Uttarakhand High Court
Manish Kumar Arya vs State Of Uttarakhand & Others on 25 March, 2021
Author: Ravindra Maithani
Bench: Ravindra Maithani
Reserved
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (S/S) No. 1694 of 2019
Manish Kumar Arya ....... Petitioner
Vs.
State of Uttarakhand & others ......Respondents
Present: Mr. Alok Mahra, Advocate with Mr. D.K. Bankoti, Advocate for the petitioner.
Mr. P.C. Bisht, Additional CSC for the State.
Mr. Vinay Kumar, Advocate for respondent no. 4/Institute Management Committee.
Mr. S.C. Dumka, Standing Counsel for the Union of India.
With
Writ Petition (S/S) No. 1695 of 2019
Sunil Dutt ....... Petitioner
Vs.
State of Uttarakhand & others ......Respondents
Present: Mr. Alok Mahra, Advocate with Mr. D.K. Bankoti, Advocate for the petitioner.
Mr. P.C. Bisht, Additional CSC for the State.
Mr. Vinay Kumar, Advocate for respondent no. 4/Institute Management Committee.
Mr. S.C. Dumka, Standing Counsel for the Union of India.
With
Writ Petition (S/S) No. 1696 of 2019
Mobina Begum ....... Petitioner
Vs.
State of Uttarakhand & others ......Respondents
Present: Mr. Alok Mahra, Advocate with Mr. D.K. Bankoti, Advocate for the petitioner.
Mr. P.C. Bisht, Additional CSC for the State.
Mr. Vinay Kumar, Advocate for respondent no. 4/Institute Management Committee.
Mr. S.C. Dumka, Standing Counsel for the Union of India.
With
2
Writ Petition (S/S) No. 1701 of 2019
Mam Chand ....... Petitioner
Vs.
State of Uttarakhand & others ......Respondents
Present: Mr. Alok Mahra, Advocate with Mr. D.K. Bankoti, Advocate for the petitioner.
Mr. P.C. Bisht, Additional CSC for the State.
Mr. Vinay Kumar, Advocate for respondent no. 4/Institute Management Committee.
Mr. S.C. Dumka, Standing Counsel for the Union of India.
With
Writ Petition (S/S) No. 1702 of 2019
Km. Tanuja ....... Petitioner
Vs.
State of Uttarakhand & others ......Respondents
Present: Mr. Alok Mahra, Advocate with Mr. D.K. Bankoti, Advocate for the petitioner.
Mr. P.C. Bisht, Additional CSC for the State.
Mr. Vinay Kumar, Advocate for respondent no. 4/Institute Management Committee.
Mr. S.C. Dumka, Standing Counsel for the Union of India.
With
Writ Petition (S/S) No. 1789 of 2019
Khim Chandra Arya ....... Petitioner
Vs.
State of Uttarakhand & others ......Respondents
Present: Mr. Alok Mahra, Advocate with Mr. D.K. Bankoti, Advocate for the petitioner.
Mr. P.C. Bisht, Additional CSC for the State.
Mr. Vinay Kumar, Advocate for respondent no. 4/Institute Management Committee.
Mr. S.C. Dumka, Standing Counsel for the Union of India.
With
Writ Petition (S/S) No. 1852 of 2019
Mohd Shammi ....... Petitioner
Vs.
3
State of Uttarakhand & others ......Respondents
Present: Mr. Alok Mahra, Advocate with Mr. D.K. Bankoti, Advocate for the petitioner.
Mr. P.C. Bisht, Additional CSC for the State.
Mr. Vinay Kumar, Advocate for respondent no. 4/Institute Management Committee.
Mr. S.C. Dumka, Standing Counsel for the Union of India.
With
Writ Petition (S/S) No. 1853 of 2019
Mahesh Kumar ....... Petitioner
Vs.
State of Uttarakhand & others ......Respondents
Present: Mr. J.C. Karnatak, Advocate holding brief of Mr. Prasanna Karnatak, Advocate for the petitioner.
Mr. P.C. Bisht, Additional CSC for the State.
Mr. Vinay Kumar, Advocate for respondent no.4/Institute Management Committee.
Mr. S.C. Dumka, Standing Counsel for the Union of India.
With
Writ Petition (S/S) No. 1865 of 2019
Suresh Sharma ....... Petitioner
Vs.
State of Uttarakhand & others ......Respondents
Present: Mr. J.C. Karnatak, Advocate holding brief of Mr. Prasanna Karnatak, Advocate for the petitioner.
Mr. P.C. Bisht, Additional CSC for the State.
Mr. Vinay Kumar, Advocate for respondent no.4/Institute Management Committee.
