Madhya Pradesh High Court
Prem Chand Yadav vs The Madhya Pradesh Madhya Kshetra ... on 27 June, 2019
HIGH COURT OF MADHYA PRADESH
1
W.P. No. 5590/2017
(Prem Chand Yadav Vs. The Madhya Pradesh Madhya
Kshetra Vidyut Vitaran Company Ltd. Thr.)
W.P. No. 667/2015
(Prem Chand Yadav Vs. The Madhya Pradesh Poorva
Kshetra Vidyut Vitaran Company Ltd. Shakti Bhawan
Jabalpur (MP)
W.P. No. 668/2015
(Pramod Kumar Shrivas vs. The Madhya Pradesh Poorva
Kshetra Vidyut Vitaran Company Ltd.Shakti Bhawan
Jabalpur (MP)
Gwalior dated, 27.06.2019
Shri MPS Raghuvanshi, Advocate for the
petitioners in W.P. No. 5590/2017, 667/2015 and W.P.
No. 668/2015.
Shri Vivek Jain, Advocate for respondents no. 2
and 3 in W.P. No. 5590/2017.
Shri K.N. Gupta Sr. Advocate with Shri Praveen Newaskar, Advocate for respondents in W.P. No. 667/2015 and W.P. No. 668/2015.
With the consent of parties matter is finally heard.
As common question involved in all the writ petitions, they are being analogously heard and decided by common order.
2. Being aggrieved by the order dated 09. 08. 2017 passed by the respondents whereby the services of the petitioner have been terminated, present petition has been filed. It is alleged that on earlier occasion, HIGH COURT OF MADHYA PRADESH 2 the petitioner's services were terminated vide order dated 15.06. 2011 assigning the reason that he was appointed on the basis of the certificate issued by the NIOS and the company came to know that the institution which has issued the certificate is not a recognized institution from the Industrial Training Institute ( for short 'ITI') and is also not affiliated with MPSCVT/NCVT. The petitioner has alleged that he has preferred another writ petition being W.P. No. 667/2015 wherein interim order is in operation. Despite the same, the impugned order has been passed whereby services of the petitioner has been terminated. The Hon'ble High Court had finally heard and decided the writ petition vide it's order dated 30.01. 2013 holding that the petitioners have fulfilled the eligibility condition because they obtained certificate from an institute of Gwalior which is duly affiliated by NIOS, a body recognized by the Central Government. It was further held that the impugned order was passed without affording any opportunity of hearing to the petitioner and relying upon Supreme Court Judgment in the case of Kumari Shrilekha Vidyarthi Vs. State of Madhya Pradesh and Ors. reported in 1991 (1) SCC 212 held that Article 14 will apply even in cases of contractual appointment and thus has quashed the impugned order with the direction to the petitioner to work. Again an order was passed whereby petitioner's services were again discontinued which forced the HIGH COURT OF MADHYA PRADESH 3 petitioner to file another writ petition before this Hon'ble Court which was registered as W.P. No. 1260/2014. The aforesaid writ petition was finally heard and decided vide order dated 8.12. 2014 and the Hon'ble High Court has disposed of the petition with the direction to the petitioner to prefer comprehensive representation along with all the relevant documents before Chief General Manager of the Respondent Company and the same was directed to be decided within a period of 30 days from the date of submission. It was further directed that it will be the duty of the authority to examine the claim of the petitioner regarding re-engagement on the principle of parity. During pendency of the petition another order dated 09.08. 2017 has been passed i.e. the order impugned which as per the petitioner is contrary to directions given on the earlier occasion by this Hon'ble Court and against the settled principle of law. The petitioner has further stated that another writ petition has been preferred being W.P. No. 667/2015 challenging the order dated 13.01. 2015 whereby in compliance of the order passed by the Hon'ble High Court in W.P. No. 1260/2014 the representation submitted by the petitioner has been rejected. Petitioner has alleged that vide order dated 24.07. 2015 an interim relief was granted by the Hon'ble High Court. The petitioner has further alleged that the Hon'ble High Court in the earlier round of litigation i.e. in W.P. No. 4223/2011 which was HIGH COURT OF MADHYA PRADESH 4 decided on 30. 01. 2013, the petitioner was found to be eligible i.e. he was fulfilling all the eligibility condition and the ITI certificate which is being submitted by the petitioner at the time of his appointment was also held to be from the recognized institution. The petitioner has alleged that respondents authorities are discontinuing services of the petitioner only on the ground that he is not fulfilling the requisite eligibility criteria and for the reasons which has been mentioned in the earlier order which was passed in the year 2011 dispensing the services of the petitioner. The same reason is again assigned by the authorities which could not have been done as it was already upheld by the Hon'ble High Court, vide its order dated 30/1/2013.
