JUDGMENT 1. By the Court.- BY means of this writ petition the petitioner who was Store In charge in U. P. State Spinning Mills Co. Ltd. opposite party no. 1, has challenged the termination order dated 4-7-1988 U. P. State Spinning Mills Co. Ltd. is a Government Company incorporated under Section 617 of the Companies Act and is an 'state' within the meaning of Article 12 of the Constitution of India. Opposite party no 1 advertised number of posts for its various units in different parts of the State on 24-7-1984 in Hindustan Times, inviting applications from candidates possessing qualification and experience mentioned therein. It was also provided therein that the minimum salary will be Rs. 13090/- per annum plus included free house, water and electricity. The petitioner who was qualified for the said post was selected and appointed vide order dated 13-12-1984. In the appointment letter it was provided that he was being appointed on temporary capacity on consolidated salary of Rs. 1200/- plus free housing accommodation or house rent in lieu thereof from the date of his joining. It was also mentioned therein that his services may be terminated without assigning any reason whatsoever on one month's notice and that he shall be bound by various by-laws of the Company. The petitioner accepted the terms and conditions as is evident from the document filed along with counter affidavit as Annexure 2. The petitioner was granted special increment vide order dated 12-3-88 with effect from 1-10-1987 and it was on 6-7-1988 that he was served with the termination order dated 4-7-1988. The petitioner's services were governed by Uttar Pradesh State Spinning Mills Company (No. 1) Ltd. (Recruitment and Service Conditions) BYe-Laws, 1978 as was provided in his appointment order. The U. P. State Textile Corporation BYe-Laws were adopted for the employees of opposite party no. 1. BYe-law 17 (1) of the said BYe-laws provides for probation of a directly recruited employee for a period of two years which can be extended for one year by the appointing authority. In the said bye-laws there is no provision for terminating the services of an employee except by way of punishment. However, by-law 8(1) of the said BYe-laws provides for a procedure for terminating the services of temporary employees on one month's notice or emoluments in lieu thereof. 2. In the said bye-laws there is no provision for terminating the services of an employee except by way of punishment. However, by-law 8(1) of the said BYe-laws provides for a procedure for terminating the services of temporary employees on one month's notice or emoluments in lieu thereof. 2. On behalf of the petitioner it has been contended that after completion of three years, he became permanent employee and as such his services could not have been terminated. However, he has also challenged the legality of said Bye-laws on the ground that there is no guidelines to be exercised while terminating services of an employee and as such same are violative of Article 14 of the Constitution of India. In the counter affidavit filed by opposite parties it has not been denied that the post of Store In charge was duly approved by the Managing Director and it was a permanent post. But it has been pleaded that the petitioner was never appointed on probation and he was a temporary employee. Bye-law 3 (xxii) of the said Bye-laws provides definition of temporary employee, which reads as under :- "Temporary employee" is he who has been appointed an a temporary post or in a temporary capacity on a permanent post. In other words, a temporary employee is he who has been appointed temporarily or for a specified period, as the case may be." On the basis of said bye-law it has been contended that even if the post is of a permanent nature and petitioner was not appointed for specified period yet he had given a written undertaking in which it has been admitted and agreed by him that his services were temporary and terminable at one month's notice from either side without assigning any reason whatsoever, the services can be terminated. The appointment letter indicates that the petitioner was a permanent employee and as such his services could not have been terminated. The legality of said bye-laws has been challenged on the ground that there are no guidelines for terminating services of a permanent employee and as such same are violative of Article 14 of the Constitution of India. The petitioner's services were transferable and during his service tenure he was transferred. The legality of said bye-laws has been challenged on the ground that there are no guidelines for terminating services of a permanent employee and as such same are violative of Article 14 of the Constitution of India. The petitioner's services were transferable and during his service tenure he was transferred. The petitioner has clearly averred that the post against which he was appointed was duly approved by the Board of Directors and was permanent post as defined in bye-law 3 (7) of U. P. State Textile Corporation (General Service Conditions) Bye-Laws, 1978 (here-in-after referred to as the bye-laws) and the said post is still continuing and no one has been appointed against said post and one S. K. Mukherji who was appointed in 1987 that is after him is still continuing and even the principle of 'last come first go' was also not followed. 3. In the counter affidavit filed by opposite parties, they have not denied that the post against which petitioner was working was duly approved post and the same is still continuing and that S. K- Mukherji was subsequently appointed who is continuing. They have mainly relied on the definition of 'temporary employee' saying that the petitioner was appointed temporarily and it was provided in the appointment letter that his services were terminable at one month's notice on either side without assigning any reason and that the petitioner agreed to that condition. IN the appointment letter it was mentioned that he was being appointed in temporary capacity as Store ln charge on consolidated salary of Rs. 1200/- p.m. plus free furnished accommodation or H. R. A. as per rules with effect from 26-11-1984. The petitioner was also required to sign an undertaking on a pro forma in which one condition was that his services were temporary and were terminable at one month's notice from either side and the last condition was that he shall abide by all other terms and conditions of services, rules and regulations of the company, as enforced from time to time. 4. It is not in dispute that the petitioner earned increments and his salary was also increased. The relevant bye-laws of U. P. State Textile Corporation (Recruitment and Promotion) Bye-laws, 1978 read as under ;- "15. 