Judgment :- 1. This appeal is by the petitioner in O.P. 3038 of 1973 against the judgment of our learned brother Bhaskaran, J. dismissing the Original Petition. The petitioner was a temporary lineman (phones) and it is against the order terminating his service under R.5 of the Central Civil Services (Temporary Service) Rules, 1965 (in short, the Rules) that the petitioner came to this court for relief. The order was challenged on the ground that the amendment to R.5 of the rules offends Art.14 and 16 and also Art.19 (1) (g) of the Constitution. This contention was not considered by the learned single judge, as the Union of India was not a party to the petition the sole respondent being the Sub Divisional Officer, Telegraphs, Trichur. The challenge to the rule is not pursued before us the challenge made to the order of termination of the petitioner's service was on the ground that such termination was not made in accordance with R.S. That ground too failed before the learned Single Judge. 2. The petitioner was selected for a prescribed course of training for linemen and after successful completion of the course he is said to have joined as lineman on 6th May 1973 pursuant to a memo, Ext. P-1 dated 2nd May 1973. The formal order appointing him as temporary lineman was served on the petitioner only on 5th September 1973, though it was with effect from 6th May 1973. On the same day he was served with another memo Ext. P3, dated Ist September 1973 by which his services were terminated forthwith. This notice, Ext. P3, was not preceded by any notice to show cause nor was any offer of payment of a month's salary in lieu of notice made in Ext. P-3. The order did not state the reason why the services of the petitioner were terminated. R.5 of the rules, together with a note to the rule which is based upon an administrative instruction as it stood prior to the amendment of the rule by notification dated 23rd June 1972 read thus: "5. P-3. The order did not state the reason why the services of the petitioner were terminated. R.5 of the rules, together with a note to the rule which is based upon an administrative instruction as it stood prior to the amendment of the rule by notification dated 23rd June 1972 read thus: "5. (1) (a) The service of a temporary Government Servant who is not in quasi permanent service shall be liable to termination at any time by a notice in writing given either by the Government Servant to the appointing authority, or by the appointing authority to the Government Servant; (b) The period of such notice shall be one month. Provided that the service of any such Government servant may be terminated forthwith by payment to him of a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing them immediately before the termination of his services, or, as the case may be, for the period by which such notice falls short of one month. (2) (a) Where a notice is given by the appointing authority terminating the services, of a temporary Government servant, or where the services of any such Government servant is terminated either on the expiry of the period of such notice or forthwith by payment of pay plus allowances, the Central Government or any other authority specified by the Central Government in this behalf may, of its own motion or otherwise, reopen the case and after making such inquiry as it deems fit (i) confirm the action taken by the appointing authority; (ii) withdraw the notice; (iii) reinstate the Government servant in services; or (iv) make such other order in the case as it may consider proper: Provided that except in special circumstances, which should be recorded in writing, no case shall be reopened under this sub-rule after the expiry of three months: (i) From the date of notice, in a case where notice is given; (ii) From the date of termination of service, in a case where no notice is given. (b) Where a Government Servant is reinstated in service under sub-rule (2) the order of reinstatement shall specify (i) the amount or proportion of pay and allowances, if any, to be paid to the Government servant for the period of his absence between the date of termination of his services and the date of his reinstation; and (ii) whether the said period shall be treated as a period spent on duty for any specified purpose or purposes " The notification of 23rd June 1972 amended the rule by reason of which amendment the rule stood altered as follows: "5 (1) (a) The services of a temporary Government Servant who is not in quasi-permanent service shall be liable to termination at any time by a notice in writing given either by the Government Servant to the appointing authority or by the appointing authority to the Government Servant; (b) the period of such notice shall be one month: Provided that the service of any such Government Servant may be terminated forthwith and on such termination the Government Servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing them immediately before the termination of his services, or, as the case may be, for the period by which such notice falls short of one month: Note: The following procedure shall be adopted by the appointing authority while serving notice an such Government Servant under clause (a): (i) The notice shall be delivered