JUDGMENT S.R. Singh, J.
1. Present Special Appeal arises out of dismissal of Writ Petition No. 10116 of 1986 vide judgment and order dated January 24, 1992 passed by a learned single Judge, which is excerpted below :
"Heard learned counsel for the petitioner.
By this petition, the petitioner seeks a writ of certiorari quashing the order dated April 26, 1986 whereby petitioner's services have been terminated.
Ex-facie the order of termination demonstrates that he was a temporary employee. A temporary employee does not acquire any right to hold the post. No interference is called for in writ jurisdiction.
The petition has no substance and is accordingly dismissed.
The stay order, if any shall stand vacated."
Factual matrix of the case briefly stated is that the appellants were appointed Assistant Teachers in Government Inter College, Duddhi, Mirzapur, by the Regional Dy. Director of Education vide appointment letter dated November 1, 1985 a copy of which has been annexed as Annexure 2 to the writ petition. The appointment letter encapsulated a stipulation that the services could be terminated at any time without notice. By means of the order dated April 26, 1986 (Annexure 3 to the writ petition) the services of the appellants were terminated on payment of one month's salary in lieu of notice on the ground that their "services were not required."
2. Sri N.B. Singh, learned counsel appearing for the appellants submitted that although the appointment of the appellants purported to have been made in temporary capacity, but that by itself did not give the Appointing Authority a carte blanche to terminate the services of the petitioners-appellants in an arbitrary manner while retaining the juniors in service. It was also urged that the ostensible ground "services are not required" as incorporated in the order dated April 26, 1986 impugned in the writ petition, was a mere cloak to lend justification to the termination of appellant's services which was otherwise arbitrary. The learned counsel invited our attention to the counter affidavit filed by Prem Nath Upadhyaya, Senior Clerk in the office of the Regional Dy. Director of Education, wherein it has been mentioned that the appellants were placed in the waiting-list and after the list of duly selected candidates had exhausted itself, the Regional Dy. Director appointed the appellants by sidelining the claims of those who were placed higher in the waiting list and if this was the ground of termination, it would tantamount to cancellation of appointments which ought not to have been done except after affording an opportunity of hearing to the appellants.
3. The law on the point is fairly well settled. In Champak Lal Chaman Lal Shah v. Union of India (1964-I-LL J-752), the Supreme Court was considering the validity of an order of termination of a temporary Government servant In terms of rule which invested the Government with the power to terminate the services of a temporary Government servant by giving him one month's notice or on payment of one month's pay in lieu of notice. The rule was inveighed against on the ground that it attracted frown of Article 16 of the Constitution and in the alternative it was also urged that even if the Rule was posited to be good, the order dispensing with the services of the concerned Government servant, was bad being discriminatory. WANCHOO, J. (as he then was) speaking for the Court repelled the alternative argument in these words :
"A question of discrimination may arise in a case of retrenchment on account of abolition of one of several temporary posts of the same kind in one office but can in our opinion never arise in the case of dispensing with the services of a particular temporary employee on account of his conduct being unsatisfactory."
4. After analysing its decision in the case of Champak Lal (supra) and certain other cases, the Supreme Court in Government Branch Press v. D.B. Belliappa 1979 (38) FLR 337, held as under:
"The principal that can be deduced from the above analysis is that 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 unsuitability in the job and/or for his work being unsatisfactory or for the like reasons which marks him off a class apart from other temporary servants, who have been retained in service, there is no question of the applicability of Article 16.
Conversely, if the services of a temporary Government servant are terminated arbitrarily, and not on ground of his unsuitability, unsatisfactory conduct or the like which would put him in a class apart from his juniors in the same service, a question of unfair discrimination may arise, notwithstanding the fact that in terminating his service, the appointing authority was purporting to act in accordance with the terms of the employment."
It was further held :
"The protection of Articles 14 and 16(1) will be available-even to such a temporary Government servant if he has been arbitrarily discriminated against and singled out for harsh treatment in preference to his juniors, similarly circumstanced. It is true that the competent authority had the discretion under the conditions of service governing the employee concerned to terminate the latter's employment without notice. But, such discretion has to be exercised in accordance with reason and fair play and not capriciously. Bereft of rationality and fairness, discretion degenerates into arbitrariness which is the very anti-thesis of the rule of law on which our democratic polity is founded. Arbitrary invocation or enforcement of a service condition terminating the service of a temporary employee may itself constitute denial of equal protection and offend the equality clause in Articles 14 and 16(1)...."
5. In the case on hand, however, it transpires from the record that the services of the appellants were terminated because of the reasons that the appellants were illegally and arbitrarily appointed after the list of the selected candidates had run out in preference to the candidates who were placed above the appellants in the waiting list. A perusal of the minutes of selection held on August 15, 1985(AnnexureCA-1 to the affidavit filed by Ram Prasad who had moved an application for impleadment in the writ petition before the learned single Judge) would evince that the appellants did not figure in the main list of selected candidates. Rather, their names figured in the waiting list at Sl. Nos. 9 and 6 respectively. In para 5 of the counter affidavit filed on behalf of the Regional Dy. Director of Education, it has been stated that after the list of duly selected candidates had exhausted itself, those in the waiting list were to be appointed in order of their placement in the waiting list but persons who had been ranked higher in the waiting list, were ignored and appellants were offered appointments. Rajendra Prasad above mentioned though placed at Sl. No. 4 of the waiting-list was not offered appointment as stated by him in his counter affidavit and there is no allegation in the writ petition that the candidates placed above the appellants in the waiting list, were offered appointments but did not turn up. Tribhuwan Narain Singh, Respondent No. 2 was placed at Sl. No. 5 in the waiting list i.e. above the appellants. In the conspectus of this situation, the decision of the Supreme Court in the case referred to above, has no application in that the termination of the appellants' services was for a 'reasonable cause' and cannot be termed as "arbitrary invocation or enforcement of service condition."
6. Sri N.B. Singh, appearing for the petitioners vehemently urged further that the order impugned in the writ petition was unsustainable for the reason that it amounted to cancellation of appellants' appointment which ought not to have been done except after affording opportunity of hearing to the appellant. He placed credence on a decision of the Supreme Court in Shravan Kumar Jha v. State of Bihar (1964-I-LLJ-752). In that case, the Dy. Development Commissioner cancelled the appointment of certain teachers on the ground that the District Superintendent of Education by whose order, the appointments were made had no authority to make appointments. In the facts and circumstances of that case, the Supreme Court held that the teachers concerned "should have been given an opportunity of hearing before cancelling their appointments." That decision in our opinion, is not attracted to the facts of the present case. The appellants had no right to be appointed before the candidates placed above them in the waiting list were offered appointments. It is true that the learned single Judge dismissed the writ petition without coming to grips with the various aspects discussed above but on the fact situation of this case, we are not inclined to interfere with the judgment and order under appeal, for interference may perpetuate, and lend colour to the illegality committed by the Regional Dy. Director of Education in not offering appointments, in pecking order to the candidates whose names figured in the waiting list. It is well settled that the writ being a discretionary jurisdiction, will not issue to perpetuate an illegality. It may further be observed that the appellants have not come with clean hands. They did not state anywhere in the writ petition that they were placed only in the waiting list. On the contrary, they tried to create the impression, "they were found fit for selection", and were thus appointed as teachers. In the circumstances of the case, the appeal is liable to be dismissed.
In the result, the appeal fails and is dismissed.