Allahabad High Court
Anish Kumar Chahar Son Of Sri Amolik ... vs Authorised Controller P.M.V. ... on 10 July, 2007
Author: Rakesh Tiwari
Bench: Rakesh Tiwari
JUDGMENT Rakesh Tiwari, J.
1. In these connected writ petitions, common questions of law and facts are involved, as such, they are being decided by this common judgment.
2. P.M.V. Polytechnic Mathura (hereinafter referred to as 'the institution) is governed by the provisions of U.P. Pravidhik Shiksha Adhiniyam, 1962 as amended in 1974 (hereinafter referred to as 'the Adhiniyam'). The instituion receives aid from the State Government and is managed by a Committee of Management as provided under Section 22-D of the Adhiniyam. The Principal of the instituion is ex-officio Secretary of the Committee of Management which stood superceeded at the time of institution of the writ petition and was being managed by the Authorized Controller.
3. The petitioner claims that he was initially appointed as Instructor in Mechanical Engineering on ad hoc basis w.e.f. 20.1.1987 and was allowed to continue as such till 14.6.1987. Thereafter his services were terminated. After summer vacations, he was reappointed on the same post w.e.f. 9.7.87 and continued as such till 31.8.1987 when his services were terminated then by the Management.
4. The petitioner claims that another post of Workshop Instructor (Welding) was lying vacant in the institution since 1986 and he was appointed on the said post on ad hoc basis on 26.12.1988. The appointment letter, appended as Annexure 1 to the Civil Misc. Writ No. 12618 of 1990 provides that his appointment shall continue till a regularly selected candidate joins the post or till the end of the session.
5. The services of the petitioner were again terminated vide order dated 25.5.1989 w.e.f. 31.5.1989 and he was reappointed after summer vacations vide letter of appointment dated 25.7.1989.
6. Thereafter. Director of Technical Education issued a circular letter dated 12.9.1985 directing that all the ad hoc appointments in the Government aided Polytechnic be terminated at the end of the session. The letter also directed the Committees of Management of various Polytechnic institutions to make reguar appointments before the commencement of new academic session.
7. No regular appointment was made in compliance of the aforesaid circular letter and petitioner continued to be appointed at the commencement of the new session and his services terminated at the end of the academic session.
8. Aggrieved, the petitioner filed Civil Misc. Writ No. 12618 of 1990 with the following prayers:
(i) issue a writ, order, or direction in the nature of mandamus restraining the respondents from terminating the services of the petitioner at the end of the session i.e. From 31.5.90;
(ii) issue a writ, order, or direction in the nature of mandamus directing the respondents to treat the petitioner to be working on the post in question continuously and to pay him salary regularly for the same.
(iii) issue any other writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case to meet the ends of justice.
At the time of admission of the aforesaid writ petition, the following ad interim mandamus was issued by this Court:
Hon. Anshuman Singh, J Issue notice.
In the meantime, the respondents are restrained from terminating the services of the petitioner at the end of the session and further direct the respondents to treat the petitioner to be in service continuously and pay his salary.
Dated 16.5.90 Sd/- Anshuman Singh, J.
9. The aforesaid interim mandamus was modified vide order dated 23.2.1995, which is as under:
Hon'ble A.K. Banerjee, J Despite time being grated, no rejoinder affidavits have been filed to the counter affidavit and supplementary counter affidavit. I have heard the learned Counsel for the parties and perused the interim order dated 16.5.1990, passed by this Court. Having heard the learned Counsel for the parties, I consider it expedient to modify the said order to this extent that petitioner's service will continue till a regular appointment is made for the said post by the respondents. As soon as regularly selected candidate is appointed, the petitioner's services shall cease.
Having seen the averments made in the supplementary affidavit and the annexure thereto, I also consider it desirable that the writ petition itself may be finally heard at an early date. With the agreement of learned Counsel for the parties, list this writ petition for hearing before the appropriate Bench in the week commencing 27th March, 1995, if possible.
Dt. 23.2.1995 Sd./- A. Banerjee, J
10. In Civil Misc. Writ No. 22798 of 1995, the petitioner has alleged that five posts, including the posts of Workshop Instructor and Workshop Inspector (Welding) in the institution had been advertised on 9.6.1995 in the Agra Edition of Hindi daily 'Amar Ujala'.
11. In pursuance of the aforesaid advertisement, the petitioner also applied vide his application dated 22.6.1995 as a candidate for the post of Workshop Instructor (Welding) requesting that although he was applying as a candidate for the said post, his services, in fact, are entitled to be regularized since he was working on the said post since 20.1.1987. Interviews were scheduled to be held on 22.8.1985 but no call letter was sent to the petitioner.
