Himachal Pradesh High Court
Joginder Pal Son Of Shri Prem Dass vs Baba Balak Nath Temple Trust Deoth Sidh ... on 14 October, 2015
Author: P.S. Rana
Bench: P.S. Rana
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CWP No. 2039 of 2012
.
Order Reserved on 17th September, 2015
Date of Order 14th October, 2015
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Joginder Pal son of Shri Prem Dass ....Petitioner
Versus
Baba Balak Nath Temple Trust Deoth Sidh and others
....Non-petitioners
of
________________________________________________________
Coram
The Hon'ble Mr. Justice P.S. Rana, J.
rt Whether approved for reporting?1 Yes.
______________________________________________________________ For the Petitioner: Mr. Bhuvnesh Sharma, Advocate.
For Non-petitioners: Mr. K.D. Sood, Sr. Advocate with Mr. Sanjeev Sood, Advocate.
_____________________________________________________________ P.S. Rana, Judge Order Present civil writ petition is filed under Article 226 of the Constitution of India.
2. Brief facts of the case as pleaded are that in the month of April 1992 petitioner Joginder Pal qualified M.A. in English. On 5.7.2001 petitioner was initially appointed as Lecturer (English) in Baba Balak Nath College. Thereafter appointment on contract basis made from time to time till the academic session 2004-05. Thereafter w.e.f. 2005 to November 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 19:12:08 :::HCHP 22009 petitioner's nomenclature was changed from contract basis to guest faculty. Thereafter again in the month of December .
2009 petitioner was appointed on contract basis. Petitioner has sought the relief that non-petitioners be directed to regularise the services of petitioner w.e.f. completion of eight years of service with all consequential benefits.
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3. Per contra response filed on behalf of the non-
petitioners pleaded therein that Baba Balak Nath Senior Secondary School is not a State or authority as defined under rt Article 12 of Constitution of India. It is pleaded that Senior Secondary school is run by Trust which is created under the provision of H.P. Hindu Public Religious Institutions Charitable Endowment Act 1984. It is pleaded that Trust is not aided school and Managing Committee constituted by the Trust is managing the affairs of school. It is pleaded that offerings of deity are spent by the non-petitioners for running Institutions and other activities of Trust. It is pleaded that no aid is provided from the State Government. It is pleaded that an amount of ` 7.50 crores is annually spent for its employees. It is pleaded that petitioner was appointed purely on contractual basis w.e.f. 2001 to February 2005 and thereafter petitioner was appointed on guest faculty basis till 22.12.2009. It is pleaded that petitioner has served the ::: Downloaded on - 15/04/2017 19:12:08 :::HCHP 3 Institution on period basis teacher w.e.f. 4.7.2005 to 22.12.2009.
It is pleaded that contractual appointment did not confer any .
right for regularisation of service. It is pleaded that petitioner has not completed the normal period of eight years of contractual service for regularisation. Prayer for dismissal of civil writ petition sought.
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4. Petitioner filed rejoinder and re-asserted the allegations made in civil writ petition.
5. Court heard learned Advocate appearing on behalf of rt the petitioner and learned Advocate appearing on behalf of the non-petitioners and Court also perused the entire record carefully.
6. Following points arise for determination in this civil writ petition:-
Point No.1 Whether civil writ petition filed under Article 226 of Constitution of India is liable to be accepted as mentioned in memorandum of grounds of civil writ petition?Point No. 2
Final Order.::: Downloaded on - 15/04/2017 19:12:08 :::HCHP 4
Findings upon point No. 1 with reasons
7. Submission of learned Advocate appearing on behalf .
of the petitioner that petitioner has worked as whole time on contract basis w.e.f. 2001 to 2009 and he is legally entitled for regularisation of service after completion of eight years service is rejected being devoid of any force for the reasons hereinafter mentioned. It is proved on record that petitioner has worked as of whole time on contract basis w.e.f. 2001 to February 2005 and it is proved on record that thereafter petitioner has worked on rt guest faculty basis w.e.f. 2005 to 2009. Court has carefully perused the contract agreement executed between the petitioner and Baba Balak Nath Temple Trust placed on record.
There is special condition in agreement that contractual appointment would not confer any right to the petitioner for regularisation of service at any stage of case. Petitioner has signed the contractual agreement executed between the petitioner and Baba Balak Nath Temple Trust voluntarily being highly educated person as post graduate in English subject. It is not the case of petitioner that conditions of contractual agreement were not in knowledge of petitioner when he joined the services. Petitioner is Post Graduate in English and contractual agreement is also written in English language. Court is of the opinion that petitioner has voluntarily admitted the ::: Downloaded on - 15/04/2017 19:12:08 :::HCHP 5 terms and conditions of contractual agreement at the time of his appointment. Court is of the opinion that no party can be allowed .
to flout the terms and conditions of contractual agreement executed inter se the parties at the time of appointment. In view of the fact that petitioner has voluntarily agreed in contractual agreement placed on record that petitioner would not claim any of right for regularisation of service at any stage Court is of the opinion that contractual agreement executed by the petitioner in sound state of mind is binding upon him. It was held in case rt reported in AIR 1992 SC 1685 titled State of Gujarat and another vs. P.J. Kampavat and others that if person is appointed purely on contractual basis on specific expressed condition that he would be liable to be terminated without notice and without giving reason and his tenure would be for limited period then he would not be liable to absolve permanently.
8. Submission of learned Advocate appearing on behalf of petitioner that factually the petitioner has worked as whole time contract basis w.e.f. 2005 to 2009 but his nomenclature was illegally changed from contractual basis to guest faculty and on this ground civil writ petition be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. The fact whether petitioner has worked as a wholetime on contract basis ::: Downloaded on - 15/04/2017 19:12:08 :::HCHP 6 or worked as guest faculty w.e.f. 2005 to 2009 is an issue of fact.
Plea of petitioner that petitioner did not work as guest faculty .
w.e.f. 2005 to 2009 is denied by non-petitioners when non-
petitioners filed the response in present civil writ petition. In view of the fact that there is dispute inter se the parties relating to fact whether petitioner has worked w.e.f. 2005 to 2009 on the of basis of guest faculty or on the basis of whole time contractual basis Court is of the opinion that it is not expedient in the ends of justice to give findings in present civil writ petition. It is well rt settled law that disputed questions of law should not be decided in civil writ petition filed under Article 226 of Constitution of India. See (2015)4 SCC 204 titled Swati Ferro Alloys Private Ltd. vs. Orissa Industrial Infrastructure Development Corporation (IDCO) and others. In view of above stated facts point No.1 is decided in negative against the petitioner.
Point No. 2 (Final Order)
9. In view of findings on point No.1 civil writ petition filed under Article 227 of Constitution of India is dismissed. No order as to costs. Petition stands disposed of. All pending miscellaneous application(s) if any also stands disposed of.
October 14,2015 (P.S. Rana)
ms. Judge
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