ORDER
S.K. Dubey, J.
1. The two petitioners, namely, Moolchandra Agrawal in M.P. No. 867 of 1986, and Satish Chandra Nagpal in M.P. No. 61 of 1987, in their petitions under Articles 226 and 227 of the Constitution of India, have challenged their termination orders, Annexure P/4, dated 17-6-1986, and Annexure P/2, dated 27-6-1986, respectively, passed by the Registrar, Jiwaji University, Gwalior.
2. At the request of the parties, arguments were heard analogously, as the grounds of challenge are common in both petitions, which are being disposed of by this order.
3. Material facts leading to the two petitions are thus :-- The petitioner Moolchandra Agrawal (for short, 'petitioner No. 1') was employed as an Upper Division Clerk in the Jiwaji University, Gwalior, and was the President of Jiwaji University Class HI Employees' Union (for short, the 'Union'), recognised by the University. The petitioner Satish Chandra Nagpal (for short, 'petitioner No. 2'), initially appointed as an Upper Division Cleck, was promoted on 26-9-1985 to the post of Office Assistant; at the time of termination of his services, he was a member of the Executive body of the Union. The Union put up a charter of demands by Annexure P/3 and approached the University for their redressal; having failed, the members of the Union began agitation resosrting to pen-down strike. It is said that petitioner No. 1 on 23-4-1986, 24-4-1986, 6-5-1986, 2-6-1986, 4-6-1986 and 11-6-1986 committed acts of misconducts with the Registrar and other senior officers, which are narrated in the order of termination of the services (Annexure P/4) dated 17-6-1986. Before passing the order (Annexure P/4), the Registrar of the University prepared a Note (Annexure R/8) detailing therein the various incidents and recommended to the Vice-Chancellor for dispensing with the services, with the comments that petitioner No. 1 with his associates has been indulging in serious acts of indiscipline and insubordination on occasions more than one even by resorting to violence; none of the senior officers of the University felt it safe to work in the University, and because of the havoc created by petitioner No. 1, no officer was prepared to hold an enquiry. In fact, the atmosphere was charged with extreme tension. The petitioner No. 1 and his associates by their violent acts had terrorised all the senior officers; therefore, it had become reasonably not practicable to hold an enquiry. At the same time it has become impossible to run the University without taking disciplinary action against petitioner No. 1 who is leading the indisciplined lot and is consistently generating an atmosphere of indiscipline; therefore, it has become necessary to dispense with the services of petitioner No. 1. The Vice-Chancellor (respondent No. 3 in M.P. No. 867/1986) on going through the entire record, t he note and the complaints annexed, of various officers, approved the proposal of immediately dispensing with the services of petitioner No. 1 in the interest o f the University as well as in public interest.
4. In case of petitioner No. 2, the Registrar of the University prepared a similar note (Annexure R/8) dated 26th June 1986 and recommended for immediate dispensation of his services. The Vice-Chancellor after going through t he note and papers approved the proposal of immediate termination of the services of petitioner No. 2 in the interest of the University and its discipline. After approval, the Registrar passed the order of termination dated 27-6-1986 (Annexure P/2), wherein five acts of misconducts were enumerated. Aggrieved o f this, petitioner No. 2 preferred an appeal, which was dismissed.
5. Both the petitioners after serving notices of demand, preferred the two petitions under Articles 226 and 227 of the Constitution of India for quashing of the orders being arbitrary, discriminatory, capricious and illegal o n various grounds.
