1. The petitioner was appointed temporarily on 29th June, 1961 under Rule 10(a)(i) of the State and Subordinate Service Rules as surveillance worker in the N.M.E.P. Unit and after putting nearly eight years of service, he was promoted temporarily as a Surveillance Inspector, Grade II and posted to Chilvakodur sector. While serving at that place, he applied for leave from 5th May, 1969 to 8th May, 1969 and thereafter he extended his leave from time to time till 5th February, 1973 and reported to duty on the afternoon of 5th February, 1973 on expiry of his leave.

2. The 2nd respondent referred the matter to the District Medical and Health Officer, Karimnagar, the 1st respondent herein for orders as to posting, The 1st respondent by his proceedings Re. No. 9440/E3/73, dated 24th March, 1973 which are now impugned, held that, as per Rule 6(b) under note of the Andhra Pradesh Leave Rules the petitioner's services are deemed to be terminated from 2nd October, 1969.

3. It is contended on behalf of the petitioner that Note to Rule 6A(b) of the Leave Rules has no application to the petitioner's case as he is not appointed on an emergency basis. It is further contended that in any event the termination of the petitioner's services on the ground of overstay constitutes a punishment and inasmuch as the termination of his services has been ordered without affording him an opportunity to show cause, it is violative of Article 311 of the Constitution. He also contends that Note to Rule 6A(b) of the Andhra Pradesh State and Subordinate Service Rules (hereinafter referred to as the "Rules") is also void and ultra vires of Article 311 of the Constitution.

4. So far as the first contention is concerned, I do not find any merit. The orders of appointment filed along with the writ petition disclose that both his appointment as surveillance worker in the first instance and his subsequent promotion to the post of surveillance Inspector were temporary. The initial appointment is expressly stated to be under section 10(a)(i) which is an appointment on emergency basis. Though the subsequent order of promotion does not specifically refer to the rule under which he was promoted, it is clearly stated therein that he is temporarily promoted. In the very same order, two others were promoted without specifying that they were temporarily promoted. The appointment of the petitioner was made in the place of one M.A. Rahim. There is no record to hold that the place which M.A. Rahim was occupying had fallen vacant permanently. Even if a permanent vacancy had arisen unless the order appointing the petitioner shows that he was appointed on a regular basis, the petitioner cannot claim that he is permanent or a regularly appointed Surveillance Inspector. Moreover when his appointment as a Surveillance Inspector was itself on emergency basis, before he was regularised in the said post, he could not have been promoted to the post of a Surveillance Inspector on a permanent basis. The first contention is, therefore rejected.

5. However, I find sufficient force in the second contention raised by Mr. Ananda Rao, learned Counsel for the petitioner. In the counter affidavit filed on behalf of the respondent it is not denied that the petitioner's services are deemed to have been terminated under the note to Rule 6A(b) of the Andhra Pradesh Leave Rules which reads as follows:

A temporary Government servant working under emergency provisions who remains absent from duty after applying for leave or extension of leave to which he is not entitled to under the rules shall be deemed to have been discharged from duty with effect from the date from which he is not entitled to any leave unless the leave applied for is granted by Government in relaxation of relevant rules.

That shows that the termination of the petitioner who is a temporary employee is not a termination simpliciter. His services were terminated because he overstayed his period of leave that is he went on leave for a period longer than what he was entitled to under the leave rules. In fact, under the impugned order, earned leave of thirty days from 5th May. 1969 to 3rd-Tune, 1969 and leave of 120 days on half pay on medical grounds from 4th June, 1969 to 1st October, 1969 was sanctioned and from 2nd October. 1969 the petitioner was deemed to have overstayed without being entitled to any leave. It is on that ground his services were terminated. Article 311 of the Constitution lays down that any removal of a Government servant from service can be effected only after giving him a reasonable opportunity of being heard in respect of the charges and after making such enquiry and after giving him a reasonable opportunity of making a representation in regard to the penalty proposed. It is not disputed that such an opportunity was not given to the petitioner. Therefore, the removal of the petitioner from service on the ground that he overstayed, constitutes an infringement of the protection afforded to a public servant under Article 311 of the Constitution.

5. A. It was, however, argued by the learned Government Pleader that the note to Rule 6A(b) of the Leave Rules results in automatic termination of the petitioner's services and the petitioner having been appointed temporarily without any right to the post, he cannot complain of any violation of the protection afforded under Article 31.1 of the Constitution. A similar provision contained in Jodhpur Service Regulation came up for consideration before the Supreme Court in Jai Shanker v. State , which was reiterated in Deokinandan Prasad v. State of Bihar and Ors. 1971-I L.L.J. 5571 : A.I.R. 1971 S.C. 1408. Regulation 13 thereof reads as follows:

An individual who absents himself without permission or who remains absent without permission for one month or longer after the end of his leave should be considered to have sacrificed his appointment and may only be reinstated with the sanction of the competent authority. Note: The submission of an application for extension of leave already granted does not entitle an individual to absent himself without permission.