Mr. S.C. Dumka, Standing Counsel for the Union of India.
Mr. Pankaj Kumar, Advocate holding brief of Mr. Neeraj Garg, Advocate for UPNL.
With
Writ Petition (S/S) No. 1898 of 2019
Brijesh Kumar ....... Petitioner
Vs.
State of Uttarakhand & others ......Respondents
Present: Mr. J.C. Karnatak, Advocate holding brief of Mr. Prasanna Karnatak, Advocate for the petitioner.
Mr. P.C. Bisht, Additional CSC for the State.
Mr. Vinay Kumar, Advocate for respondent no. 4/Institute Management Committee.
Mr. S.C. Dumka, Standing Counsel for the Union of India.
4
Mr. Pankaj Kumar, Advocate holding brief of Mr. Neeraj Garg, Advocate for UPNL.
With
Writ Petition (S/S) No. 1795 of 2019
Jaspal Singh ....... Petitioner
Vs.
State of Uttarakhand & others ......Respondents
Present: Mr. Alok Mahra, Advocate with Mr. D.K. Bankoti, Advocate for the petitioner.
Mr. P.C. Bisht, Additional CSC for the State.
Mr. Vinay Kumar, Advocate for respondent no.4/Institute Management Committee.
Mr. S.C. Dumka, Standing Counsel for the Union of India.
With
Writ Petition (S/S) No. 1699 of 2019
Vishal Deep ....... Petitioner
Vs.
State of Uttarakhand & others ......Respondents
Present: Mr. Alok Mahra, Advocate with Mr. D.K. Bankoti, Advocate for the petitioner.
Mr. P.C. Bisht, Additional CSC for the State.
Mr. Vinay Kumar, Advocate for respondent no.4/Institute Management Committee.
Mr. S.C. Dumka, Standing Counsel for the Union of India.
With
Writ Petition (S/S) No. 1700 of 2019
Mahendra Singh Palni ....... Petitioner
Vs.
State of Uttarakhand & others ......Respondents
Present: Mr. Alok Mahra, Advocate with Mr. D.K. Bankoti, Advocate for the petitioner.
Mr. P.C. Bisht, Additional CSC for the State.
Mr. Vinay Kumar, Advocate for respondent no.4/Institute Management Committee.
Mr. S.C. Dumka, Standing Counsel for the Union of India.
With
Writ Petition (S/S) No. 1776 of 2019
Kuldeep Singh Rana ....... Petitioner
5
Vs.
State of Uttarakhand & others ......Respondents
Present: Mr. Alok Mahra, Advocate with Mr. D.K. Bankoti, Advocate for the petitioner.
Mr. P.C. Bisht, Additional CSC for the State.
Mr. Vinay Kumar, Advocate for respondent no.4/Institute Management Committee.
Mr. S.C. Dumka, Standing Counsel for the Union of India.
With
Writ Petition (S/S) No. 1909 of 2019
Pradeep Singh Rawat ....... Petitioner
Vs.
State of Uttarakhand & others ......Respondents
Present: Mr. Alok Mahra, Advocate with Mr. D.K. Bankoti, Advocate for the petitioner.
Mr. P.C. Bisht, Additional CSC for the State.
Mr. Vinay Kumar, Advocate for respondent no.4/Institute Management Committee.
Mr. S.C. Dumka, Standing Counsel for the Union of India.
Mr. Pankaj Kumar, Advocate holding brief of Mr. Neeraj Garg, Advocate for UPNL.
With
Writ Petition (S/S) No. 1900 of 2019
Daulendra Singh ....... Petitioner
Vs.
State of Uttarakhand & others ......Respondents
Present: Mr. J.C. Karnatak, Advocate holding brief of Mr. Prasanna Karnatak, Advocate for the petitioner.
Mr. P.C. Bisht, Additional CSC for the State.
Mr. Vinay Kumar, Advocate for respondent no.4/Institute Management Committee.
Mr. S.C. Dumka, Standing Counsel for the Union of India.
Mr. Pankaj Kumar, Advocate holding brief of Mr. Neeraj Garg, Advocate for UPNL.
With
Writ Petition (S/S) No. 1517 of 2019
Jitender Singh Negi ....... Petitioner
Vs.
State of Uttarakhand & others ......Respondents
6
Present: Mr. Shailendra Nauriyal, Advocate with Mr. Susheel Kumar, Advocate for the petitioner.
Mr. P.C. Bisht, Additional CSC for the State.
Mr. Vinay Kumar, Advocate for respondent no.4/Institute Management Committee.
Mr. S.C. Dumka, Standing Counsel for the Union of India.
Mr. Pankaj Kumar, Advocate holding brief of Mr. Neeraj Garg, Advocate for UPNL.