6. Learned counsel for the petitioners contended that under Clause 57 of Statute No. 31 framed under Section 35 of the Madhya Pradesh Vishwavidyalaya Adhiniyam, 1973 (for short, 'the Act') the services of the petitioners could not have been terminated without following the procedure for holding enquiries as laid down in Part VI (Rules 14 to 18) of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 (for short, the 'Rules') which have been made applicable to the employees of the University by Sub-clause (3) of Clause 57 of Statute No. 31 of the Act; the termination without holding an enquiry under the garb of Rule 19(2), of the Rules is mala fide and violative of Article 14 of the Constitution of India. Next, it was contended that from Annexure R/7 in M.P. No. 867 of 1986, which is a confidential letter addressed by the Registrar to the Collector and District Magistrate, Gwalior, and the rejoinder filed in M.P. No. 61 of 1987, it is clear that it was not the two petitioners alone, but there were 10 other employees, namely, M.V. Khare, Mohan Tilyani, Smt. V. Kanhare, R.P. Katare, Dilersingh, N.D. Dewani, Vidyaram Sharma, R.P. Dixit, R.D. Tiwari and Harish Sharma, who also committed the acts of gross misconducts, e.g., insubordination, intimidation and disorderly behaviour, but no action was taken against them; therefore, the two orders deserve to be quashed for the reason of hostile discrimination against the petitioners. Besides this, it appears from other documents too, i.e., a confidential letter dated 7-5-1986 (in M.P. No. 867/1986) addressed by the Registrar to the District Magistrate, Gwalior, that in addition to the two petitioners, other employees, namely, S.K. Asthana, L.P. Prajapati and R.D. Tiwari, were also playing a leadidng role as that of petitioners by committing the alleged acts of insubordination, intimidation and disorderly behaviour, but no action was taken against them too. On the other hand, all these employees have been rewarded by giving them promotion.
7. The University in its return has raised a preliminary objection of not availing by petitioner No. 1 the alternative and efficacious remedy of appeal as provided under Clause 57 of Statute No. 31. Therefore, it was submitted that M.P. No. 867-of 1986 be dismissed. On merits of the contentions raised, it was contended that holding of an enquiry was impracticable, as there was a charged atmosphere of terror. The petitioners chose a time when either the examinations were over or were in progress and the results were to be declared. There was a fear of revenge being taken on the senior officers concerned; therefore, if the University would not have acted with despatch, educational career of thousands of students would have suffered. As regards the plea of hostile discrimination, it was contended that the employees named above merely followed the petitioners on sporadic occasions; the two petitioners formed a class of their own; the petitioner No. 1 was a spearhead and leading others on violent path, who was closely associated by petitioner No. 2. As regards others, except A.K. Garg and V.S. Palekar, it was said that they did not lead or goad, incite or compel others nor took part in violence. It was further said in respect of A.K. Garg and V.S. Palekar that they were only guilty of minor sporadic acts.
8. It would be worthwhile to mention here only that in the return or additional return the respondents did not place any material to support that t here was no hostile discrimination in their act against the petitioners. Admittedly, no action was taken against the persons who had actively participated in the incidents, as is evident from the letter (Annexure R/7), addressed to the District Magistrate, Gwalior. No material was also placed before this Court t o demonstrate that the other employees' acts were not such which would amount to gross misconducts and, therefore, action against them, except the two petitioners, was not warranted.
9. In the backdrop of the facts stated above, we now deal with the two main contentions raised in the petitions.
10. Statute No. 31 framed under Sub-clauses (d) and (n) of Section 35 of the Act deals with conditions of service for University employees. Clause 57 speaks of imposition of penalties, which is quoted in extenso:--
'57. (1) The appointing authority may, for good and sufficient reasons, impose on an employee the following penalties:
(a) Censure;
(b) recovery from his pay of the whole or part of any pecuniary loss caused by him to the University by negligence or breach of orders;
(c) withholding of increments of pay;
(d) reduction of lower time scale of pay, grade or post;
(e) compulsory retirement;
(f) removal from service;
(g) dismissal from service which shall ordinarily be a disqualification for future employment in the University.
Besides the above, the penalty of fine not exceeding rupees five may be imposed on a Class IV employee for petty carelessness, unpunctuality, idleness or similar misconduct of a minor nature.
(2) the appointing authority may institute disciplinary proceeding against an employee of the University.
(3) No order imposing any of the penalties specified in sub-paragraph (1) above other than fine shall be made except in accordance with the procedure for imposing penalties on government servant prescribed by the Madhya Pradesh Government and in force at the time the appointing authority orders an inquiry against the employee concerned.'
A bare reading of Sub-clause (3) shows that no order imposing any of the penalties specified in Sub-clause (1) shall be made except in accordance with the procedure laid down in regard to imposition of penalties on government servant prescribed by the M. P. Government. The procedure for imposing penalties on government servants has been laid down in Part VI of the Rules. Rule 14 of the Rules lays down an elaborate procedure for imposing major penalties, right from drawing up of the substance of imputations of misconduct or misbehaviour into definite and distinct articles of charge; statement of imputations of misconduct or misbehaviour in support of each article of charge, containing a statement of all relevant facts, list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained, reply, written statement, supply of copies, appointment of presenting officer, defence assistance, production of evidence by the Government in support of the charges, opportunity to cross-examine them and then production of evidence in defence, etc. Rule 15 lays down action on the enquiry report; Rule 16 speaks of procedure for imposing minor penalties; Rule 17 deals with communication of orders; Rule 18 speaks of common proceedings.