4. It is not in dispute that the petitioner earned increments and his salary was also increased. The relevant bye-laws of U. P. State Textile Corporation (Recruitment and Promotion) Bye-laws, 1978 read as under ;- "15. Selection Committee : (1) In the case of Class A and Class B posts the appointing authority shall make appointment on the service of the Selection Committee constituted (either as a standing committee or an ad-hoc nominated committee) by the Managing Detector 2.............. 3............. 4............ 17. Probation. (I) Every person on appointment, whether by direct recruitment or by promotion, shall be placed on probation for a period of two years commencing from the date on which he assumes charge of the post 12. Creation of posts-The power to create posts, including the determination of their classification and emoluments, shall vest in the Board Provided............ 18. Discharge during probation (I) A directly recruited probationer may be discharged by the appointing authority during or at the end of the original or the extended period of probation, as the case may be, without assigning any reason. Such discharge shall be without notice and shall not entitle the discharge to any compensation. (2)............ (3).......... 19. Confirmation. A probationer shall be confirmed on his post at the end of the original or the extended period of probation if the appointing authority is, upon the report of the supervising officer and/or otherwise satisfied that the probationer has made due use of his opportunities of service, has completed successfully such training as may have been preset ibed and is otherwise fit for confirmation." The above Bye-laws were framed by the Corporation in exercise of its powers conferred under the Article of Association. On behalf of opposite parties reliance was placed on U. P. State Textile Corporation (General Service Conditions) Bye-laws, 1978 Bye-law no. 3 (xxii) defines the 'Temporary employee' which says that temporary employee is he who has been appointed on temporary post or in a temporary capacity on a permanent post. In other words, a temporary employee is he who has been appointed temporarily or for a specified period, as the case may be. Bye-law 3 (xxiii) defines the word 'tenure' of which clause (b) reads as under :- (xxiii) (b). In other words, a temporary employee is he who has been appointed temporarily or for a specified period, as the case may be. Bye-law 3 (xxiii) defines the word 'tenure' of which clause (b) reads as under :- (xxiii) (b). Temporary tenure, that is the right of a temporary nature, such as that of a temporary employee, that is, one who is appointed in a purely temporary capacity (either for a specified period or for a period expressed as "temporary") ; Bye-laws no. 7 provides that appointment on a post not created as a permanent post shall be made on a temporary basis. While bye-law makes provision for termination by notice on either side. 5. On behalf of petitioner,it was contended that although in the order it was mentioned that he was a temporary employee and he was required to sign an undertaking but his appointment was not for a particular period and his tenure was not temporary as in the appointment letter no period was mentioned and he was appointed against a permanent post. As a matter of fact though the post not being temporary post, it was unfair practice on the part of the employer because the petitioner was allowed to continue for a period of three years and as such his appointment was to be deemed to be on probation, and as such it was obligatory on the part of the employer after expiry of probationary period, to confirm him as provided under the Recruitment and Promotion bye-laws. 6. It cannot be denied that the post against which the petitioner was appointed was a permanent post and the petitioner was hot appointed for a particular period. In view of definition of temporary tenure, his tenure could not be said to be a temporary tenure, he got having been appointed on temporary capacity on a permanent post. For that a period was to be mentioned and the period not having been mentioned and merely because the employer used the words 'temporary' it cannot be said that he was a temporary employee. IT will not confer any right on the employer to terminate the services of the petitioner who gets a permanent status. If Rules have been framed by the Corporation, the Corporation is to abide by the same IT is regrettable that the Government corporation resorted to such unfair practice. IT will not confer any right on the employer to terminate the services of the petitioner who gets a permanent status. If Rules have been framed by the Corporation, the Corporation is to abide by the same IT is regrettable that the Government corporation resorted to such unfair practice. In this connection reference may be made to the observations made by Honourable Supreme Court in O. P. Bhandari v. I. T. D. C. Ltd, 1986 SCC (IV) 337 it was held that rules regarding public sector undertakings covered by Article 12 or of Government departments were violative of Article 14 and 16 and Rule 31 (v) of Indian Tourism Development"orporation (Conduct, Discipline and Appeal) Rules, 1978 were also held to be unconstitutional. In Central Inland Water Transport Corporation Ltd, v. Brojo Nath Ganguly, (1986) (3) SCC 156 referred to in O. P. Bhandari's case (supra) a division bench struct down a similar rule insofar as it authorised termination of employment by serving a notice thereunder as being violative of Article 14 of the Constitution of India, inter alia, inasmuch as it was capable of being selectively applied in a vicious manner by recourse to pick and choose' formula. It was further held :- "The test of reasonableness or fairness of a clause in a contract where there is inequality of bargaining power is another theory recognised in the sphere of law of contracts. The courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or a clause in a contract, entered into between parties who are not equal in bargaining power. Lord Diplock in A. Schroeder Music Publishing Co. case has given the test of fairness thus : "Whether the restrictions are both reasonably necessary for the protection of the legitimate interests of the promisee and commensurate with the benefits secured to the promiser under the contract. For the purposes of this test all the provisions of the contract must be taken into consideration." Relying on the above case, a Division Bench of this court in H. N. Jain v. Rajendra Shalini, 1986 UPLBEC 644 held that para 3 of Textile Corporation (U. P.) Ltd. Recruitment and Promotion Rules of Annexure 10, was unconstitutional, being violative of Article 14 of the Constitution and Section 23 of Contract Act, 1872. 