Kerala High Court
Bijil Varkey Jose vs The State Of Kerala on 30 January, 2012
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE SMT. JUSTICE P.V.ASHA
WEDNESDAY, THE 30TH DAY OF AUGUST 2017/8TH BHADRA, 1939
WP(C).No. 20225 of 2017 (C)
----------------------------
PETITIONERS:-:
-------------
1. BIJIL VARKEY JOSE,
AGED 30 YEARS, S/O.JOSE P.ABRAHAM,
CHEMPANAL (H), KALAKETTY P.O.,
KOTTAYAM - 686 508.
2. STOJO JOSE,
AGED 33, S/O.JOSE,
KALLANTHARA HOUSE,
LAKKATTOOR P.O.,
KOTTAYAM - 686 502.
3. PRIMAL RAJ P.,
AGED 31 YEARS, S/O.RAJU V.V.,
MYLANIKUNNATHIL, KADAPRA P.O.,
KUMBANADU, PATHANAMTHITTA - 689 547.
4. ROJIMON JOSEPH,
AGED 37 YEARS, S/O.T.A.JOSEPH,
THARAYIL (H), EDAMARUKU P.O.,
MELUKAVAUMATTOM - 686 652.
5. MARSHAL C.RADHAKRISHNAN,
AGED 33 YEARS, S/O.LATE C.V.RADHAKRISHAN,
"REVATHY", CHAKRAPPULLY (H), KANIAMPAL ROAD,
KUNNAMKULAM, THRISSUR - 680 503.
6. GLADSTONE JOHN DAVID,
AGED 32 YEARS, S/O.C.O.DAVID,
VALIYAPARAMBIL (H), MUNDUPARAMBU P.O.,
MALAPPURAM - 676 505.
WP(C).No. 20225 of 2017 (C)
----------------------------
7. BIJISH T.P.,
AGED 32 YEARS, S/O.BALAKRISHNAN,
KOYIPARAMBAN (H), AYCHEN, NEDUMGONE P.O.,
SREEKANDAPURAM, KANNUR - 670 631.
8. SIBIN JOSEPH,
AGED 33 YEARS, S/O.JOSEPH M.M.,
KANJAKKUNNEL (H), SANKARAMPADY P.O.,
KASARGOD.
9. SURAJ P.K.,
AGED 32 YEARS, S/O. SURENDRAN P.K.,
PADINJAREKALATHIL (H), VANIYAMBALAM P.O.,
MALAPPURAM - 679 339.
BY ADVS.SMT.GIRIJA K GOPAL
SMT.K.N.VIGY
RESPONDENTS:-:
------------
1. THE STATE OF KERALA,
REPRESENTED BY THE TAXES SECRETARY,
DEPARTMENT OF TAXES, GOVERNMENT OF KERALA,
GOVERNMENT SECRETARIAT, TRIVANDRUM - 695 001.
2. THE DIRECTOR OF STATE LOTTERIES,
(ADMINISTRATOR, KARUNYA BENEVOLENT FUND),
LOTTERIES DIRECTORATE,
THIRUVANANTHAPURAM - 695 001.
3. NODAL OFFICER,
KARUNYA BENEVOLENT FUND,
PATTOM, THIRUVANANTHAPURAM - 695 004.
R2 BY SENIOR GOVERNMENT PLEADER
SMT. NISHA BOSE
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 30-08-2017, ALONG WITH COC. 1063/2017,
COC. 1158/2017, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
bp
WP(C).No. 20225 of 2017 (C)
----------------------------
APPENDIX
PETITIONER(S)' EXHIBITS
-----------------------
EXHIBIT P1: TRUE COPY OF THE GO(MS) NO.07/12/TD DATED
30.01.2012.
EXHIBIT P2: TRUE COPY OF THE NOTIFICATION DATED
15.12.2015 THAT APPEARED IN MALAYALAM
MANORAMA DAILY.
EXHIBIT P3: TRUE COPY OF THE FINAL SELECT LIST DATED
04.06.13.
EXHIBIT P4: TRUE COPY OF THE APPRAISAL REPORT LETTER
DATED 29.10.2013 OF THE 1ST PETITIONER.
EXHIBIT P5: A TRUE COPY OF THE LETTER DATED 23.07.2016
AWARDED TO THE FIRST PETITIONER BY THE
DISTRICT COLLECTOR, PATHANAMTHITTA.
EXHIBIT P6: A TRUE COPY OF THE MINUTES OF THE 20TH
MEETING OF THE STATE LEVEL COMMITTEE OF
THE KARUNYA BENEVOLENT FUND HELD ON
11.06.2015.