11. Rule 19 of the Rules provides for special procedure in certain cases, which is quoted below:
'19. Special procedure in certain cases. -- Notwithstanding anything contained in Rule 14 to Rule 18:
(i) where any penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge, or
(ii) where the disciplinary authority is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an inquiry in the manner provided in these rules, or
(iii) where the Governor is satisfied that in the interest of the security of the State, it is not expedient to hold any inquiry in the manner provided in these rules, the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit:
Provided that the commission shall be consulted where such consultation is necessary before any orders are made in any case under this rule.'
Rule 19 is on the pattern of Article 311 of the Constitution of India, and starts with a nonobstante clause, dispensing with the elaborate procedure of holding inquiry, contained in Rule 14 to Rule 18, in certain contingencies enumerated in Rule 19.
12. Shri J.P. Gupta, learned counsel for the respondents, placing reliance on Union of India v. Tulsiram Patel, AIR 1985 SC1416; Satyavir Singh v. Union of India, AIR 1986 SC 555 and Shivaji Atmaji Sawant v. State of Maharashtra, AIR 1986 SC 617, contended that even five officers above the Registrar were intimidated and none was ready to hold an enquiry because of the atmosphere of general indiscipline and insubordination prevailing, it was not necessary for the disciplinary authority to wait until incidents take place in which physical injury is caused to others before dispensing with the inquiry, it was the subjective satisfaction of the authority, i.e., the Registrar, whose proposal was approved by the Vice-Chancellor after going through the record, of dispensing with the inquiry, and the orders of termination of the services were rightly passed. It was contended relying on Tulsiram Patel's case (supra) Ikramuddin Ahmed Borah v. Supdt. of Police, Darrang, AIR 1988 SC 2245, that this court in a petition under Article 226 of the Constitution will not sit in judgment over the relevancy of the reasons given by the disciplinary authority for invoking Clause (b) of the second proviso to Article 311(2) of the Constitution, like a Court of first appeal, and, where two views are possible, the Court will decline to interfere.
13. The power under Rule 19, which is akin to that of the second proviso to Article 311(2) of the Constitution is in the nature of an exception, and lays down that in cases catalogued in three clauses thereof, the requirement of an inquiry can be dispensed with. It is trite as said in Tulsiram Patel's case (supra), that once the requirements of the relevant clause of the second proviso are satisfied, the services of a civil servant can be terminated without following the audi alterant partem rule. But, for that two conditions must be satisfied to sustain any action taken thereunder : (i) there must exist a situation wich renders holding of any inquiry 'not reasonably practicable', and (ii) the disciplinary authority must record in writing its reasons in support of its satisfaction. Of course, the question of practicability would depend on the existing fact-situation and other surrounding circumstances, that is to say, the question of reasonable practicability must be judged in the light of the circumstances prevailing at the date of the passing of the order. Although Clause (3) of Article 311 makes the decision of the disciplinary authority in this behalf final, such finality can certainly be tested in a Court of law and interfered with, if the action is found to be arbitrary or mala fide or motivated by extraneous considerations or merely a ruse to dispense with the inquiry. See a recent report of the apex Court in case of Jaswant Singh v. State of Punjab, AIR 1991 SC 385 and a Division Bench of this Court (Indore Bench) in Govind Sharma v. State of M. P., 1991 (2) MPJR 252.
14. The law is also crystal clear as said in Tulsiram Patel's case (supra), that a disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department's case is weak and must fail; when the satisfaction of the concerned authority is questioned in a Court of law, it is incumbent on those who support the order of termination to show that the satisfaction is based on certain objective facts and is not the outcome of the whim or caprice of the concerned officer. In the cases in hand, what impelled the respondents to dispense with the inquiry is a Note of the Registrar, the appointing authority of the petitioners, and approved by the Vice-Chancellor. From the note of the Registrar, it is evident that a number of acts on different dates and times right from 24-4-1986, have been specified. It is not clear from the record that for any of the acts of indiscipline and misbehaviour, even a show cause notice was issued, and on issuance of show cause notice the petitioners or their associates frightened, threatened or warned the officers complaining, of dire consequences. True, on 7-5-1986 a letter was sent to the District Magistrate, Gwalior, of the happenings and apprehension about the hindrances and obstructions likely to be created in the examinations; therefore, to maintain law and order, help was sought of the local administration. The other document is a report dated 6-6-1986 made by the Registrar to the Police Station Padav, Gwalior. Except these two, there is nothing. The other documents are the complaints of the officers, of the misconducts committed by the two petitioners with them.
