Rajasthan High Court - Jaipur
Narang Lal vs State Of Rajasthan And Ors. on 8 March, 1999
Equivalent citations: 1999(2)WLC733, 1999(1)WLN586
Author: B.S. Chauhan
Bench: B.S. Chauhan
JUDGMENT B.S. Chauhan, J.
1. The instant case has a chequerred history as this is the third petition filed by the petitioner.
2. The facts and circumstances giving rise to this case are that in compliance of the order passed by this Court in some case, petitioner and some other persons were given temporary/ad-hoc appointment on the post of Teacher Grade III by the respondents vide order dated 30.9.1991 (Annexure. 1). The aforesaid order made it clear that the said appointment would be subject to the decision of the writ petition or for a period of six months or till the regularly selected candidates were made available. In pursuance of the said order, petitioner joined the service and in the meanwhile, an Advertisement No. 5/91 was issued by the respondents for making regular appointments on the said post. Petitioner applied in pursuance of the said advertisement but as the posts had to be filled-up under a fixed criteria giving preferential treatment to candidates on various grounds, petitioner preferred S.B. Civil Writ Petition No. 5482/1992 challenging the selection in pursuance of the said advertisement. Certain interim orders were passed by this Court in that petition including the order in the following terms --
The services of the petitioner may not be terminated during the summer vacation. The respondents will, however, be at liberty to move for vacation or modification of the stay order after filing reply to the writ petition and the stay application.
3. During the pendency of the said writ petition, another Advertisement No. 7/93 was issued and being aggrieved, petitioner preferred another writ petition bearing S.B. Civil Writ Petition No. 4498/1993, wherein the following reliefs were sought--
(1) the appointments be made in pursuance of he criteria fixed by the respondents on 26.2.1993 (2) declare certain Government orders dated 2.4.1993 and 23.4.1993 to be illegal which provide for certain bonus marks in favour of certain persons being contrary to Rules 7 and 10 of the Rajasthan Panchayat Samitis and Zila Parishads Rules, 1959;
(3) If selection has been made giving effect to the said orders dated 2.4.1993 and 23.4.1993 providing for certain bonus marks in favour of certain category of candidates, the selection may be declared null and void being unconstitutional.
(4) services of the petitioner be not terminated and he be given the regular pay scale on the post of Teacher Grade III and he be given the consequential benefits after regularising him from the date of his intitial appointment:
4. While deciding the said writ petition No. 4498/1993, vide judgment and order dated 21.12.1993, the Court also considered the relief of regularisation and took note of the submission, made by the learned Counsel for the petitioner that as the petitioners were serving the respondents as trained teached for considerably a long period and their work had been appreciated, therefore, their services should be regularised. The said writ petition was, however, dismissed and the impugned orders dated 2.4.1993 and 23.4.1993 were up-held and the relief of regularisation was also not granted to the petitioner. Against the said judgment dated 21.12.1993, petitioner also preferred D.B. Civil Special Appeal No. 47/1994, which was, also, dismissed by this Court vide judgment and order dated 5.9.1997. The earlier writ petition remained pending, wherein the selection in pursuance of the Advertisement No. 5/91 had been challenged and certain interim orders had been passed. The said writ petition was disposed of by the Court vide order dated 4.9.1998 by the following order --
Learned Counsel for the petitioner wants to withdraw this writ petition with liberty to file fresh one. Ordered accordingly.
5. Petitioner preferred this writ petition on 6.10.1998 seeking mainly the following reliefs-
(1) That the services of the petitioner be regularised in pursuance of the order dated 31.7.1995 (Annexure. 8);
(2) respondents should regularise the services of the petitioner in view of the judicial pronouncements made by the Courts;
(3) in case petitioners services had been terminated, the termination order, if any, be taken on record and be quashed and set-aside with all consequential benefits and reliefs;
(4) the alleged selection whatsoever conducted in pursuance of the Advertisement No. 5/91, be treated null and void: and (5) the impugned order dated 26.2.1991 (Annexure P.3.) be quashed and declared to be null and void.