12. The grievance of the petitioner is that the posts of Workshop Instructor were illegally reserved for Scheduled Caste candidates in the impugned advertisement. According to him, this was contrary to the provisions of U.P. Public Services (Reservation for Scheduled Caste/Scheduled Tribes and other Backward Class) Act, 1994 (hereinafter referred to as 'the SC/ST Act').
13. Aggrieved, the petitioner also moved representation dated 16.8.1995 before the respondent No. 1 but to no avail hence in Civil Misc. Writ No. 22798 of 1995 he had made the following prayers:
(i) to issue a writ, order or direction in the nature of certiorari quashing the advertisement dated 9th June 1995 published in Amar Ujala (publication Agra) as far as the posts of Workshop Instructor are concerned;
(ii) to issue a writ, order or direction in the nature of mandamus comanding the respondents to regularise the services of the petitioner on the post of Workshop Instructor (Welding);
(iii) to issue a writ, order or direction in the nature prohibition commanding the respondents not to make any selection on the post of Workshop Instructor (Welding).
(iv) to give such other or further relief to the petitioner which the Hon'ble Court deems fit and proper in the facts and circumstances of the case
(a) issue suitable writ or direction in the nature of certiorari quashing the order dated 1.7.1996 whereby the services of the petitioner have been dispensed with (Annexure 1 to the Amendment Application)
14. The contention of counsel for the petitioner is that although no regular selection was being made, yet respondent No. 2 advertised the post against which ad hoc employees had been appointed who were working since long and that after making the advertisement, respondent No. 2 did not proceed with the next step and regular selections were not made. It is submitted that the respondents have to explain as to why they stopped only after making advetisement and what held them back from making regular selections after making their advertisement and calling for appointments from eligible candidates. He urged that after the petitioner has worked for more than 8 years continuously on the post, it cannot be said that his appointment was only for a stop gap arrangement. He dubbed the action of the respondents as violative of Articles 14, 16, 19(1)(g) and 21 of the Constitution of India.
15. Per contra, counsel for the respondents contended that the petitioner was engaged purely on temporary basis and he continued on the post merely on the basis of interim orders passed by this Court. It is submitted that the regular selection to sanctioned posts are governed by statutory provisions. The Director of Technical Education vide letter dated 18.5.95 accorded permission for filling up the post of Workshop Instructor (Welding) from reserved category, as such, the advertisement was published accordingly. The Selection Committee recommended the name of Sri Nem Singh- a Scheduled Caste candidate for appointment, which was duly approved by the Director of Technical Education vide letter dated 16.6.1996. Sri Nem Singh was appointed to the post of Workshop Instructor (Welding) and he has been working since 1.7.1996. As a consequence thereof, temporary ad hoc appointment of the petitioner came to an end. He vehemently urged that the petitioner being an ad hoc employee, does not have any legal right to continue on the post and the writ petition deserves to be dismissed.
16. No other point has been argued.
17. After hearing counsels for the parties and going through the record, it would be proper to refer a decision of Hon'ble the Apex Court in Secretary, State of Karnataka and Ors. v. Uma Devi and Ors.(2006)2 UPLBEC-1950, wherein it has been held that those appointed irregularly and not in accordance with the procedure prescribed under relevant rules or in adherence to Articles 14 and 16, have no legal right to be made permanent as they cannot be permitted to import theories which effect the basic requirement of public employment and constitutional goal of equality. The aforesaid view has been reiterated by Hon'ble the Supreme Court in Yamuna Shankar Sharma v. State of Rajasthan and Ors. 2007(1) Supreme-1975 and State of Manipur and Ors. v. Ksh. Moirangningthou Singh and Ors. 2007(2) Supreme-92.
18. Admittedly, the petitioner was engaged/appointed purely on temporary and ad hoc basis on a stop gap arrangement. Moreover, the petitioner does not possess the minimum qualification for the post, i.e. STC Course or I.T.I. Certificate course in welding nor he has three years' experience as such.
19. The selected candidate has already joined and is working since 1.7.1996 hence this prayer in Civil Misc. Writ No. 12618 of 1990 is infructuous and cannot be granted at this stage today in 2007.
20. Though the interim order had been granted to the petitioner on 16.5.1990 in the connected Civil Misc. Writ No. 12618 of 1990 directing the respondents to treat the petitioner in service continuously and pay his salary. It was modified by order dated 23.2.1995 to the extent that the petitioner's service was to continue till regular appointment is made.
21. As regards prayer in Civil Misc. Writ No. 22798 of 1995. prayer No. 1 is redundant as Sri Nem Singh has already been selected and has joined the institution in pursuance of the advertisement and relief of regularization in the aforesaid circumstances cannot be granted particularly in view of decision rendered by Hon'ble the Apex Court in State of Punjab and Anr. v. Sardara Singh 1998 (9) SCC-709.
22. For the aforesaid reasons, both the writ petitions fail and they are accordingly dismissed. No order as to costs.