or tendered to the Government Servant in person; (ii) Where personal service is not practicable, the notice shall be served on such Govt, servant by registered post acknowledgment due at the address of the Govt. Servant available with the appointing authority. If the notice sent by registered post is returned unserved, it shall be published in the Official Gazette and upon such publication, it shall be deemed to have been personally served on such Government Servant on the date it was published in the Official Gazette. Servant available with the appointing authority. If the notice sent by registered post is returned unserved, it shall be published in the Official Gazette and upon such publication, it shall be deemed to have been personally served on such Government Servant on the date it was published in the Official Gazette. (2) (a) Where a notice is given by the appointing authority terminating services of a temporary Government Servant, or where the services of a temporary Government Servant is terminated either on the expiry of the period of such notice or forth with by payment of pay plus allowances, the Central Government or any other authority specified by the Central Government in this behalf may, of its own motion or otherwise, reopen the case, and after calling for the records of the case and after making such enquiry as it deems fit (i) confirm the action taken by the appointing authority; (ii) withdraw the notice; (iii) reinstate the Government Servant in service; or (iv) make such other order in the case as it may consider proper: Provided that except in special circumstances which should be recorded in writing, no case shall be reopened under this sub-rule after the expiry of three months: (i) from the date of notice, in a case where notice is given; (ii) from the date of termination of service in a case where no notice is given. (b) Where a Government Servant is reinstated in service under sub-rule (2) the order of reinstatement shall specify: (i) the amount of proportion of pay and allowances if any, to be paid to the Government Servant for the period of his absence between the date of termination of his services and the date of his reinstatement; and (ii) whether the said period shall be treated as a period spent on duty for any specified purpose or purposes." This amendment was to take effect from 1st May 1965. It will be seen that the purpose of the amendment was evidently to see that any order of termination was not invalidated merely by reason of the failure to offer notice pay. Even if no such offer was made the right of the employee was only to claim such pay for the period of notice. 3. Notwithstanding the rule the contention of the petitioner before the learned Single Judge was that the order Ext. Even if no such offer was made the right of the employee was only to claim such pay for the period of notice. 3. Notwithstanding the rule the contention of the petitioner before the learned Single Judge was that the order Ext. P-3 was violative of the principles of natural justice as no notice was given to the petitioner, that it was not in accordance with law as the order did not satisfy the requirements of R.5 and that the order was bad also for the reason that it was violative of Art.16 of the Constitution of India since juniors of the petitioner were allowed to hold office while the petitioner's services were terminated. The respondent did not choose to file a counter-affidavit. There is no case that the respondent did not have opportunity to file a counter-affidavit. In fact even before us there is no such complaint and no anxiety was evinced to file any statement by way of answer to the petitioner's averments in the Original Petition. The relevant file was also not placed before the learned Single Judge nor was it made available to us In fact the definite stand taken by the respondent appears to be that it is not necessary to disclose to this court the reason for termination of the services of a temporary employee and therefore it is not for the respondent to file a return in answer to the petitioner or place any material in support of the action taken by way of terminating the services of the petitioner. 4. Before us counsel for the petitioner Sri M. R. Rajendran Nair urged only three points and therefore we need concern ourselves only with these. According to him the order Ext. P-3 was not in accordance with the rule and the forms prescribed thereunder and therefore the order could not be supported under R.5. Secondly it was urged that no plea was ever raised that the order could be supported under R.5, as amended and therefore this Bench should not entertain such a plea in appeal It is also urged that when challenge is made to Ext. P-3, order on the ground that it is discriminatory and in support of such plea facts are pleaded it was incumbent on the respondent to disclose the reason for the termination and as this has not been done the order must be found to he discriminatory. P-3, order on the ground that it is discriminatory and in support of such plea facts are pleaded it was incumbent on the respondent to disclose the reason for the termination and as this has not been done the order must be found to he discriminatory. 