6. Heard Mr. P.P. Choudhary, learned Counsel for the petitioner and Mr. Vijay Bishnoi, for the respondents.
7. So far as relief No. 4 is concerned, the petition is not maintainable in this respect as the candidates selected in pursuance of the Advertisement No. 5/91 have not been impleaded, Vide Ishar Singh v. Kuldeep Singh 1995 Suppl. (1) SCC 179; Bhagwati and Ors. v. Subordinate Service Selection Board, Haryana 1995 Suppl. (2) SCC 663; Central Bank of India v. S. Satyam and Ors. , J. Jose Dhanpaul v. S. Thomas and Ors. ; Arun Tiwari and Ors. v. Zila Mansavi Shikshak Sangh and Ors. AIR 1938 SC 331; and Azar Hasan and Ors. v. District Judge, Saharanpur 1998 (3) SCC 2461.
8. So far as relief No. 5 is concerned, petitioner claims this relief against the Government Order dated 26.2.1991 (Annexure.P.3). The order issued on 26.2.1991 cannot be challenged at such a belated stage, particularly, for the purpose of quashing the advertisement issued in 1991, and in view of the discussion in respect of relief No. 4, this relief cannot be granted to the petitioner.
9. For relief No. 3. Mr. Vijay Bishnoi, learned Counsel for the respondents has categorically stated that because of the interim order passed in favour of the petitioner by this Court, his service has not been terminated though he had not been given any appointment letter/or extension of service after 15.5.1993 but he is continuing in service because of the interim order passed in the earlier case. Thus, this issue, also, does not require consideration.
10. Relief No. 1 can, also, not be granted because the Government Order dated 31.7.1995 (Annexure.P.8) provides for regularisation of untrained teachers appointed upto a particular date petitioner has not been appointed in that category and, therefore, the said Government Order is not applicable in case of the petitioner and Mr. P.P. Choudhary has fairly conceded that he cannot seek any relief under the said Government Order.
11. The only issue remains to be considered by this Court is in respect of Prayer No. 2, i.e. regularisation in pursuance of the judicial pronouncements by the Courts. Mr. Bishnoi has vehemently opposed the consideration of the case of the petitioner for regularisation on the ground that the same prayer has been rejected by this Court earlier while dismissing his writ petition No. 4498/1993 vide judgment and order dated 21.12.1993 and the said judgment and order has been approved by the Division Bench vide judgment dated 5.9.1997 passed in D.B. Civil Special Appeal No. 47/1994, and thus, the present writ petition is not maintainable for that relief also.
12. The issue of filing successive writ petition has been considered by the Hon'ble Supreme Court time and again and held that even if the earlier writ petition has been dismissed as withdrawn, Public policy which is reflected in the principle enshrined in Order 23 Rule 1 C.P.C. mandates that successive writ petition cannot be entertained for the same relief. Vide Sarguja Transport Service v. State Transport Appellate Tribunal ; Ashok Kumar v. Delhi Development Authority ; Khacher Singh v. State of U.P. and Ors. AIR 1995 All. 332; and Uda Ram v. Central State Farm . For maintaining the writ petition in such a case, there must be liberty given by the Court to file the writ petition if need be arisen for it. Similar view has been reiterated by the Hon'ble Apex Court in Upadhyaya & Co. v. State of U.P. and Ors. .
13. Even if a party does not pray for the relief in the earlierr writ petition, which he ought to have claimed in the earlier petition, he cannot file a successive writ petition claiming that relief, as it would be barred by the principle of constructive res judicata enshrined in Explanation IV to Section 11 Order 2 Rule 2 of the Code of Civil Procedure. In Order 2 Rule 2 C.P.C. as has been explained, in unambiguous and crystal clear language by the Hon'ble Supreme Court in D. Gudasji & Co. v. State of Mysore ; Commissioner of Income Tax v. T.P. Kumaran ; and Union of India and Ors. v. Punni Lal .