With
Writ Petition (S/S) No. 1410 of 2019
Brijpal ....... Petitioner
Vs.
State of Uttarakhand & others ......Respondents
Present: Mr. Shailendra Nauriyal, Advocate with Mr. Susheel Kumar, Advocate for the petitioner.
Mr. P.C. Bisht, Additional CSC for the State.
Mr. Vinay Kumar, Advocate for respondent no.4/Institute Management Committee.
Mr. S.C. Dumka, Standing Counsel for the Union of India.
Mr. Pankaj Kumar, Advocate holding brief of Mr. Neeraj Garg, Advocate for UPNL.
With
Writ Petition (S/S) No. 1525 of 2019
Manmohan Singh Bisht ....... Petitioner
Vs.
State of Uttarakhand & others ......Respondents
Present: Mr. Shailendra Nauriyal, Advocate with Mr. Susheel Kumar, Advocate for the petitioner.
Mr. P.C. Bisht, Additional CSC for the State.
Mr. Vinay Kumar, Advocate for respondent no.4/Institute Management Committee.
Mr. S.C. Dumka, Standing Counsel for the Union of India.
Mr. Pankaj Kumar, Advocate holding brief of Mr. Neeraj Garg, Advocate for UPNL.
With
Writ Petition (S/S) No. 1526 of 2019
Bhuvneshwar Prasad ....... Petitioner
Vs.
State of Uttarakhand & others ......Respondents
Present: Mr. Shailendra Nauriyal, Advocate with Mr. Susheel Kumar, Advocate for the petitioner.
Mr. P.C. Bisht, Additional CSC for the State.
Mr. Vinay Kumar, Advocate for respondent no.4/Institute Management Committee.
Mr. S.C. Dumka, Standing Counsel for the Union of India.
Mr. Pankaj Kumar, Advocate holding brief of Mr. Neeraj Garg, Advocate for UPNL.
7
With
Writ Petition (S/S) No. 1667 of 2019
Brijpal ....... Petitioner
Vs.
State of Uttarakhand & others ......Respondents
Present: Mr. Shailendra Nauriyal, Advocate with Mr. Susheel Kumar, Advocate for the petitioner.
Mr. P.C. Bisht, Additional CSC for the State.
Mr. Vinay Kumar, Advocate for respondent no.4/Institute Management Committee.
Mr. S.C. Dumka, Standing Counsel for the Union of India.
Mr. Pankaj Kumar, Advocate holding brief of Mr. Neeraj Garg, Advocate for UPNL.
Judgment
Hon'ble Ravindra Maithani, J.
Common questions of law and facts are involved in all these writ petitions, therefore, they are being decided by this common judgment.
2. The Court proceeds to discuss the facts of Writ Petition (S/S) No.1694 of 2019 and thereafter reveal the facts of other cases. Writ Petition (S/S) No.1694 of 2019
3. It is the case of the petitioner that Government of India (GOI) launched a Scheme for up-gradation of 500 Government ITIs, out of 18096 Government ITIs in the country, which started from the year 2005-2006. Thereafter, GOI announced the up-gradation of remaining 1396 ITIs into centers of excellence through public-private partnership (PPP) (for short "the Scheme"), for which financial 8 approval of Rs.750.04 crore was accorded in the year 2007-08 and thereafter grants were also released. As per this Scheme, for each selected ITIs, an Institute Management Committee (IMC) was to be registered under the relevant provisions of the Societies Registration Act, 1860 (for short "the Societies Act") by the concerned State Government. It was the responsibility of IMCs to manage the affairs of the concerned ITI. In order to run the Scheme, a Memorandum of Agreement (MOA) was signed between the Central Government, State Government and the Industry partner. The financial responsibility of running the Scheme was also elaborated and an interest free loan upto Rupees 2.5 crore was to be given by the Central Government directly to the IMCs for up-gradation of ITIs. This interest free loan was to be kept by IMCs in a separate bank account. The Scheme also provided as to how to utilize this amount. The implementation of the Scheme at the Central level was to be monitored by the National Steering Committee and at the State level by the State Steering Committee. Various ITIs in the State of Uttarakhand were also selected under this Scheme. The Scheme was subsequently amended also.
4. In order to implement the Scheme, respondent no. 4 - Secretary/Principal Institute Management Committee, Government Industrial Training Institute, Dineshpur, District Udham Singh Nagar issued an advertisement for one post of Instructor (Employability Skills) and for other posts. The petitioner responded to the advertisement and he was appointed on 15.01.2016 for the academic 9 session 2015-16. Thereafter, the engagement of the petitioner was extended on various occasions up till 2018-19. But, on 01.07.2019, the petitioner was asked not to continue and it was an oral direction. Aggrieved by discontinuation of his engagement, the petitioner filed the writ petition seeking directions to the respondents to permit him to continue with the work on the post of Instructor as well as grant him minimum salary for the contract Instructor as provided under the Scheme.
