Uttarakhand High Court
Jeewan Lal vs State Of Uttarakhand And Others on 27 July, 2021
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (S/S) No. 1040 of 2019
Jeewan Lal .....Petitioner
Versus
State of Uttarakhand and others .... Respondents
Present :
Mr. Harendra Belwal, Advocate for the petitioner.
Mr. P.C. Bisht, Addl. C.S.C. for the State of Uttarakhand.
Dated: 27th July, 2021
JUDGEMENT
Hon'ble Sharad Kumar Sharma, J.
(Via Video Conferencing) This is an admitted Writ Petition and with the consent of the learned counsel for the parties, it is being finally heard and decided on its own merit.
2. The petitioner had preferred this Writ Petition by invoking Article 226 of the Constitution of India, by filing the same before the Registry of this Court on 15th July, 2020, wherein, he has prayed for the following reliefs :-
"i. Issue a writ, order or direction in the nature of certiorari to quash the impugned order dated 25.04.2019 issued by respondent No.2 whereby representation of petitioner seeking continuation on the post of Workshop Instructor has been rejected.
ii. Issue a writ, order or direction in the nature of mandamus commanding the Respondents to allow the Petitioner to continue with his engagement on the post of Workshop Instructor Stenography in Government Polytechnic Shaktifarm without any interruption by implementing the decision taken by the Government vide G.O. dated 12.0202018 to continue the teaches appointed on contractual basis till a regularly selected candidate joins.
iii. Issue a writ, order or direction in the nature of mandamus commanding the respondents to pay regular salary to the petitioner at par to the similarly placed instructor on the principle of equal pay for equal work till he is given regular status.
iv. Issue a writ, order or direction in the nature of mandamus commanding the Respondents to pay the salary from 2 the month of January 2019 onwards and ensure to pay salary to the Petitioner in future without any interruption.
v. Issue any other order or direction which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case.
vi. Award the cost of the Petition to the present Petitioner."
3. Later on, on account of certain subsequent developments, the petitioner had preferred an Amendment Application, being Amendment Application No. 4653 of 2020, whereby, he has given a challenge to the Government Order dated 14th January, 2020, whereby, the State has taken a decision of abolishing the posts of Workshop Instructor in the Government Polytechnic Shaktifarm. It is the said Government Order, which too was put to challenge by the petitioner by virtue of seeking an appropriate amendment in the Writ Petition, which was ultimately allowed by the Coordinate Bench of this Court and the amended relief has been added thereof to the following effects :-
"iii a - Issue a writ, order or direction in the nature of certiorari and quashing the Government Order dated 14.01.2020, (Annexure No.10 to this Writ Petition).
iii b - Issue a writ, order or direction in the mandamus commanding the respondents to continue the petitioner as a Work Instructor on a Contractual basis in the Government Polytechnic, Kashipur and Government Polytechnic, Nainital."
4. In order to answer the reliefs which had been sought for by the learned counsel for the petitioner in the present Writ Petition, few facts, which are admitted by the petitioner are that the petitioner was engaged as a Workshop Instructor in the Government Polytechnic, Shaktifarm, on 4th September, 2009. Though it is not in dispute that the nature of appointment of the petitioner as given to him in 2009, was contractual in nature and it was to continue in the capacity of being a Guest Lecturer, invited from time to time for the different academic years for imparting education to the students of the Polytechnic. However, when the action was being proceeded to be taken by the respondents of discontinuance of the services of the petitioner, he preferred a Writ Petition before this Court, being Writ 3 Petition No. 445 of 2019, which was disposed of by the Coordinate Bench of this Court vide its judgment of 7th March, 2019, issuing directions to the Director, Technical Education, to decide the representation of the petitioner dated 22nd February, 2019, for the purposes of re-engaging the petitioner on a contract basis.
5. In pursuance to the direction issued by the Coordinate Bench of this Court on 7th March, 2019, the respondents have taken a decision, which is impugned in the present Writ Petition, whereby, the representation preferred by the petitioner was rejected on 25th April, 2019, and his continuance as a Workshop Instructor on contractual basis was declined to be granted by way of his re-engagement.
6. After the institution of the present Writ Petition, when the matter was considered by the Coordinate Bench of this Court, the Coordinate Bench has passed an order on 25th July, 2019, to the following effect :-
"Heard.
Admit.
Learned counsel for the State prays for and is granted four weeks' time to file counter affidavit.
Having heard learned counsel for the petitioners, and after perusal of the papers brought on record, as an interim measure, it is directed that till the regular selection is being made, petitioner shall be permitted to continue on the post of Workshop Instructor.