5. The plea that the order of termination Ext. P-3 has not has not made any mention of the offer of the pay for the period of notice was evidently urged without taking note of the amendment to R.5 of the rules. The rule, as amended, does not require any offer of such payment for the period of notice to be made. But it is said that even so Ext. P-3 order would be bad as one not in accordance with the form prescribed by administrative instructions. The rule itself does not refer to any form but it is seen that such forms are prescribed by the Government of India evidently for the sake of uniformity and convenience. Form II so prescribed is as follows: FORM II Order of termination of Service issued under the provision to sub-rule (1) of R.5 of the Central Civil Services (Temporary Service) Rules, 1965 In pursuance of the proviso to sub-rule (I) of R.5 of the Central Civil Services 'temporary service) Rules, 1965, I hereby terminate forthwith the services of Sri/Sreemathi/ Kumari and direct that he/she shall be entitled to claim a sum equivalent to the amount of his/her pay plus allowances for the period of notice at the same rates at which he/ she was drawing them immediately before the termination of his/her service, or, as the case may be for the period by which such notice falls short of one month. Station: Signature of the Date: appointing authority. Though it is not by virtue of any rule that such form has been prescribed, learned counsel for the appellant relying on the decisions in Union of India v. K.P. Joseph AIR. 1973 SC. 303 and Amarjit v. Singh State of Punjab AIR. 1975 SC. 984 urges the plea that administrative instructions could also be valid conditions of service and may regulate such conditions in matters where statutory rules have not been made We do not see any force in this contention of counsel. The requirement of a notice in a specific form is not a matter to be prescribed by rules. 1975 SC. 984 urges the plea that administrative instructions could also be valid conditions of service and may regulate such conditions in matters where statutory rules have not been made We do not see any force in this contention of counsel. The requirement of a notice in a specific form is not a matter to be prescribed by rules. R.5 leaves it to the authority to issue notice of termination in any form. The administrative instructions are not on matters required to be covered by rules. They are merely for the guidance of officers and therefore cannot be said to be conditions of service. Hence we see no violation of R.5 in the failure to issue notice of termination in Form. II. 6. Nor do we see force in the next contention of counsel. It is that the respondent having failed to base bis case on R.5 as amended ought not to be allowed not to urge it in answer. It appears from the judgment of the learned Single Judge that the answer urged in reply to the plea of the petitioner that the termination was not in accordance with R.5 was that the petitioner's order of appointment enabled termination without notice and therefore the termination must be deemed to be one made in terms of the contract and not under the rule. That case is no longer pursued before us and we think rightly, for, if rules govern the matter of appointment as well as termination of even temporary employees these have to be complied with. It is urged before us now in answer to the case of the appellant that under the amended rule no offer of notice pay is necessary. Of course, it is so and that would be a complete answer. It is to meet this situation that the appellant submits that the respondent should not be allowed to set up a new case. We do not think that it is any new case. The relevant rule has been brought to our notice and we have to apply the rule. 7. The main controversy in this appeal concerns the plea that Ext. P-3 order of termination is liable to be successfully challenged as being arbitrary and violative of the guarantee under Art.16 of the Constitution of India. The relevant rule has been brought to our notice and we have to apply the rule. 7. The main controversy in this appeal concerns the plea that Ext. P-3 order of termination is liable to be successfully challenged as being arbitrary and violative of the guarantee under Art.16 of the Constitution of India. In Para.4 of the grounds in the Original Petition the following averment has been made by the petitioner: "The order Ext. P-3 is discriminatory in so far as those who are junior to the petitioner is retained in service. Therefore it violates the guarantee under Articles Hand 16 of the Constitution." This ground is repeated before us in the memorandum of appeal as ground No. A. It was not the case before the learned Single Judge or here that no juniors of the petitioner were retained in service while the services of the petitioner were terminated. There is also no attempt to justify the termination of the services of the petitioner as called for due to administrative reasons. We say so not merely because of the absence of any counter-affidavit and the non-availability of the file, but also because such a contention was not urged before us by learned counsel for the respondent. Therefore we think we will be right in assuming that while the petitioner was sent out of service, juniors continued to be in service. This is not shown to be for any administrative reason. Whether, in these circumstances, the plea of discrimination could succeed is the controversy before us. 8. When the services of a temporary employee are terminated by issue of notice in writing under R.5 it is not necessary that reason for such termination should be indicated. The notice may be silent. The notice could not be said to be bad for fading to indicate the reason for termination. But this, according to us. does not mean that termination could be made without reasons. There must necessarily be some reason or other for termination as otherwise the power to terminate would have been arbitrarily or capriciously exercised. 