our case the writ petitioner was serving out a probationary period, of which he succeeded in serving out only two days. He was not entitled to an enquiry at that stage, and if one is not entitled to an enquiry, one is not entitled to observance of the Rule of natural justice either. The hearing before termination of employment of the writ petitioner was not a legal requirement because none of his legal rights were being interfered with. As such the point about natural justice does not survive.
10. The last point and in our opinion the most important point is whether a termination simplicitor of a selected person who was expecting to be absorbed permanently should be upheld by the Court at this distance of time when the accused-writ petitioner has been acquitted. The point gains even more importance, since during the pendency of the writ petition an interim order was operative, on the basis of which the writ petitioner has rendered service for all these years until the writ petition was dismissed.
11. The legal position in deciding this point is as follows:-
When a prospective employee hoping to become permanent is running through a probationary period a termination of employment without casting a stigma can usually be made, but even that type of termination can be set aside by a Court of law if it can be shown by the writ petitioner that such termination was cither capricious or arbitrary or made upon an extraneous consideration was malafide.
12. In this case the respondents cannot be visited with any such adverse decision or finding. They had on their hands a probationer who was under trial on a very serious criminal charge; it was not within their power to decide the criminal case or to have it decided within any reasonable time. They had to make a choice in 1991; whether that choice was right or wrong, would never be before the writ Court; the only point before the writ Court would be whether that choice was reasonable. Nobody can today doubt that the choice was reasonable. It was quite open to the respondents, as it would be open to any public respondents, at any time not to make a probationer a permanent employee when it becomes known that he is facing a very serious criminal charge from which he might or might not be admitted.
13. The writ petitioner's case is even more weakned by the fact that he did not make a voluntary disclosure of his involvement in a criminal case at the time he got Government employment. The matter has not been argued on these lines and therefore, we do not want to enter in great details about this, but it is settled law now that like contract of insurance, contract of employment are contracts of the highest good faith. Both the employer and the employee must disclose facts and situations within the special knowledge which are likely to affect the actions of decisions of the other. An employee, for example, bound to disclose before getting a final contract of employment if he has any latent Serious disease which is not manifest, on that ground also, the writ petitioner did not quite join the service with absolutely clean hands; he was rather hoping that nobody would find out about him. In these circumstances, if the writ Court sets back its date of consideration to 1991 and examines the letter of termination, then and in that event, there is no way which it can rule that the letter of termination was vitiated because of the breaking of any principles of law reasonableness or justice.
14. Regarding period of service which the writ petitioner has enjoyed on the basis of the interim order, we are of the opinion, that the writ petitioner has enjoyed some benefits does not mean necessarily that he should enjoy more.
15. The appeal is, accordingly, dismissed.