Rajasthan High Court - Jaipur
Thomas Chandy vs Rajasthan Financial Corporation And ... on 6 April, 1998
Equivalent citations: 1998(3)WLC627, 1998(1)WLN621
Author: B.S. Chauhan
Bench: B.S. Chauhan
JUDGMENT B.S. Chauhan, J.
1. The instant writ petition has been filed for issuing a direction to the respondents to treat petitioner as having been appointed in substantive capacity with effect from 16.5.1983 or in the alternative to consider him for regularisation w.e.f. 16.5.1983 and give him seniority and other consequential benefits accordingly.
2. The factual gamut reveals that petitioner started working with the respondent corporation as a Typist on daily wages from 1980. On 14.5.1983, a test of Typists was held and his name appeared in the Select List and in pursuance of that he was issued appointment letter 16.5.1983 (Annexure. 4) which reads as under:
The following persons working on stipendary basis in the Corporation are hereby appointed on the post of Typist in the pay scale... with usual allowances on temporary basis till further orders. The services of these persons will be governed by the Rajasthan Financial Corporation. (Staff) Regulation, 1958 and annual grade increments to these persons would be available only after qualifying in stenography or passing a Graduate Examination....
(i) Shri Thomas Chandy, (2) Shri Sant Kumar Sharma, (3) Shri Rakesh Kumar.
3. Petitioner urged that he was given a notice of termination on 16.2.1985 which was challenged by him before this Court by filing S.B. Civil Writ Petition No. 473/1985 and subsequently, the notice dated 16.2.1985 was withdrawn and as a consequence the said writ petition was, also, dismissed as withdrawn. Petitioner acquired the qualification of Madhyama Visharad from Hindi Sahitya Sammelan, Prayag in December, 1985. The said qualification had been recognised as equivalent to Graduation and it was derecognised with effect from 21.4.1986. The derecognition cannot be given effect with retrospective date. So he has acquired the qualification of Graduation. As the petitioner had been appointed after following the selection process, he should be declared, firstly to having been appointed in substantive capacity, or in the alternative, after possessing the qualification he would be deemed to have been regularised with effect from the date of his initial appointment, i.e. 16.5.1983.
4. Heard Mr. Manish Singhvi, learned Counsel for the petitioner and Mr. R.P. Dave, learned Counsel for the respondents.
5. Mr. Singhvi has submitted that as petitioner had been appointed after holding a full-fledged selection, his appointment cannot be termed as temporary and he cannot be deprived of the benefit of annual grade increments and he is entitled to be considered to have been appointed in substantive capacity.
6. The petitioner was appointed on the post on temporary basis, thus, he cannot claim that he was having any right to the post, and he is to be treated as having been appointed in substantive capacity In State of U.P. and Ors. v. Kaushal Kishore Shukla , the Apex Court has categorically held as under:
Under the service jurisprudence a temporary employee has no right to hold the post and his services are liable to be terminated in accordance with the relevant service rules and the terms of contract of service.
7. In a case like the instant the Court has to be satisfied as what is the legally justiciable right of the petitioner which has been infringed and for which the petitioner can resort to the discretionary relief under Article 226 of the Constitution of India. The Supreme Court in Purshotam Lal Dingra v. Union of India , has held that "A person can be said to acquire a lien on a post only when he has been confirmed and made permanent on that post and not earlier" and further held that" a Government servant holding a post temporarily does not have any right to hold the said post." In R.K. Mishra v. U.P. State Handloom Corporation , the Apex Court has taken the same view.
8. A temporary employees has no right to hold the post and his services are liable to be terminated without assigning any reason either under the terms of the contract providing for such terminating or under the relevant statutory rules regulating the terms and conditions of temporary servants. Similarly, in Triveni Shanker Saxena v. State of U.P. and Ors. ; Commissioner of Food and Supply v. Prakash Chandra Saxena, ; Ram Chandra Tripathi v. U.P. Public Service Tribunal and Ors. ; Madhya Pradesh Hasth Shilp Vikas Nigam Ltd. v. Devendra Kumar Jain and Anr. ; and Kaushal Kishore Shukla (supra), the Apex Court has categorically held that incumbent to a post who has been given appointment on temporary basis, terminable without notice, has no right to hold the post and he is not entitled for any opportunity of hearing before his services are dispensed with as his termination does not amount to forfeiture of any legal right.
9. In Ravi S. Naik v. Union of India , the Hon'ble Apex Court has placed reliance on the observations made in Malloch v. Aberdden Corporation, 1971 (2) All E.R. 1278 wherein it has been observed as under:
A breach of procedure, whether called a failure of natural justice or an essential administrative fault cannot give him a remedy in the courts, unless behind it there is something of substance which has been lost by the failure. The Court does not act in vain.