3. The petitioner has further alleged that in similar circumstances the respondents have continued services of other employees as mentioned in para 5.10 of the petition, therefore claiming parity with those employees, the petitioner's services should have been continued.
4. Challenge is made to the order dated 13.1.2015 passed by respondent No.3 whereby in compliance of the order passed by this Court in W.P. No. 1260/2014 representation submitted by the petitioner for taking back petitioner in service has been rejected. He has further submitted that earlier services of the petitioner were terminated which forced him to file a HIGH COURT OF MADHYA PRADESH 5 writ petition being W.P. No.4225/2011(S) this Hon'ble Court has allowed the Writ Petition holding that the ITI Certificate of the petitioner from the recognized institution. Now again the impugned order has been passed which is contrary to the earlier observations made by this Hon'ble Court in W.P. No.4225/11 (s). The petitioner has approached this court again by filing writ petition no. 8866/2013 (s) and permitted the petitioner to continue in services as Line Man (Samvida) and W.P. No. 8866/2013 has been disposed of with direction to decide the representation on the ground of parity
5. Per contra a detailed reply to the writ petition has been submitted by the authorities contending therein that petitioner's appointment was on contract basis and the period of contract was three years i.e. from 27.01. 2011 to 26.02. 2014 and they have terminated the services mid-away vide order dated 15.06. 2011 on the ground that ITI qualification was not from the recognized/approved institution, but the same was from National Open School. A writ petition was preferred by the petitioner being W.P. No. 4223/2011 which was allowed holding the petitioner eligible for appointment fulfilling all the requisite criteria. A writ appeal was preferred by the respondent being W.A. Nos. 181/2013 and 182/13 department which was disposed of vide order dated
5. 12. 2018 with the liberty to the respondent HIGH COURT OF MADHYA PRADESH 6 department to raise legal issues in the pending writ petition before this Hon'ble High Court. It is further contended that the petitioner's contract period has ended in the year 2014 and the company has refused to extend contract period of the petitioner.
6. Petitioner has again preferred writ petition being W.P. No. 667/2015 wherein the interim order was passed. Thereafter the petitioner was permitted to continue in compliance of the Hon'ble court's order but after the completion of the extended period, the company has refused to renew the contract period of the petitioner. The respondents have contended that the standard tenure of wire man or electrical trade as approved by the Government of India is two years or four semesters. They have submitted the syllabus which is approved by the Government of India. The certificate which has been produced by the petitioner is of one year course in Electrical Technician which is not equivalent to ITI Certificate. The petitioner's services were on contract basis and no proceedings can lie for extension of contract period as it is the prerogative of the employer whether to extend contractual period or not and accordingly has prayed for dismissal of the writ petition and affirming the order impugned.
7. A rejoinder has been filed by the petitioner. It is further alleged that the respondents have violated HIGH COURT OF MADHYA PRADESH 7 the order passed by this Hon'ble High Court and despite of the interim relief granted in favour of the petitioner they has terminated the services of the petitioner and has prayed for quashement of the impugned order.
