Madhya Pradesh High Court
Hemant Kumar Sharma vs State Of M.P on 6 May, 2022
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 6th OF MAY, 2022
WRIT PETITION No. 2297 of 2012
Between:-
1. HEMANT KUMAR SHARMA S/O GAURI
SHANKAR SHARMA , AGED ABOUT 49 YEARS,
OCCUPATION: SERVICE ASSISTANT GRADE III,
IN OFFICE OF DISTRICT ELECTION OFFICER,
COLLECTORATE, GWALIOR, (M.P.) R/O
NAYAGANJ, ANAJ MANDI, POST LOHA MANDI,
GWALIOR (MADHYA PRADESH)
2. DAULAT RAM S/O SHRI BHAGWAN DAS , AGED
ABOUT 41 YEARS, OCCUPATION: SERVICE,
ASSISTANT GRADE-III, IN THE OFFICE OF
DISTRICT ELECTION OFFICER,
COLLECTORATE, GWALIOR, R/O OLD RESHAM
MILL, BIRLA NAGAR, GWALIOR (MADHYA
PRADESH)
3. LATA SHIVHARE D/O SHRI MURARI LAL
SHIVHARE OCCUPATION: SERVICE, ASSISTANT
GRADE-III IN THE OFFICE OF DISTRICT
ELECTION OFFICER COLLECTORATE,
GWALIOR, R/O HOUSE NO. 138, INDUSTRIAL
AREA, AARA MILL, HAZIRA, GWALIOR
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI D.S. RAGHUVANSHI - ADVOCATE)
AND
1. STATE OF M.P THROUGH THE PRINCIPAL
SECRETARY, DEPARTMENT OF GENERAL
ADMINISTRATION VALLABH BAHVAN, BHOPAL
(MADHYA PRADESH)
2. THE STATE ELECTION COMMISSION ARERA
HILLS, BHOPAL THROUGH ITS SECRETARY
(MADHYA PRADESH)
3. THE COLLECTOR CUM ELECTION OFFICER
DISTRICT GWALIOR (MADHYA PRADESH)
2
.....RESPONDENTS
(BY SHRI SHUSHANT TIWARI- GOVT. ADVOCATE)
T h is petition coming on for orders this day, t h e cou rt passed the
following:
ORDER
1. The writ petition under Article 226 of the Constitution of India had been preferred by the petitioners being aggrieved by the order dated 24/02/2012 passed by the respondent no.3, whereby the representation submitted by the petitioner in compliance of order dated 9.12.2011 passed by this Court in W.P.No.2186/2004 has been rejected.
2. Brief facts of the case are that the petitioners were engaged as Assistant Grade III for carrying out additional work during the period of Parliamentary Elections on the basis of recommendations of Departmental Selection Committee, in the year 1999, from the date of his appointment till 30/11/1999, on terms and conditions mentioned in the appointment letter dated 08/09/1999. As per offer of appointment, which is on record as engrafted in Annexure P/2, the petitioners were required to work on the basis of the need of the office, solely on temporary basis. In clause D of the said letter, it was specifically stated that in the light of the directions issued in GAD circular dated 29/07/1994 no rights would be conferred upon the petitioners to be treated as surplus and at the time of fresh appointments they will have to go through the entire process of selection as other participants and would not be entitled for direct absorption. It was further mentioned therein that they would only be entitled for inclusion of their names in B-1 list and would get priority in appointments. There was a specific mention in the terms and conditions of the appointment that it would not confer any right to the petitioners for absorption.
3Thereafter in the year 2000, 2002, 2003, 2008 the petitioners were engaged for additional work of Election Photo Identity Cards for temporary period, on same terms and conditions as enumerated in the initial appointment letter dated 08/09/1999.
3. Learned Counsel for the petitioner strenuously argued that as per the polices framed by the State Government the petitioners, who were engaged for carrying out additional work related to Parliamentary elections in the year 1999, were declared surplus employees and they were required to be given priority for absorption, but even when there were specific directions of the State Government for absorption of employees declared surplus, alike petitioners, they were not absorbed, thus there is clear violation of the policies of the State Government. It was further argued that similarly situated employees had been absorbed in various departments keeping in view the policy of the State Government in vogue. It was also contended that the petitioners in the later years were redeployed for the work related to Election photo identity cards, but their services were not absorbed. Even the representation filed pursuant to the directions of the Court in W.P. No. 2186/2004, was rejected on a wrong premise, thus prayed for setting aside the order dated 24/02/2012 rejecting the representation and absorbing the services of the petitioners on the post of Assistant Grade III treating them to be surplus.
4. Per contra learned Government Advocate submitted that the petitioners were given appointment temporarily for a period between 08/09/1999 and 30/11/1999 and after 30/11/1999 the services of the petitioners automatically came to an end. Further, the petitioners as per notification dated 29/07/1994 were not treated as surplus, hence no question arises for their absorption. It was further contended that by virtue of various Government orders, employees like 4 petitioners were only directed to be given preference at the time of selection, but were required to compete with other candidates and get selected. It was also contended that in the appointment letter it was one of the conditions that they would not be treated as surplus employees and with open eyes the petitioners had accepted the terms and conditions of the employment and as per the directions of Hon'ble Court passed in W.P. No. 2186/2004 the representation was rightly decided, thus, prayed for dismissal of the writ petition.
5. Heard the learned counsel for the parties at length and perused the record.
6. From plain reading of the terms of the initial letter of temporary appointment and other various letters, it is evident that the petitioners were having knowledge of the fact in unambiguous terms that their appointments were temporary in nature and would not confer any right to claim any permanent post/status in the department. It is not the case of the petitioners that at any point of time, during their engagement with the respondent department, a promise was held out to them that he would be absorbed as regular employee of the department.
7. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognised by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation (Legitimate Expectation means, a person may having a reasonable expectation of being treated in a certain way by administrative authorities owing to some consistent practice in the past or an express promise made by the concerned 5 authority) for being confirmed on the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Authority concerned. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent.
8. The present case falls under the said category. The initial appointment letter of the petitioners dated 08/09/1999 in clause 2 (D) laid in specific terms that as per the directions issued under circular dated 29/07/1994, the petitioners would not be treated as surplus employees from Election duties and as & when there would be fresh appointments, they will have to compete alongwith other candidates. It was also mentioned therein that they would not be entitled for direct absorption rather would be entitled only for inclusion of their names in the B-1 list and would be given priority in appointments. Lastly it was mentioned that this new appointment would not entitle them for absorption.
9. Otherwise also, the circulars on which the petitioners are relying do not come to the rescue of the petitioners. They in precise terms speaks of including names of petitioners alike employees in list B provided for surplus employees, below the employees declared as surplus and the employees engaged in census. It is an admitted position that at no point of time the petitioners were declared surplus and merely placing them under the list B-1, does not entitle them for absorption.
10. In the light of above discussion, the arguments of the petitioners that similarly situated employees had been given absorbed, is of no consequence and accordingly, the petition being sans merit is hereby dismissed, with no 6 orders as to costs.
(MILIND RAMESH PHADKE) JUDGE Pawar ASHISH PAWAR 2022.05.26 14:22:48 +05'30'