15. In case of Chief Security Officer v. Singasan Rabi Das, AIR 1991 SC 1043, the Apex Court has ruled that an inquiry before terminating the services cannot be dispensed with on the apprehension that if the witnesses were asked to appear at a confronted enquiry they were likely to suffer personal humiliation and insults and even their family members might become targets of acts of violence. The apex Court observed that these reasons were totally insufficient in law, as there is nothing to show that if these witnesses appeared at a confronted enquiry, they are likely to suffer personal humiliation and insults. These are normal witnesses and they could not be said to be placed in any delicate or special position in which asking them to appear at a confronted enquiry would render them subject to any danger to which witnesses are not normally subjected and, hence, these grounds constitute no sufficient justification for dispensing with the enquiry.
16. Besides, not issuing charge sheet for any of the acts committed on different dates, no enquiry officer was appointed, who reported that in the prevailing circumstances of charged atmosphere, it will not be practicable to hold an enquiry. Thereforee, in our opinion, resort to exercise of power under Rule 19(ii), of the Rules was nothing but an act with an ulterior motive to get rid of the two petitioners who certainly were a headache to the respondents, as they used to espouse the cause of the employees of the Union.
17. In any case, even if it is presumed that the enquiry was not reasonably practicable, particularly in the interests of the students who appeared or were to appear in the examinations, or the results thereof were to be declared, which was not possible in the atmosphere created by the petitioners and their associates, the orders of dispensing with the services cannot be sustained because of hostile discrimination against the petitioners who were amongst the persons similarly situated. True, the University treated the two petitioners as a different class, but for achieving the end of dispensing with the enquiry on the subjective satisfaction based on the appointing authority, after forming a group, there was a 'pick and choose.' The two petitioners were not the only persons who were playing the leading role, but there were about 10 more employees who were similarly situated. The respondents did not place any material to demonstrate that the acts committed by other ten did not amount to gross misconduct, nor the acts were such for which immediate action was not required, or the acts were such which either deserved to be condoned or the penalty of dispensing with service was not warranted, after considering the existence of extenuating and mitigating circumstances, commensurating with the gravity of misconduct. Here, not only the respondents did not proceed against the said ten persons, but also promoted them, which further demonstrates abuse of power by the respondents in dispensing with the services of the petitioners.
18. Article 14 of the Constitution protects all persons from discrimination by the Legislative as well as Executive organs of the State, as defined in Article 12. Therefore, it is expected from public officials that they will discharge their duties honestly in accordance with the rule of law. This is the presumption which is heightened when the law places a discretion in higher authorities as distinguished from minor officials. By placing the two petitioners in a group and dealing with them with the drastic action, while others who also took an active part and committed acts of misconducts, were not treated alike nor proceeded against with any disciplinary action, in our opinion, the respondents have discriminated against the petitioners. Thus, the petitioners have made out a case of hostile discrimination. See Iron and Metal Traders Pvt. Ltd., Bombay v. M.S. Haskiel and Anr., AIR 1984 SC 629.
19. As regards the preliminary objection raised by the respondents of not availing the alternative statutory remedy of appeal as provided in Clause 58 of Statute No. 31, by saying that the order of termination was passed with the approval of Vice-Chancellor, and the appeal lies under Clause 58(1) to the Executive Council, and the decision of the Executive Council is further appealable under Clause 5 8 (2) to Kuladhipati, who in the present cases approved of dispensing with the services, suffice it to say, the two petitions having once been admitted and heard on merits more than once, they cannot be dismissed on the ground that the statutory remedy was not availed of. See Hirday Narain v. Income-Tax Officer, Bareilly, AIR 1971 SC 33.