10. In Life Insurance Corporation of India v. Raghuvendra Sheshgiri Rao Kulkarni 1998 (1) SCC 460, the Apex Court explained the differences of a permanent employee and an employee holding the post on probation and held that the services of a probationer cannot be equated with that of a permanent employee who, on account of his status, is entitled to be retained in service and his services cannot be terminated abruptly without any notice or plausible cause. "This is based on the principle that a substantive appointment to a permanent post in a public service confers substantive right to the post and the person appointed on that post becomes entitled to hold a lien on that post." However, interpreting/enforcing the terms of appointment, which provided from discharge of the said probationer from service at any time during the period of probation or extended period of probation, without any notice or without assigning any cause, the Court held that as his termination was in consonance with the terms and conditions of his appointment letter, he cannot be heard raising grievance.
11. In State of Punjab v. Surendra Singh , the Apex Court has held that the court must seek the adherence to the terms and conditions of the appointment and there is no reason why terms and conditions of appointments cannot be informed in a contract of service.
12. In Hindustan Education Society and Anr. v. K.P. Kalim S.K. Gulam Nabi, , the Apex Court has held that where the rules specifically provide for permanent appointment on probation for specific period and an employee is appointed without stipulating any condition regarding probation, the inference is to be drawn that he was not appointed in substantive capacity. In Avinash Nagra v. Sarvodaya Vidhyalaya Samiti and Ors. , the Apex Court has held that a society can terminate the services not only of a temporary employee but also of a permanent employee by giving him one month's notice or three months' pay and allowances in lieu thereof if the terms of appointment and rules so permit and such termination may be valid in a given cases even if the principles of natural justice have not been complied with.
13. In Patna University and Anr. v. Dr. Amita Tiwari, , it has been held that the appointment has to be made only in consonance with the recruitment rules. Similarly, in Union Territory of Chandigarh Administration and Ors. v. Managing Society, Goswami G.D.S.T.C, 1996 (7) SC 665, it has been held that the terms of contract must be read and enforced in consonance with the statute and not otherwise even if the contract contains the terms contrary to the statutory provisions. Similarly, in A Mahadaswaran and Ors. v. Government of Tamil Nadu and Ors. , it has been held that a person can have a legitimate expectation only in consonance with the statute and the rules framed thereunder and not in contravention of the same.
14. In this respect, three judgments of this Court have been cited at the Bar, namely, Sayed Mansoor Ali v. State of Rajasthan and Ors. 1988 (2) RLR 216; Bhanwar Lal Malwar v. State of Rajasthan and Ors. 1990 (1) RLR 576; and R.S. Rawat v. State of Rajasthan and Ors. 1993 (1) WLC 79, wherein it has been held that if the appointment had been made after due process of selection, such an appointment is to be considered as substantive even if it provided for appointment on temporary basis. While deciding those cases, reliance had been placed on various Supreme Court judgments, particularly, Baleshwar Das v. State of Uttar Pradesh ; State of Uttar Pradesh v. M.J. Siddiqui ; Ashok Gulati and Ors. v. B.S. Jain and Ors. ; and P.D. Agrawal and Ors. v. Stale of U.P. and Ors. . All the aforesaid judgments of the Supreme Court, which have been referred to and relied-upon, are on the principle of determining the seniority and the issue involved therein had been: whether the period served by an employee on temporary/officiating basis, is to be reckoned for the purpose of determining the seniority?
15. In M.J. Siddiqui (supra) the Hon'ble Supreme Court had to adjudicate upon the issue of seniority. The issue of termination of services was not involved therein and while deciding the controversy, the Hon'ble Supreme Court has observed as under:
One of the dominant question to be determined in this case is whether the appellants were appointed purely on temporary basis or in a substantive capacity though against temporary posts. In our opinion, the High Court seems to have led undue stress on the fact that the appellants were appointed on a temporary basis while over-looking the surrounding circumstances and the terms of advertisement and the rules, referred to above, under which the appellants were appointed.... In order, therefore, to determine the nature of the appointment, we have to look to the heart and substance of the matter, the surrounding circumstances, the mode, the manner and the terms of the appointment and other relevant factors. In the instant case we cannot ignore the advertisement which forms the pivotal basis...." (Emphasis added).
16. Thus, even if we apply the ratio of this judgment to determine the controversy involved in the instant case and look to the main factors as stipulated above, it cannot be said that the petitioner had been appointed on permanent basis.
