Rajasthan High Court - Jaipur
Smt Vineeta Chauhan And Ors vs University Of Raj And Ors on 14 November, 2013
Author: M.N. Bhandari
Bench: M.N. Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH [1] S.B. Civil Writ Petition No.12144/2012 Dr. Dinesh Vyas & Anr. Versus University of Rajasthan & Ors. [2] S.B. Civil Writ Petition No.13257/2012 Naveen Nehra Versus University of Rajasthan & Ors. [3] S.B. Civil Writ Petition No.10774/2012 Smt. Vineeta Chauhan & Ors. Versus University of Rajasthan & Ors. DATE OF ORDER : 14/11/2013 HON'BLE MR. JUSTICE M.N. BHANDARI Mr. Ashok Kumar Bhargava, for petitioner Mr. A.K. Sharma, Sr. Adv. with Mr. V.K. Sharma, for respondents
*** The petitioners are aggrieved by termination of their service vide order dated 31.03.2012.
The petitioners were engaged in Aided Centre for Studies of Social Exclusion and Exclusive Policy of UGC.
Learned counsel submits that after due selection, the petitioners were engaged under the Policy of the UGC and 80% aid was granted by the UGC for the aforesaid purpose. Vide order dated 30.03.2012, the said Project was extended. The respondents were under an obligation to continue the petitioners instead of replacing them by another set of employees. The respondents issued an advertisement to fill the posts. In view of the above, it remains nothing but replacement of one set of employees by another. It is moreso when petitioners were not ad hoc, temporary or even contractual employees but they were appointed after due process of selection and that too in the regular pay scale. The respondents have applied policy of hire and fire by replacing them with another set of employees. The impugned order may be quashed with the direction to the respondents to continue the petitioners till Policy/Project given by UGC is continued.
Learned counsel for respondents, on the other hand, submits that petitioners' appointment was for the fixed term. On expiry of term, they have no right to continue. The University is always at liberty to make appointment of new hands after issuing advertisement. It is moreso when order dated 30.03.2012 suggests to fill the posts approved by UGC. The respondents intended to fill the posts by inviting applications. The petitioners could have applied for the posts however instead of doing that, they preferred these writ petitions. It is also urged that Policy/Project may or may not operate thus continuance claimed by the petitioners would be nothing but their continuance even if Project is not alive. The aforesaid direction would not be proper because service of employees appointed on fixed term comes to end automatically with expiry of period. Accordingly, action of the respondents is justified because they cannot take action contrary to the direction of UGC while issuing order dated 30.03.2012 where University was asked to fill the posts. The obvious consequence is to issue an advertisement and fill the posts.
I have considered rival submissions made by the parties and perused the record.
Perusal of order at Annexure-4 dated 15.07.2010 reveals appointment of the petitioners on the recommendation of the selection committee. It is no doubt true that it was for a specific period. The petitioners' services were discontinued after expiry of that period. According to the respondents, no right can be claimed by an employee appointed for fixed tenure. The argument aforesaid is attractive and may apply in all circumstances except one. It is when Project or Scheme is discontinued and persons already working are terminated and not replaced by another set of employees. It is in view of judgment of Hon'ble Supreme Court in the case of State of Haryana Vs. Piara Singh, reported in (1992) 4 SCC 118. The relevant para of the said judgment is quoted hereunder:
The normal rule, of course, is regular recruitment through the prescribed agency but exigencies of administration may sometimes call for an ad hoc or temporary appointment to be made. In such a situation, effort should always be to replace such an ad hoc/temporary employee by a regularly selected employee as early as possible. Such a temporary employee may also compete along with others for such regular selection/appointment. If he gets selected, well and good, but if he does not, he must give way to the regularly selected candidate. The appointment of the regularly selected candidate. The appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an ad hoc/temporary employee.
Secondly, an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee; he must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority.
In the instant case, after selection and appointment, the petitioners worked till completion of the period. There is nothing on record to show their unsatisfactory performance or any material to indicate adverse conduct which could compel the University not to continue them in service. If petitioners are discontinued simplicitor taking note of the period of contract then there would be no illegality but it should not be with a view to replace them as aforesaid is not permissible in view of the judgment supra.
I find no purpose even to replace one set of employees with another with similar nature of selection and appointment. The replacement of one set of employees is permissible, if their initial appointment is on ad hoc, temporary or contractual basis and persons replacing are those who are selected by regular mode. The aforesaid has been explained in the case of Piara Singh (supra) and even by the Division Bench where it was held that replacement of employee by another employee of similar nature would not be permissible.
Learned counsel for respondents could not give any reason for replacement of the petitioners other than the expiry of their period of employment. In the light of the judgment in Piara Singh (supra), the action of the respondents to replace petitioners by another set of employees cannot be said to be legal. However, the respondents would continue them till the life time of the Project, Scheme or Policy. If they take decision to continue the Policy, then cannot replace petitioners by another and new set of employees. Thus present writ petitions are disposed of with the following directions:
(i) So far as challenge to the order dated 31.03.2012 is concerned, I do not find any illegality therein as termination of the petitioners is on expiry of period of contract however respondents cannot replace them by similar set of employees by issuing new advertisement. If respondents are taking new hands to run the Project, they would be under an obligation to continue the petitioners unless their services are found to be unsatisfactory or any adversity in their conduct or other circumstances which includes even their eligibility. In that event also, action may be taken after providing opportunity of hearing to the petitioners.
(ii) The conclusion of direction at No.1 would not be that respondents should continue the petitioners in all circumstances, rather they would be at liberty to discontinue the Scheme/Project and in that event, the petitioners will have no right to continue in service.
(iii) If respondents take a decision to continue the Scheme/Project and have already engaged the person in place of petitioners then aforesaid is declared to be illegal in view of judgment of Hon'ble Apex Court in the case of Piara Singh (supra).
(iv) If Project is operated by the respondents and petitioners are continued, it would be subject to satisfactory work and conduct of the petitioners.
(v) The compliance of the judgment may be made within a period of one month from the date of receipt of copy of this order.
[M.N.BHANDARI], J.
FRBOHRA/12144CWP2012.doc Certificate:
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
FATEH RAJ BOHRA, P.A.