EXHIBIT P7: A TRUE COPY OF THE ORDER DATED 07.01.2017
PASSED BY THE HUMAN RIGHTS COMMISSION.
EXHIBIT P8: A TRUE COPY OF THE LETTER DATED 28.08.2014
ISSUED BY THE ADMINISTRATOR TO THE
DISTRICT LOTTERY OFFICER.
EXHIBIT P9: A TRUE COPY OF THE MINUTES OF THE MEETING
HELD ON 05.06.2017.
EXHIBIT P10: A TRUE COPY OF THE AGENDA OF THE 29TH
STATE LEVEL COMMITTEE MEETING OF THE
KARUNYA BENEVOLENT FUND CONDUCTED ON
06.06.2017.
EXHIBIT P11: A TRUE COPY OF THE MINUTES OF THE 5TH
STATE LEVEL COMMITTEE OF THE KARUNYA
BENEVOLENT FUND HELD OF 26/9/2012.
WP(C).No. 20225 of 2017 (C)
----------------------------
EXHIBIT P12: A TRUE COPY OF THE 9TH SLC MEETING OF
KARUNYA BENEVOLENT FUND HELD ON 29/5/2013.
EXHIBIT P13: A TRUE COPY OF THE AGREEMENT DT 24/6/2013
ENTERED INTO BETWEEN THE FIRST PETITIONER
AND THE KARUNYA BENEVOLENT FUND
REPRESENTED BY ITS ADMINISTRATOR.
EXHIBIT P14: A TRUE COPY OF THE GO(MS)23/12/TD DT
16/2/2012.
EXHIBIT P15: A TRUE COPY OF THE DISTRICT WISE ANALYSIS
OF REGISTRATION AND DISBARMENT UNDER THE
KARUNYA BENEVOLENT FUND 23/6/2017 TO
20/7/2017
EXHIBIT P16: A TRUE COPY OF THE CIRCULA RDT 22/7/2017.
EXHIBIT P17: A TRUE COPY OF THE ORDER
NO.KBF/101/2012/DATED 17/01/2015.
EXHIBIT P18: A TRUE COPY OF THE LETTER DT 5/6/2017
FORWARDED BY THE DISTRICT LOTTERY OFFICER
TO THE R1.
EXHIBIT P19: A TRUE COPY OF THE REQUEST DT 1/7/2017
FORWARDED TO THE R1.
RESPONDENT(S)' EXHIBITS
-----------------------
EXT.R2(a): COPY OF COMPLAINT DT 26/12/2014.
EXT.R2(b): COPY OF THE MINUTES OF THE MEETING
EXT.R2(c): COPY OF ORDER NO.SLTY/1649/17-E7 DT
17/06/2017.
EXT.R2(d): COPY OF THE ORDER G.O.(P)NO.56/2017/FIN DT
28/4/2017.
EXT.R2(e): COPY OF MINUTES OF THE 30TH STATE LEVEL
COMMITTEE OF KARUNYA BENEVOLENT FUND HELD
ON 26/7/2017.
//TRUE COPY//
P.S. TO JUDGE
bp
P.V.ASHA, J.
--------------------------
W.P(C) No.20225 of 2017-C,
Contempt Cases(C) Nos.1158 of 2017-S
and
1063 of 2017-S
-------------------------------------------
Dated this the 30th day of August, 2017
JUDGMENT
W.P(C) No.20225 of 2017-C The petitioners, who had been working as Liaison Officers under the Karunya Benevolent Fund Scheme (hereinafter referred to as the `Scheme' for short), have filed this writ petition apprehending their termination of services on completion of the contract period alleging that they are going to be replaced by another set of employees on contract. Subsequent to the filing of the writ petition they were disengaged.