17. In Baleshwar Das (supra), the Apex Court has to decide the case of struggle between various groups of engineer's for seniority. The competitive claims of seniority had been mainly between three groups of engineers belonging to Uttar Pradesh Services of the Engineers (Irrigation Branch), Graduate Engineers, directly recruited by the Public Service Commission by competitive examination, graduate engineers once appointed in number but later absorbed after consultation with the Public Service Commission and the Diploma Holders later promoted as Assistant Engineers. The Hon'ble Apex Court has observed that "order of appointment to the service is decisive." The Court further observed that if the appointment is for some indefinite duration and the appointments have been approved by the Public Service Commission, if the test prescribed have been taken and they passed it and "if probation has been prescribed and has been approved" it may be said that the post was held by the incumbent in a substantive capacity and the seniority list may be prepared in the light of the above principle.
18. The other two cases, i.e., Ashok Gulati (supra) and P.D. Agrawal (supra), also, relate to seniority between direct recruits vis a vis promotees and the issue for adjudication before the Supreme Court had been whether the services rendered by the officers in temporary capacity would be taken into consideration while fixing their seniority.
19. The law laid down by the Hon'ble Apex Court is binding on this Court and all other courts and authorities as per mandate of Article 141 of the Constitution of India. In Nand Kishore v. State of Punjab, , the Hon'ble Apex Court has explained the scope of Article 141 of the Constitution of India and observed as under:
Their Lordships decisions declare the existing law but do not invoke any fresh law, is not in keeping with the plenary function of the Supreme Court under Article 141 of the Constitution of India, for the Court is not merely the interpreter of law as existing but much beyond that. The Court, as a wing of the State is, by itself, a source of law. The law is what the Court says it is.
20. But a decision cannot be relied upon in support of a proposition that it did not decide, (vide Mittal Engineering Works (Pvt) Ltd. v. Collector of Central Excise, ; and National Insurance Corporation v. Santro Devi and Ors. ).
21. In H.H. Maharaja Dhiraj Madhav Raj Jivaji Rao Scindia Bahadur and Ors. v. Union of India , the Supreme Court observed as under:
It is difficult to regard a word, a clause or a sentence occurring in a judgment of this court, divorced from its context, as containing a full exposition of the law on a question when the question did not even fall to be answered in that judgment.
22. Similarly, in M/s Amor Nath Om Prakash and Ors. v. State of Punjab and Ors. , the Supreme Court has observed that It is needless to report the often quoted truism of Lord Halsbury that a case is only an authority for what it actually decides and not for what may seem to follow socially from it.
23. It is settled proposition of law that if an issue neither was raised argued, and a discussion by the Court after pondering over the issue in depth would not be a precedent binding on the Courts (Vide Rajpur Rauda Meha v. State of Gujarat ).
24. In Sarva Sharmik Sangh, Bombay v. Indian Hume Pipe Company Ltd., and Anr. , the Apex Court has observed that the observations made in a judgment must be understood in the facts and circumstances of that case, it cannot be treated as having any binding force if a question raised now in a case where the earlier judgment is sought to be relied upon, has neither been in issue nor considered in that judgment.
25. Similarly, in C.I.T. v. Sun Engineering Works (P) Ltd., , the Apex Court had made the following observations:
It is neither desirable nor permissible to pick out a word or a sentence from the judgment of this Court, divorced from the context of the question under consideration and treat it to be the complete 'law' declared by this Court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the question which were before this Court. A decision of this Court takes its colour from the question involved in the case in which it is rendered and while applying the decision to a later case, the courts must carefully try to ascertain the true principle laid down by the decision of this Court and not to pick out words or sentences from the judgment, divorced from consideration by this court, to support their reasonings.
26. In all the cases referred to above, the issue before the Hon'ble Supreme Court was fixing the inter se seniority of various groups of officers and in none of these cases the issue of termination of the services of the temporary employees was involved. The aforesaid judgments have no applicability and cannot provide for any guideline while determining the nature of the appointment of the petitioner in the instant case.