Construing the said rule in the case of a person who was deemed to have been discharged from service and not entitled to reinstatement without the sanction of the competent authority the Supreme Court held as follows:

The removal of a Government servant from service for overstaying his leave is illegal even though it is provided by the Service Regulation that any individual who absents himself without permission after the end of his leave would be considered to have sacrificed his appointment and may be reinstated only with the sanction of the competent authority.

A discharge from service of an incumbent by way of punishment amounts to removal from service, and the constitutional protection of Article 311 cannot be taken away from him by contending that under the Service Regulation the incumbent himself gives up the employment and all that the Government does is not to allow the person to be reinstated. It is true that there is no compulsion on the part of the Government to retain a person in service if he is unfit and deserves dismissal or removal and one circumstance deserving removal may be overstaying one's leave. But a person is entitled to continue in service if he wants until his service is terminated in accordance with law. It is true that the Regulation speaks of reinstatement but what it really amounts to is that a person would not be reinstated if he is ordered to he discharged or removed from service. The question of reinstatement can only be considered if it is first considered whether the person should be removed or discharged from service. Whichever way one looks at the matter, the order of the Government involves a termination of the service when the incumbent is willing to serve. The Regulation involves a punishment for , overstaying one's leave and the burden is thrown on the incumbent to secure reinstatement by snowing cause. No doubt the Government may visit the punishment of discharge or removal from service on a person who has absented him self by overstaying his leave, but it cannot order a person to be discharged from service without at least telling him that they propose to remove him and giving him an opportunity of showing cause why he should not be removed. If this is done the incumbent will be entitled to move against the punishment for, if his plea succeeds, he will not be removed and no question of reinstatement will arise. It may be convenient to describe him as seeking reinstatement but this is not tantamount to saying that because the person will only be reinstated by an appropriate authority that the removal is automatic and outside the protection of Article 311. A removal is removal and it is punishment for overstaying one's leave, an opportunity must be given to the person against whom such an order is proposed, no matter how the Regulation describes it.

7. Regulation 13 referred to therein with which the Supreme Court was concerned is in parimateria with the note to Rule 6A(b) of the Andhra Pradesh Leave Rules and the effect of the termination of the services of a public servant under both the rules is the same viz., that a public servant is removed from service for overstaying the leave to which he is entitled. Termination of the petitioner's service under the note to Rule 6A(b) which was ordered without giving the petitioner any opportunity whatsoever to show cause, must, therefore, be held to be violative of Article 311 of the Constitution of India and must be quashed.

8. The learned Government Pleader, however, contended that the principle laid down by the Supreme Court in the aforesaid decisions cannot apply to the present case because the petitioner was appointed temporarily and as such had not acquired any right to the post and his services could be terminated at any time without assigning any reasons. True, a public servant appointed temporarily or on an emergency basis does not acquire a right to the post and his services may be terminated at any time without assigning any reason. But where the appointing authority chooses to terminate his services on the ground that he overstayed his leave period, that constitutes a removal from service by way of punishment. As observed by the Supreme Court in Jai Shanker v. State (supra).

the constitutional protection of Article 311 cannot be taken away from him by contending that under the Service Regulations the incumbent himself gives up the employment and all that the Government does is not to allow the person to be reinstated....But a person is entitled to continue in service if he wants until his service is terminated in accordance with law.... The Regulation involves a punishment for over staying one's leave and the burden is thrown on the incumbent to secure reinstatement by showing cause. No doubt, the Government may visit the punishment of discharge or removal from service on a person who has absented himself by overstaying his leave, but it cannot order a person to be discharged from service without at least telling him that they propose to remove him and giving him an opportunity of showing cause why he should not be removed.

Similar is the position in the present case. The fact that the petitioner is a temporary employee does not make any difference. When once the termination of petitioner's service is held to be by way of punishment for having overstayed his leave, it is now well settled that the fact a person is a temporary Government servant does not disentitle him to the protection of Article 311 of the Constitution. I, therefore, hold that the termination of the petitioner's service on the ground that he has over stayed the leave to which he is entitled though permissible under Note to Rule 6A(b) of the Andhra Pradesh Leave Rules, inasmuch as the termination itself is in violation of Article 311 of the Constitution, the impugned order is unsustainable and is accordingly quashed.