5. Respondent no. 1 - State of Uttarakhand has filed the counter affidavit in the matter. According to the State, the IMCs have to make arrangements to hire the contract faculty to provide the training to the candidates and there is no requirement of prior approval or permission from the Government for making appointment of the contract faculties. As also it is stated that for removal of these contract faculties from their services, there is no requirement to get prior approval or permission from the Government.
6. Respondent no. 4 -IMC has also filed its counter affidavit. It is the specific case of the IMC that the appointment of the petitioners is purely temporary on contract basis for a limited period, that too, on non-government posts; the IMC is running out of funds; out of Rupees 20 lakh allocated for expenditure under the head of manpower, the IMC had already spent Rupees 20.46 lakh. It is the case of the IMC that under the Scheme, a free loan of Rs.2.5 crore was 10 granted to IMC. The loan was to be repaid and in case of default in repayment, there is a stipulation of penalty. The IMC has already been required by the communication dated 29.11.2019 of the State Government to deposit the first installment of Rs.12.50 lakh. Other cases:-
7. In WPSS Nos. 1695 of 2019, 1696 of 2019, 1701 of 2019, 1702 of 2019, 1789 of 2019, 1852 of 2019 and 1853 of 2019, the case of the petitioners is same as that of petitioner in WPSS No.1694 of 2019. Petitioners in all these petitions have a similar case. They all, according to them, have been terminated from service on oral directions.
8. In WPSS Nos.1795 of 2019, 1699 of 2019, 1700 of 2019 and 1776 of 2019, the case of the petitioners is same but they have also sought quashing of the order, by which they have been removed from service.
9. In WPSS Nos.1900 of 2019, 1898 of 2019 and 1865 of 2019, the case of the petitioners is similar to that of petitioner in WPSS No. 1694 of 2019 and the reliefs are also same, except one more relief regarding incentive allowance which is sought in the petitions.
10. In WPSS No. 1909 of 2019, the petitioner was engaged on contract basis through Uttarakhand Purv Sainik Kalyan Nigam 11 Limited (for short "UPNL"). The petitioner in this case sought the relief similar to that of Writ Petition (S/S) No. 1694 of 2019 along with the quashing of the order dated 20.07.2019, by which his services were terminated.
11. In WPSS Nos. 1517 of 2019, 1410 of 2019, 1525 of 2019, 1526 of 2019 and 1667 of 2019, the case of the petitioners is same as that of petitioner in WPSS No. 1694 of 2019. The only difference is that these petitioners were deployed on contract basis through UPNL. Arguments:-
12. Learned counsel for the petitioners Mr. Alok Mahra would submit that the petitioners are eligible for their appointment as Instructors; they have been working as such, but the respondents want to discontinue their services in violation of the provisions of MOA. Reference has been made to Section B clause 4 (g) of MOA (at Annexure No.2), which is as hereunder:-
"(g) Ensure that the sanctioned strength of instructors in THE ITI is always filled up and in no case the vacancies shall exceed 10 percent of the sanctioned strength at any point of time."
13. Based on the above stipulation in the MOA, it is argued that under the Scheme all the sanctioned strength of the Instructors in ITIs is to be filled up and in no case the vacancies shall exceed 10%. While referring to Section B clause 4 (c) (vi), it is submitted that it is 12 the obligation of the IMCs to make appointment of the faculties on contractual basis as per need. This clause is as hereunder:-
"(c). Delegate to THE IMC adequate administrative and financial powers to .....
.....
(vi) appoint contract faculty as per need."
14. It is submitted that more than 50 % posts in the ITIs are vacant in the regular cadre. They are not being filled up. Learned counsel would also submit that the stance taken by the IMC that they are short of funds is not correct because under the head manpower, the budget allocation has increased from Rs. 25-30 lakh to Rupees Fifty Lakh. Reference has been made to amended guidelines for implementation under the Scheme. (Annexure No.3). The relevant clause is as hereunder:-
"11. IMCs may utilize the interest accrued for the purpose of activities spelled out in the Institute Development Plan (IDP) after careful planning and also ensuring that repayment is not affected due to use of interest. According IMCs may use the interest accrued for the purpose of salary of contractual staff and the limit of expenditure for manpower has been enhanced to Rs.50.00 Lakh from the present limit of Rs.25-30 Lakh."