14. Mr. Choudhary has submitted that even if petitioner's writ petition seeking regularisation had been rejected in 1993, his continuation in service subsequent to that gives the petitioner a fresh cause of action and the present petition is maintainable for the reason that the petitioner is claiming the relief on the ground that he is in continuous service since 1991 till today. Without prejudice to the contention of Mr. Bishnoi that petitioner is working under the interim order of the Court, it is held that the instant petition, being based on the ground of working for last eight years, petitioner's claim for regularisation is worth consideration.
15. 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. ; 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. . In absence of any scheme of rgularisation, such a relief should not be granted by the Court. Vide Union of India v. Uma Maheshwari and Ors. ; and Union of India v. Mukesh Srivastava and Ors. .
16. 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 by 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 misery 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 ad hoc status for long. A perusal of the authorities would show that appointments are, as a rule, to be made in accordance with statuory rules, giving equal opportunity to all the aspirants to apply for the posts and following the prevalent policy of reservation in favour of Scheduled Casts/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 ad hoc has continued for long and the State has made rules for regularisation then it 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. AIR 1996 SC 417, the Supreme Court did 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 Ad hoc 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/ad hoc 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 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 of framed Rules or issued any Government Order etc.
17. Similar view has been taken in Union of India v. Vishamber Dutt ; and State of Uttarpradesh 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."
18. Undoubtedly, the petitioner is not working under any scheme though he had been appointed under the interim order of the Court. Thus, his claim for regularisation is to be considered taking into account the legal position whether the period served by him under the interim order of the Court, can be taken into account for reckoning the period for the purpose of regularisation. The interim order passed by the Court earlier was only for not terminating the services of the petitioner during summer vacation and not otherwise and as the respondents had been given liberty by this Court to make an application to vacate the interim order and the respondents have not filed such an application during pendency of the earlier writ petition it is not open for the respondents to agitate the issue that the petitioner had been allowed to work under the interim order of this Court. Earlier the respondents had adopted a very unusual and unfair method to give a break in service during the summer vacation just to save the salary for the said period and offered re-appointment on re-opening of the educational institutions. Therefore, the submissions made by Mr. Bishnoi that the petitioner had been allowed to work under the interim order of the Court, is full of substance.
19. In view of the above, and particularly in view of the facts and circumstances of this case, as the petitioner has been appointed by virtue of the interim order passed by this Court, as is evident from his appointment letter dated 30.9.1991 (Annexure.1) itself, and he is working till today under the interim order of this Court, it cannot be said that the petitioner can be considered for regularisation for the reason that the provisions of Article 14 of the Constitution of India are not attracted in the facts and circumstances of the instant case.
20. There can be no quarrel on the legal proposition that no party can suffer by the action of the Court and when the High Court is exercising its powers under Article 226 of the Constitution of India, the interest of justice requires that any underserved or unfair advantage gained by a party invoking the jurisdiction or the Court must be neutralised. The institution of litigation by a party should not be permitted to confer an unfair advantage on the party responsible for it. Vide Grindledge Bank Limited v. Income Tax Officer and Ors. ; Ram Kumar v. State of Uttar Pradesh ; State of Madhya Pradesh v. M.V. Vyasaya & Company (supra); and Smt. Rampati Jayaswal and Ors. v. State of Uttar Pradsh and Ors. .
21. It is, also, settled law that no litigant can derive any benefit from mere pendency of case in a Court of Law, as the interim order always merges in the final order to be passed in the case and if the writ petition is ultimately dismissed, the interim order stands nullified automatically. A party cannot be allowed to take any benefit of his own wrongs by getting interim order and thereafter blame the Court. The fact that the writ is found, ultimately, devoid of any merit, shows that afrivolous writ petition had been filed. The maxim "Actus Curie neminem gravabit" is applicable in such a case, which means that the act of the Court shall prejudice no-one. In such a situation the Court is under an obligation to undo the wrong done to a party by the act of the Court. Thus, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralised as institution of litigation cannot be permitted to confer any advantage on a suitor from delayed action by the act of the Court. Vide Dr. A.K. Sircar v. State of Uttar Pradesh and Ors. 1993 Suppl. (2) SCC 734; Shiv Shanker and Ors. v. Board of Directors, Uttar Pradesh State Road Transport Corporation and Anr. 1995 Suppl (2) SCC 726; Kannoriya Chemicals and Industries Ltd. v. U.P. Electricity Board AIR 1994 Allahabad 273; Ugam Singh v. State of Rajasthan and Ors. 1997 (3) RLW 1517; The Committee of Management, Arya Inter College v. Shree Kumar Tiwari ; and G.T.C. Industries Ltd.v. Union of India and Ors. 1988 (3) SCC 376.