2. The Karunya Benevolent Fund Scheme is a Scheme launched by the Government of Kerala pursuant to a budget speech made by the Finance Minister on 8.7.2011 that a separate lottery would be conducted for providing financial assistance to the poor for the treatment of Cancer, Kidney diseases, cardiac ailments, etc. and for palliative care. As per G.O (Ms)No.105/11/TD dt.8.10.2011, Government launched Karunya lottery. The mode of implementation of the scheme was laid down in Ext.P1 order - W.P(C) No.20225 of 2017-C, Contempt Cases(C) Nos.1158 of 2017-S and 1063 of 2017-S 2 G.O(Ms)No.07/12/TD dt.30.01.2012. For implementation of the scheme, 2 committees were to be formed one at district level with District Collector as Chairman and the other an apex monitoring committee at the State level with the Minister (Finance) as the Chairman. The applications for financial assistance were to be received at the district lottery office and to be processed at the district evaluation committee chaired by the District Collector; after the evaluation, that committee has to forward the same to State Monitoring Committee for sanction; the State Monitoring Committee had to frame detailed guidelines for implementation of the scheme. The Managing Director, Kerala Medical Services Corporation Ltd. was ordered to be the Administrator of the Scheme and he was to provide necessary administrative set up. It was ordered that no post creation would be allowed except to contractual appointment in exceptional cases. One percent of the total fund could be utilised for meeting the establishment expenses of the Scheme. The funds generated on the net proceeds of Karunya lottery was to be transferred to the bank account opened in the name of the Administrator of the fund by the Director of State Lotteries every month. The State Level Committee decided to appoint Liaison Officers on contract basis in all the W.P(C) No.20225 of 2017-C, Contempt Cases(C) Nos.1158 of 2017-S and 1063 of 2017-S 3 districts and the head office for the purpose of implementation of the scheme.
3. Based on this decision, Ext.P2 notification dated 15.12.2012 was issued inviting applications from candidates having MBA or MSW from a recognised University with experience for minimum of 2 years in the field of health care/social welfare projects or other similar projects of State/Central Governments. In the absence of qualified candidates, the experience in reputed NGOs in the field of health care, social welfare projects and other similar projects could also be considered. The remuneration was fixed as Rs.17,500/- per month. Pursuant to Ext.P2 notification a selection was conducted and Ext.P3 rank list was published with 32 candidates including the petitioners, based on an interview conducted in May, 2013. Thereafter, 14 candidates including the petitioners were appointed and they joined duty in June/July 2013.
4. Relying on Ext.P11 minutes of the meeting of the State Level Committee held on 26.9.2012, the petitioners assert that the decision to appoint Liaison Officers was taken seeing that the increase in the workload relating to the Scheme was affecting the day to day affairs of the District W.P(C) No.20225 of 2017-C, Contempt Cases(C) Nos.1158 of 2017-S and 1063 of 2017-S 4 Lottery Offices and the duties to be carried out by the District Lottery Officers, with the assistance of only 2 Data Entry Operators along with the staff of the Lottery Offices. It was decided to appoint one Liaison Officer each in all the districts, in order to monitor the activities of the Scheme under the Government and non Government institutions. Simultaneously it was decided to stop the practice of engaging district co-ordinators of RSBY. The State Level Committee fixed the qualification of MBA/MSW as well as the upper age limit in that meeting; it constituted an interview board on 25.3.2013. Interview was held in May 2013. Rank list was ratified in the 9th meeting held on 29.05.2013 by the the State Level Committee; it decided to appoint one Liaison Officer each in every district and 3 in the head office. The Liaison Officers were deputed under the district lottery offices and they were to assist the District Lottery Officers in rendering help to the patients in district Government hospitals, private accredited hospitals, collecting utilisation certificate, refund, monitoring etc.
5. Producing their performance appraisal reports, the petitioners claim that the reporting officers and reviewing officers have appreciated their performance. According to them even though the appointment was for W.P(C) No.20225 of 2017-C, Contempt Cases(C) Nos.1158 of 2017-S and 1063 of 2017-S 5 a period of one year, their contract period was extended from time to time, on being satisfied with their keen and diligent performance. Therefore, the State Level Committee decided to fix the monthly remuneration as Rs.20,000/-. As per Ext.P6 order, the appointment of the petitioners were extended for a further period of two years from June/July 2015. Subsequently their remuneration was enhanced to Rs.25,000/-.
6. The contract period of the petitioners was due to expire in June/July, 2017. The petitioners submitted that they were under the legitimate expectation that they would be granted extension, as the Scheme was continuing. Producing Exts.P8 and P9, they claimed that the respective district level committees had recommended for extension of their appointment, in appreciation of their performance. However, the State Level Committee in its meeting held on 6.6.2017, took a decision to discontinue them. On coming to know about that, the petitioners approached this Court challenging the proposed disengagement alleging that they were going to be replaced by another set of contract appointees contrary to the dictum laid down in the judgment of the Apex Court in State of Haryana v. Piara Singh [AIR 1992 SC 2130].