Interim relief application (CLMA No.6030 of 2019) stand disposed of. "
7. While admitting the Writ Petition, by way of an interim measure, the Court directed that the petitioner would continue to function on a contractual basis till the regular selection is made on the said post of Workshop Instructor.
8. The State, as against the interim order of 25th July, 2019, had preferred a Special Appeal, being Special Appeal No. 876 of 2009, State and others Vs. Jeewan Lal, and the Division Bench vide 4 its order dated 30th September, 2019, had dismissed the Special Appeal, directing thereof that the respondents to the Writ Petition may prefer a Stay Vacation Application as against the grant of an ex parte interim order.
9. As a consequence of the amendment, which was sought by the petitioner, it is being argued by the learned counsel for the petitioner that the amendment was nothing, but as a consequence and with an intention to purge the proceedings of the Contempt Petition No. 545 of 2019, Jeewan Lal Vs. Om Prakash and another, which the petitioner has initiated for the non compliance of the interim orders dated 25.07.2019, passed by the Court in the Writ Petition.
10. The amendment thus preferred by the petitioner since was allowed and the new relief was permitted to be incorporated and as it was to the effect giving a challenge to the Government Order, by virtue of which, the post of Instructor in the Government Polytechnic, was abolished. As far as the amended relief pertaining to giving challenge to the Government Order dated 4th January, 2020, by virtue of which, the post of Workshop Instructor in the Govt. Polytechnic, Shaktifarm, was abolished, I am of the view that this Government Order, is exclusively an executive direction, which is falling well within the ambit and competence of the State, to take a decision whether to continue with the post or to abolish, and the said executive direction for abolition of the post, as it has been done by the impugned Government Order No. 80/XLI-I/20-20/13 dated 14th January, 2020, the State Government took a decision, whereby, one post of Workshop Instructor was abolished, would be well within the decision making power of the State, which cannot be faulted in any manner, under law, because it is always the employer who has to determine the number of employees, which are required by him.
11. As far as the challenge given to the said Government Order by the petitioner, I am of the view that as against the aforesaid 5 Government Order, the petitioner would not be having any cause of action to challenge the same for the reason being that :-
i. the power to create or to abolish the post is a power which is exclusively conferred with the State on an executive or an administrative side to the State Government, in Government Polytechnic. Hence, it cannot be said that the action of abolition of a post is arbitrary, or without competence.
ii. The contention of the learned counsel for the petitioner that abolition of the post, is as a consequence of the filing of his Contempt Petition, is yet again not tenable for the reason being that the Contempt Petition was limited to the extent of his continuance in pursuance to the interim order passed by this Court on 25.07.2019.
12. Subsequent to abolition of the post by the Government Order, which is being put to challenge by the petitioner, the petitioner's right has to be reckoned from the perspective that the petitioner's own capacity to continue in the institution as a Workshop Instructor is that of being a contractual employee itself. The nature of appointment of the petitioner itself is limited to the terms of his appointment on contractual basis itself, which does not create any indefeasible right in favour of the petitioner to continue in service, even beyond the terms of contract of appointment.
13. Hence, in that status as a contract employee, he cannot contend that the act of abolition of the post was in deprivation of any of his legal right, which could be enforced under Article 226 of the Constitution of India. Hence, from this perspective also that since the petitioner himself was not having any legally sustainable right of continuance, since being a contractual employee, he had got no cause of action, as such to challenge the act of abolition of the post by the State vide its Government Order of 14th January, 2020. Hence, this plea of the petitioner is not sustainable and is declined to be accepted, by this Court.
614. During the course of argument, the learned counsel for the petitioner has ultimately harped upon to press his relief from the perspective that in the other Govt. Polytechnics, there are available vacancies of Workshop Instructors, against which, the petitioner could be adjusted, by their placement in those Government Polytechnic where the vacancies on the post of Workshop Instructors exists.
15. First of all, this relief does not fall to be within the ambit of consideration in the Writ petition because, it falls to be outside the purview of the Writ Petition itself, and as per the judgments of the Hon'ble Apex Court as reported in (2006) 6 SCC 666, Anup Kumar Kundu Vs. Sudip Charan Chakraborty and others, and (2010) 1 SCC 234, Bharat Amratlal Kothari and another Vs. Dosukhan Samadkhan Sindhi and others, which provides that the High Court, while deciding the Writ Petition under Article 226 of the Constitution of India, cannot travel beyond the controversy raised before it or beyond the relief, which has been claimed in the Writ Petition. Paragraph 29, 30, 33, 34, 36, 37 and 42 of the judgment of Bharat Amaratlal Kothari (Supra) are extracted hereunder :-
"29. The approach of the High Court in granting relief not prayed for cannot be approved by this Court. Every petition under Article 226 of the Constitution must contain a relief clause. Whenever the petitioner is entitled or is claiming more than one relief, he must pray for all the reliefs. Under the provisions of the Code of Civil Procedure, 1908, if the plaintiff omits, except with the leave of the court, to sue for any particular relief which he is entitled to get, he will not afterwards be allowed to sue in respect of the portion so omitted or relinquished.