15. The removal order has been assailed on the ground that it has been passed under the directions of the Secretary, State of 13 Uttarakhand, whereas, the State, in its counter affidavit, totally denied necessity of any approval or permission of the State Government in case of either appointment or removal of a contract faculty.
16. It is admitted position to learned counsel for the petitioners that the services of the petitioners have been dispensed with after their contract period.
17. This Court posed a question to the learned counsel for the petitioners Mr. Alok Mahra as to which legal or constitutional right of the petitioners have been violated or infringed, which may require judicial intervention. In response to it, the learned counsel for the petitioners would submit that the petitioners were appointed under the Scheme which is to continue for thirty years.
18. Mr. Shailendra Nauriyal, learned counsel appearing for another set of petitioners adopts the arguments as advanced by Mr. Alok Mahra, learned counsel and also submits that the petitioners who have been deployed on contract basis through UPNL cannot be substituted by another set of contract faculty; the Scheme is for thirty years; the contract employees deployed by UPNL may be removed only on the ground of misconduct; some of the petitioners have only been relieved from their work till further orders; they are still teaching in their respective ITIs.
14
19. Sri S.C. Dumka learned counsel for the Union of India would submit that the Scheme is to be implemented and monitored by the State Government. Central Government has no role in its implementation.
20. Sri Vinay Kumar learned counsel appearing for IMCs would submit that the petitioners have been appointed on contract basis under the Scheme. The State was also enjoined to ensure that all additional positions required by ITIs in accordance with its IDP are sanctioned and filled up on priority. (Reference has been made to clause 4 (h) of Section B of MOA). It is submitted that IMCs prepared Institute Development Plan for which under manpower head Rupees Twenty Lakh have been allocated, but the IMCs have already spent more than allocated amount. The IMCs are short of funds. State did not provide funds. State did not sanction posts for new trade. Had the State created posts for new trade, the State would have been under an obligation to bear the expenses relating to salary, etc.
21. Learned counsel for IMCs would submit that, in fact, the Scheme is not surviving now. Initially it was contemplated that the IMCs would be in a position to generate funds, but it could not happen. The IMCs are under tremendous financial crisis. They have to repay the loan now. They do not have funds. IMC is not a government organization. It is a society registered under the Societies Act. IMCs may not be mandated to continue under such circumstances with the 15 services of the petitioners. Therefore, it is submitted that the petitions deserve to be dismissed.
Discussion:-
22. The facts are not in dispute that the Government of India launched the Scheme for the up-gradation of 1396 Government ITIs through public-private partnership. Guidelines were issued and MOA was executed between the State Government, Central Government and the Industry partner. The Scheme was to be run through IMCs, which were to be registered under the Societies Act. Clause C salient features of the Scheme at serial no. 2 makes provision of IMC. It is as hereunder:-
"2. Formation of IMC and its registration as a society:
a) An Institute Management Committee (IMC) is constituted/reconstituted for each selected ITI. The IMC is converted by the State Government into a Society under relevant Societies Registration Act. The IMC registered as a society is entrusted with the responsibility of managing the affairs of the ITI under the Scheme.
b) The IMC is led by the Industry Partner. In the IMC, the members are as follows:
• Industry Partner or its representative as Chairperson.
• Four members from local industry to be nominated by the Industry Partner in such a way that the IMC is broad based.
• Five members nominated by the State Govt.
(i) District Employment Officer, ii) One representative of the State Directorate 16 dealing with it is, iii) One expert from local academic circles, iv) One senior faculty member, v) One representative of the students].
• Principal of the ITI, as ex-officio member secretary of the IMC Society."
23. Clause 3 of the Scheme provides for signing of MOA. According to the Scheme, the Institute Development Plan is to be prepared by IMC and the Scheme also provides for conditions for use of the funds of IMC. It is quite in detail.
24. Various provisions of the MOA have been referred to by the learned counsel for the parties, which are with regard to the delegation to IMC. The administrative and financial powers which as quoted hereinabove, authorises the IMCs to appoint contract faculty as per need; ensure filling up the vacancy and also to ensure that all additional positions as required, are filled up on priority.
25. Learned counsel for the parties have referred to the expenditure statements submitted in WPSS No. 1694 of 2019 to get support for their arguments. These factual aspects are not in dispute. What is in dispute is that, on the one hand, according to the petitioners, the Scheme cannot be stopped midway; the IMCs are not short of funds, therefore, the services of the petitioners cannot be dispensed with, whereas, on the other hand, according to the IMCs, they are 17 facing financial crisis; IMC is a society registered under the Societies Act; the services of the petitioners are on contract basis and after expiry of contract, they have no right to require the IMCs to continue with their services.