W.P(C) No.20225 of 2017-C, Contempt Cases(C) Nos.1158 of 2017-S and 1063 of 2017-S 6
7. The respondents have filed a counter affidavit stating that the appointments of Liaison Officers were made on 10.06.2013, on contract basis for a period of one year from the date of joining duty. Liaison Officers were to assist the District Lottery Officers for the effective implementation of the project. As per the agreement executed by the candidates, the appointments could be terminated on completion of the stipulated period of one year. It is pointed out that at the time of filing the writ petition, the number of Liaison Officers working under the Scheme were only 9, who were attached to the district lottery offices at Pathanamthitta, Thiruvananthapuram(2) , Idukki, Trichur, Palakkad, Kannur, Kasaragod and Malappuram. All of them completed their tenure on various dates between 22.6.2017 and 10.07.2017. Though respondents are not admitting the claim of the petitioners about their meritorious service, it is admitted that the respondents have appreciated the performance of the Liaison Officers. According to the respondents, the Liaison Officers were appointed mainly for assisting the District Lottery Officer, who is the convener of District Level Monitoring Committee. It is stated that the State Level Committee has not appreciated the performance of the Liaison Officers; the extension of W.P(C) No.20225 of 2017-C, Contempt Cases(C) Nos.1158 of 2017-S and 1063 of 2017-S 7 their contract period will not give rise to any claim for them for continuance. It is stated that the 29th meeting of State Level Committee convened on 06.06.2017 as per Ext.R2(b) minutes decided not to extend the term of the Liaison Officers. According to the respondents the State Level Committee, which is the authority to make appointment, is competent to terminate such appointment as and when situation warrants. The 2nd respondent had, as per Ext.R2(c) order dt.17.6.2017, instructed the Assistant District Lottery Welfare Officers to take over the charge of Liaison Officers as and when they complete their respective term of appointment. It is their further case that the Director of State Lotteries is the Administrator of the Scheme; all the administrative works in the districts are done by the District Lottery Officers in all the districts and those in the office of the Administrator, by the Nodal Officer (Joint Director) of the State Lotteries. Respondents state that there is no sanctioned or regular post of Liaison Officers and the petitioners do not have any rightful claim to continue.
8. The petitioners have filed a reply affidavit asserting that they are entitled to continue in service as long as the Scheme continues. According to the petitioners, the fact that the District Lottery Welfare W.P(C) No.20225 of 2017-C, Contempt Cases(C) Nos.1158 of 2017-S and 1063 of 2017-S 8 Officers were directed to take over charge to undertake the work of the Liaison Officers itself would show that there is requirement. The demand for the financial aid from the poor patients is increasing day to day and hence there is sufficient work under the scheme. The petitioners claim that the Government or the State Level Committee has not so far taken any conscious decision to wind up the Scheme or the work undertaken by the petitioners or to entrust the work done by them to District Lottery Welfare Officers. According to them, the purpose for appointing candidates with specialised educational qualification and experience was for the effective implementation of the Scheme, seeing that it was not possible with the RSBY District Coordinators who were assisting the District Lottery Officers. Therefore, they claim that their appointment should be coterminous with the Scheme. Referring to the appreciation reports/performance appraisal reports made by the District Level Monitoring Officers, the petitioners claim that there is a separate proforma for performance appraisal in their case. They claim that performance appraisal reports would prove the recognition of their exemplary performance and devoted services. Moreover, the agreement executed by W.P(C) No.20225 of 2017-C, Contempt Cases(C) Nos.1158 of 2017-S and 1063 of 2017-S 9 them itself provides for extension of the contract period based on their performance. They also submit that they were not appointed for assisting the District Lottery Officers, as alleged by the respondents. According to the petitioners, when their appointments were made based on the conscious decision of the State Level Committee, there is no such conscious decision when they were disengaged, to the effect that there will not be any difficulty in implementing the scheme, in their absence. Producing certain communications from the offices, relating to the functioning of the Scheme, the petitioners claim that their absence has adversely affected the implementation of the Scheme. It is also their case that there was no decision by the State Level Committee to restrict their tenure of appointment to any particular period. According to them, the entrustment of work to the District Lottery Welfare Officers by the 2nd respondent, as per Ext.R2(c) is without authority, in the absence of any such decision by the State Level Committee; such an action is done only to avoid the petitioners and to circumvent the orders of this Court. Serious allegations are raised against the Administrator/Director of Lotteries referring to Ext.R2(c) letter dated 17.6.2017 of the Director of Lotteries, in which he refers to a letter of W.P(C) No.20225 of 2017-C, Contempt Cases(C) Nos.1158 of 2017-S and 1063 of 2017-S 10 the Administrator of the scheme, pointing out that both Administrator and Director are one and the same person. It is alleged that Ext.R2(c) letter is predated one and it was issued only after the interim order was passed on 21.06.2017, in order to circumvent the interim order.
