S. Rangarajan, J.:— The petitioner was appointed on 1st December 1956 as a civilian employee in the Defence service, as a paid recruiter Grade II in the Recruiting Organization and was posted at Jammu. His main duty was to bring the recruits to the recruiting office and to assist the recruiting staff in carrying out their physical and medical examination. Subsequently, the terms and conditions of his service were regulated laid down in Government of India Ministry of Defence letter No. 63493.AG/ORG/RLG/II/602D (AG)-11 dated 17th March, 1957. The relevant extract from the regulation applicable to paid recruiters in annexure R-1 to the return of the respondent and reads as follows:

“Paid recruiters are appointed by the R.Os (Now Area Recruiting Officers) or A.R Os. (now Recruiting Officers). They are engaged in a purely civilian capacity and service as a paid recruiter does not count for pension or gratuity. The tenure of appointment is at the discretion of the appointing authority but will normally be restricted to 4 years, after which the paid recruiter will, if desirous, be registered for employment on mobilization. In exceptional cases only the appointing authority may extend the tenure beyond four years.

All paid recruiters will wear armlets, with the letter ‘R’ thereon, which will be obtained on indent from the Chief Ordnance Officer, Ordnance Depot, Lahore.

The rates of pay admissible are laid down in Rule 612, P. & A. Regulations, Volume 1.”

(Emphasis added).

2. The tenure of the petitioner, who was appointed on the 1st December 1956, was extended for only one year, with effect from 7th March 1961 to 7th March, 1962.

3. On 22-7-61, he received a letter from the Assistant Recruiting Officer informing him that he was served with one month's notice of discharge with effect from 24th July 1961, as his services were no longer required. This discharge according to the said letter, (copy of which is annexure B to the petition) was to be effective from 23-8-61.

4. Thereupon, the petitioner filed an appeal to the Adjutant General Army Headquarters. In that appeal he had complained (annexure C to the petition as copy of the said appeal) that the said order had been Issued as a result of hostility towards him on the part of Subedar Major Chhelu Ram. On 19-9-1961 he was told by the letter dated 11-9-61 of the Adjutant General that the appeal had been forwarded to the Recruiting Officer, Jullundur for disposal; he was further informed on the 13th September 1961 by the Recruiting Officer that his services were no longer required after 22nd August, 1961. The petitioner then insisted that his case may be considered by the Headquarters and also pointed out that there had been no reduction of strength in his office, where three paid recruiters were already working against the authorised strength, in addition to an extra vacancy which was unfilled. He further complained that if the notice of discharge was served on the ground that the service of one paid recruiter was no longer required it would have been served on the junior most. Concerning this aspect, in spite of the same having been raised in the said representation (copy of which is G-1 to the petition) no ground had been taken in the writ petition, as originally filed. There has been an amendment of the writ petition subsequently taking specifically a ground that out of the three paid recruiters at Jammu Office, the petitioner had 5 years service, one paid recruiter, Suran Singh (who had not been discharged) had only one year service and hence there was a violation of the principle of ‘last come, first go’. There was also yet another paid recruiter Shri Jagat Singh in the said office at Jammu, who had 7 years service as against the petitioner who had 5 years service when the said notice of discharge was Issued. It is an unfortunate feature of this case that while the petitioner was informed by the aforesaid letter dated 22-7-61 (copy of which is annexure B) that his services were no longer required, in the letter dated 16-12-61 (copy of which is annexure J to the petition), the reason given for the termination of the petitioner's services was stated to be the petitioner's ‘misbehavior’. In the letter dated 6-9-62 (copy annexure D) the reason stated for discharging the petitioner was ‘reduction in the establishment’. In the letter dated 14-11-1962 (copy of annexure M), it was stated that the reason for discharge given by the Army Headquarters as ‘misbehavior’ on the part of the petitioner was inadvertently issued and that the petitioner had been discharged from services only on account of reduction in the establishment. In the letter dated 27-6-67 (b) the words ‘reduction of establishment’ had been scored cut and the reason was stated to be that his services were no longer required. Mr. Bhawani Lal learned counsel for the petitioner showed me the original of annexure B to substantiate the above.

