An order of termination under R.5(1) will not be discriminatory merely because the employee was not the junior-most in the category. The appointing authority is not obligated to justify the termination before the court unless mala fides are alleged.

1. The common question of law raised in these cases is whether the mere fact that while terminating the service of a temporary Government servant governed by the Central Civil Services (Temporary Service) Rules in exercise of the power conferred under R.5 (1) of those Rules some of his juniors are retained in service, would render such action taken against the temporary servant violative of Art.14 and 16 of the Constitution of India. In Thankappan v. Sub Divisional Officer, Telegraphs, Trichur,1977 KLT. 362, a Full Bench consisting of three judges of this court has expressed the view that the retention of a junior in service while terminating the service of a senior temporary employee under R.5(1) would in normal circumstances amount to discriminatory treatment and when such action is challenged before court on the ground of violation of Art.16 of the Constitution the said plea based on arbitrary discrimination will have to be upheld unless some valid explanation is furnished by the respondent for keeping the junior in service while dispensing with the service of the senior. When these original petitions came up for hearing in the first instance before our learned brother Vadakkel, J. it was felt by the learned judge that in view of the decisions of the Supreme Court in Raj Kumar v. Union of India and others, AIR. 1975 SC. 1116 and The State of U. P. v. Ram Chandra Trivedi, AIR. 1976 SC. 2547, the aforesaid view expressed by the Full Bench of this court may require reconsideration and hence the cases were referred by the learned judge to a Division Bench. This opinion was concurred in by a Division Bench before which these cases subsequently came up for hearing and by an order of reference dated 2nd September, 1977 the Division Beach referred the original petitions to a Full Bench for consideration as to whether the matter should not be placed before a larger Bench Thereafter, these cases went before a Full Bench of three judges. The Full Bench was also prima facie of opinion that the decision in Thankappan's case requierd reconsideration and hence by order of reference dated 7121977 the cases were ordered to be posted before a Bench consisting of five Judges. That is bow the matter has come up before this larger Bench.

2. The petitioners in the five original petitions were all temporary employees working in the Posts and Telegraphs Department. Admittedly, they ware governed by the provisions of the Central Civil Services (Temporary Service) Rules, 1965 (hereinafter called the Rules). The petitioner in O. P. No. 3091 of 1974 was working as a temporary Postman attached to the Head Post Office, Quilon. By the notice Ext. P1 dated 17 61974 issued under sub-rule (1) of R.5 of the Rules the petitioner was informed that his service will stand terminated with effect from the date of expiry of a period of one month from the dale on which the notice was served on, or tendered to, him. The legality of the action taken under Ext. P1 is challenged by the petitioner on the ground that while dispensing with the services of the petitioner some of bis juniors in the category of temporary Postmen were being retained in service and that thereby the petitioner has been arbitrarily discriminated against in gross violation of Art.16 of the Constitution. The petitioner in O.P. No. 4167 of 1974 was a temporary Postman attached to the Head Post Office at Attingal. His services were terminated as per the order Ext. P3 dated 14-6-1974 issued under R.5 (1) of the Rules. The petitioner in O. P. No. 4177 of 1974 was working as a temporary Postman at Edava Sub Post Office in Attingal Sub Division. By the order Ext. P2 dated 14 61974 the service of the petitioner was terminated by the respondent under sub-rule (1) of R.5 of the Rules. The challenge in O. P. No. 4306 of 1974 is directed against the order Ext P1 dated 30-9-1974 whereby the service of the writ petitioner who was working as a temporary Telephone Operator at the Tellicherry Telephone