9. The respondents thereafter filed an additional counter affidavit stating that subsequent to the opening of sub centres in all the districts, the workload in the District Lottery Offices has now been reduced to a large extent and therefore the work related to the scheme is going on smoothly even after the disengagement of the petitioners. It is pointed out that the District Lottery Officers who are the conveners of the District Level Committee are well versed in carrying out the activities of the scheme. It is also pointed out that there was no agreement subsequent to 2015 and extension was granted for 2 years on the basis of request made by the Liaison Officers. Producing Ext.R2(e) minutes it is stated that the minutes of the 29th meeting held on 6.6.2017 in which the decision to discontinue the services of Liaison Officers was taken, was approved in the next meeting held on 23.06.2017. It is stated that the SLC has every authority to make appointments as well as termination as and when necessary. W.P(C) No.20225 of 2017-C, Contempt Cases(C) Nos.1158 of 2017-S and 1063 of 2017-S 11
10. When the writ petition came up for admission, an interim order was passed on 21.06.2017, directing that in case the respondents require the services of Liaison Officers, further appointment of any fresh hands shall be made only with the permission of this Court and directing that the petitioners shall be allowed to continue in case there is requirement. Such an interim order was passed, taking note of the appointments of the petitioners made from a rank list prepared after issuing an advertisement inviting applications. However the services of the petitioners were terminated on the respective dates of completion of contract period. According to the petitioners, the duties which were being performed by them are entrusted to the District lottery Officers/District Welfare Officers, in order to circumvent the orders of this Court, despite requirement, because they are unable to induct fresh hands. It is alleged that the entrustment itself would show the requirement of Liaison Officers.
11. Smt. K. Girija, the learned Counsel for the petitioner, relying on the judgments of the Apex Court reported in Mohammed Abdul Kadir & another v. Director General and another : (2009) 6 SCC 611, Hargupratap Singh V State of Punjab & another : (2007) 13 SCC 292 W.P(C) No.20225 of 2017-C, Contempt Cases(C) Nos.1158 of 2017-S and 1063 of 2017-S 12 (judgment dated 07.11.2003), State of Haryana & others v. Piara Singh & others: AIR 1992 SC 2130 and judgments of various High Courts vehemently argued that the petitioners, who were appointed for the Scheme are entitled to continue as long as the scheme continues. Their appointments were co-terminus with the scheme. The learned Counsel argued that the judgment in State of Karnataka V Umadevi [(2006) SCC 1] does not apply to the facts of the case as the petitioners are not seeking any regularisation and they want to see that fresh hands are not inducted in their place by contract appointment in the light of Piara Singh's (supra) case.
12. Ms. Nisha Bose, the learned Senior Government Pleader was equally vehement in refuting the arguments relying on Mohd. Ashif & others v. State of Bihar & others: (2010) 5 SCC 475, Jayakutty A & others v. State of Kerala & others: 2016(4) KLT 138 and the Full bench Judgment dated 02.12.2016 of the Himachal Pradesh High Court in Pawan Kumar & another v. Union of India & others: 2017 (4) KLT SN 47 distinguishing the judgment relied on by the learned Counsel for the petitioners and argued that there was no post of Liaison Officer in the present case; whereas in Piara Singh's case (supra) relied on by the W.P(C) No.20225 of 2017-C, Contempt Cases(C) Nos.1158 of 2017-S and 1063 of 2017-S 13 petitioners, there were sanctioned posts. It is also her case that the decision not to extend the contract period of appointment of the petitioners, was taken by the State Level Committee, taking note of the fact that there were no Liaison Officers in 5 out of the 14 districts; according to her the last extension of the petitioners, as per Ext.P17 order, was based on a general decision extending the tenure of appointment for two years, without looking into the performance of the petitioners or the requirement.
13. On consideration of the rival contentions it is seen that the petitioners were appointed after a regular process of selection. Their appointments were made from a rank list prepared on the basis of a selection which was conducted after applications were invited by a notification published in news papers, thereafter conducting an interview. The proceedings for their selection were initiated after the State level committee decided to make appointment of Liaison Officers with the qualification of MBA/MSW for the effective implementation of the scheme. Ext.P13 agreement entered into between the petitioners and the Administrator provided for the terms and conditions of the appointment. From the agreement it is seen that the Liaison Officers were appointed in order to W.P(C) No.20225 of 2017-C, Contempt Cases(C) Nos.1158 of 2017-S and 1063 of 2017-S 14 streamline the process of releasing the financial assistance to the patients. Assistance up to Rs. 2 lakhs is admissible to patients of specified diseases, who are undergoing treatment in Government hospitals and accredited hospitals and the assistance is released to the hospitals. The applications for assistance under the scheme is received by District Lottery Officer; it is recommended by the District Level Committee under the Chairmanship of District Collector. Clause 3 of the agreement reads as follows :
The selected Liaison officers will be on contract for 12 months from the date of agreement and will be renewed further subject to performance."