5. The petitioner further averred that apart from contradictory reasons having been given in respect of the discharge of the petitioner the post itself was kept vacant and was subsequently filled up on 1-5-62. The plea of misbehavior having been withdrawn and the plea of reduction in the establishment being palpably wrong, it is claimed by the petitioner that the entire proceedings were arbitrary and capricious, in addition to the same being discriminatory and violating the principle of ‘last come, first go.’

6. The respondent, in the return filed to the petition as amended, merely denied the allegations but regarding that which is crucial to the petitioner's case, that there was no specific denial of the allegation that the person junior to the petitioner had not been discharged, all that has been stated is that the principle of ‘last come’ ‘first go’ was not applicable to the petitioner. The further allegations which had been made in paras 1 to 12 of the return filed to the petition as unamended, were affirmed. It was explained, even in the original return, that the reference in the letter of the Adjutant General dated 16th December, 1961, (copy of which is annexure J to the petition) to the petitioner's service having been terminated due to his misbehavior was an error committed by the Adjutant General's branch; the same was subsequently corrected by the issue of a letter by the Ministry of Defence, on 6th September 1962, by which the petitioner was informed that he had been discharged from service as his services were no longer required; though it was added that it was on account of the reduction in the establishment, the scoring out of the words in the original of annexure ‘B’ has not been explained. The petitioners tenure of four years having already expired, his continuance was no doubt purely temporary in nature. It was really unnecessary in law to assign any reason for terminating the services of a co-temporary government servant. The allegation in the petition that there was no reduction in the establishment was, however, denied. Without prejudice to the contention that there had been no reduction in the establishment, it was urged that the petitioner could not challenge the order of termination of his services which was perfectly in accordance with the terms and conditions of his services.

7. In the rejoinder filed by the petitioner to the return filed to the petition as amended be complained that while the terms and conditions of his services were regulated by the Ministry of Defence letter dated 7th March 1957 (above referred to) the respondent had produced a long letter (R-2) which showed that the terms and conditions of service were amended from time to time. It was the duty of the respondent to have produced all the amendments made from 7th March 1957 to July 1961. He further claimed that on the expiry of 4 years of service he was granted extension for two years in view of satisfactory and diligent work. The termination of his services, before the period, as extended were over, was illegal.

8. It is indeed unfortunate that the petitioner should have been dealt with in such a manner. It is no doubt, true that in the case of a temporary government servant, his services could be discharged without giving any reason whatsoever. If, however, his services are terminated without any enquiry, and there is any stigma attached to the order of termination he could complain against such dismissal. The situation here was that in that order of termination, in spite of there having been an express column providing for the services seeing terminated on account of reduction of establishment, the said words were scored out and the petitioner was informed that his services were terminated as being no longer required. Curiously enough, when the matter went up to the Adjutant General's branch on the petitioner's representation, he was informed that his dismissal pas due to misbehavior on his part. This was a case of adding insult to injury. The mere feet that he had been informed latter that this reason namely, his misbehavior, was inadvertently mentioned, may be sufficient to shew that there was no stigma attached to the termination of his services. The question would still be different; it is whether the impugned order is discriminatory and hence invalid.

9. In the earliest communication, dated 22-8-61, the words pertaining to the reduction in the establishment having been scored out and the petitioner being expressly told that his services had been terminated because they were no longer required, one is left wondering, even now, as to the correct reason for which the petitioner's services were terminated. I am not be understood as saving that reasons are necessary to be mentioned in the matter of terminating a temporary employee's services. The negative statement in the return originally filed, to the effect that the petitioner was not discharged from service by way of punishment or penalty is hardly assuring.

10. In the return which has been filed latter, after the amendment, the following statements occurs:

“The petitioner's further contention that since there was another paid recruiter who was junior to him and had put in only one year's service, the notice of discharge should have been served on the person junior most in the service on the principle of ‘last come, first go’ is, it is respectfully submitted, entirely baseless and incorrect and is hereby denied.”

