Introduction of Permanent post and Temporary Post
What is a permanent post –
A permanent post means a post which exists without any time limit and carries with it a definite rate of pay. The appointee to a permanent post may be substantive, or on probation or on an officiating basis. When a person is appointed to a permanent post substantively there comes into existence a right known an When there is probation it implies that the civil servant is being given a trial. In Lien the case of an officiating appointment there does not come into existence the right known as lien’ and such an appointment is made when the person holding a permanent post goes on leave or the post otherwise falls vacant.
Permanent holder of a post is entitled to the protection of Article 311 no matter ic there is a stigma attached to the post or not. This is so because when a permanent holder of a post is dismissed , removed or reduced rank his right to hold the post is disturbed and whenever his right is disturbed ,Article 311 comes into play.
The question whether an appointment is of temporary character within the scope of Rule 10 (a) (i) of the Andhra Pardesh Service Rules or whether it has the incidence of permanent nature must in the ultimate analysis depend upon the specific terms of appointment. When the appointing authority makes its intention clear that tenure is temporary the Court should not attribute an intention which is expressly disclaimed by the authority when the appointment was made.
Removal from service of a permanent employee before he reaches the age of superannuation is always protected by Article 311. Even removal from service on account of physical incapacity would be covered by the provisions of Article 311.
Existence of a clear vacancy and permanent status.-
In State of Punjab v. Jagaip singh ,a Constitution bench has held that if no post was available at the time when an if no post was available at the time when an employee could be confirmed, such appointment would be void. The effect of such void appointment has been held to be conferring no legal right stating that when an order is void on the ground that the authority which made it had no power to make it cannot give rise to any legal rights.
Substantively appointed appointee to a permanent post –
A person appointed substantively to a permanent post acquires a legal right to continue in that post. This status may come to an end on
(i) Superannuation;” or
(ii) Compulsory retirement according to relevant Rules or
(iii) Abolition of that post, or
(iv) In the exigencies of public service
(v) Removal or dismissal in conformity with Article 311(2) of the Constitution
What is a temporary post.-
A temporary post is that which though carries a definite rate of pay is not for unlimited time. The tenure in the case of temporary post may for a certain period or for a year or renewable from year to year. A person may further be appointed to a temporary post on probation or substantively. When a person is appointed substantively to a temporary post there does not come into the right of “line” as is the case when the post is permanent, except when the substantive appointment is for a specified period and the ‘lien’ in such a case comes into existence only for that period. The constitutional protection guaranteed by Article 311 of the Constitution of India applies equally to temporary posts, but this is subject to certain limitations. This protection is available only in some cases. In the case of temporary posts Article 311is attracted only when the action taken is by way of punishment or in other words when the civil servant is visited by some penal consequences.
Temporary Government servant does not become permanent unless there is some rule or he is declared or appointed by the Government as permanent. Substantive appointment to a temporary post stands on the same footing as an appointment to a temporary post stands on the same footing as an appointment to a temporary post stand on probation or on officiating basis that is terminable by notice unless the service ripens into Quasi permanent service.
Article 311 applies to temporary servants.—
Article 311 of the Constitution of India applies to temporary servants when their dismissal, removal or reduction in rank way of punishment. One of the tests to find out whether an order operates as punishment is to see whether the servants had a right to hold the post. It cannot be contended that when a probationer qualifies for being absorbed in a substantive permanent appointment under Rule 24 of the Punjab Civil Service Rules, he has a right to hold the post.
It is settled beyond controversy that Article 311 of the Constitution of India makes no distinction between permanent and temporary posts. Its protection must be held to extend to all Government servants holding permanent or temporary posts or officiating in any of them. Even in the case of temporary appointment advertisement has to be issued.