8. Heard the learned counsel for the parties and perused the record.
9. It is not disputed that the petitioner was appointed in pursuance to the advertisement annexure P-2 wherein eligibility criteria is clearly mentioned. The present issue which has cropped up for considering is clause-2 of Annexure P-2 i.e. eligibility criteria and continuation of petitioner's services. Annexure P-3 is the appointment order of the petitioner dated 21.01. 2011 wherein it is clearly mentioned that the appointment is contractual in nature and is for a period of three years from the date of joining. Relevant paragrpah is reproduced below:-
"lanfHkZr foKkiu ds ifjizs{; esa ykbu ifjpkjd ¼lafonk½ fu;qfDr ds rgr fnukad 21&01&2011 dks vk;ksftr 'kkjhfjd n{krk ijh{kk lQyrkiwoZd mRrh.kZ fd;s tkus ij vkidks e-iz-e-{ks-fo-fo-da-fyfe] esa ykbu ifjpkjd ds in ij lafonk vk/kkj ij izkof/kd :i ls mifLFkfr fnukad ls rhu ¼3½ o"kZ ds fy, fu;qDr fd;k tkrk gSA
10. Earlier the petitioner's services were dispensed with owing to the fact that ITI certificate which the petitioner has produced at the time of his appointment is not from a recognized institution HIGH COURT OF MADHYA PRADESH 8 therefore vide order dated 15.06. 2011 the services of petitioner were put to an end. Challenge was made to the aforesaid order dated 15.06. 2011 by filing a writ petition before this Hon'ble Court which was registered as W.P. No. 4223/2011 and in interim protection was granted to the petitioner vide order dated 08.07. 2011 and the petition was finally heard and decided vide order dated 30.01. 2013. The operative part is reproduced as under:-
15.In the opinion of this court, the petitioners have fulfilled the eligibility condition because they obtain ITI certificate from an institute of Gwalior which is affiliated with NIOS, a body recognized by the Central Government. Any other narrow interpretation of eligibility condition will lead to absurdity and will create a conflict between recognized institutions of the Government. Apart from this, the impugned order Annexure P-1 is passed without affording any opportunity to the petitioner. Even in contractual matters, the principles of natural justice and Article 14 of the Constitution has a role to play. The Apex Court in Kumari Shrilekha Vidyarthi Vs. State of Madhya Pradesh and others reported in (1991) 1 SCC 212 held that Article 14 will apply even in cases of contractual appointment. Thus, impugned orders are liable to be interfered with on this ground also. For the reasons stated above, impugned orders cannot be permitted to stand and are hereby quashed. Petition are allowed. No costs.
10.The aforesaid order was put to challenge by the respondent company by filing the writ appeal being W.A. No. 181/2013 and 182/13 which was finally disposed of vide order dated 5. 12. 2018, wherein following directions have been issued:-
"When the matter is taken up for hearing, it is HIGH COURT OF MADHYA PRADESH 9 informed by learned counsel for the respondent that the appellant has already complied the impugned order, whereagaisnt, the respondent has filed a Writ Petition No. 667/2015 and Writ Petition No. 5590/2017, which are pending consideration.
Learned counsel for the appellant doe not dispute this fact; it is however, submitted that certain legal issued has been raised in present appeal, accordingly liberty is sought to raise the same before Writ Court in pending Writ Petitions and that the decision by learned Single Judge be not treated as precedent qua the legal issues"
11. In the meantime an order has been passed by the respondents on 13.01. 2015 whereby services of the petitioner were terminated for not possessing the required qualification. Again writ petition was filed by the petitioner which was registered as W.P. No. 667/2015 and an interim order dated 24. 07. 2015 was passed by the Hon'ble High Court staying the effect and operation of order dated 13.01. 2015 and under the garb of the interim order the petitioner continued to remain in services. The writ petition no. 667/2015 is pending before this Hon'ble High Court.
12. Law relating to appointment on contract basis was taken into consideration by the Division Bench of this Hon'ble High Court Principal Seat at Jabalpur being writ appeal no. 617/2015 (Brijendra Gupta v. State of M.P. and Ors.) and connected matters and the Hon'ble Division Bench considering the law laid down by the Hon'ble Supreme Court in the case of Secretary/State of Karnanataka v. Uma Devi and Ors HIGH COURT OF MADHYA PRADESH 10 reported as 2006 (4) SC page 1. Hon'ble High Court has held as under:-
Each of the appellants accepted these conditions and were fully aware that their services would be continued on contract basis only for a period of 2 years. It is a different matter that the appellants were continued in service, but, by extending contract period, their appointment nevertheless, shall remain on contract basis. No document or Regulation has been filed by the appellants and atleast brought to our notice, which may even remotely suggest that there was an agreement reached between the parties that on completion of 5 years of contractual service the concerned employee would be regularized in service. The fact that the appellants have now become over age and will not be eligible for appointment elsewhere, cannot be the basis to answer the controversy. The matter has to be answered keeping in mind that the contractual employee cannot insist for regularization in absence of policy, scheme or regulation having the backing of law and enforceable against the employer. In the present case, no such document has been brought to our notice. As a result, it is not open to this Court to issue writ to direct the respondents to regularize the appellants in service. The fact that the appellants have served the respondent/Company for almost five years, by itself, cannot be the basis to issue such direction unless it is a case of legally enforceable right which has enured in favour of the appellants. That is not the case at hand. The counsel for the appellants was at pains to point out (Annexure P-3) that it is the commitment of the respondent Company to regularize all the employees appointed on contract basis. As aforesaid, Annexure P-3 is only a vision document. It is not a document which can be enforced against the respondent Company nor it is possible to press it into service, to invoke the principle of estoppel against the respondent Company. If the appellants have suffered any loss or disability in getting future employment, it is open to the appellants to HIGH COURT OF MADHYA PRADESH 11 take recourse to the remedy as may be permissible in law for being compensated in that behalf. But, by no stretch of imagination, writ of mandamus can be issued against the respondent/Company to direct the respondent/Company to regularize the appellants in service. Law on this subject is well settled that such appointment cannot partake the colour of regular appointment, in the light of the decision of the Constitution Bench of the Supreme Court in the case of Uma Devi (supra) reported in 2006 4 SCC 1; and subsequent decisions to which learned Single Judge has already adverted to. The fact that the appellants representation has remained pending since 2013 cannot be the basis to issue writ of mandamus, as prayed. This Court can only express a sanguine hope that the appropriate Authority of the respondent Company must decide the representation made by the appellants, expeditiously, preferably within two weeks from today. Besides this, no more indulgence can be shown to the appellants Counsel for the appellants was at pains to persuade us to direct the respondents to continue the appellants till the representation is decided. We make it clear that it is not possible to issue such direction to the respondents, but it is for the respondents to consider the request of the appellants to continue the appellants until the decision on the representation or, for that matter, to extend their contractual service. That is the prerogative of the respondent Company and no direction in that behalf can be issued by this Court, in exercise of writ jurisdiction, not being an enforceable right.
