Kotwal, J.:— This judgment will govern the disposalof a bunch of writ petitions raising identical questions of law arising in the back-ground of almost similar facts of each case.
2. In these eight writ petitions the case of each petitioner is that he is a permanent employee of the Town Area Committee, Udhampur, whose service has been terminated by the respondent—the Chairman of the committee without following the procedure laid down in Rules 32 and 35 of the Jammu and Kashmir Government Servants' (Classification, Control & Appeal) Rules, 1956, and Section 126 of the Constitution of Jammu and Kashmir. This termination, he goes on to state, is by way of punishment, and its genesis is traced to the ill-will and malice which the respondent as a member of the Jana Sangh—a communal political Organization, entertains against the petitioner, who by conviction is opposed to the said Organization. On October 16, 1973, adds the petitioner, a peaceful sit-in-strike was organized by the Dharat Employees Union, Udhampur, of which the petitioner is a member, and one day's casual leave which was due to him and which could not have been refused was applied for by him, but his service was terminated by the respondent in purported exercise of the powers vested in him under Article 128 of the Jammu and Kashmir Civil Service Regulation due to the petitioner's absence from duty on the said date, without giving him a prior notice of the proposed punishment. The case of the respondent, on the other hand, is, that the petitioner in each case is only a temporary employee, who remained absent from duty on October 16, 1973; his application for leave to his own knowledge having been rejected by the respondent. It has been denied that termination of service was motivated by any ill-will or malice, but barring the cases of three petitioners, namely; Mulkh Raj, Shadi Lal and Harbhajan Singh, whose services have been terminated on some additional grounds as well, it has been pleaded, that the same was strictly done under Article 128 of the Civil Service Regulations, without any intention to punish the petitioner. Whereas, in the case of Mulkh Raj the additional ground is his un-suitability for service, in the cases of Shadi Lal and Harbhajan Singh, it is negligent conduct in service. Lastly, it has been asserted that neither rules 32 and 35 of the Classification, Control and Appeal Rules, nor the provisions of Section 126 of the State Constitution were attracted to the facts of these cases. It may also be pointed out that during the pendency of these writ petitions, the posts of all the petitioners were abolished, and this fact was brought to the notice of the Court by the respondent by making a separate application in each case. As transpires from the interim order dated October 19, 1974, passed in writ petition No. 236 of 1973, this fact was specifically put to Mr. Sethi representing; the petitioners in all the cases, who admitted the same time contended that abolition of posts after the impugned orders were passed would be wholly inconsequential so far as the final out-come of the petitions was concerned.
3. D.D Thakur, J. (as his Lordship then was), who-heard the petitions being of the view, that common questions, of some importance involving the applicability of the Classification, Control & Appeal Rules to employees of Town Area Committees, and the ambit and scope of sub-rule 3 of Rule 33 of the said rules arose in these cases; formulated two questions and referred them to a Division Bench vide his order dated November 2, 1974, in writ petition No. 236 of 1973.
4. These questions are:—
(1) Whether Government order No. 166-T/62 of 1962 has the effect of applying the J. & K. Civil Services (Classification, Control & Appeal) Rules, 1956, also to the employees of the Town Area Committees; and
(2) In case the said rules apply to the employees of the Town Area Committee, what is the import of sub-rule (3) of Rule 33 of the said rules and whether the petitioners cases fall under the aforesaid sub-rule or not.
5. During the course of arguments, counsel for the parties made a prayer, that instead of answering the two questions referred to us we should ???ily dispose of all toe cases. They, accordingly, argued the whole case in each petition to enable us to decide the same once for all. In this background, therefore, we proceed to dispose of these cases finally.
6. It has been conceded before us, and rightly so that Government order No. 166-T/62 of 1962 does not make the Classification, Control and Appeal Rules applicable to employees of Town Area Committee, and that they have been made applicable to them by a later Govt. Order, viz., 52 MD/LS of 1966 dated August 9, 1966. (See General Statutory Rules and Orders Vol. V at pages 550 and 551). Answer to question No. 1 must, therefore, be in the affirmative, in the sense, that the Classification, Control & Appeal Rules, 1956, do apply to employees of Town Area Committees.
