Himachal Pradesh High Court
Pooja Kumari vs State Of H.P. And Others on 3 January, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA.
CWP Nos. 1843, 1844, 2890
.
& 2905 of 2017
Reserved on: 28.12.2018
Decided on: 03.01. 2019
___________________________________________________
1. CWP No. 1843 of 2017
Pooja Kumari ...Petitioner.
Versus
State of H.P. and others. ...Respondents.
2. CWP No. 1844 of 2017
Rishu Kumari. ...Petitioner.
Versus
State of H.P. and others. ...Respondents.
3. CWP No. 2890 of 2017
Om Parkash Chauhan ...Petitioner.
Versus
State of H.P. and others. ...Respondents.
4. CWP No. 2905 of 2017
Dr. Shashi Punam ...Petitioner.
Versus
State of H.P. and others. ...Respondents.
_____________________________________________________________
Coram:
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? 1 Yes.
For the Petitioner(s): Mr. Naresh K. Sharma, Advocate, for
the petitioner(s) in CWP Nos. 1843 &
1844 of 2017.
1 Whether reporters of the local papers may be allowed to see the judgment? Yes
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2
Mr. Vinod Thakur, Advocate, for the
petitioners in CWP Nos. 2890 & 2905
of 2017.
For the Respondent(s): Mr. Vinod Thakur, Addl. A.G. with Ms.
.
Svaneel Jaswal, Dy. A.G., for respondent No.
1 in all petitions.
Mr. K. D. Sood, Sr. Advocate with Mr.
Shubham Sood, Advocate, for
respondents No. 2 to 4 in all petitions.
_________________________________________________________
Justice Tarlok Singh Chauhan, Judge:
CWP Nos. 1843 and 1844 of 2017 have been filed by the Assistant Professors, who after completion of the period of the contract are continuing under the orders of the Court. Whereas CWP Nos. 2890 and 2905 of 2017 have been filed by the candidates, who pursuant to the advertisement issued by the respondents for the post of Assistant Professors have competed but are not being selected and appointed on account of the said orders passed by this Court.
2. Ms. Pooja Kumari, Petitioner in CWP No. 1843 of 2017, was appointed as Assistant Professor in Chemistry for a period of 89 days. Earlier to that she had served as PTA Lecturer w.e.f.
23.08.2016 to 31.0.2016 and from 1.12.2016 to 31.03.2017. In between she was given break in service during winter vacation from 01.01.2017 to 10.02.2017 at the end of academic session 2016-17. She was thereafter relieved from her duties as per the decision taken by the PTA of the College.
::: Downloaded on - 03/01/2019 20:06:22 :::HCHP 33. The petitioner apprehending the cessation of employment on completion of 89 days, approached this Court and obtained .
stay order by continuing that contract employee could not be replaced by another contract employee.
4. The case of the Rishu Kumari, Petitioner in CWP No. 1844 of 2017 is no better as she volunteered to render gratuitous service in the college as is evident from the application submitted by her on 20.03.2017 (Annexure R-2), which reads thus:-
से वा म, ि ं िसपल महो , बाबा बालनाथ िड ी कॉलेज, चकमोह ! िवषय :- समाजशा व ा के पद पर आवनै ितक तौर पर काय करने की अनु मित दे ने हे तु ! ीमान जी , िवन िनवेदन यह है की म रशु कुमारी सपु ी ी काश चाँ द गां व व डाकघर चकमोह, तहसील बरसर िजला हमीरपु र की थाई िनवासी ँ ! मने िहमाचल दे श िव िव ालय िशमला से 2015 मे एम. ए. (समाजशा ) मे 66. 08 % नंबर ा िकये ! िजसमे मने तृ तीय थान (Bronze Medal) हािसल िकया ! अब म पी एच डी (समाजशा ) ोित िव ापीठ मिहला िव िव ालय, जयपु र से कर रही ँ ! जो की जुलाई 2019 मे पू ण हो जाएँ गी ! अतः महो से अनु रोध है की जब तक मेरी पी एच डी पूरी नही ं हो जाती तब तक मुझे बाबा बालनाथ िड ी कॉलेज, चकमोह मे समाजशा व ा के पद पर आवनै ितक से वाएं दान करने की अनु मित द ! आपकी महान कृपा होगी ::: Downloaded on - 03/01/2019 20:06:22 :::HCHP 4 ध ावाद Sd/-
Rishu Kumari .
Dated: 20.03.2017
5. In her case, there was no selection whatsoever, yet she managed to get stayed the interviews that were fixed on 19.08.2017 on the ground that her services could not be replaced by contractual or guest faculty lecturer.
I have heard learned counsel for the parties and have gone through the material placed on record.
6. It is more than settled that a person who enters through the back-door or side door has to leave from the same door.
Therefore, once the appointments were purely contractual then by efflux of time as envisaged in the contract itself, the same came to an end and the persons holding such posts can have no right to continue or renewal of contract of service as a matter of right. It lies best in the wisdom of the employer to grant such appointments on contract on various terms and unless the decision making process is established to be arbitrary on the face of it, the Court will be loath to exercise its extra-ordinary jurisdiction to quash such appointment of fixed term basis.
