Madhya Pradesh High Court
Smt. Gurusharan Kaur vs The State Of Madhya Pradesh on 7 February, 2017
WP-14754-2015
(SMT. GURUSHARAN KAUR Vs THE STATE OF MADHYA PRADESH)
07-02-2017
HIGH COURT OF MADHYA PRADESH JABALPUR
W.P. No.14754/2015
Smt Gurusharan Kaur
Vs.
State of M.P. and others
For Petitioner : Shri Balwant Rai, Advocate.
For Respondents No.1 : Shri Sudeep Chaterjee, PL
For Respondent No.3 : Shri Kapil Duggal, Advocate.
ORDER
(07/02/2017) Per : Sujoy Paul J.
In this petition filed under Article 226 of the Constitution, petitioner has prayed for following reliefs :-
â(i) Summon the entire relevant records from the possession of the respondents for its kind perusal.
(ii) Issue a writ of mandamus or any other writ/ writs, order, orders, direction/directions to the respondents to absorb/ appoint the petitioner against the available vacant post of Assistant Lecturer Mathematics reserved for female candidates and the impugned order dated 9.6.2015 (Annexure P/1) be pleased to be quashed and set aside.
(iii) Any other order/orders, direction/ directions which deems fit and proper may also be passed.
(iv) Award cost of the litigation to the petitioners .â
2. It is submitted by the petitioner that by order dated 9.9.2002 (Annexure P/3), petitioner was appointed on the post of Lecturer/ Assistant Professor (Mathematics) on temporary basis for a period of 59 days. The said order was extended from time to time and continued till July,2006. During this period, the petitioner received the consolidated/fixed salary from the respondents. The respondents issued the order dated 12.10.2002 (Annexure P/4) and 28.1.2003 whereby her services were extended on revised consolidated pay on temporary basis. The respondents issued another advertisement in July,2006 (Annexure P/5). The petitioner submitted her candidature pursuant to this advertisement and appeared in walk-in-interview for the post of Lecturer/ Assistant Professor (Mathematics). Based on performance of the petitioner, she was again selected and appointed to the post of Lecturer/ Assistant Professor without putting any terms and conditions of contractual appointment.
3. Shri Balwant Rai, learned counsel for the petitioner submits that petitioner continued since 9.9.2002 on temporary basis. He submits that petitioner's appointment was made on 9.9.2002, continued by subsequent orders and she was again appointed in July,2006 on temporary basis. These appointment, by no stretch of imagination, can be said to be contractual appointment. It is submitted that the impugned order is passed on the basis of certain conditions mentioned in the minutes of the meeting of Co-ordination Committee held on 26.6.2006 (Annexure R/2). By taking this court to the said conditions, it is argued by learned counsel for the petitioner that since petitioner's appointment aforesaid cannot be termed as contractual appointment, the question of petitioner's discontinuance after rendering services for more than 13 years, does not arise. Shri Rai assailed the impugned order (Annexure P/1) whereby petitioner's services are discontinued on the ground that contractual appointment cannot be continued beyond a period of three years. He submits that the fact remains that petitioner continued for more than 13 years. Hence, the singular reason assigned for terminating the services of the petitioner, is not justifiable. It is submitted that before terminating the services of the petitioner, no show-cause notice was given. He submits that the action of the respondents in terminating the services of the temporary employee and replacing her by another contractual employee, is bad in law and arbitrary in nature. He submits that since the petitioner has successfully and satisfactorily worked with the respondent for about 13 years, as per constitution bench judgment of the Supreme Court in the case of Secretary, State of Karnataka Vs. Uma Devi and others-2006(4) SCC 1, petitioner has a right to be regularized. Reliance is placed on the judgment of the Supreme Court in the case of Amarendra Kumar Mohapatra & others Vs. State of Orissa and others (Civil Appeals No.8323-8331 of 2009 decided on 19.2.2014) to contend that the petitioner's appointment, at best, could have been said as an irregular appointment. Such appointment could have been regularized in view of the principles laid down in the case of Uma Devi (supra). During the course of arguments Shri Balwant Rai submits that on the one hand petitioner's services are discontinued and on the other hand nobody has been appointed on regular basis.