7. The same position arises in this case also. 7. The same position arises in this case also. The petitioner who should have been appointed on probation was not appointed as such and was wrongly appointed in temporary capacity and an undertaking of the nature was taken, taking-advantage of his week position. The services of such an employee cannot be terminated unless any notice or warning was given. In this connection reference was made to Dr. Miss S. P. Shere v. Union of India, 1989 (3) SCC 311 . In that case the employee- was selected by the Public Service Commission and was appointed on adhoc basis against a substantive vacancy. From time to time, the orders were made by continuing her services. It was held that in the relationship of master and servant there is a moral obligation to act fairly. An informal, if not formal give and take, on the assessment of work of the employee should be there. The employee should be made aware of the defect in his work and deficiency in his performance. Timely communication of the assessment of work in such cases may put the employee on the right track. Without any such communication it would be arbitrary to give a movement order to the employee on the ground of unsuitability. 8. Taking into consideration above facts of the case, it is obvious that petitioner's appointment was against a permanent post and it was an appointment for which there was no period prescribed. Although he was not given specific order for probation y?t his appointment will be deemed on probation and after completion of two years service, he was deemed to be confirmed. Merely because the employer has chosen to deviate from his duty and pass an order, that will not weaken the position of the employee or make him a chattel. We are of the view that after completion of period of probation, the petitioner was to be deemed a permanent employee and his services could not have been terminated treating him as temporary employee. On behalf of opposite parties reliance was placed on Oil and Natural Gas Commission v. Mohd. We are of the view that after completion of period of probation, the petitioner was to be deemed a permanent employee and his services could not have been terminated treating him as temporary employee. On behalf of opposite parties reliance was placed on Oil and Natural Gas Commission v. Mohd. S. Iskander Ali, AIR 1970 SC 1242 in which case it was held i- "It is well settled by a long course of decisions of this court that in the case of a probationer or a temporary employee, who has no right to the post, such a termination of his service is valid and does not attract the provisions of Article 311 of the Constitution." Reliance was also placed in the case of Shamsher Singh v. State of Punjab, 1975 (1) SCR 814 , 837-838, where the matter was considered in all its aspects by a Constitution Bench. The court held :- "Before a probationer is confirmed the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post. In the absence of any rules governing a probationer in this respect the authority may come to the conclusion that on account of inadequacy for the job or for any temperamental or other object not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged." In this case the employer committed an error apparent on the face of record in treating the petitioner to be temporary employee whereas he has already attained the status of permanent employee. In the last reference was made to R. K. Misra v. U. P. State Hand loom Corp. Ltd., AIR 1987 SC 2408 in which it was held that the employees working in public sector undertaking on temporary basis and the services being terminated in terms of service rules without any stigma or evil consequences, the order is not open to challenge. In the said case not only service rules but the agreement also provided condition of one month notice or salary in lieu thereof at any time for terminating the services of temporary employees. This case does not apply to thg instant case. 9. Thus the petitioner having attained the status of a permanent employee, his services could not be terminated. In the said case not only service rules but the agreement also provided condition of one month notice or salary in lieu thereof at any time for terminating the services of temporary employees. This case does not apply to thg instant case. 9. Thus the petitioner having attained the status of a permanent employee, his services could not be terminated. Even otherwise, if he was a temporary employee, the, termination of his service is unfair, unreasonable and arbitrary and the same cannot be sustained. 10. The plea raised by the petitioner that junior persons have been retained and the principle of 'last come first go' has not been followed as one S. K. Mukherji was appointed subsequently and he has been retained in service is not without substance. No explanation to this effect has been given by the opposite" parties. In these circumstances, the termination order is unsustainable being violative of Article 14 and 16 of the Constitution of India as the employer is the 'state' within the meaning of Article 12 of the Constitution of India. In view of what has been stated above, the writ petition is allowed. The order of termination dated 4-7-1988 contained in Annexure 7 passed by opposite party no. 2 is quashed. The petitioner shall be restored back to duty. However, there will be no order as to costs. Petition allowed.