27. On the contrary, in Prabhat Kumar Sharma v. State of Uttar Pradesh, , the Hon'ble Supreme Court has observed that if the rules provide that even for making a temporary/ad hoc appointment a particular procedure is to be followed and it provides for inviting applications by advertisement then even the short-term/ leave vacancies have to be filled-up by inviting applications. The Apex Court has approved the Full Bench judgment of Allahabad High Court in Ku. Radha Raizada v. Committee of Management, Smt. Vidhyawati Darbari Inter College, 1994 (3) U.P.L.B.E.C. 1551, wherein it has been held that even for filling-up the short-term/leave vacancies the procedure of selection is to be followed and the advertisement of vacancies should be made atleast in two local news papers having wide circulation in that area and the candidates should be selected after they face the selection committee. The Apex Court, approved the law laid down therein as it was to ensure a fair selection and to avoid chances of nepotism and further to prevent the back-door entries. The Hon'ble Supreme Court observed as under:
With a view to allow the institute to appoint teachers on ad hoc basis so as to avoid the hardship to the students.... Such ad hoc appointments should, also be made in accordance with the procedure prescribed.... Any appointment made in transgation thereof is illegal appointment and is void and confers no right on the appointees. It is an in-built procedure to avoid manipulation and nepotism in selection and appointment of teachers by management...Public interest demands that the teachers selection must be in accordance with the procedure must be in accordance with the procedure prescribed...and for cogent and valid reasons the High Court "has held that the order will supplement the power to select and appoint ad hoc teachers as per the procedure prescribed.
28. The aforesaid quotations may give an impression that to follow the full-fledged procedure of selection for appointment even in case of temporary employment, is required only where the statutory rules provide for it. (S.B. Civil Writ Petition No. 3261 of 1994, Dr. Aruna Pandey v. Malviya Regional Engineering College, Jaipur, decided on 27.2.1998. It is not So, in fact it is the mandatory requirement of Article 16 of the Constitution of India that even for adhoc/temporary employment, the applications should be invited by the public notice. This aspect was considered by the Supreme Court in State of Haryana v. Pyare Singh, 1992 (2) SCC 118, wherein the concluding part runs as under:
(47). Thirdly, even where an adhoc or temporary employment is necessitated on account of the exigencies of administration, it should ordinarily be drawn from the employment exchange unless it cannot brook delay in which case the pressing cause must be stated on the file. If no candidate is available or is not sponsored by the employment exchange some appropriate method consistent with the requirements of Article 16 should be followed. In other words, there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly....
(49). If for any reason, an ad hoc or temporary employee is continued for a fairly long span, the authorities must consider his case for regularisation.
(Emphasis added).
29. Thus, if a person has been appointed even temporarily without following the procedure, his entry would be deemed to be by back-door and he cannot be considered for regularisation. Same inference can be drawn from the judgment of the Hon'ble Supreme Court in Raj Kishore Vishwakarma and Ors. v. Union of India and Ors. .
30. In view of the above, I am of the considered opinion that the judgments of this Court in Sayed Mansoor Ali (supra), Bhanwar Lal Malwad (supra) and R.S. Rawat (supra) run counter to the judgment of the Hon'ble Apex Court referred to above and there is no scope of giving any weightage to the said judgments, particularly after the decision in Pyara Singh (supra) and the said judgments should be considered to have impliedly been repealed by the aforesaid judgment.
31. Therefore, it cannot be hald that as the petitioner was appointed after following the selection process and preparation of the select list, he can be treated to have been appointed on substantive basis.
32. The next issue urged is that the petitioner has been working continuously since 1980, thus, he is entitled to be considered for regularisation.
33. The issue of regularisation has been considered by the Hon'ble Apex Court from time and again and the law has been laid down in very clear terms in the cases, i.e., State of Haryana and Ors. v. Piara Singh and Ors. (supra); Jacob M. Puthuparambil and Ors. v. Kerala Water Authority and Ors. ; J & K. Public Service Commission etc. v. Dr. Narinder Mohan and Ors. ; Dr. A.K. Jain v. Union of India, ; E. Ramakrishnan and Ors. v. State of Kerala and Ors. 1996 (10) SCC 656; and Ashwani Kumar and Ors. v. State of Bihar and Ors. ; and the ratio of all those judgments can be summarised to the extent that the question whether the services of certain employees appointed on ad hoc basis should or should not be regularised relates to the condition of service. This power to prescribe the conditions of service can be exercised either by making Rules under the proviso to Article 309 of the Constitution of India and in the absence of such Rules, issuing Rules/Instructions in exercise of its executive power. The court comes into the picture only to ensure observance of fundamental rights, statutory provisions, Rules and other instructions, if any, governing the conditions of service. The main concern of the Court in such matters is to ensure the Rules of Law and to see that the executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16. It also means that the State should not exploit its employees nor should it seek to take advantage of the helplessness and miserly of either the unemployed persons or the employees, as the case may be. As