4. Shri Kapil Duggal, learned counsel for the University submits that a plain reading of the order dated 9.9.2002 (Annexure P/3) and 7.7.2015 (page-33) shows that the petitioner was appointed on contract basis. In the entire body of writ petition, petitioner herself described her appointment as contractual appointment. He submits that as per the decision taken by the Co-ordination Committee (Annexure R/2), the petitioner's services were rightly discontinued. Shri Duggal submits that petitioner being a contractual employee, has no legal right to be continued nor she has a right to be regularized. Reliance is placed on a division Bench order of this Court passed in W.A.No.44/16 (Vijay Kumar Mandloi Vs. Public Health and Family Welfare Department decided on 3.8.2016-2016 SCC Online MP 3687). Shri Duggal relied in the case of B.N.Nagarajan and others Vs. State of Karnataka and others-(1979) 4 SCC 507 to contend that regularization does not give the status of permanancy. Regularization only condones the procedural irregularity and is meant to cure only such defects as are attributable to the methodology followed in making the appointment. Regularization cannot be construed so as to convey an idea of the nature of tenure of the appointments. Reliance is placed in the case of Devdutta and others Vs. State of M.P. and others-1991 Suppl(2) SCC 553 to bolster the contention that the word âabsorptionâ has a definite connotation in service jurisprudence. The question of âabsorptionâ would arise when an employee holding a different post in a different department, is brought to a different post either on deputation or by transfer and is subsequently absorbed on the said post. In that case, he becomes holder of that post and loses his lien on the parent post. He submits that necessary ingredients for seeking relief of âabsorptionâ are not satisfied/ available in the present case. In addition, Shri Duggal submits that, in fact, the respondents have issued an advertisement on 2.6.2015 to fill-up the post in question on regular basis but since nobody could be appointed on regular basis, another appointment was issued for appointing the person on contractual basis. As per this second advertisement dated 27.11.2015, Ms Garima Singh has already been appointed as contract teacher.
5. No other point is pressed by learned counsel for the parties.
6. I have heard the parties at length and perused the record.
7. Before dealing with the rival contentions, it is apt to quote the relevant portion of minutes of the Co- ordination Committee dated 26.6.2006. Clause 5 and 7 of the minutes reads as under :-
â 5. Contractual appointment should be made for a period of six months. Attempt should be made to fill the post as early as possible. In the event of non-filing of the post, the contract may be renewed for another period of six months or less. A duly constituted Assessment Committee by the Kulpati will assess the performance of the Contract Teacher for renewal of contract after one year. If the Assessment Committee does not recommend continuation, the post is to be readvertised. In no case, this arrangement would continue beyond three years and a fresh advertisement should be inserted to appoint Contract Teacher thereafter.
7. Contract Teacher will not have any right to the post when advertised and the post is to be filled in as per Roaster.â
8. A plain reading of writ petition shows that the petitioner's case is based on the judgment of Supreme Court in the case of Uma Devi (supra). Thus, before dealing with rival contentions, it is condign to quote certain paragraphs of the judgment of Uma Devi (supra), which reads as under:
â43..................Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme.
Merely because, an employee had continued under cover of an order of Court.
44. The concept of 'equal pay for equal work' is different from the concept of conferring permanency on those who have been appointed on ad hoc basis, temporary basis, or based on no process of selection as envisaged by the Rules. This Court has in various decisions applied the principle of equal pay for equal work and has laid down the parameters for the application of that principle. The decisions are rested on the concept of equality enshrined in our Constitution in the light of the directive principles in that behalf. But the acceptance of that principle cannot lead to a position where the court could direct that appointments made without following the due procedure established by law, be deemed permanent or issue directions to treat them as permanent. Doing so, would be negation of the principle of equality of opportunity.
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 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 arm's 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 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 (sic) 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.
49. â¦....................When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution.
53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA, R.N. NANJUNDAPPA and B.N. NAGARAJAN, and referred to in paragraph 15 above of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.â [Emphasis Supplied]
9. The litmus test laid down by the Supreme Court in the aforesaid judgment is : whether the person who has prayed for relief in the writ petition has any legal right to be enforced ? Existence of this right is to be tested on the anvil of Constitutional Scheme. There is no pleading or proof in this case that the petitioner was selected on contractual basis by following the recruitment rules. In other words, the appointment of the petitioner was made in consonance with the requirement of statutory recruitment rules. The petitioner has not chosen to file the relevant rules to demonstrate that she fulfilled the requirement of the said rules.
