Judgment

SIKRI, C.J.I. :- In this petition under Art. 32 of the Constitution, the petitioner, Madan Mohan Prasad, challenges the order of the Government of Bihar, dated January 15, 1972, terminating his services. He urges that this order violates Art. 311 (2) of the Constitution and also violates his fundamental right under Arts. 19 (1) (f) and 31 (1) of the Constitution because the order, in effect, amounts to forfeiture of the pension earned by him.

2. The relevant facts are these. In response to an advertisement in the Bihar Gazette, dated April 28, 1954, the petitioner applied for one of the posts of Munsifs. The relevant portion of the advertisement runs as follows :

"The appointment will be made for a period of one year terminable at one month s notice on either side but the candidate appointed will have prospects of being absorbed later in permanent cadre of the Bihar Civil Service (Judicial Branch)."

3. By notification dated January 5, 1955, the petitioner along with others, was appointed as a temporary Munsif. In para 2 of the notification it was stated as follows :

"These appointments have been made against the temporary posts sanctioned in Government Order No. IC-502/54A-1197 dated 9-2-1954. The term of appointment of these temporary Munsifs can be terminated at any time by either party giving notice of one month."

4. These posts have since been made permanent and the petitioner continued to serve against a permanent post till his services were terminated.

5. The petitioner, in due course, passed all the Departmental Examinations. He also passed the examination of tribal language and received Rupees 1,000/- as reward.

6. The petitioner became eligible for pension under R. 59 of the Bihar Pension Rules, 1950. It is stated under Rule 59 as follows :

"3. The State Government after careful consideration have, therefore, been pleased to decide that, if the service of the temporary or officiating Government servant who is not confirmed in any post is continuous and is more than 15 years it will be considered as pensionable under Rule 59 of the Bihar Pension Rules."

7. Under Rule 46 "no pension may be granted to a Government servant dismissed or removed, for misconduct, insolvency or inefficiency, but to Government servants so dismissed or removed compassionate allowances may be granted when they are deserving of special consideration, provided that the allowance granted to any Government servant shall not exceed two thirds of the pension which would have been admissible to him if he had retired on medical certificate."

8. In answer to a question in the Bihar Legislative Assembly relating to the petitioner the Chief Minister, Shri Kedar Pandey, stated :

"It is true that having put in 15 years of temporary service he is entitled to pension but on the other hand since his service was not satisfactory he can be removed on one month s notice. On reconsideration of the matter the Government feels that he should be served show-cause notice. Therefore the Government is reconsidering the matter."

9. In the affidavit in reply filed on behalf of the State it is stated that the petitioner remained a temporary Munsif and was not absorbed at any time in a permanent cadre and his employment all along had continued on the basis of his original appointment. It is further stated that "the petitioner s contention that he acquired a right of pension or that he was getting increments in due course, is entirely irrelevant for the purpose of determining the character of his appointment inasmuch as increments are allowable also to a person holding a temporary post, and on his own showing in certain circumstances a continuous service for 15 years might qualify the holder of a temporary post for pension."

10. With reference to the petitioner s claim that the impugned order had resulted in penal consequences, it was stated :

"The High Court and the State indeed took into consideration the quality of the petitioner s service with a view to decide whether he shou