26. These petitions have been filed under Article 226 of the Constitution of India. Writ of mandamus is the command of the Court which requires performance of duties. In order to substantiate a case for issuance of writ of mandamus, first and foremost, the petitioners have to show that any of their legal right has been infringed, unless there is infringement, violation or defiance of any legal right, there may not be any corresponding duties or obligations that may be required to be enforced.
27. In the case of The Praga Tools Corporation vs. Shri C.A. Imanual and others, 1969 (1) SCC 585, the Hon'ble Supreme Court observed that a mandamus lies to secure the performance of a public or statutory duty in the performance of which the one who applies for it has a sufficient legal interest. The Hon'ble Court further observed as hereunder:-
"Thus, an application for mandamus will not lie for an order of restatement to an office which is essentially of a private character nor can such an application be maintained to secure performance of obligations owed by a company towards its workmen or to resolve any private dispute.18
(See Sohan Lal v. Union of India)1. In Regina v. Industrial Court & Ors.2 mandamus was refused against the Industrial Court though set up under the Industrial Courts Act, 1919 on the ground that the reference for arbitration made to it by a minister was not one under the Act but a private reference.
"This Court has never exercised a general power" said Bruce, J. in R. v. Lawisham Union3 "to enforce the performance of their statutory duties by public bodies on the application of anybody who chooses to apply for a mandamus. It has always required that the applicant for a mandamus should have a legal and a specific right to enforce the performance of those duties".
(emphasis supplied)
28. In the case of State of Uttar Pradesh and another vs. Uttar Pradesh Rajya Khanij Vikas Nigam Sangharsh Samiti and others, (2008) 12 SCC 675, the Hon'ble Supreme Court observed that "the petitioners had prayed for a writ of mandamus which presupposes a legal right in favour of the applicant. Such right must be a subsisting right and enforceable in a court of law. There must be corresponding legal duty on the part of the respondent Corporation or the Government which required the Corporation or the Government "to do that which a statute required it to do".
29. In the case of Director of Settlements, A.P. and others vs. M.R. Apparao and another, (2002) 4 SCC 638, the scope of jurisdiction under Article 226 of the Constitution of India has been
1. 1957 SCR 738
2. (1965) 1 QB 377
3. (1897) 1 QB 498, 501 19 discussed by the Hon'ble Supreme Court, particularly the scope of a writ of mandamus. The Hon'ble Court observed as hereunder:-
"17. Coming to the third question, which is more important from the point of consideration of the High Court's power for issuance of mandamus, it appears that the Constitution empowers the High Court to issue writs, directions or orders in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the rights conferred by Part III and for any other purpose under Article 226 of the Constitution of India. It is, therefore essentially, a power upon the High Court for issuance of high prerogative writs for enforcement of fundamental rights as well as non-fundamental or ordinary legal rights, which may come within the expression "for any other purpose". The powers of the High Courts under Article 226 though are discretionary and no limits can be placed upon their discretion, they must be exercised along the recognised lines and subject to certain self-imposed limitations. The expression "for any other purpose" in Article 226, makes the jurisdiction of the High Courts more extensive but yet the Courts must exercise the same with certain restraints and within some parameters. One of the conditions for exercising power under Article 226 for issuance of a mandamus is that the Court must come to the conclusion that the aggrieved person has a legal right, which entitles him to any of the rights and that such right has been infringed. In other words, existence of a legal right of a citizen and performance of any corresponding legal duty by the State or any public authority, could be enforced by issuance of a writ of mandamus. "Mandamus" means a command. It differs from the 20 writs of prohibition or certiorari in its demand for some activity on the part of the body or person to whom it is addressed. Mandamus is a command issued to direct any person, corporation, inferior courts or Government, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. A mandamus is available against any public authority including administrative and local bodies, and it would lie to any person who is under a duty imposed by a statute or by the common law to do a particular act. In order to obtain a writ or order in the nature of mandamus, the applicant has to satisfy that he has a legal right to the performance of a legal duty by the party against whom the mandamus is sought and such right must be subsisting on the date of the petition (Kalyan Singh v. State of U.P.4). The duty that may be enjoined by mandamus may be one imposed by the Constitution, a statute, common law or by rules or orders having the force of law..........."
(emphasis supplied)
30. This Court categorically posed a question to the learned counsel for the petitioners about their legal right, and in response to it, it was told that the Scheme is to continue for thirty years.
31. Now there are two separate things. Firstly, the continuance of the Scheme and secondly, violation of legal or constitutional rights of the petitioners.
4. AIR 1962 SC 1183 21
32. A Scheme is the policy matter of the State. It was announced with certain mechanism inbuilt in it. This Court is not required to make any observation about the Scheme as such, but there is no doubt about it that it was a step taken for betterment of the society; it is a policy matter.