14. Clause 8 of the agreement provided for the first review of their performance on completion of the first 3 months of their appointment. It permitted continuance of those whose performance was not satisfactory without hike in remuneration for the next three months and provided for review for them after six months and for their continuance with increased remuneration, in the event of improvement in performance or else for termination. Therefore, it can be seen that there was no intention to limit the appointment to one year. The agreement would also show that they were to act on instructions of the District Lottery Officers and the Administrator. The agreement provided for termination of the contract by either of the W.P(C) No.20225 of 2017-C, Contempt Cases(C) Nos.1158 of 2017-S and 1063 of 2017-S 15 parties by giving one month notice in writing.
15. Thus the petitioners were allowed to continue from 2013 onwards, based on agreements for the period upto June-July 2015 and thereafter based on extension for two years granted as per Ext.P17 order, which was issued on the basis of Ext.P6 minutes of the meeting held on 11.06.2015. The services are dispensed with on completion of the extended period.
16. In this case no attempt is made to make fresh appointment even before the writ petition was filed. The respondents now point out that the services of Liaison Officers are not necessary and even without their services the scheme is going on. Ext.P10 agenda notes and Ext.R2(b) minutes would show that the State Level Committee has taken the decision to discontinue the services of Liaison Officers taking note of the fact that there are no Liaison Officers in 5 districts and in Head Office. Therefore, it cannot be said that the decision was not conscious. When the decision was taken to dispense with their services, the number of Liaison Officers available was only 9 as against 16 persons appointed. It is true that there is no decision by the State Level Committee regarding the entrustment of W.P(C) No.20225 of 2017-C, Contempt Cases(C) Nos.1158 of 2017-S and 1063 of 2017-S 16 work. But the decision to discontinue their services cannot be interfered with on that ground.
17. The respondents' case is that there is no requirement of Liaison Officers after the sub centres opened and the work in the offices are going on smoothly. From the agreement it is seen that the Liaison Officers were to work under the instructions of District Lottery Officers. In case the scheme could be implemented without the assistance of Liaison Officers, the petitioners cannot insist that they should be allowed to continue till the winding up of the scheme, even if their performance was good.
18. The question of replacing one set of contract workers does not arise in this case when no fresh appointment was made even in the 5 districts where there were nobody. In the additional counter affidavit it is stated that the work relating to the scheme is done in the District Lottery Office. Therefore, even though there is no specific decision pointing out that the district offices do not face any difficulties presently or that services of persons with MBA/MSW are not necessary, that by itself will not make the discontinuance of the petitioners illegal.
19. Though the question of replacement by other contract W.P(C) No.20225 of 2017-C, Contempt Cases(C) Nos.1158 of 2017-S and 1063 of 2017-S 17 employees did not arise so far, I will examine the judgments relied on by either side, since both sides argued the matter extensively.
20. In Mohd. Abdul Kadir v. Director General of Police :
(2009) 6 SCC 611, appellants were ex-servicemen employed under the PIF Additional Scheme in which ex-servicemen alone shall be appointed. They were appointed after undergoing regular process of selection as prescribed in the scheme. Scheme is funded by Govt. of India. But State Govt.
introduced artificial annual breaks and reappointments, which is not provided in the Scheme. They claimed regularisation in service; and challenged the artificial breaks imposed in their service based on a circular of 1995. The Apex Court found that the artificial annual breaks and reappointments were not warranted by the scheme and hence such artificial breaks were illegal. As the scheme was one for appointment from among ex- servicemen after a regular selection process as provided under the Scheme, Apex Court found that the ex-servicemen appointed in accordance with the scheme were not liable to be discontinued as long as the scheme continued. It was observed that ad hoc appointments under such schemes are normally coterminous with the scheme, though they will not be entitled to W.P(C) No.20225 of 2017-C, Contempt Cases(C) Nos.1158 of 2017-S and 1063 of 2017-S 18 regularisation or for service benefits available to the regular employees.