As a result, we find that these appeals are devoid of merits. As a matter of fact, the appellants could not have continued in service after the expiry of the contract period, but since the appellants have been continued on the basis of the interim order passed by this Court, the respondent Company may take such steps as may be necessary keeping in mind the observations made hitherto.
The appeals are disposed of accordingly. Interim order is vacated on the above terms.
HIGH COURT OF MADHYA PRADESH 12 In view of disposal of the appeals, nothing survives for consideration in the review petitions, which were directed against the interlocutory orders passed in the appeals. Hence, disposed of
13. The Division Bench of this Hon'ble Court in the case of Brijendra Gupta and others Vs. State of M.P. & Ors. being W.A. No.617/15 has held as under:-
"It was further observed that it is settled legal position that extension of contractual term from time to time will not create any right in the employee to be continued in employment. The Division Bench has observed that after expiry of the period, the interim protection granted in ordinary course ought to expire.
Similar is the situation in the present case."
14.Admittedly the petitioner was appointed on contract basis vide order dated 21.01. 2011 for a period of three years and he continued to work after expiry of contract period on the basis of interim protection given by the Hon'ble High court. The respondent authorities have extended the contract period in compliance of the orders passed by this Hon'ble Court and not on their own but the fact remains that the reasons assigned in the impugned order that the petitioner is not fulfilling the required criteria i.e. certificate of ITI submitted by the petitioner at the time of appointment is not issued by recognized institution could not have been taken by the respondent authorities for the reason as the HIGH COURT OF MADHYA PRADESH 13 same was considered in the earlier round of litigation by the Hon'ble High Court in W.P. No. 4223/2011 and the order dated 30/1/2013 is still holding the field. Although the authorities have challenged the order of the aforesaid writ petition by filling the writ appeal and the same was disposed of granting liberty to the appellants to raise the legal questions in pending writ petition being W.P. No. 667/2015.
15. In the aforesaid situation, the reason assigned in the impugned order regarding termination of the services of the petitioner are unsustainable.
16. Thus the order dated 9/8/2017 is hereby quashed. But the petitioner's services could not be continued as that the contractual period of the petitioner's service was already over in the year 2014 but under the garb of the interim protection granted by this Hon'ble Court his services are continued by the employer. Needless to say that the law regarding period of contractual services and its intention and entitlement of an employee working on contractual basis is settled and there is no right of the employee to ask for his extension of contractual period. The Division Bench of this Court in W.A. No. 617/15 Brijendra Gupta (supra) has held that interim protection which is being given by the Hon'ble court to the contractual employee ought to have expired in ordinary course on completion of contract period.
HIGH COURT OF MADHYA PRADESH 14
17. Thus, from the aforesaid facts and circumstances and considering the legal settled position the impugned order is being quashed to the extent reason assigned for terminating services of the petitioner not fulfilling the requisite criteria, but as the petitioner has no right of extension of contract period of service as his contract period is over, the employer cannot be forced to continue the petitioner in service as the same is prerogative of the employer.
18. With the aforesaid observations the writ petition is disposed of.
ABDUR RAHMAN
2019.07.11
13:49:43 +05'30'
(Vishal Mishra)
ar Judge