JUDGMENT P. Subramonian Poti, Ag. C.J. 1. The question raised for decision in this Original Petition is one on which this court as well as the Supreme Court has spoken. Exts. P1, P2 and P3 are orders passed by the Divisional Engineer, Telegraphs, Palghat, terminating the services of petitioners 1,2 and 3 as Telephone Operators in purported exercise of power under Sub rule (1) of R.5 of the Central Civil Services Temporary Services R.1965. The petitioners had joined duty earlier on 12-6-1980, 16-3-81 and 18-6-1981 respectively. R.5(1) of the Rules referred to provides for termination of temporary service in the manner indicated in that rule. That rule reads: "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 forth with 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 on 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 serviced on such Government servant by registered post acknowledgement due at the address of the Government Servant available with the appointing authority. If the notice sent by registered Post is returned unserved, it shall be published in the official Gazette. (2) 1(a). If the notice sent by registered Post is returned unserved, it shall be published in the official Gazette. (2) 1(a). Where a notice is given by the appointing authority terminating 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 or pay plus allowance, the Central Government or any other authority specified by the Central Government on this behalf or a Head of Department if the said authority is subordinate to him, may, of its own motion or otherwise, reopen 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 circumstance, which should be recorded in writing, no case shall be reopened under this sub-rule after the expiry of three months. (a)(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 reinstatement; and (ii) whether the said period shall be treated as a period spent on duty for any specified purpose or purposes." Though the rule provides for termination of service in the manner indicated in the rules without assigning any reason the power under the rule cannot be exercised so as to discriminate between one employee and another. Naturally that would mean that it is capable of arbitrary exercise would be self evident in a case where a junior hand is retained and senior temporary hand is sent out and there is no apparent reason why such preference is given to the Junior hand. Naturally that would mean that it is capable of arbitrary exercise would be self evident in a case where a junior hand is retained and senior temporary hand is sent out and there is no apparent reason why such preference is given to the Junior hand. The question whether such termination would be a proper exercise in accordance with the rule and ought to be sustained arose for decision by a Full Bench of this Court in Thankappan v. Sub divisional officer, Telegraphs, Trichur 1977 KLT 362 (FB). In that case this court found that an equivocal averment made by the petitioner that the order terminating the service of the petitioner is discriminatory as there was no justification to terminate the service of the petitioner while retaining his juniors, had not been answered. In fact there was no attempt to justify the termination of service excepting to say that it was in exercise of the power of the Government under the rule that the termination of service was effected without indicating reasons. This court observed that retention of a Junior in service while terminating the service of a senior would amount to discriminatory treatment and if such treatment is pleaded why the junior has been retained when the service of the senior was terminated is a matter calling for explanation, which when offered will have to be examined. This view expressed by the said full Bench of this Court was reversed by a larger Bench of five judges in R. Madhavankutty Nair and others v. the Postmaster, Head Post Office, Quilon and others. ( 1978 KLT 605 ). The decision of the Full Bench was overruled. This court in the latter decision held that where the relevant service rules empower the appointing authority to terminate the service of a temporary Government Servant by notice given in the manner provided in the rules and order passed under such rule would not be considered as discriminatory merely because the employee whose service was terminated was not the Junior most in the concerned category. This of course is a view which may be said to be justified if too liberal a meaning is given to the content of the rule. But the same question arose consideration before the Supreme Court later and in the decision in The Manager, Govt. This of course is a view which may be said to be justified if too liberal a meaning is given to the content of the rule. But the same question arose consideration before the Supreme Court later and in the decision in The Manager, Govt. Branch Press and another v. D. B Bellappa ( AIR 1979 SC 429 ) the court observed that the protection of Art.14 and 16 (1) of the Constitution will be available even to such a temporary Government servant if he had been arbitrarily discriminated against and singled out for harsh treatment in preference to his juniors similarly circumstanced. Virtually therefore the view expressed by the larger bench of five judges stands overruled by the decision of the Supreme court and the decision of the earlier Full Bench must be found to have laid down the correct law. If that is applied in this case, the petitioners have to succeed. That is because the petitioners' complaint is that while their services were terminated without assigning reasons their juniors were retained. It is not the case of the respondents that such juniors have not been retained in service. That they have been is admitted. 