20. Shri Gupta, learned counsel for the respondents, has also made an alternative submission that if the orders of termination are quashed, reinstatement be not ordered, as the petitioners have committed gross misconducts and, therefore, their reinstatement would not be expedient. Reliance was placed on Workmen of Bharat Fritz Werner (P.) Ltd. v. Bharat Fritz Werner (P.) Ltd., AIR 1990 SC 1054. On a question being asked by us whether the University would pay the back wages and compensation in lieu of reinstatement, learned counsel for the University flatly said 'No.'
21. In that situation, there is no other course except to quash the two orders of termination of the services of the petitioners. Accordingly, the termination orders (Annexure P/4 dated 17-6-1986, and Annexure P/2 dated 27-6-86) are quashed: as a consequence of that, the two petitioners shall be treated to continue in employment; they shall be reinstated and will get all benefits of seniority, promotion, increments, etc., except back wages, which the two petitioners would only be entitled (for the period from the date of termination to the date of reinstatement) on satisfying the authorities that they have not earned any income and/or have not remained gainfully employed in the period. For this we rely on Lt. Governor of Delhi v. Dharampal, AIR 1990 SC 2059; Tekraj Vasandi v. Union of India, AIR 1988 SC 469; The Managing Director, U.P. Warehousing Corporation v. Vijay Narayan, AIR 1980 SC 840 and M.P. Electricity Board v. Basant Kumar (DB), 1989 MPLJ 457 = 1989 JLJ 253.
22. In the result, the petitions are allowed as aforesaid. The outstanding amount of security deposit, if any, be refunded to the petitioners. No costs.
T.N. Singh, J.
23. While I concur in the conclusion reached by my learned brother, I would like to confine my decision to one ground only. On facts, I have no hesitation to accept the case of the University that atmosphere prevailing during the relevant period was of 'violence or of general indiscipline and insubordination' and therefore without inquiry the services of the petitioners could be validly terminated. However, in my view, the two petitioners are victims of hostile discrimination and on that ground they are entitled to succeed.
24. In the leading case of Tulsiram Patel (supra) it has been authoritatively laid down that on the sole ground that 'atmosphere of violence or of general indiscipline and insubordination prevails' there would be justification for inquiry to be dispensed with and indeed their Lordships held in that connection that, 'it is immaterial whether the concerned Government servant is or is not a party to bringing about such an atmosphere.' The fact that there was no charge-sheet issued or no inquiry officer appointed are evidently not germane to the entitlement contemplated under the test evolved in Tulsiram Patel's case (supra). My learned brother has, at para 17 of his judgment, taken the view there is scope to presume that the inquiry was not reasonably practicable, particularly in the interests of the students, who had appeared or were about to appear in the examinations. According to me, facts brought on record positively establish the entitlement claimed by the University.
25. In Ikramuddin Ahmed Borah (supra) their Lordships of the Supreme Court have held that the Court does not sit in a judgment over the relevancy of the reasons given by the Disciplinary Authority invoking Clause (b) of Article 311(2) of the Constitution. Still it was also held that if two views were possible, the Court will decline to interfere. Having taken that view the defence that witnesses were terrorised and were not available in the inquiry was accepted. But, that would not make any difference. Indeed, the 'reasons' may not be merely nonavailability of witnesses but also prevailing condition of violence, general indiscipline and insubordination. This decision was not cited in Chief Security Officer v. Singasan Rabi Das (supra), and their Lordships reached the conclusion that 'there was total absence of sufficient material or grounds for dispensing with an inquiry'. The reason given was accordingly held to be justiciable in the context, of course of the ground that witnesses were not forthcoming to depose in the inquiry and that reason was not found established for absence of sufficient material. It is not necessary for me, however, to hazard the view that there is cleavage in opinion at the highest level because in the facts of the instant case what I find is that sufficient material did exist for the Vice-Chancellor to reach reasonably at the conclusion that an atmosphere of violence or of general indiscipline and insubordination prevailed during the relevant period.