is often said, the State must be a model employer. It is for this reason, it is held that equal pay must be given for equal work, which is indeed one of the Directive Principles of the Constitution. It is for this very reason it is held that a person should not be kept in a temporary or adhoc status for long. A perusal of the authorities would show that appointments are as a rule to be made in accordance with statutory rules, giving equal opportunity to all the aspirants to apply for the posts and following the prevalent policy of reservation in favour of Scheduled Castes/Scheduled Tribes and other backward Classes. Whenever the employees are appointed on ad hoc basis to meet an emergent situation, every effort should be made to replace them by the employees appointed on regular basis in accordance with the relevant rules as expeditiously as possible. Where the appointment on adhoc basis has continued for long and the State has made rules for regularisation, a regularisation has to be considered in accordance with the rules. Where, however, no rules are operative, it is open to the employees to show that they have been dealt with arbitrarily and their weak position has been exploited by keeping them on ad hoc for long spell of time. However, it is a question of fact whether in the given situation, they were treated arbitrarily. In Khagesh Kumar v. Inspector General of Registration, U.P. and Ors. , the Supreme Court aid not issue direction for regularisation of those employees who had been appointed on ad hoc basis or on daily wages after the cut off date, i.e., 1.10.1986 as was mandatorily required by the provisions of U.P. Regularisation of Adhoc Appointment (On posts Outside the Purview of the Public Service Commission) Rules, 1979 and those who were not eligible under the said Rules were not given regularisation. The same view has been taken by the Supreme Court in Inspector General of Registration and Anr. v. Awadhesh Kumar and Ors. . Moreover, the above referred cases further laid down that for the purpose of regularisation, various pre-requisite conditions are to be fulfilled, i.e., the temporary/adhoc appointment of the employee should be in consonance with the statutory rules, it should not be a back-door entry. The service record of the petitioner should be satisfactory, the employee should be eligible and/or qualified for the post at the time of his initial appointment. There must be a sanctioned post against which the employee seeks regularisation and on the said sanctioned post, there must be a vacancy. Moreover, regularisation is to be made according to seniority of the temporary/ad-hoc employees. The regularisation should not be in contravention of the State Policy regarding reservation in favour of Scheduled Castes/Scheduled Tribes and other backward classes and other categories for which State has enacted any Act or framed Rules or issued any Government Order etc.
34. Similar view has been taken in Union of India v. Vishamber Dutt. ; and State of Uttar Pradesh v. U.P. Madhyamik Parishad Kshrimik Sangh . In the case of State of Himachal Pradesh v. Ashwani Kumar, , the Apex Court has held that if an employment is under a particular Scheme or the employee is being paid out of the funds of a Scheme, in case the Scheme comes to closure or the funds are not available, the Court has no right to issue direction to regularise the service of such an employee or to continue him on some other project, for the reason that "no vested right is created in a temporary employment."
35. Therefore, the only question to be considered remains whether petitioner possessed the requisite qualification for the post of typist? Admittedly, the regulation applicable herein provide that the qualification for the post of typist would be as under:
(a) Graduate knowing typing English/Hindi with a speed of 40/30 w.p.m. in English or Hindi.
(b) Secondary or equivalent knowing shorthand and typing at the speed of 80/40 w.p.m. in English and 60/30 w.p.m. in Hindi.
36. Shri Singhvi has placed reliance on the Certificate of Madhyama Visharad which the petitioner possessed and claimed that it is equivalent to Graduation. Reliance has been placed on the letter dated 21.4.1986, contained in Annexure. 18, which provides the equivalence of qualification. However, the attention of Mr. Singhvi was drawn by Mr. R.P. Dave to the contents of Annexure. 21 which is a document issued by Hindi Sahitya Sammelan, Prayag and it states that the qualification of Madhyama or other Certificate issued by the Sammelan would be equivalent to Graduation only for the purpose of certificates in Hindi level and it is not equivalent to Graduation etc. for all purposes, With this confrontation, Mr. Singhvi has fairly conceded that the petitioner's qualification cannot be treated equivalent to Graduation. However, he submitted that the conditions imposed in the appointment letter dated 16.5.1983 that annual grade increments will be available only after passing the Graduation Examination or after qualifying in Stenography, is bad and should be struck down. Mr. Dave has submitted that the Condition perfectly valid and enforceable and petitioner cannot raise this grievance. Moreover, this controversy has also been resolved by this Court while deciding S.B. Civil Writ Petition No. 3654/1989, Sant Kumar Sharma v. Rajasthan Financial Corporation, decided on 6.2.1991 wherein it has categorically been held that the condition that the annual grade increments shall be given to the employee only on the condition of passing graduation examination, cannot be considered bad. The petitioner therein had been appointed alongwith the petitioner, by the same appointment letter, therefore, no contrary view can be taken from that taken already by this Court in Sant Kumar (supra).
37. In view of the above, the writ petition is held to be devoid of any merit and is accordingly dismissed. There shall be no order as to costs.