7. There is a clear distinction between public employment governed by the statutory rules and private employment ::: Downloaded on - 03/01/2019 20:06:22 :::HCHP 5 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. 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.
8. 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 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).
9. It may be noticed that the petitioners had voluntarily accepted the appointment granted to them subject to the conditions clearly stipulated in the contract or the terms of appointment. These appointments subject to the conditions have been accepted with their eyes wide open, therefore, now the petitioners cannot turn around claiming higher rights ignoring the ::: Downloaded on - 03/01/2019 20:06:22 :::HCHP 6 conditions subject to which the appointments had been accepted.
.
10. Moreover, advertising the posts, as fixed term contractual appointment initially and thereafter permitting the incumbents so appointed to continue till the age of superannuation, would amount to playing fraud with those multitude of people, who would otherwise be eligible to apply and may have skipped the employment process thinking that it is only for a temporary period or a contractual period.
11. In Secretary, State of Karnataka and others vs. Uma Devi (3) and others, (2006) 4 SCC 1, the Hon'ble Supreme Court had clearly held that the courts are not to be swayed by the consideration that the concerned person has worked for some time or for a considerable length of time as the person, who is engaged on such appointment is temporary or casual or contractual, is fully aware of the nature of his employment and having accepted such appointments with eyes open cannot turn around and claim permanency or continuation as this would create another mode of employment, which is not permissible. It is relevant to reproduce relevant observations as under:
[45] While directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the concerned person has worked for some time and in some cases for a considerable length of time. It is ::: Downloaded on - 03/01/2019 20:06:22 :::HCHP 7 not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with eyes .
open. It may be true that he is not in a position to bargain not at arms length since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succor to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other, words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the ::: Downloaded on - 03/01/2019 20:06:22 :::HCHP 8 giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time .
in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the constitution of India.
12. As a last ditch effort, learned counsel for the petitioners would then contend that they have legitimate expectation to continue in service.
13. As already observed earlier, appointments offered to the petitioners were limited one and the respondents had not at any given time offered to the petitioners that they would continue in service till perpetuity or till the date they attain the age of superannuation. It is not even the case of the petitioners that there was any uncertainty or ambiguity in the appointments made by the respondents insofar as the tenure to which they were appointed. Therefore, the question of legitimate expectation to continue in service does not arise. The petitioners at the time of entering into contractual appointment were fully aware of the consequences of appointments being contractual in nature, therefore, such a person(s) cannot invoke the theory of legitimate expectation for being continued in the post.
::: Downloaded on - 03/01/2019 20:06:22 :::HCHP 914. Identical issue has already been considered by the Constitution Bench in Uma Devi's case (supra) and it was negated .
by observing as under:
[46] Learned senior counsel for some of the respondents argued that on the basis of the doctrine of legitimate expectation, the employees, especially of the Commercial taxes Department, should be directed to be regularized since the decisions in dharwad (supra) , Piara Singh (supra) jacob, and Gujarat Agricultural University and the like, have given rise to an expectation in them that their services would also be regularized. The doctrine can be invoked if the decisions of the Administrative authority affect the person by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there have been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision- maker that they will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn {see Lord diplock in Council of Civil Service unions v. Minister for the Civil Service, national Buildings Construction Corpn. v. S. Raghunathan, and Dr. Chanchal goyal v. State of Rajasthan. There is no case that any assurance was given by the government or the concerned department while making the appointment on daily wages that the status conferred on him will not be withdrawn until some rational reason comes into existence for withdrawing it. The very engagement was against the constitutional scheme. Though, the commissioner of the Commercial taxes Department sought to get the appointments made permanent, there is no case that at the time of appointment any promise was held out. No such ::: Downloaded on - 03/01/2019 20:06:22 :::HCHP 10 promise could also have been held out in view of the circulars and directives issued by the Government after the dharwad decision. Though, there is a case that the State had .
made regularizations in the past of similarly situated employees, the fact remains that such regularizations were done only pursuant to judicial directions, either of the Administrative Tribunal or of the High Court and in some case by this court. Moreover, the invocation of the doctrine of legitimate expectation cannot enable the employees to claim that they must be made permanent or they. must be regularized in the service though they had not been selected in terms of the rules for appointment. The fact that in certain cases the Court had directed regularization of the employees involved in those cases cannot be made use of to found a claim based on legitimate expectation. The argument if accepted would also run counter to the constitutional mandate. The argument in that behalf has therefore to be rejected.
[47] 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 recognized 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 for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service commission. 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. The State cannot constitutionally make such a ::: Downloaded on - 03/01/2019 20:06:22 :::HCHP 11 promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.
15. As observed above, the petitioners having accepted the .
offer of appointment with eyes open cannot turn around by claiming higher rights ignoring the conditions subject to which the appointments had been accepted. There was no uncertainty or ambiguity in the appointments made by the respondents insofar as the tenure to which they were appointed.
16. In view of the aforesaid discussion, I find no merit in CWP Nos. 1843 and 1844 of 2017 and the same are accordingly dismissed. As regards CWP Nos. 2890 and 2905 of 2017, the same are allowed by directing the respondents to hold the interviews pursuant to the advertisement already issued by them and thereafter take the selection process to its logical end. The parties are left to bear their costs. All interim orders are vacated.
(Tarlok Singh Chauhan), Judge.
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