The automatic termination of a government servant's service for overstaying leave without a reasonable opportunity of being heard violates Article 311 of the Constitution.

K. MADHAVA REDDY, J.

( 1 ) THE petitioner was appointed temporarily on 29-6-1961 under Rule 10 (a) (i) of the State and Subordinate Service rules as Surveillance worker in the nmep 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 5-5-1969 to 3-5-1969 and thereafter he extended his leave from time to time till 5-2-1973 and reported to duty on the afternoon of 5-2-1973 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 24-3-1973 which are now impugned, held that as per Rule 6 (b) under note of the Andhra pradesh Leave Rules the petitioners services are deemed to be terminated from 2-10-1969 A. N,

( 3 ) IT is contended on behalf of chepetitioner that Note to Rule 6-A (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 service on the ground of over-stay constitutes a punish ment and Inasmuch as the termination of his services has been ordered wlthou affording him an opportunity to show cause, ft is vlolatlve of Article 311 of the constitution. He also contends thai note, to Rule 6-A (b) of the Andhra Pradesh stace 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 a$ 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 Survey once Worker in the first Instance and his subesquent promotion to the post of Surveillance inspector were temporary. The initial appointment is expressly stated to be under I0 (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 temperarily 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. Rahlm. Thene 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 shews that he WES appointed on a regular basis, the petitioner con not claim that he is a permanent or a regularly appointed Surveillance Inspector.

( 5 ) MORE over 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.

( 6 ) HOWEVER, I find sufficient force in the second content/en 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 6-A (b> of the Andhra Pradesh leave Rules which reads as follows:"a temporary Government servant working under emergency provisions who remains absent from duty applying for leave or extension of leave to which he is not entitled to under the rules shall be deemed to have been dis charged 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 oif the petitioner who is a temporary went on leave for a period of leave, that is he what on leave for a period longer than irules. In fact, under theimpugned order the Consritution lays down that any removal of Government servent from service

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