30. Though the provisions of the Code are not made applicable to the proceedings under Article 226 of the Constitution, the general principles made in the Civil Procedure Code will apply even to writ petitions. It is, therefore, incumbent on the petitioner to claim all reliefs he seeks from the court. Normally, the court will grant only those reliefs specifically prayed by the petitioner. Though the court has very vide discretion in granting relief, the court, however, cannot, ignoring and keeping aside the norms and principles 7 governing grant of relief, grant a relief not even prayed for by the petitioner.
33. Though a High Court has power to mould reliefs to meet the requirements of each case, that does not mean that the draftsman of a writ petition should not apply his mind to the proper relief which should be asked for and throw the entire burden of it upon the court.
34. It is relevant to notice that the High Court was not exercising powers under Article 226 of the Constitution suo motu but was examining the validity of order passed by the Additional Chief Judicial Magistrate refusing to grant custody of goats and sheep to the respondent Nos. 1 to 6, in the Special Criminal Application, which was filed by them under Article 226 of the Constitution through a were represented by a senior counsel practicing in the Gujarat High Court and having regard to the facts of the case, the learned lawyer was justified only in claiming those reliefs to which reference is made earlier.
36. A fair reading of the petition makes it more than clear that no factual data whatsoever was laid by the respondent Nos. 1 to 6 for claiming compensation from the appellant No. 1. No facts were mentioned as to in which manner they or any of them had suffered damage or loss because of the handing over of custody of goats and sheep to the appellant No. 1 and ultimately to the respondent No. 8 Panjarapole situated at Patan nor the appellant No. 1 was permitted to controvert that in fact no damage or loss was suffered by the respondent Nos. 1 to 6 or any of them.
37. There is no manner of doubt that the High Court was too indulgent in this matter. After all, it was not a petition from a person languishing in jail or from a bonded labourer or a party in person or public spirited citizen seeking to bring a gross injustice to the notice of the court. Here, the High Court had before it the respondent Nos. 1 to 6 as petitioners. The question whether the respondent Nos. 1 to 6 suffered damage or loss because of handing over of goats and sheep to the appellant No. 1 and/or to the respondent No. 8, depends upon facts to be proved. Normally, such an exercise cannot be undertaken in a writ filed under Article 226 of the Constitution.
42. Having regard to the totality of the facts and circumstances emerging from the record of the case, this Court is of the firm opinion that there was no justification at all in directing the appellant No. 1 to pay a sum of Rs.75,000/- towards compensation and cost to each of the respondent Nos. 1 to 6 and to pay to the respondent No. 8 herein the cost of maintenance and treatment of the animals in question on behalf of the respondent Nos. 1 to 6. Therefore, this direction is also liable to be set aside."8
16. Hence, no direction as such could be issued to the respondents, to adjust the petitioner against the vacant post of Workshop Instructor, which is otherwise available in other Government Polytechnics, which is exclusively falling within the exclusive administrative domain of those Government Polytechnics.
17. There is another reason for not to accept the plea of the petitioner to adjust him, against the other vacant posts available in the Government Polytechnic, and it is on the ground that, as already observed above, the petitioner's appointment as Workshop Instructor, though made in 2021, was on a contractual basis and he would not carry any lien as such to continue to work, against the sanctioned cadre strength of the Workshop Instructor, which otherwise stood abolished by the impugned Government Order dated 14th January, 2020, and as the consequence of the abolition of the post, will not amount to that his discontinuance in service was taking a shape of retrenchment, whereby, he could be adjusted in the other Govt. Polytechnics, as it has been prayed for, to bring it within the purview of Industrial Law, of absorption of retrenched employee.
18. In these eventualities and the circumstances prevailing under the factual backdrop, which had been as already dealt with above, since the petitioner has got no legally enforceable right, as his contractual appointment, would be specifically governed by the terms of the contract of appointment, the relief as sought for challenging the Government Order dated 14th January, 2020, and for the issuance of writ of mandamus for continuance of the petitioner, on a contractual basis as against the vacant post of the cadre strength of other Govt. Polytechnics, cannot be passed or rendered in the Writ Petition.
19. Consequently, the Writ Petition lacks merit and the same is accordingly dismissed.
(Sharad Kumar Sharma, J.) 27.07.2021 Shiv