9. That the guarantee of equality in matters of service is available to a temporary employee is well settled. Such protection must extend to all stages in service. Necessarily therefore the temporary employee is protected from being treated arbitrarily in the matter of termination of his service. 9. That the guarantee of equality in matters of service is available to a temporary employee is well settled. Such protection must extend to all stages in service. Necessarily therefore the temporary employee is protected from being treated arbitrarily in the matter of termination of his service. This would mean that there must be reason for termination, reason which should normally be sufficient to answer a plea of discrimination. Merely because the order of termination need not state reasons it does not follow that there need be no reason for termination or that such reason need not be good. Of course, it is not for the court to sit in judgment over the correctness of the decision of the authority terminating the service of a temporary employee. The limitation on the power of a court in judicially reviewing such orders had been stated by courts time and again. It is sufficient to state that the reasons must be relevant and there should be material in support of such reasons. When an order of termination is challenged on the ground that it violates the guarantee under Art.16 of the Constitution of India and the petitioner making the challenge supports his plea by averments which call for answer the respondent is called upon to meet the plea. If retention of a senior in service while terminating the service of a junior would in normal circumstances amount to discriminatory treatment and such treatment is pleaded, why the junior has been retained and the services of the senior have been terminated is a matter calling for explanation. It is not an invariable rule that the service of the senior should not be terminated, for, there will be administrative reasons for keeping the junior in service while dispensing with the services of the senior. But in this case there is a categorical plea which calls for answer from the respondent as to why the services of the petitioner had been dispensed within the circumstances stated by the petitioner. If the respondent chooses to be silent and thereby allows the court to infer that the plea on facts made by the petitioner is to be taken as true and further shows no justification for the course adopted, we are afraid the plea of discrimination must succeed. 10. If the respondent chooses to be silent and thereby allows the court to infer that the plea on facts made by the petitioner is to be taken as true and further shows no justification for the course adopted, we are afraid the plea of discrimination must succeed. 10. A plea of discrimination was urged in regard to an order of termination based under the Central Civil Services (Temporary Services) Rules, 1965 in a case before this court in O.P. 672 of 1967. Mathew, 3 of this court allowed the Original Petition holding that the termination of the service without giving reasons was illegal and discriminatory. The matter came up before a Division Bench and in a short judgment the court dealt with this case thus: "No reason at all was as much as alleged, far less shown, why the appellant chose to terminate the respondent's service under R.3 of the Central Civil Services (Temporary Service) Rules. 1965, such as that it was administratively convenient to do so, or that the respondent's work or conduct was unsatisfactory or again (what was admittedly not the case here) that it was a case of retrenchment and the respondent was chosen for some relevant reason such as that he was the junior-most. The learned Single Judge was therefore quite right in holding that the appellant's action was violative of Art.16of the Constitution of India and it seems to us that Champaklal v Union of India fully supports this stand". The reference is to the decision Commodore Commanding, Cochin v. V. F. Rajan 1970 KLJ.164. 