33. On behalf of the IMCs, it is being stated that the Scheme did not work; the IMCs could not generate funds and the IMCs are not even in a position to repay the loan.
34. On behalf of the State of Uttarakhand, learned counsel would submit that the State Government has nothing to do in the matter. The Scheme was to be run by the IMCs and the funds were to be provided by the Central Government.
35. Now this Court cannot run the policy matters. This Court cannot device any method by which IMCs may run the Scheme; the IMCs may generate the funds or the IMCs may repay the loan. The monitoring, review and course correction has also been provided under the Scheme. There is no statutory obligation upon the respondents to run the Scheme. A policy launched, moved but it is being stated on behalf of the IMCs that it is gasping now. Merely because initially the Scheme was to continue for thirty years, do not give any right to the petitioners to continue as contract faculty for thirty years against the 22 agreed terms of their contractual engagements. Therefore, on this ground alone, a writ of mandamus cannot be issued.
36. Another question is can the petitioners claim for continuance of their service; violation of their rights. The petitioners are contract employees. Their term of contract has already expired. In such a situation, the employer has every right to discontinue with their services. (See Rajasthan State Roadways Transport Corporation vs. Paramjeet Singh, (2019) 6 SCC 250 and Vidyavardhaka Sangha and another vs. Y.D. Deshpande and others, (2006) 12 SCC 482).
37. In fact, in the case of Vidyavardhaka Sangha (supra), the Hon'ble Supreme Court observed that "it is now well-settled principle of law that the appointment made on probation/ad hoc basis for a specific period of time comes to an end by efflux of time and the person holding such post can have no right to continue on the post".
38. In the case of Secretary, State of Karnataka and others vs. Umadevi and others, (2006) 4 SCC 1, the Hon'ble Supreme Court discussed the status of ad hoc, casually, temporarily or on daily wage basis appointment and issued various directions. The Hon'ble Court categorically observed that "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". The Hon'ble 23 Court further observed that "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 open eyes. 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".
39. The position of law has been further discussed by the Hon'ble Supreme Court in the case of Official Liquidator vs. Dayanand and others, (2008) 10 SCC 1. In the case of Official Liquidator (supra), in fact, the Hon'ble Court discussed the law on this point till then and observed as hereunder:-
"66. The judgments of 1980s and early 1990s - Dhirendra Chamoli v. State of U.P.5, Surinder Singh v. CPWD6, Daily Rated Casual Labour v. Union of India7, Dharwad Distt. PWD Literate Daily Wage Employees Assn. v. State of Karnataka8, Bhagwati Prasad v. Delhi State Mineral Development Corpn9 and State of Haryana v. Piara Singh10 are representative of an era when this Court enthusiastically endeavoured to expand the meaning of the equality clause
5. (1986) 1 SCC 637 : 1986 SCC (L&S) 187
6. (1986) 1 SCC 639 : 1986 SCC (L&S) 189
7. (1988) 1 SCC 122 : 1988 SCC (L&S) 138 : (1987) 5 ATC 228
8. (1990) 2 SCC 396 : 1990 SCC (L&S)274 : (1990) 12 ATC 902
9. (1990) 1 SCC 361 : 1990 SCC (L&S) 174
10. (1992) 4 SCC 118 : 1992 SCC (L&S) 825 : (1992) 21 ATC 403 24 enshrined in the Constitution and ordained that employees appointed on temporary/ad hoc/daily-wage basis should be treated on a par with regular employees in the matter of payment of salaries and allowances and that their services be regularised. In several cases, the schemes framed by the Governments and public employer for regularisation of temporary/ad hoc/daily-wage/casual employees irrespective of the source and mode of their appointment/ engagement were also approved. In some cases, the courts also directed the State and its instrumentalities/agencies to frame schemes for regularisation of the services of such employees.
67. In State of Haryana v. Piara Singh this Court while reiterating that appointment to the public posts should ordinarily be made by regular recruitment through the prescribed agency and that even where ad hoc or temporary employment is necessitated on account of the exigencies of administration, the candidate should be drawn from the employment exchange and that if no candidate is available or sponsored with the employment exchange, some method consistent with the requirements of Article 14 of the Constitution should be followed by publishing notice in appropriate manner for calling for applications and all those who apply in response thereto should be considered fairly, proceeded to observe that if an ad hoc or temporary employee is continued for a fairly long spell, the authorities are duty- bound to consider his case for regularisation subject to his fulfilling the conditions of eligibility and the requirement of satisfactory service. The propositions laid down in Piara Singh case11 were followed by almost all the High Courts for directing the State Governments and public authorities concerned to regularise the services of ad hoc/temporary/daily- wage employees only on the ground that they have continued for a particular length of time. In some cases, the schemes framed for regularisation of the services of the backdoor entrants were also approved.