21. In the present case the discontinuance is based on the decision of the State Level Committee, which appointed the petitioners. There are no posts. According to the respondents the scheme can be implemented without the assistance of Laison Officers. The scheme provided only for contract appointment. Therefore, the petitioners cannot have any valid claim to continue till the winding up of the scheme or that the scheme cannot continue without Liaison Officers.
22. In the judgment in Hargurpratap Singh v. State of Punjab, (2007) 13 SCC 292 : rendered on 07.11.2003, the Apex Court was considering the claim of teachers who wanted to continue in service till regular appointment was made. It was held that the course adopted by the High Court in displacing one ad hoc arrangement by another ad hoc arrangement was not at all appropriate observing that persons who have gained experience would be more beneficial and useful to the colleges than fresh hands were engaged on ad hoc basis.
23. In State of Haryana v. Piara Singh : (1992) 4 SCC 118, the Apex Court was considering a batch of cases where ad-hoc employees W.P(C) No.20225 of 2017-C, Contempt Cases(C) Nos.1158 of 2017-S and 1063 of 2017-S 19 claimed regularisation. In paragraphs 46 and 47 it was held as follows:
"46. Secondly, 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.
47. Thirdly, even where an ad hoc or temporary employment is necessitated on account of the exigencies of administration, he should ordinarily be drawn from the employment exchange unless it cannot brook delay in which case the pressing cause must be stated on the file. If no candidate is available or is not sponsored by the employment exchange, some appropriate method consistent with the requirements of Article 16 should be followed. In other words, there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly."
That case also was in respect of ad-hoc or temporary appointment without resorting to regular appointment against sanctioned posts.
24. The further contention is that in the judgment in State of Karanataka V Umadevi: (2006) SCC 1, the dictum laid down in Piara Singh's case (supra) is not overruled and therefore respondents should be directed to allow the petitioners to continue in service, as held in the judgments of the High Court of Aurangabad, Rajastan, Punjab & Haryana, taking the very same view that Umadevi's case (supra) is not overruled.
25. In this context the following observations of the Apex court in Umadevi's case (supra) is relevant.
"43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the W.P(C) No.20225 of 2017-C, Contempt Cases(C) Nos.1158 of 2017-S and 1063 of 2017-S 20 requirements of Article 14 read with Article 16 of the Constitution. 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, should not ordinarily issue directions for absorption, regularisation, 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 the court, which, we have described as `litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates."
xxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxx
45. While directing that appointments, temporary or casual, be regularised or made permanent, the courts are swayed by the fact that the person concerned 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 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. 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 W.P(C) No.20225 of 2017-C, Contempt Cases(C) Nos.1158 of 2017-S and 1063 of 2017-S 21 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 succour 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 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."
(emphasis supplied) In this case appointment of the petitioners was made after conducting a process of selection on contract basis and there are no posts for appointment, but scheme continues. Though Uma Devi's case (supra) was with respect to regularisation and the petitioners do not claim regularisation, the Apex Court held that the courts under Article 226 shall not issue directions while referring to the appointments on contract basis also pointing out that appointment on contract basis is governed by the terms of contract. However, the appointment of the petitioners were made on the basis of regular process of selection. It is not a back door appointment. The notification also does not say that appointments were to be made either on contract basis or for limited period. Therefore, in case there was no W.P(C) No.20225 of 2017-C, Contempt Cases(C) Nos.1158 of 2017-S and 1063 of 2017-S 22 decision to discontinue their services, the petitioners had every right to continue.
26. The judgment dated 09.07.2015 of a learned Single Judge of the Punjab & Haryana High Court in Dr. Barinder Kaur V Guru Nanak Dev University & others reported in 2015(3) STC 608, is a case where a Principal who was appointed on contract basis challenged the action of the University in giving additional charge of Principal to Principal of another College on expiry of the 2nd term of her contract. It was pointed out that her appointment was made after due process of selection which was approved by the syndicate and that proceedings for regular appointment were already in progress. The contention of the University that such extension would run contrary to Umadevi's case (supra) was repelled accepting the contention of the petitioner that paragraph 45 of the judgment in Piara Singh's case (supra). The factual circumstances of that case show that proceedings for regular appointment was afoot and the appointment of the petitioner was against a sanctioned post in accordance with rules.