11. The plea of discrimination in regard to an order under the same rule as the one considered in this case arose for consideration before the Supreme Court in the oft quoted case Champaklal Chimanlal Shah v. Union of India (1964) 5 SCR. 190. On the facts of that case it was found that there was no scope for accepting the plea that the appellant there was denied the protection under Art.16 of the Constitution. That was because, on the facts of the case, it was shown that the service of the particular employee was terminated on account of his unsatisfactory conduct. In such a case there will be no scope for a plea of unequal treatment. That was because, on the facts of the case, it was shown that the service of the particular employee was terminated on account of his unsatisfactory conduct. In such a case there will be no scope for a plea of unequal treatment. Wanchoo, J. speaking for the court, observed thus in that decision: "This is not a case where service of a temporary employee are being retrenched because of the abolition of a post. In such a case a question may arise as to who should be retrenched when one out of several temporary posts is being retrenched in an office. In those circumstances, qualifications and length of service of those holding similar temporary posts may be relevant in considering whether the retrenchment of a particular employee was as a result of discrimination. The present however is a case where the appellant's services were terminated because his work was found to be unsatisfactory. We shall deal with the question whether termination in this case is liable to be set aside on the ground that Art.311(2) was not complied with later; but where termination of the service of a temporary Government Servant takes place on the ground that his conduct is not satisfactory there can in our opinion be no question of any discrimination. It would be absurd to say that if the service of one temporary servant is terminated on the ground of unsatisfactory conduct the services of all similar employees must also be terminated along with him, irrespective of what their conduct is. Therefore even though some of those mentioned in the plaint by the appellant were junior to him and did not have as good qualifications as he had and were retained in service, it does not follow that the action taken against the appellant terminating his services was discriminatory for that action was taken on the basis of his unsatisfactory conduct. 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 We therefore reject the contention that the appellant was denied the protection of Art.16 and was treated in a discriminatory manner". We may notice here that where the justification for termination is misconduct of the employee that would by itself be sufficient to answer a plea of discrimination, for, misconduct is a relevant reason to dispense with the service and that answers the plea of unequal treatment. If a post is no longer available and that is the reason why the services of a person are being terminated, then necessarily the question would be whether there is relevant reason for choosing the particular employee for the termination. If such employee prima facie shows that he ought not to be the person to be so dealt with that calls for an answer the relevancy of which would necessarily arise for consideration. Before us no such plea having been raised in answer, we are unable to consider the relevancy of any such plea. 12. We may. in this context, refer to the decision of the Supreme Court in State of U. P. v. Sughar Singh AIR. 1974 SC 423. Of course, the plea of discrimination arose in that case in a different context. The challenge concerned the reversion of a Sub Inspector of Police to the post of Head Constable. The reversion was to the substantive post of Head Constable from that of Sub Inspector, held merely in an officiating capacity. The employee complained against such reversion on the ground that about 200 Head Constables who were allowed to remain as officiating Sub Inspectors were retained while reverting him. It is in this context that the availability of the plea of discrimination was discussed by Mathew, J. in that decision. The learned judge said "Unless this can be justified as a measure of punishment, the reversion of the respondent would amount to discrimination in contravention of the provisions of Art.14 and 16of the Constitution------ If it was not a case of punishment, it becomes difficult to explain why this discrimination was made against the respondent vis-a-vis atleast 200 other officers who were junior to him in the substantive cadre. That would make the order liable to be struck down as violative of Art.16 of the Constitution." The learned judge further said: "In the instant case we have no doubt in our mind that the peculiar circumstance that from out of a group of about 200 officers most of whom are junior to the respondent, the respondent alone has been reverted to the substantive post of Head Constable makes it absolutely clear that there was no administrative reason for this reversion. In fact there was no suggestion at any time made on behalf of the appellant that the post had been abolished or that (he respondent was, for administrative reasons required to go back to his own post of Head Constable". We may also notice the following passage from the judgment of Krishna Iyer, J. in E. P. Royappa v. State of Tamil Nadu AIR. 1974 SC 555 "It is also necessary to point out that the ambit and reach of Art.14 and 16 are not limited to cases where the public servant affected has a right to a post. Even if a public servant is in an officiating position, he can complain of violation of Art.14 and 16 if he has been arbitrarily or unfairly treated