22. The same view has been taken by the Hon'ble Supreme Court in the case of N. Mohanan v State of Keralal and Ors. ; and Bileshwar Khan Udyog Khedut Shahkari Mandi Ltd. v. Union of India and Ors. , wherein it has been held that the appointment/continuation in service by interim order, does not create any legal right in favour the appointee. In state of U.P. and Ors. v. Raj Karan Singh , the Hon'ble Apex Court has categorically held that interim order cannot disturb the position in law and if a person is in service by virtue of the interim order of the Court, he cannot agitate the issue that his continuation in service in such a condition has improved his claim to regularisation. A Division Bench of this Court (to which I was a member), has taken the same view in Aqueela v. State of Rajsthan and Ors. 1998 RLW 497. There is another aspect of the matter; had there been no interim order of the Court, petitioner's services could have been terminated and he could not have claimed the relief of regularisation. VideRamchander and Ors. v. Additional District Magistrate and Ors. . In view of the above, in absence of the Statutory Rules/Government Order/Executive Instructions, and as petitioner has been allowed to work because of the interim orders of this Court, petitioner cannot claim that the conduct of respondents smacks of arbitrariness and attracts the provisions of Article 14 of the Constitution.
23. Mr. Choudhary, learned Counsel for the petitioner, has repeatedly asked the Court to follow the decisions of the Hon'ble Supreme Court wherein directions have been issued for regularisation in case a person has been allowed to work for a long period even under such circumstances. It is further submitted by him that this Court has ample power to pass such an order, I am afraid, this Court has not been enclothed with powers like Article 142 of the Constitution of India.
24. In State of Punjab v. Surinder Kumar , the Suprme Court observed as under--
The Constitution has, by Article 142 empowered the Supreme Court to make such order as may be necessary for doing complete justice in any case or matter pending before it, which authority the High Court does not enjoy. The jurisdiction of the High Court, while dealing with a writ petition, is circumscribed by the limitations discussed and declared by the judicial decisions and it cannot transgress the limits on the basis of whims or subjective sense of justice varying from Judge to Judge.
25. Similar view has been taken by the Apex Court instate of Haryana v. Naresh Kumar Bali .
26. In J & K Public Service Commission etc. v. Dr. Narinder Mohan and Ors. , the Apex Court has observed as under--
Therefore, the High Court is not right in placing reliance on the judgment as a ratio to give the direction to the Public Service Commission to consider the cases of the respondents. Article 142-power is confined only to this Court. The ratio in is also not an authority under Article 141.
27. In B.C. Chaturvedi v. Union of India and Ors. , in a separate judgment, one Hon'ble Judge of the Apex Court has observed that the High Court, in exercise of its powers under Article 226 of the Constitution has ample power to do complete justice, meaning thereby that the power which the Supreme Court can exercise under Article 142 of the constitution can also be exercised by the High Court but the other two Hon'ble Judge did not express any opinion on this issue.
28. In Sanchalakshri and Anr. v. Vijay Kumar Mehta and Anr. , the Apex Court has categorically held that in absence of enabling provision analogous to Article 142 of the Constitution, the High Court cannot "pass such decree or make such order as is necessary for doing complete justice" like the Supreme Court. The Court further observed as under--
It would not be correct to say that this Court in B.C. Chaturvedi case has accepted the view that the High Courts/Tribunals possess the same powers which this Court has under Article 142 of the Constitution for doing complete justice, even in the absence of such a provision.
29. In view of the above, it is clear that this Court has no power to issue such directions.
30. Thus, in view of the above, the petitioner is held not entitled for regularisation. The petition is accordingly dismissed. However, there shall be no order as to costs. The interim order passed on 8.10.1998 stands vacated.