JUDGMENT Pradeep Kant and Sanjay Misra, JJ.
1. This Special Appeal has been filed against the order passed by the learned Single Judge dated 27.3.2000 by means of which appellant's challenge to the termination of his services has been rejected. The appellant was temporarily appointed by order dated 21st March, 1998 on the post of Assistant Clerk. However, his services were terminated by an order of simpliciter discharge, vide order dated 8.9.1998. The petitioner challenged the aforesaid order of termination but his writ petition has been dismissed by the learned Single Judge, after considering the pleadings and taking the view that since the petitioner was a temporary employee and had worked for six months, his services having been terminated by an order of simpliciter discharge, do not suffer from any illegality.
2. Sri Ashok Pandey, while assailing the aforesaid order of the learned Single Judge, strenuously urged that the learned Single Judge failed to appreciate that the appellant was singled out in the matter of discharge from service, as persons junior to him i.e. who were appointed at a later point of time than the appointment of the petitioner/appellant, have been retained in service whereas the appellant has been ousted. Me further submitted that it was a malafide action on the part of the respondents for accommodating the favoured ones and that the principle of 'last come first go' was also not followed, though certain persons, who were appointed at a later point of time than the petitioner also faced termination but were fortunate enough to get an interim order from the High Court in pursuance of which they were allowed to continue and have subsequently been regularised but the petitioner has been denied the said benefit. It cannot possibly be legitimately disputed by the appellant that his appointment was a temporary appointment, as is evident from the letter of appointment dated 21.3.1998. The appointment order very specifically mentions that the appointment of the appellant was purely temporary and that on the arrival of the regularly selected candidates, his appointment would come to an end automatically. It is also evident from the record that his services were terminated within a very short span of six months.
3. The plea that the persons who have been retained in service are junior to the appellant and that the principle of 'last come first go' has not been followed, would necessarily require the appellant to plead that the persons who have been retained in service were not only junior to the appellant but they were having inferior record of service and that the appellant's service record was not inferior to those persons. In the absence of such a plea, the plea of violation of Article 14 or 16 of the Constitution or discrimination on the ground that the junior persons have been retained and senior person has been ousted from service can neither be considered nor would stand substantiated. In the case of The Manager, Government Branch Press and Anr. v. D.B. Belliappa 1979 SCC(L&S) 39, the apex court expounded the aforesaid principle of law and observed that retention of junior persons and termination of senior person cannot be held to be discriminatory or arbitrary, if it is based on over all assessment of the service career of the senior person and record of service of junior person is better than the senior person. Since this plea has not been raised in the writ petition, which has been urged before us again and again, we find that this plea is not open in the special appeal and that neither there is any material to substantiate the aforesaid plea.
4. The principle of 'last come first go' is the principle of retrenchment of an employee from service. Besides the fact that the said principle would be applicable in case the employee is a workman within the meaning of Industrial Disputes Act, 1947 and that he had been working in an industry, as defined therein, it is also to be kept in mind that this principle of 'last come first go' is also not available to the appellant in the present case, as this will again have the same consideration, which are relevant to meet the plea that the junior persons have been retained and senior person has been ousted. For the same very reason, this plea can also not be allowed to be taken in the special appeal nor stands corroborated by any material on record.
5. In the case of State of U.P. and Anr. v. Kaushal Kishore Shukla 1991(1) UPLBEC 152, the apex court observed that the principle of 'last come first go' is applicable to a case where on account of reduction of work or shrinkage of cadre retrenchment takes place and the services of employees are terminated on account of retrenchment. In the event of retrenchment the principle of 'last come first go' is applicable under which senior in service is retained while the junior's services are terminated. But this principle is not applicable to a case where the services of a temporary employee are terminated on the assessment of his work and suitability in accordance with terms and conditions of his service. If out of several temporary employees working in a department, a senior is found unsuitable on account of his work and conduct, it is open to the competent authority to terminate his services and retain the services of his juniors, who may be found suitable for the service. Such a procedure docs not violate principle of equality, enshrined under Article 14 and 16 of the Constitution.
6. So far as the attack on the ground of malafide is concerned, the petitioner firstly has not impleaded any officer by name against when the malafides can be said to have been attached nor the petition discloses any reason for taking such action because of some animosity or adverse attitude of the officer, namely, the officer concerned, who has passed the order. This plea again is based on the assumption that since the junior persons have been retained, therefore, the action of termination of service of the appellant is malafide giving full protection to the junior persons and ousting the petitioner from service. This plea again is devoid of merits and cannot be sustained.
7. The last plea of the appellant that the persons junior though were terminated from service but were successful in getting the interim order from this Court and have thereafter been regularised makes out a case of hostile discrimination against the appellant and the ancillary argument in support of the aforesaid plea that the High Court should maintain uniformity in dealing with identical matters has no relevance, besides the fact that factually and legally it does not stand at all. Reliance has been placed upon the case of Bir Bajrang Kumar v. Stale of Bihar and Ors. AIR 1987 SC 1345 wherein the Supreme Court stated that if two petitions, involve the identical point and one of them has been admitted by the High Court, the dismissal of the other identical petition was not proper, as it may lead to an anomalous position and the possibility of two contradictory judgments being rendered cannot be ruled out. The appellant's case of termination from service cannot be said to be a case of identical nature involving identical points, unless, of course, the order of termination of service of other such persons, who have been granted interim order by the High Court had given the same reason for terminating the service or that there was any legal presumption that the persons whose services are terminated by an order of simpliciter discharge raise the identical question to be decided in their writ petition. The termination of service of a temporary government servant by an order of simplicity discharge is based on over all assessment of the work and conduct of the government servant. Even if the terminology of 'order of simpliciter discharge' is one and the same, as per requirement of U.P. Temporary Government Servants (Termination of Service) Rules, 1975, it would not mean that the orders are identical and identical questions of law and fact are involved therein.
8. It is the requirement of law that in an order of simpliciter termination of service, no reasons should be recorded, because if reasons are recorded, the order would be stigmatic and would become bad in law. The reasons have to be in the record i.e. service record of the employee concerned and on consideration of those reasons including the entire service record, if the appointing authority comes to the conclusion that retention of such temporary government servant is not required or that he is unlit to be retained in service, he would pass the order of simpliciter discharge. That being so, the routine terminology of order of 'simpliciter discharge' would not make the question identical, when the matter comes to challenge before the court. The termination orders are separately issued and even if they are issued by a common order, they will have their effect separately and independently upon each and every government servant to whom it relates. The challenge can only be made on the basis of own service record of the government servant and not only on the ground that the phrase used is one and the same. Nothing has been brought on record either in the writ petition or in appeal that the persons who have been granted interim order from this Court, they were having the same service record or their services have been terminated for the same reasons or on the same ground.
9. So far as the regularisation of those employees is concerned, since they were in service, may be under the interim orders of the court, the government thought it proper to regularize them and since their regularisalion is not under challenge in this appeal, we do not find any reason to delve upon this issue in this writ petition. We may clarify that the petitioner, not being in service from the year 1998, cannot claim regularisation nor can feel aggrieved by regularisation of other employees, who continued in service, may be, under the interim orders of this Court.
10. A temporary government servant has no right to hold the post and, of course, unless the order of termination suffers from vice of malafide, violation of any statutory provision or rule or hit by Article 14 and 16 of the Constitution, it is not to be interfered with.
11. We do not find any merit in the contention raised by the learned Counsel for the appellant.
12. The special appeal is dismissed. No order as to costs.