or subjected to mala fide exercise of power by the State machine. It is, therefore, no answer to the charge of infringement of Art.14 and 16 to say that the petitioner had no right to the post of Chief Secretary but was merely officiating in that post." We hasten to add that the rule of discrimination referred to in these decisions arose in a different context. But as indicated in the decisions in Champaklal Chimanlal Shah v. Union of India (1964) 5 S. C. R.190 even in the matter of termination of the service of a temporary employee a plea of discrimination could be successfully urged. As indicated in that decision when the question of termination arises, the qualifications and length of service of those holding similar temporary post may be relevant in considering whether the termination of service of a particular employee is vitiated by discrimination. Of course, it may be that such termination was for reasons which necessitated such treatment of the particular employee. 13. We must also mention that merely because juniors are retained in service while seniors are sent out of office a plea of discrimination need not succeed. Of course, it may be that such termination was for reasons which necessitated such treatment of the particular employee. 13. We must also mention that merely because juniors are retained in service while seniors are sent out of office a plea of discrimination need not succeed. There may be, as said earlier, administrative reasons which justify the retention of the junior. Even a case that the juniors are better suited to hold office may bean available plea. But we have no occasion to consider this in the absence of a plea in that behalf. 14. Our attention has been drawn by learned counsel Sri. Prabhakaran, appearing for the respondent, to the decision of the Supreme Court in Raj Kumar v. Union of India 1975 Lab. I. C. 669 and also to the decision in Union of India v. Prem. Prakash 1969(3) S.L.R. 655. In the first of these cases, the services of temporary employee were terminated by a notice issued to him stating that he would be paid a sum equivalent to the pay and allowances for a month. But such amount was not paid at the time of termination. The plea that was taken was that the termination was not in accordance with the rule since payment was not made. Evidently the amendment of the rule had not been noticed in urging this plea. In the light of that amendment the Supreme Court did not accept the plea. It was then urged that the matter had been disposed of in limine by the High Court, there were certain other aspects which may have to be considered and hence the matter had to be remitted to the High Court of Delhi. It is in that context that the Supreme Court observed that one of the questions raised by the petitioner was that certain persons junior to him were allowed to continue while his services were terminated and that it offended Art.14. It is in answer to this that the learned judges found that the termination of the appellant's service was not on the ground of retrenchment. Even such a plea was not taken here by the respondent. 15. It is in answer to this that the learned judges found that the termination of the appellant's service was not on the ground of retrenchment. Even such a plea was not taken here by the respondent. 15. We may also refer to the decision of the Supreme Court in Union of India v. Prem Prakash 1969(3)S.L.R. 655 Para.6 of the judgment, extracted below, only indicates that it cannot be said that an employee has a fundamental right to claim to be entitled to continue in service so long as bis juniors continue. The court said in para 6 thus: "The District Court also held that when the service of the respondent was terminated and officers junior to him were retained in service the respondent was denied equal opportunity to hold public service under Art.16 of the Constitution. But there is nothing in Art.16 of the Constitution which supports the view expressed by the learned District Judge. By Art.16 all citizens are entitled to equality of opportunity in matters relating to employment or appointment to any office under the State. By merely terminating the employment of the respondent, the respondent was not denied of equal opportunity to hold public service. Under Art.16 of the Constitution, it is not one of the fundamental rights that a person who is an employee of the State shall be entitled to continue in service and that his employment shall not be terminated so long as persons junior to him remain in service. On the facts of this case we think the order Ext. P-3 is unsupportable. That is because, an unequivocal averment made by the petitioner in the petition, urged before the learned Single Judge and reiterated before us that the order is discriminatory in that there is no justification to terminate the services of the petitioner while retaining his juniors, have not been answered. In fact the respondent has not attempted to justify the termination. In the circumstances order, Ext P-3, has to be found to be discriminatory. We allow the Writ Appeal, quash Ext. P-3 order and direct the respondent to treat the petitioner as in service. In the circumstances of the case we direct parties to suffer costs in the appeal. Allowed.