10. Another ancillary question is : whether the judgment of Uma Devi can be read in the manner suggested by the petitioner ? The contention of Shri Rai is that since the petitioner has completed more than 10 years of service, she should be regularized in the light of judgment of Uma Devi. I do not find much substance in the said contention. As noticed, the Apex Court in Uma Devi (supra), disapproved the action of the department in engaging the persons on daily rated, temporary or contractual basis de hors the recruitment rules and contrary to the constitutional Scheme flowing from Article 14 & 16 of the Constitution. However, âas an one time measureâ, it was held that irregular appointments and not illegal appointments can be regularized as per the procedure laid down by the Court. The question is as to what is the meaning of the words âas an one time measureâ. As per the stand of the petitioner, whenever the contractual/temporary employee completes 10 years service, as per judgment of Uma Devi, he/she may be regularized. I do not see any merit in this contention. This aspect is considered and decided by the Supreme Court in 2010 (9) SCC 247 (State of Karnataka and others V. M.L. Kesari and another). Para 11 of the judgment reads as under:
â11. The object behind the said direction in para 53 of Umadevi is two fold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi was rendered, are considered for regularization in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily-wage/ad- hoc/casual basis for long periods and then periodically regularize them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10.4.2006 (the date of decision in Umadevi) without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularization. The fact that the employer has not undertaken such exercise of regularization within six months of the decision in Umadevi or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularization in terms of the above directions in Umadevi as a one-time measure.â [Emphasis Supplied]
11. As per the judgment of M.L. Kesari (supra), such persons who have worked for more than 10 years as on 10.04.2006, alone have a right to be regularized if other conditions are satisfied. Thus, it is clear that completion of 10 years service is not an âon going processâ which can be followed for all times to come. If the contention of the petitioner is accepted that whenever 10 years period is completed, the right of consideration for regularization accrues, it will defeat the very purpose of issuing directions in Uma Devi to discontinue the practice of engaging daily rated/contractual employees de hors the rules and fill up the post through regular recruitment process.
12. I also find force in the contention of Shri Dugal that the petitioner herself described her appointment in the writ petition and understood it in clear terms as a âcontractual employmentâ. The relevant orders by which she was appointed are also clear and demonstrate that the same are contractual appointments. Thus in absence of any enforceable right being established, no writ of mandamus can be issued to regularize the petitioner. Hence, no case for interference is made out by the petitioner.
13. Before parting with the matter, at the cost of the repetition, I deem it proper to observe that the basic principle laid down in Uma Devi was to ensure that vacant/regular posts are filled up by adopting regular recruitment process which should be in consonance with relevant statutory recruitment rules. It should also be done by following the public policy and by adhering to the principles of fairness, transparency etc. Thus, the intention behind the said judgment is to disapprove the practice of engaging employees on contractual daily rated temporary basis and continuing them for years together. It was expected that vacant posts will be filled up through regular recruitment process. Thus, the Government or its instrumentalities must ensure that vacant posts are filled up as per the recruitment rules and one set of daily rated/contractual employees should not be substituted by another set of daily rated/contractual employees. If regular selection takes place, the petitioner/contractual employees can submit his/her candidature, if they are otherwise eligible. Thus, it will be lawful for the respondents to fill up the posts in question by regular mode of selection as per recruitment rules.
14. With the aforesaid observations, petition is disposed of.
(Sujoy Paul) JUDGE MKL/Biswal HIGH COURT OF MADHYA PRADESH JABALPUR W.P. No.14754/2015 Smt Gurusharan Kaur Vs. State of M.P. and others For Petitioner : Shri Balwant Rai, Advocate. For Respondents No.1 : Shri Sudeep Chaterjee, PL For Respondent No.3 : Shri Kapil Duggal, Advocate.
Order Post for : 07/02/2017 (Sujoy Paul) Judge (SUJOY PAUL) JUDGE Biswal