7. Rule 33 of the said Rules runs into four parts; the last part merely empowering the competent authority to entrust an enquiry under this rule to another officer. Sub-rule Ideals with the procedure to be followed where a civil servant is to be dismissed, or removed from service, or reduced to either a lower post, or to a lower, time-scale, or to a lower stage in a time-scale, and provides, that before taking any such action against him, the civil servant shall be served with a definite charge-sheet, along with the allegations on which the charge or charges are based, as also the circumstances which may be relied upon for taking the proposed action against him. It also provides, that he shall be entitled to cross-examine the witnesses examined by the other side, and produce every kind of evidence in defence, including witnesses to make oral statements, provided such witnesses or witness is not considered unnecessary by the Enquiry Officer for reasons to be recorded by him. Under this very sub-rule, the civil servant shall have no such right of being heard, where any such action is to be taken against him pursuant to his conviction on a criminal charge by a criminal court or a court Material. Sub-rule (2) lays down, that the provisions contained in sub-rule I shall have no application, where either the civil servant has absconded, or where it is impracticable to communicate with him, or whete in the interest of the Security of the State it is inexpedient to do so. It gives a further power to the Enquiry Officer to waive strict compliance with sub-rule 1, if in his opinion, it can be done without injustice to the civil servant charged. These two sub-rules are more or less in pari materia to sub-sections 1 and 2 of Section 126 of the State Constitution. sub-rule 3 which alone falls for our own interpretation reads as under:—
“This shall also not apply where it is proposed to terminate the employment of a probationer whether during or at the end of the period of probation, or to dismiss, remove or reduce in rank a temporary Government servant, for any specific fault or on account of his unsuitability for the service.”
8. On its plain terms, sub-rule 3 is seemingly too general in its application. It empowers the competent authority to terminate the employment of a probationer, or dismiss, or remove, or reduce in rank a temporary Government servant, for a specific fault or unsuitability for service. The grounds of specific fault and unsuitability not only relate to a temporary Government servant but they also relate to a probationer. Terminating the employment of a probationer, or a temporary Government servant, or reducing him in rank on the ground of unsuitability simplicity, cannot tantamount to punishing him. But, the use of the word “fault” however, which is too wide in its import, leaves no room for doubt, that this sub-rule may apply with equal force to even those cases, where employment is to be terminated, or rank is to be reduced as a measure of punishment. “Fault”, according to its dictionary meaning, means and includes, blemish of character, culpability and even offence. We have no reason to believe, that the rule making authority did not intend giving the word “fault” its widest meaning. Terminating the service of a probationer, or a temporary employee, on account; of some blemish in this character, or commission of an offence, cannot but be deemed to be as a measure of punishment. Consequently, provisions contained in sub-rule 1 may not be followed in cases of probationer or temporary employees. To this extent, therefore, sub rule 3 constitutes another proviso to sub-rule 1. In case the petitioners are held to be only temporary employees then Mr. Bhalgotra must be right in contending, that there has been in fact no infraction of Rule 33, and consequently, answer to the second question must also be in the affirmative.
9. Mr. Sethi has, however, raised three points against the applicability of tub-rule 3, to sustain life in these petitions. These are:
(i) the petitioners are all permanent employees, as such, sub-rule 3 cannot apply to their cases;
(ii) dismissal, or removal from service, or reduction to a lower rank, per se constitutes punishment, irrespective of the fact, whether the employee is holding a permanent or a temporary post, and Section 126 of the State Constitution being applicable to both permanent as well as temporary employees, sub-rule 3 is ultravires of the Constitution; and
(iii) In any event, cases of three petitioners, namely Mulkh Raj, Shadi Lal and Harbhajan Singh, are covered by Section 126 of the State Constitution, as their services were not terminated merely for breach of Rule 128 of the Civil Service Regulations, but also with a stigma, of either un-suitability for service, or negligent conduct in discharge of duties.
10. Except the ipse dixit of the petitioners, there is noting on the record to show, that the petitioners were permanent employees of Town Area Committee, Udhampur. On the contrary, the respondent placed on the file of writ petition No. 236 of 1973, copies of various orders, showing the petitioners, as mere temporary employees of the Town Area Committee. We have therefore no hesitation in holding, that the petitioners were only temporary employees when their services were terminated by the respondent.