26. The undisputed position on facts is that the University staff had struck work on and from 19th June 1986. Action was taken against one petitioner terminating his services on 17-6-1986 and against another petitioner similarly on 27-6-1986. The events which led to the strike are also undisputed. The agitation which started with the Union of Class III employees of the University putting up the charter of demands fizzled out on 7-4-1986 but simmering discontent continued to prevail as is projected in the letter of the Union, Annexure R-6. It refers to the Administration of the University adopting an attitutde smacking of cruel, hostile and harmful conduct that affected University's interest. On 12-4-1986 the Registrar had to write to the Collector and he pictured therein the situation prevailing in the University. He stated that the employees were agitated and the Union was interested in keeping the agitation alive by terrorising, with the help of anti-social elements, from outside the University, the employees who were law-abiding and had not associated themselves with the agitation. That is Annexure R-8 of Misc. Petition No. 61 of 1987. However in Annexure R-9, another letter addressed by the Registrar to the Collector, there is specific and clear allegation made against the two petitioners of their creating disaffection in employees in the University and reference is also made to the acts of violence resorted to by them against officials of the University who were named.
27. It is true that the Vice-Chancellor had passed order on 16-6-1986 in respect to one petitioner (Moolchand Agarwal) and on 26-6-1986 the other petitioner (Satish Nagpal), on the Note submitted by the Registrar. But, the Vice-Chancellor made it clear that he had 'carefully gone through not only the Note but the entire record' in recording his clear opinion that 'atmosphere was surcharged with extreme tension and indiscipline' in one case and in other case that there prevailed 'climate of indiscipline and intimidation of some employees'. He approved the proposal made by the Registrar stating that action was taken in 'public interest' because 'the process of declaration of examination results -- is time bound -- tagged on to academic calendar' and that work was being hampered. About the records which were put up to the Vice-Chancellor by the Registrar, we have before us placed on records of these two cases materials to which reference is made by the Registrar in his Note. It is neither a case, therefore, of absence of material or of insufficient materials nor one on which no reasonable person could have taken the view which the Vice-Chancellor had taken in the order alluded.
28. There are materials, as pointed out in para 17 of his judgment by my learned brother, to sustain the plea of hostile discrimination about which the petitioners have complained. In the additional return filed and also arguments advanced by University's counsel, Shri Gupta, the contention pressed is that the group of persons, who were not proceeded against, form a different class and there exists an intelligible differentia for that classification. Petitioners are sought to be interdicted from invoking this Court's jurisdiction under Article 14 of the Constitution on that footing. In that connection there are two things to be noticed. Firstly, as pointed by the Constitution Bench in D.S. Nakaru, AIR 1983 SC 130, the State is required not only to satisfy the test of reasonable classification but also that there existed 'rational principle correlated to the object sought to be achieved.' It was held, 'The State (therefore) would have to affirmatively satisfy the Court that the twin tests have been satisfied.' What object was sought to be achieved by not proceeding against the other group and in rather promoting them is quite unclear and indeed, if I may say so, that action cannot be supported on the basis of any rational principle.
29. However, Tulsiram Patel's case is itself an authority for the proposition that even if the Government servant suffering punishment is deprived of the opportunity of defending himself because no inquiry is held to punish him, he would still have the remedy of invoking this Court's jurisdiction of judicial review in regard to the impugned action. At para 130 it is observed that Disciplinary Inquiry, relying on Clause (3) of Article 311, cannot be dispensed to subverse the any ulterior motive such as of avoiding the inquiry because the result thereof may be favouring the delinquent. Thus, therefore, if other group was not proceeded against bona fide and not on such anticipation that there was no case against them materials should have been forthcoming to support that stand. It is not possible to deny protection of Article 14 of the Constitution to the petitioners on the footing that the favoured group formed a separate class based on rational reasonable differentia.
30. The vice of arbitrariness is central to the concept of equality contemplated under Article 14 of the Constitution and E.P. Royappa, AIR 1974 SC 555, is an authority for that proposition. It has been held that 'State action must be based on relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant consideration because that would be denial of eqaulity,' In expounding 'dynamic concept' inhering the provision, the Court observed, it had 'many aspects and dimensions'. Of immediate relevance to the controversy is however another decision of their Lordships in Belliappa's case, AIR 1979 SC 429, to which I had an occasion to refer in a decision rendered by me at Gauhati in the case of Ranu Prava Bhattacharjee, 1986 Lab.I.C. 1675. At para 7 of the judgment in that case the Division Bench upheld petitioner's plea of hostile discrimination vis-a-vis 'the favoured candidate' on the footing that State had failed to discharge its constitutional duty to satisfy the Court that the charge was baseless. In that case petitioner's services had been terminated and she had complained to the Court that to accommodate the named person that was done. It was contended that the plea of the State that she had failed in the test held for permanent absorption was a subterfuge. State's failure to establish the contrary was held fatal.