27. In the judgment dated 13.03.2014 of a single Judge of Rajasthan High Court, Jodhpur Bench in Damodar Prasad Meena & W.P(C) No.20225 of 2017-C, Contempt Cases(C) Nos.1158 of 2017-S and 1063 of 2017-S 23 others V State of Rajastan in Civil writ Petition No.1702/2010 & connected cases, the claim raised by Computer Operators employed for works relating to NREGS on contract basis in 2009 initially for a quarter of a year which could be extended for one year and not exceeding 5 years or till the scheme is wound up whichever was earlier. Writ Petitions were filed in 2010, challenging their disengagement when Govt. decided to recruit computer operators through computer companies, which claimed to have large networks to provide computer operators. The court found that the change on policy was only to avoid the petitioners and without any consideration as to the feasibility of upgradation of the computers of the petitioners. It was found therein that the policy decision was arbitrary and there was no reason to resort to temporary or ad hoc appointments deviating from the normal practice of regular employment and direction was issued to allow the petitioners to continue. Relying on the judgment in Piare Singh's case (supra) , it was held that the said judgment was not overruled in Umadevi's case (supra) and hence adhoc or contract employees cannot be replaced by another set of contract or adhoc employees. In paragraph 24 of that judgment it was held that the courts cannot permit arbitrary policy W.P(C) No.20225 of 2017-C, Contempt Cases(C) Nos.1158 of 2017-S and 1063 of 2017-S 24 decisions of Government resulting in disengagement of those who were compelled to accept contract employment.
28. The judgment of the Aurangabad Bench of Bombay High Court in Dr. Pramaod Ananthrao Patre V State of Maharashtra & others:
2007(107) Bom LR 962, is one which contains two separate judgments taking conflicting views and referring the matter for placing it before another bench on the issue whether the judgment in Piare Singh's case (supra) directing that an adhoc or temporary employee cannot be replaced by another adhoc or temporary employee, was overruled in Umadevi's case (supra). The petitioner in that case was appointed as Medical Officer temporarily for a period of one year. He filed the writ petition for a direction to allow him to continue till regular appointment was made, relying on Piara Singh's case (supra).
29. Coming to the judgments relied on by the learned Government Pleader, in the judgment in Mohd. Ashif v. State of Bihar : (2010) 5 SCC 475 the Apex Court found the necessity to have judicial discipline, referring to Umadevi's case (supra). Though both these cases relate to regularisation, observations are made therein regarding the effect of a W.P(C) No.20225 of 2017-C, Contempt Cases(C) Nos.1158 of 2017-S and 1063 of 2017-S 25 contract appointment.
30. In Pawan Kumar's case: 2017(4) SLR 72, the Full Bench of the Himachal Pradesh High Court considered the claim of contract employees appointed for a scheme. The scheme itself provided for appointment of staff on contract basis for a period of 2 years and review of appointment after 12 months. The employees claimed to continue in the posts in the light of Piara Singh's case (supra) and Mohd. Abdul Khadir's case (supra). Both the judgments were distinguished observing that those employed on contract basis can continue only for the period mentioned in the contract and it was a scheme for ex-servicemen themselves. The claim that their appointment is coterminous with the scheme was also rejected. The applicability of the aforesaid judgments need be considered only if the respondents are engaging any Liaison Officers.
31. The petitioners are claiming continuance till the winding up of the scheme. But neither the scheme nor the terms of their appointments indicate such contingencies conferring any right to the petitioners to continue along with the scheme. When a decision is taken to discontinue their services and their appointments were limited to the contract period, the W.P(C) No.20225 of 2017-C, Contempt Cases(C) Nos.1158 of 2017-S and 1063 of 2017-S 26 petitioners cannot have any right to continue, though appointments were after a regular process of selection. It is an admitted fact that there are no posts of Liaison Officers and the scheme provides only for contract appointment. There is no dispute with respect to their qualifications or about their performance. However as at present the stand of the respondents is that they are not in need of Liaison Officers and the work of the scheme is going on smoothly even without their services. Though the petitioners' appointments were made subject to their performance when they executed agreements further extension was only for 2 years. Therefore, in the circumstances of the case, the petitioners cannot have any valid claim, after the contract period expired.
32. In the above circumstances, the decision to discontinue the services of the petitioners cannot be found illegal. However in the event of the respondents taking a decision to continue the engagement of Liaison Officers they are entitled to be considered for the same with due weightage towards their experience, provided they submit applications, as there is no provision in the agreements they had executed, denying the benefit of service rendered on contract basis, as found in other agreements. W.P(C) No.20225 of 2017-C, Contempt Cases(C) Nos.1158 of 2017-S and 1063 of 2017-S 27 The writ petition is disposed of with the above observations. Contempt Cases(C) Nos.1158 of 2017-S and 1063 of 2017-S In the light of the judgment in W.P(c).No.20225 of 2017, these Contempt Cases are closed.
Sd/-
(P.V.ASHA, JUDGE) rtr/