2. A belated attempt has been made to justify the retention of Juniors on the ground that the Juniors retained are a separate class. It is said that the petitioners have some blemishes in their official career whereas those juniors who are retained have not. This averment is not found in the counter affidavit filed originally an additional counter affidavit is seen filed in Court on 4-2-1983. Therein mention is made, in Para.4, of certain charges framed against the 1st petitioner, the award of punishment of censure on 5-10-1981 by Ext. R1(c) order and later a chargesheet against him for non maintenance of out turn slips and subsequent issue of dies non order against the 1st petitioner for failure to maintain out turn slips for a certain period. We are not concerned with the 2nd petitioner here because the 2nd petitioner is no longer interested in the matter and has opted out by removing himself from the party array. So the only person is the 3rd petitioner. The 3rd petitioner is also not free from blemishes. He also was responsible for non maintenance of out turn slips. We are not concerned with the 2nd petitioner here because the 2nd petitioner is no longer interested in the matter and has opted out by removing himself from the party array. So the only person is the 3rd petitioner. The 3rd petitioner is also not free from blemishes. He also was responsible for non maintenance of out turn slips. A memo was issued to him and consequently a dies non order was also issued for failure to maintain outturn slips for a certain period. To under stand this charge of failure to maintain out turn slips one has to understand the back ground. There was an agitation by the P & T employees for ventilating their grievances against the department which agitation was spread over a period of about 15 days, the out turn of trunk class handled by those who manned at that time was said to be poor and evidently the action taken in all these is a follow up action consequent on such agitation. It was further mentioned in the additional counter affidavit that the Juniors Smt. M. R. Rajambal, Shri. T. V. Ramadas, Smt. Sobhana Kumari and Shri. Sathish Chandrakumar though juniors to the petitioners are persons free from blemishes unlike the petitioners. It is averred: "Against these persons there was no occasion to issue any charge sheet or dies non order. Thus they are persons to be treated on a different footing unlike the petitioners". By a reply affidavit petitioners 1 and 3 pointed out that it was not correct to say that the four juniors were blemishless and there was no charge sheet against them. Just as petitioners 1 and 3 were said to be guilty of non, maintenance of out turn slips charge sheet was given to Smt. Sobhana Kumari, Ext. P4 being the copy, a warning was issued to Shri. T. V. Ramadas Ext. P5. being the copy and a charge sheet was issued to Shri. V. Harikumar. Evidently therefore what was said in the additional counter affidavit of the Divisional Engineer, Telegraphs, Palghat was not correct. Now a further additional counter affidavit has been filed by the respondent on 15th of March, 1983 evidently because it has been shown by the reply affidavit that the statement in the original counter affidavit was not true. Evidently therefore what was said in the additional counter affidavit of the Divisional Engineer, Telegraphs, Palghat was not correct. Now a further additional counter affidavit has been filed by the respondent on 15th of March, 1983 evidently because it has been shown by the reply affidavit that the statement in the original counter affidavit was not true. The additional counter refers to the earlier statement made that no charge sheet or dies non memos were issued against the four juniors. That statement is explained by saying that the General Manager, telecommunications happened to issue an order on 12-4-1982 giving direction for withdrawal of charge sheet against those official who started maintaining outturn slips daily and therefore charge sheets against Smt. M. R. Rajambal, Shri. T. V. Ramadas and Shri Sathish Chandrakumar were withdrawn. The charge against Smt. Sobhanakumari was not with drawn and dies non order was also passed against Smt. Sobhana Kumari. She also is a Junior who continues to be in service, but it is said in respect of her that though she is also guilty of non maintenance of out turn slips she was turning out normal work which is not the case of the petitioner 1 and 3. 3. Suffice to say that some belated research seems to have been made to find out some reason or other to answer the plea that Junior were allowed to continue when seniors were sent out We asked the learned counsel for the respondents to tell us plainly and unequivocally whether there was any material in any file which would show that at the time of issue of the order terminating the services of petitioners 1 and 3 and question why juniors were to be retained was ever considered or was in their contemplation. Whether such juniors retained were of a different class never arose for consideration at any earlier point of time. The learned counsel frankly said with reference to the files with him arid which was placed before the court that there was no material whatsoever to indicate that this was the reason for retaining the juniors while sending out the juniors. Therefore they were not treated as a different class and retained as such while the petitioners were sent out. A belated attempt to find an excuse for the wrong conduct cannot be justified. Therefore they were not treated as a different class and retained as such while the petitioners were sent out. A belated attempt to find an excuse for the wrong conduct cannot be justified. Not that we are in any way impressed with the plea that there is a basis for treating the four juniors differently. Even according to their own showing in regard to one of them not only the charge sheet was not withdrawn, but the dies non too operates, but it is said that her out turn was better. We can only say that it is a very frivolous way of meeting a contention in the petition which ought to be taken very seriously by the respondents and answered accordingly. Hence following the decision of the Supreme court in The Manager, Government Branch Press and another v. D. B. Belliappa ( AIR 1979 SC 429 ) we allow the original Petition and hold that the orders as against petitioners 1 and 3 terminating their services was invalid and was contrary to law and therefore they may be treated as continuing in service. Petitioners 1 and 3 may be Reinstated forthwith giving them all benefits as if they continued in service all along. The dues payable to them must be settled without any further delay and at any rate within four months. 4. We make it clear that we are not going into the further question whether on the basis of the decision of this Court in Umayammal v. State of Kerala ( 1982 KLT 829 ) also petitioners 1 and 3 have the right to continue in service because of the provisions of Chap.5A of the Industrial Disputes Act. We are giving them relief even otherwise and that is the reason why we are not going into the question. The Original Petition is allowed. No costs.