11. It is now well settled, that Article 311 of the Constitution of India, which correspondents to Section 126 of the State Constitution, applies to all Government servants whether permanent, temporary, officiating or on probation, and it is a provision which deals with imposing three kinds of punishments provided under Service Rules, viz, dismissal from service, removal from service and reduction in rank. On a Government servant, every dismissal, removal or reduction in rank of a Govt. servant, by it-self does not tantamount to punishment, and whether or not it amounts to punishment, has to be ascertained by applying one of three tests:—
(a) has the person been deprived of a right to hold the post?
(b) has this cast any stigna on his name? and
(c) has he thereby suffered a forfeiture of earned salary, pension or other benefits?
12. A government servant, appointed to a post permanently, has a statutory guarantee to hold the same till the ago of superannuation, or till a date earlier to it, if he is to be retired compulsorily under relevant rules. A premature termination of service on any ground whatsoever would, therefore, automatically result in imposing a punishment on him, as the same would have the effect of depriving him of his right to hold the post for a longer period. Sub-section 2 of Section 126 of the State Constitution would be attracted with equal force to the case of a Government servant holding a post permanently, even if termination of service is not intended to be by way of punishment, but it is a consequence of breach of some Service Rules, or is due to other like reasons. He has, therefore, a constitutional guarantee of having an enquiry held against him, during which he is required to be served with two notices, i.e one at the time of communicating the charges to him, and the other prior to the punishment proposed against him. The same is not, however, true of a Government servant holding a post temporarily. He has no right to hold the same, in the absence of a contract, or a service rule to the contrary. Where service of a Government servant holding a post temporarily is not intended to be terminated as a measure of punishment, but is a consequence of applying the relevant service rules alone, and no stigma is cast on his name by such termination, nor does he thereby suffer any loss of salary, pension or other benefits, Sub-section 2 of Section 126 of the State Constitution shall have no application to his case. Again, loss here means present loss which deprives the employee of earned benefits and cannot mean a mere prospect of any future loss (See Satish Chandra v. Union of India, A.I.R 1953 S.C 250, Shyam Lal v. State of U.P, A.I.R 1954 S.C 369, Parshotam Lal Dhingra v. Union Of India, A.I.R 1958 S.C 36, Moti Ram Dekha v. N.W Frontier Railway, A.I.R 1964 S.C 600, Champak Lal v. Union of India, A.I.R 1964 S.C 1858, State of Punjab v. Sukhraj, (1968 S.L.R 701), Ramgopal v. State of M.P (1969 S.L.R 429), State of Assam v. G. Vasantha, A.I.R 1970 S.C 537 and R.S Sial v. The State of U.P, (1975) 3 SCC 111 : A.I.R 1974 S.C 1317).
13. We have, therefore, no hesitation in holding that termination of service simpliciter of a Government servant, holding a post temporarily, in the absence of a contract, or service rule to the contrary, does not tantamount to punishment. The law laid down in the decisions relied upon by Mr. Sethi, viz. Jal Shankar v. Stale of Rajasthan, A.I.R 1964 S.C 492. Mafat Lal Narandas Barot v. J.D Rathod, A.I.R 1966 S.C 1364. Mohd Ibrahim v. State of Jammu and Kashmir (1970 S.L.R 129) and Pranachatta v. State of Jammu and Kashmir, 1972 J.K.L.R 673, too is not different, and these authorities are clearly distinguishable on the grounds, that either the petitioners in these cases were permanent employees, or the impugned orders against them were passed by way of punishment. At the same time, we also hold, that sub-rule 3 of Rule 33 of the Classification, Control & Appeal Rules, 1956, is violative of Sub-section 2 of Section 126 of the State Constitution, to the extent it takes away the right of enquiry and two notices of a Government servant holding a post temporarily which is guaranteed to him under the said sub-sec in the event of his service being terminated, or his rank being reduced as a measure of punishment
14. One day's casual leave, which was applied for by the petitioners, and which was not on account of ill-health, but on account of some urgent piece of work at home, was refused by the respondent, and the refusal was also conveyed to them through one, Abdul Rashid, an employee of the Town Area Committee. There is an affidavit on the file of each petition, sworn by the said Abdul Rashid, which is to the effect that he had conveyed the rejection of his leave to each petitioner. This affidavit stands un-rebutted. We have therefore, no other choice but to hold, that the petitioners remained absent without leave on October 16, 1973, as such. Article 128 of the Civil Service Regulations squarely applied to the case of each petitioner-these Regulations being admittedly applicable to employees of Town Area Committees as well-and their services were rightly terminated by the respondent, This finally disposes of the cases of five petitioners, namely, Bishan Dutt, Ali Mohd., Parmeshwari Dutt, Thakur Dass and Romesh Chander, whose services have been terminated on the only ground of breach of Rule 128.
