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Allahabad High Court · body

1975 DIGILAW 431 (ALL)

Syed Mohammad Hashim v. State of Uttar Pradesh

1975-08-28

K.N.SINGH

body1975
ORDER K.N. Singh, J - Syed Mohd. Hashimi, Om Prakash Yadava, and Krishna Kumar Srivastava were appointed as Junior Clerks in 1971 in the Marketing Section of the Food and Civil Supplies Department in Kanpur Region, while Kesho Ram was appointed peon in the same Department. All the four petitioners continued in service as temporary Government servants. In 1973, the petitioners excepting Kesho Ram, petitioner No. 4, were promoted to the post of Senior Accounts Clerks. All the four petitioners were later on transferred to a newly created region at Jhansi. While they were posted there, the Regional Food Controller, Allahabad Region, Kanpur, issued an order on 30th May, 1974 terminating the services of all the four petitioners. The petitioners challenge the validity of the said order of termination of their services dated 30th May, 1974. 2. Learned counsel for the petitioners urged that a hostile discrimination was practised against the petitioners as a number of junior persons were retained in service while the services of the petitioners who were senior to them were terminated. In the counter-affidavit it is asserted that certain temporary posts were abolished in the Department as a result of which retrenchment of junior most incumbents of the Marketing section of the Civil Supplies Department became necessary. Consequently two Accountants were reverted to the post of Senior Accounts Clerks and two persons were reverted as Junior Accounts Clerks and in that chain the services of Junior-Accounts Clerks were terminated forthwith on account of non-availability of post. With regard to the allegation of discrimination, it is asserted in the counter-affidavit that those persons who were junior to the petitioners but who belonged to the schedule caste were retained in service with a view to make of the deficiency in their reserved quota. The assertions contained in the counter-affidavit show that reservation in favour of scheduled caste candidates was made in making the appointments. On the abolition of posts when the question of termination of junior most employees was taken for consideration the petitioners services were terminated although those who were retained were junior to them merely because the junior persons belonged to the scheduled caste and their retention in service was considered necessary to make up the deficiency in the reserved quota. 3. Learned counsel for the petitioners urged that the procedure adopted by the Department was not permissible in law. 3. Learned counsel for the petitioners urged that the procedure adopted by the Department was not permissible in law. The reservation in favour of scheduled caste employees could be legally made at the time of initial appointment but no reservation could be made at the time of termination of employment. The respondents action in retaining the junior employees belonging to the scheduled caste in service violated the guarantee of equality as enshrined in Art. 16 of the Constitution. He placed reliance on Sudama Prashad v. Divisional Superintendent, Western Railway, Kota, ( AIR 1965 Raj 109 ) in support of his contention that the petitioners services could not legally be terminated for accommodating junior persons in service even though they belonged to scheduled caste. I have considered the question, but I find no substance in the contention. Article 16 lays down equality of opportunity for all citizens in matters relating to employment or appointment to an office under the State. Clause (2) lays down that no discrimination in respect of any employment or office in the State shall be made on the ground of race, religion, caste or sex or place of residence. The expression "in matters relating to employment or appointment" is wide enough to include initial recruitment, promotion and termination of employment. In P.K. More v. Union of India, ( AIR 1959 Bom 134 ) a Division Bench held that the expression "matters relating to employment" was not confined to the initial stage of recruitment, instead it applies all along during the continuance or engagement in office and the citizen is ensured of that equality of opportunity and the same principles must govern the case when the appointment or employment is sought to be terminated. The Bench repelled the contention that Article 16 was not applicable to termination of employment. 4. In General Manager, Southern Railway v. Rangachari, (AIR 1962 SC 36), the scope of the expression "matters relating to employment" was considered in detail. It was held that the matters relating to employment must include all matters in relation to employment both prior and subsequent to employment, and it forms part of the terms and conditions of such employment. In State of U. P. v. Sughar Singh, ( AIR 1974 SC 423 ) : (1974 Lab IC 353). Article 16 was applied to the reversion of a Government servant. In State of U. P. v. Sughar Singh, ( AIR 1974 SC 423 ) : (1974 Lab IC 353). Article 16 was applied to the reversion of a Government servant. The Supreme Court set aside the reversion order on the ground that a number of junior persons were allowed to officiate on higher posts while Sughar Singh, the petitioner in that case, was reverted to a lower post and thereby the equality guaranteed by Article 16 (1) of the Constitution was violated. 5. In view of the above declaration of law by the Supreme Court, it is difficult to accept the contention that Article 16 is not applicable to termination of service. If the right to equality in employment under the State is applicable to termination of service, clause (4) of Article 16 would at once be attracted. Article 16 (4) lays down that nothing in the Article shall prevent the State from making any provision for the reservation of appointment or post in favour of any backward class of citizens which in the opinion of the State was not adequately represented in the service under the State. No doubt clauses (1) and (2) ensure equality of opportunity in matters relating to employment and appointment, but clause (4) carves out a general exception to the rule which permits the State to make provision for reservation of appointment to posts in favour of socially backward class namely scheduled castes and scheduled tribes to ensure their adequate representation in service. It is well settled that the State is empowered to make reservation for certain class of citizens for appointment at the stage of initial appointment. It is further well established that the reservation can be made in favour of scheduled castes even at the stage of promotion also. See General Manager, Southern Rly. v. Rangachari (Supra). In my opinion the same principle would apply to termination also. It is permissible to the State while terminating the services of temporary Government servant to retain the services of members belonging to the scheduled castes if it is necessary to maintain the reserved quota. 6. As already discussed, equality of opportunity in matters of public employment contained in clauses (1) and (2) of Article 16 is not sacrosanct. It is subject to the provisions contained in cl. (4). 6. As already discussed, equality of opportunity in matters of public employment contained in clauses (1) and (2) of Article 16 is not sacrosanct. It is subject to the provisions contained in cl. (4). It is thus open to the State to terminate the services of a senior Government servant and to retain the services of a junior person if in doing that the State is maintaining the reserved quota fixed for the scheduled caste. There is no dispute that, the State Government had made reservation in favour of scheduled caste candidates in the Marketing Section of the Food and Civil Supplies Department. The petitioners as well as other persons belonging to the scheduled castes were recruited to the same service. On the abolition of certain posts, the petitioners services were terminated but the services of the scheduled caste employees who were junior to the petitioner were not terminated because they belonged to scheduled caste, as their retention was necessary to maintain the reserved quota. The procedure followed by the respondents does not violate Art. 16 of the Constitution and no hostile discrimination has been practised against them. In Sudama Prasad case the facts were quite different. In that case, no reservation in favour of scheduled caste had been made either at the time of initial recruitment or at the time of confirmation. Two employees were recruited to the service as general candidates. Later on, one of them claimed to belong to scheduled caste. He produced a certificate and claimed promotion to the higher post to the prejudice of senior persons on the ground that he belonged to scheduled caste. In those circumstances, the Rajasthan High Court held that the order of reversion was violative of Article 16 of the Constitution. The law laid down in that case does not apply to the facts of the present case. 7. In view of the above discussion, I am of the opinion that the impugned order of termination does not violate Article 16 of the Constitution. The petition fails and is accordingly dismissed, but there will no order as to costs.