68. The abovenoted judgments and orders encouraged the political set-up and bureaucracy to violate the soul of Articles 14 and 16 as also the provisions contained in the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 with impunity and the spoil system which prevailed in the United States of America in the sixteenth and seventeenth centuries got a firm foothold in this country. Thousands of persons were employed/engaged throughout the length and breadth of the country by backdoor methods. Those who could pull strings in the power corridors at the higher and lower levels managed to get the cake of public employment by trampling over the rights of other eligible and more meritorious persons registered with the employment exchanges. A huge illegal employment market developed in different parts of the country and rampant corruption afflicted the whole system. This was recognized by the Court in Delhi Development Horticulture Employees' Union v. Delhi Admn.12 in the following words: (SCC pp. 111-12, para 23)
11. (1992) 4 SCC 118 : 1992 SCC (L&S) 825 : (1992) 21 ATC 403
12. (1992) 4 SCC 99 : 1992 SCC (L&S) 805 : (1992) 21C 386 25 "23. Apart from the fact that the petitioners cannot be directed to be regularised for the reasons given above, we may take note of the pernicious consequences to which the direction for regularisation of workmen on the only ground that they have put in work for 240 or more days, has been leading. Although there is an Employment Exchange Act which requires recruitment on the basis of registration in the employment exchange, it has become a common practice to ignore the employment exchange and the persons registered in the employment exchanges, and to employ and get employed directly those who are either not registered with the employment exchange or who though registered are lower in the long waiting list in the employment register. The courts can take judicial notice of the fact that such employment is sought and given directly for various illegal considerations including money. The employment is given first for temporary periods with technical breaks to circumvent the relevant rules, and is continued for 240 or more days with a view to give the benefit of regularisation knowing the judicial trend that those who have completed 240 or more days are directed to be automatically regularised. A good deal of illegal employment market has developed resulting in a new source of corruption and frustration of those who are waiting at the employment exchanges for years. Not all those who gain such backdoor entry in the employment are in need of the particular jobs. Though already employed elsewhere, they join the jobs for better and secured prospects. That is why most of the cases which come to the courts are of employment in government departments, public undertakings or agencies. Ultimately it is the people who bear the heavy burden of the surplus labour. The other equally injurious effect of indiscriminate regularisation has been that many of the agencies have stopped undertaking casual or temporary works though they are urgent and essential for fear that if those who are employed on such works are required to be continued for 240 or more days they have to be absorbed as regular employees although the works are time-bound and there is no need of the workmen beyond the completion of the works undertaken. The public interests are thus jeopardised on both counts."
40. In the case of Official Liquidator (supra), the Hon'ble Supreme Court also referred to the judgment in the case of Piara Singh (supra), in which case the Hon'ble Court observed that "an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee, he must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority".
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41. On behalf of the petitioners, it is apprehended that they may be replaced by another set of contract faculty, but on behalf of the IMCs, it is categorically being argued that the IMCs have no intention to substitute the petitioners with another set of contract faculty. According to the learned counsel for IMCs, the IMCs are not in a position to appoint any contract faculty due to paucity of funds.
42. Admittedly in all the cases, the contract period of the petitioners had already expired before they were asked not to continue. IMCs are societies registered under the Societies Act. They took the services of the petitioners in accordance with the Scheme. Their services were taken for a particular period. The petitioners' right qua their employment is restricted to the terms of the contract, not beyond that. There are no Rules which govern their service conditions; they were not on government jobs and they were merely employed by a Society. They had a contractual affiliation with the IMCs which had come to an end. IMCs are not under any statutory obligation to continue with the services of the petitioners; the petitioners have neither shown nor established that their rights have been violated; accordingly there is no corresponding duty upon the IMCs. Therefore, there is no reason to further direct continuance of service of the petitioners.
43. On behalf of the petitioners, an argument has also been made that they were not paid the enhanced salary as provided under the Scheme.
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44. What was provided under the Scheme is one thing and what was agreed upon by the petitioners is a separate thing. If the petitioners are not provided the salary as stipulated under the Scheme, they are free to make a representation before the respondent authorities and they are still free to do so. For this purpose, at this stage, this Court is of the view that no intervention of the Court is required.
45. In view of the foregoing discussion, this Court is of the view that there is no merit in any of these petitions and they deserve to be dismissed.
46. All the writ petitions are dismissed.
(Ravindra Maithani, J.) 25.03.2021 Ankit/