15. Turning now to the case of petitioner Mulkh Raj, he was removed from service on the grounds of absence from duty, as well as, unsuitability for service. We are not inclined to accede to the proposition, that unsuitability for service constitutes a stigma to attract the provisions of Sub-section 2 of Section 126 of the State Constitution. We are fortified in taking this view by a Supreme Court decision in Dr. T.C.M Pillai v. Indian Institute of Technology, (1971 S.L.R 679). Where in it was held:
“It is well settled that a probationer or a temporary servant can be discharged if it is found that be is not suitable for the post which he is holding. This can be done without complying with the provisions of Article 311(2) unless the services are terminated by way of punishment. Suitability does not depend merely on the excellence or proficiency in work. There are any factors which enter into consideration for confirming a person who is on probation. A particular attitude of tendency displayed by an employee can well influence the decision of the confirming authority while judging his suitability or fitness for confirmation.”
16. No fault can, therefore, be found with termination of the service of this petitioner as well.
17. The cases of petitioner Shadi Lal & Harbhajan Singh, however, stand on a slightly different footing, as their services have been terminated not only on the ground of breach of Rule 128, but also on the ground of negligent conduct in the discharge of duties. Negligence, undoubtedly casts an aspersion on their person, and thus constitutes a stigma. Termination of their service was, therefore, clearly by way of punishment which entitled them to protection under Sub-section 2 of Section 126 of the State Constitution. The mandatory provisions of sub-section 2 were admittedly not followed in their cases, and this would have surely induced us to quash the orders by which their services were terminated. There is yet another circumstance which we cannot refuse to take notice of. As already pointed out, all the posts which were held by the petitioners, were admittedly abolished during the pendency of the petitions. Abolition of a post is neither dismissal, nor removal from service, nor is the same a punishment otherwise provided under and rule, so as so attract the mischief of Section 126 of the State Constitution. No Government Servant, temporary or permanent, can, therefore, reasonably complain of his post being abolished. With the abolition of a post the right to hold the same automatically comes to an end, and it cannot involve any infraction of either Article 19(1)(f) or of Article 31 of the Constitution of India. The case may be of course, different where it is shown that it has been either arbitrarily, or malafide, or as a camouflage to visit penal consequences of an employee. (See N. Ramanatha Pillai v. The State of Kerala, (1973) 2 SCC 650 : A.I.R 1973 S.C 2641, State of Haryana v. Shri Des Raj Sagar, (1976) 2 SCC 844 : A.I.R 1976 S.C 1199 and G.A Gora v. The State of Jammu and Kashmir, Writ Petition No. 129 of 1976 decided on 18-8-1978). In the instant cases, no such pleas have been taken by the petitioners, and the only objection raised is that no such action could be taken during the pendency of the petitions. This argument of the petitioners does not impress us at all. The fact remains, that no posts presently exist to which the petitioners may be reappointed as a consequence of their petitions being allowed. We would in such a situation be in fact issuing only futile writs, which under law a court is not supposed to do. Furthermore, a court should normally take into consideration the changed circumstances, and mould its relief accordingly. Whatever, therefore, the infirmities accompanying the orders passed against these petitioners, even these cannot be quashed in view of the changed circumstances. In the result, all the petitions fail, which are accordingly dismissed, but in the circumstances without any order as to costs.
Dr. A.S Anand, J.:— I agree.
18. Petition dismissed.
provisions of sub-section 2 of Section 126