11. There has been no specific denial of the fact that there was one paid recruiter who was junior to him. Only a further legal contention was raised that the petitioner could not invoke the here fit of that principle. The return further went on to point cut that such a contention seems to have been based on the decision of the Supreme Court in G.S Ramaswamy v. The Inspector General of Police, Mysore State, Bangalore, AIR 1966 SC 175 and that the said decision had no application to the said petitioner.

12. One would have expected, at least as a measure of fairness on the part of the department towards its employees, that a positive statement would have been made, especially when shifting grounds concerning the termination were mentioned on different occasions, as to what was the real reason for the petitioner's services being discharged. However, rather surprising is the following statement in the return in the context of the reference to the petitioners complaint concerning their having been no reduction in the establishment: ‘without prejudice to this contention I say that in any event, even if there had been no reduction in the establishment, the petitioner could not challenge the order of termination of his service which was perfectly in terms of the conditions of his service.’

(emphasis added).

13. This kind of pleading only serves to increase the doubt, which one has been otherwise, about the truth of the averment that there was reduction in establishment and that was the cause of the discharge, especially when the words ‘reduction in establishment’ had been scored out in the original of Annexure ‘B’.

14. In the further return (filed later) it has been stated that the petitioner had sought to derive support from the Supreme Court decision in AIR 1966 SC 175 The petitioner does not merely seek to derive post from that decision but also the following passage occurring in Champaklal Chimanlal Shah v. Union Of India ., AIR 1964 SC 1854.

“This is tot a case where services of temporary employees are being retrenched because of the abolition of the post. In such a case a question may arise as to who should be retrenched when one out of several 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…… A question of discrimination may a rice in a case of retrenchment on account of abolition of one of several temporary posts of the same kind in one office……”

(emphasis added)

15. The above passage makes it clear that even where a temporary employee is concerned and there is a retrenchment of posts the question of discrimination can arise based upon qualification, length of service of those holding similar posts etc. The charge of discrimination based upon the rule of “last come, first go” has really not been answered in the return filed to the amended petition; on the other hand, this question. I am afraid, has been barked.

16. Citing the above said passage and also referring to Ramaswami, a Division Bench of the Mysore High Court applied the rule “last come first go” in Papanna Gowda v. State of Mysore, 1969 Ser. LR. 50 Somnath Iyer J. observed as follows:

“This exposition makes it clear that the principle of last come first go is a normal principle on the application which a reversion on account of exigencies of public servant should stand regulated.”

(emphasis added)

17. The above said principle, as has been pointed out in Ramaswami is one with which we are familiar in Industrial Law. It is not as if the said principle has to be strictly or rigidly applied. It will be open to the Government to show vis-a-vis its employees that there were reasons for deviating from the said principle. Otherwise, failing such explanation. It may lend itself to attack on the ground of discrimination. It is worth recalling that it is not necessary that while discharging a temporary employee the Government need not state any reason for discharging him. But if the discharged temporary employee specifically challenges the discharge order on the ground of his being discriminated against and supports the same by giving specific details also it will be for the employer, the Government in this case to show that there has been no such discrimination; it will be no valid or sufficient answer to merely say in such a context, that the Government had the power to terminate the services of a temporary employee. The whole matter has to be looked at from the point of view of maintenance of the rule of law as opposed to mere whim or caprice.

18. Fairless is no less a requirement of the administrative process than of a judicial. The power of the bureaucrat is obviously a power coupled with a duty — a duty which he first owes to the administration itself and then to the members of the service. The elementary fairness that is needed when dealing with those down below in the hierarchy is one which obviously sub-serves the needs of the administration itself. Such fairness is therefore, something which strengthens, not weakens the administration.

