Himachal Pradesh High Court
Kanta Devi vs Himachal Pradesh Technical University on 16 December, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.1899 of 2019.
.
Date of decision: 16.12.2019.
Kanta Devi .....Petitioner.
Versus
Himachal Pradesh Technical University .....Respondent.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1 No For the Petitioner : Mr. Jai Ram Sharma, Advocate.
For the Respondent: Mr. Dinesh K. Thakur, Advocate.
Tarlok Singh Chauhan, Judge (Oral).
This petition has been filed for grant of the following relief:
"That the respondent may very kindly be directed to convert the services of the petitioner into contract, in the interest of justice."
2. The respondent-University was established in the year 2010 and being in its infancy, the staff regularly employed was minimum. Vide notice dated 27.02.2011, it was notified that one person was to be hired for two months on 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 18/12/2019 22:28:03 :::HCHP 2 daily wages. The petitioner applied and was accordingly appointed on daily wages for two months. Her services .
thereafter were extended upto 29.02.2012 and thereafter she was hired/converted on outsource basis with effect from 01.03.2012.
3. Meaning thereby, that ever since 01.03.2012, the petitioner has been working on outsource basis and, therefore, I really wonder how the present petition at her instance is maintainable and how this Court can direct the conversion of services of the petitioner into "contract" as prayed for by the petitioner.
4. The appointment of the petitioner was only for a period of two months and lastly extended upto 29.02.2012.
After the said date, the petitioner had no right and in fact was not working on daily wages with the respondent-University, but was working on outsource basis.
5. Similar issue came up before this Court in Sh.
Hiramani vs. State Bank of India and others, 2019 (3) Shim. L.C. 1654 and it was observed as under:
"8. Admittedly, the respondent is a State within the meaning of Article 12 of the Constitution of India and while granting employment, it requires to scrupulously ensure that the constitution mandate is followed. It is ::: Downloaded on - 18/12/2019 22:28:03 :::HCHP 3 more than settled that all eligible persons who are aspiring to secure public employment must be considered for employment to such posts through open .
competitive process or else the person appointed will have to be treated as a back door entrant.
9. In State of Haryana and others vs. Piara Singh and others, AIR 1992 SC 2130, the Hon'ble Supreme Court has deprecated back door entry into service.
10. In case of State of Himachal Pradesh vs. Suresh Kumar Verma and another, AIR 1996 SC 1565, the Hon'ble Supreme Court has held that judicial process cannot be utilised to support the mode of recruitment de hors the rules.
11. In State of U.P. and another vs. Kaushal Kishore Shukla, 1991 (1) SCC 691 and Director, Institute of Management Development, U.P. vs. Smt. Pushpa Srivastava, AIR 1992 SC 2070, the Hon'ble Supreme Court held that appointment limited by time does not confer any right to the post and on expiry of time limit, the appointment ceased automatically.
12. Adverting to the facts of the case, it would be noticed that the letter of appointment, which has been reproduced above, leaves no manner of doubt that the appointment of petitioner was a limited one. The respondents at the given time had never offered to the petitioner that he would continue in service or that his services would be regularized. Here also, it is not the case of the petitioner that there is any uncertainty or ::: Downloaded on - 18/12/2019 22:28:03 :::HCHP 4 ambiguity in the appointment made by the respondents as to the tenure on the post on which he had been appointed. The petitioner had voluntarily accepted the .
appointment granted to him subject to the condition stipulated in the appointment letter. The appointment subject to the conditions has been accepted with his eyes wide open, therefore, now he cannot turn around claiming higher rights ignoring the conditions subject to which the appointment had been accepted.
13. Similar issue has been considered in detail by me in a recent judgment bearing CWP No. 2680 of 2015, titled Kunal Brahma vs. The Board of Trustees of IRMT & others, decided on 09.07.2019, the petitioner therein was appointed as Administrator with the respondents trust purely on contract basis and thereafter his services were ordered to be terminated. It was then the petitioner approached this Court complaining that the termination of his services was illegal, violative of the principles of the Constitution of India, more particularly, Articles 14, 16, 19 and 21.
While rejecting the said contention, this Court observed as under:-
7. A careful reading of the letter of appointment leaves no manner of doubt that the appointment offered to the petitioner was a limited one. The respondents at the given time had never offered to the petitioner that he would continue in service or that his services would be regularized. It is not even the case of the petitioner that there was any uncertainty or ambiguity in the appointment made by the respondents as to the tenure on the post on which he had been appointed.
8. There is a clear distinction between public employment governed by the statutory rules and ::: Downloaded on - 18/12/2019 22:28:03 :::HCHP 5 private employment governed purely by contract. No doubt with the development of law, there has been a paradigm shift with regard to judicial review of administrative action whereby the writ court can .
examine the validity of termination order passed by the public authority and it is no longer open to the authority passing the order to argue that the action in the realm of contract is not open to judicial review. However, the scope of interference of judicial review is confined and limited in its scope. The writ court is entitled to judicially review the action and determine whether there was any illegality, perversity, unreasonableness, unfairness or irrationality that would vitiate the action, no matter the action is in the realm of contract.
9. However, judicial review cannot extend to the Court acting as an appellate authority sitting in judgment over the decision. The Court cannot sit in the arm chair of the administrator to decide whether r more reasonable decision or course of action could have been taken in the circumstances. (Refer Gridco Ltd. & Another vs. Sadananda Doloi & Ors, AIR 2012 SC 729).
10. The petitioner has failed to place before this Court any material to show that the action of the respondents is either unreasonable or unfair or perverse or irrational. As observed earlier, the service conditions of the petitioner makes it abundantly clear that petitioner had been appointed on contractual basis, that too, on a non-statutory scheme.
11. It may be noticed that the petitioner had voluntarily accepted the appointment granted to him subject to the conditions clearly stipulated in the scheme. The appointment subject to the conditions has been accepted with his eyes wide open, therefore, now the petitioner cannot turn around claiming higher rights ignoring the conditions subject to which the appointment had been accepted."
6. The factual and legal position in this case is no different from Hiramani's case (supra). A careful reading of the letter of appointment leaves no manner of doubt that the appointment offered to the petitioner was a limited one that is ::: Downloaded on - 18/12/2019 22:28:03 :::HCHP 6 for two months and automatically came to an end after expiry of period of two months. Therefore, even if, the term of .
appointment was extended by a few days or months, the same does not confer any right upon the petitioner to claim the relief(s) as sought for in this petition.
7. That apart, it is not the case of the petitioner that there was any uncertainty or ambiguity in the appointment made by the respondent as to the tenure on the post on which she had been appointed on daily wage basis. The petitioner had voluntarily accepted the appointment granted to her with her eyes wide open subject to the stipulation in the appointment letter and, therefore, cannot now turn around and claim higher rights ignoring the conditions subject to which the appointment had been accepted.
8. In view of the aforesaid discussion, I find no merit in this writ petition and the same is accordingly dismissed, leaving the parties to bear their own costs.
(Tarlok Singh Chauhan) 16 th December, 2019. Judge (krt) ::: Downloaded on - 18/12/2019 22:28:03 :::HCHP