19. The principle of “last come, first go” is based on the need for such fairness; discrimination is surely hostile to fairness. It could not be stated that the application of this principle is to be confined to permanent government servants; it would apply equally to temporary government servants — with this difference, that in the case of the latter, their services can be terminated, without having to mention any reason, by giving the requisite notice. But whenever such termination is challenged on the ground of discrimination, it will be for the administration to explain, though it has no obligation to mention any reason in the notice of termination, how and in what circumstances the termination does amount to discrimination against the person concerned. This situation cannot be met by the administration taking the spacious plea that they need not meet such a challenge an the ground of discrimination because there is no compelling obligation, on its part, to give any reason for terminating the services of a temporary government employee. Like the allegation of discrimination in any other context, the allegation of discrimination which is founded on sufficient materials, and made in the context of terminating the services of a temporary government employees has to be met by making the necessary explanations. This does not amount to saying that for discharging a temporary government servant reasons have to be mentioned.

20. Article 14 and 16(1) of the Constitution give protection against discrimination in the matter of employment and employment opportunities.

21. The motives of the Government in discharging such a temporary employee may be manifold; it could be because the Government is not satisfied either with his work or integrity or both. I wish to add that even the fact of a junior or juniors being more serviceable to the administration may be relevant to a charge of discrimination. It is not necessary for this case, or even feasible to enumerate all of them. When a discharged temporary government employee challenges the termination of his employment on the ground of discrimination the above aid other reasons which show the absence of discrimination would be relevant. They could then be freely mentioned for the petitioner Invites the administration, by his challenge on the ground of discrimination, to come out with those reasons when such reasons are mentioned in that contest, it would not be correct to say that there is any stigma or aspersion being cast on the petitioner by the disclosure of these reasons for they are furnished only in order to meet the charge of discrimination. But if, on the other hand, the administration takes up the position that it need not explain why the termination took place, in spite of challenge on the ground of discrimination, because no reasons need be given for terminating the employment of a temporary government servant, it would be fair to assume that the Government has really no answer to the challenge on the ground of discrimination.

22. The petitioner had made allegations of personal hostility against Sub, Maj. Chhelu Ram, who passed the impunged order. Though such allegations were made in the appeal filed by the petitioner to the Adjutant General, such allegations were yet not expressly incorporated in the petition as originally filed; they were, however, Incorporated in the amended petition which was filed at the time of hearing; by then Sub. Maj. Chhellu Ram had retired and an affidavit from him could not therefore, be filed. He had also not been made a party to this writ petition thus enabling him to defend himself against such allegation of mala fide on his part. Hence, this ground need not detain us.

23. Quite independently of mala fide, therefore, the challenge on the ground of discrimination against the petitioner has to be considered; this is a challenge which has not even been met: the only resort was the power to terminate the services of a temporary government servant without giving reasons.

24. There was a person in the same office who was very much junior to the petitioner, for no valid or ascertainable reason the petitioner's services had been terminated. If the termination was due to reduction in the establishment it would not be possible to understand how a junior to the petitioner had been allowed to continue in that office itself. Here again the concerned departmental officials were in a difficulty, which is obvious to explain how it came about that the petitioner's services were ordered to be terminated in spite of the fact that his junior had been allowed to continue. The case for the petitioner becomes much stronger in the light of his further allegation, which again has not been contradicted that the post which the petitioner held was kept vacant and was subsequently filled up on 1-5-1962. If any error has been committed in the matter of terminating the petitioner's services, the obviously fair and right course, was to admit that an error had been committed: it was surely not to be circumvented by the kind of ineffective pleas taken in the return.

25. In the net result, the impugned order of the termination of services is set aside. The consequence of this, however, is not to reinstate the petitioner. The petitioner's tenure had been extended only till 7th March, 1962. His discharge was to be effected from 23-8-1961. All that is possible to order in this petition, therefore, is that the petitioner would be deemed to have continued in service even after 23-8-61 until 7th March, 1962. The necessary consequence of this is that he would be entitled to draw remuneration, as declared for this period.

26. In the circumstances, the writ petition is accepted to the above extent. The petitioner will be entitled to costs and counsel's fee Rs. 200/-.

27. Petition allowed.