Karnataka High Court
G.S. Shivaprakash vs Central Silk Board, Bangalore on 24 August, 1998
Equivalent citations: 1999(2)KARLJ175
Author: V. Gopala Gowda
Bench: V. Gopala Gowda
ORDER
1. The petitioner has challenged the legality and validity of the termination order passed by the respondent-Board and sought for issuance of writ of certiorari to quash the impugned order dated 9-6-1992. Further, the petitioner has sought for a direction to the respondent to continue him in employment as 'Editor' pursuant to the memo of appointment dated 3-6-1992 vide Annexure-B which was accepted by him as per Annexure-C and further sought direction to continue the facilities extended to the petitioner from the date he was appointed for discharging his duties urging the following legal contentions:
2. The brief facts are stated hereunder to consider the various contentions urged on behalf of the respective parties:
The first respondent is a statutory Board constituted under the Central Silk Board Act, 1948 (the 'Act' in short) and Central Silk Board Rules of 1955 (the 'Rules' for short). The respondent in exercise of its power under Rule 28 of the Rules appointed the petitioner as an 'Editor' on contract basis by issuing appointment order. After complying with certain formalities including execution of an agreement for a period of 2 years from the said date. He continued to hold the said post from 5-6-1986 without any break in service and his appointment was being renewed every year on expiry of the last date of the contract of appointment. It is stated that, the Board has taken decision for appointing the petitioner for the post of 'Editor' as per the proceedings maintained in respect of contractual appointment of the petitioner.
3. As per the Board's decision, the Chairman of the Board accorded approval for selection to the post of 'Editor' for Indian Silk on temporary basis for two years and fill up the post on contract basis on consolidated (Government) salary of Rs. 2,500/- per month. After approval from the Board, the advertisement was published in the local newspapers. In response to that, the petitioner was one of the candidates and he had been called for the interview for the said post. After the candidates were interviewed three persons' names were included in the panel. Based on the performance of the interviewed candidates, Selection Committee recommended selection and appointment on contract basis of the candidates wherein the petitioner's name was included and three other persons names were also mentioned.
4. Again note was put up at Paragraph 18 stating that Sri G.S. Shivaprakash has not fulfilled the qualification prescribed for the post and in view of performance in the interview, the Selection Committee recommended that the qualification can be relaxed for the above candidate as he is ideally suitable for 'Editorship'. That note was submitted for consideration of the Deputy Secretary (Administration) and the same was placed before the Member-Secretary who was the Chairman of the Committee. The Selection Committee's decision was approved by an order dated 1-5-1986 and the appointment order was issued to the petitioner.
5. Further, the petitioner completed the initial two years of service. After expiry of the above said initial period of two years, vide note dated 1-8-1988 the Board recommended to continue the services of the petitioner and approved the same and the petitioner was allowed to continue in the said post upto June 1989.
6. In the year 1989, the respondent-Board framed its Cadre and Recruitment Rules namely Central Silk Board (Consolidated) Recruitment Rules, 1989. As per the said rules, post of 'Editor' is required to be filled up by 100% promotion of in-service candidates prescribing the qualification of Superintendent. Thereafter, the petitioner submitted an application highlighting the facts from 1986 to 1989 requesting the Board to regularise his service against the post of 'Editor'. As per the approved recruitment rules, post of 'Editor' is required to be filled up on 100% promotion from among the Superintendents with two years regular service in the grade failing which by transfer or deputation from the Central/State Government.
7. The Member-Secretary of the Board by his noting dated 9-4-1990 stated that present arrangement may continue till completion of five years on contract basis. As per Annexure-B to the writ petition dated 3-6-1992, the Member-Secretary has written to the petitioner stating that, the present system of contract of appointment of the petitioners expires on 4th June, 1992 and the petitioner was asked to indicate his mind if he is intending to continue working for the first respondent-Board in writing to the Member-Secretary. He was further informed that, the terms of his appointment are subject to review by the Board in the light of his performance for which the petitioner submitted his reply vide Annexure-C, dated 3-6-1992 expressing his willingness to continue in the respondent-Board after expiry of the contract i.e., from 4-6-1992. Chairman of the Board asked the Member-Secretary's opinion relating to the said issue "which was placed before him before July 1992.
8. From the file it is noticed that appointment of the petitioner for the post of 'Editor' was continued upto 5-6-1992 on contract basis. It was specifically mentioned that, appointment was continued against the temporary post. It is also stated in the said file with regard to the basic idea to fill up the post of Editor in the Central Office on contract basis which reads thus:
"The basic idea of filling up the post of Editor created in Central Office by contract basis is that persons who have literacy, ability and experience in Editorial work only can man this post unlike other promotional posts. The Editorship of 'India Silk' being a challenging job, persons with proven ability in the field only can deliver the goods. Since the post of Editor in Central Office is created on temporary basis and is being continued year after year and the post is filled on contract basis ever since its creation. Sri Prasad Rao, Superintendent (Pub.) has no claim over the post".
9. From the said note, it is seen that the said post of 'Editor' in Central Office was created on temporary basis and has been continued year after year. Said post was filled up on contract basis ever since its creation. Sri Prasada Rao, Superintendent has no claim over the post. The said note of the office was not approved by the Member-Secretary. At the bottom of the last page of the proceedings pertaining to the application of the petitioner it is mentioned as 'C-filed'.
10. From the said file it is not forthcoming as to the Board or the Member-Secretary who is delegated with authority as per the submission made by Mr. Shailendra Kumar, learned Counsel appearing for the respondent, as per the minutes of 66th General Body Meeting of the Board dated 28-4-1986, the power to be exercised by the Board for the purpose of Rule 28 of rules was delegated in his favour and has not taken a decision either to continue the petitioner on contract basis after expiry of the extended period of contract of appointment.
11. Counter has been filed on behalf of the respondents and it is stated that, no legal or fundamental right is conferred upon the petitioner on the basis of the contract or original appointment order issued in the year 1986, and, extended till 5-6-1992. Therefore, the petitioner did not get any right and he is not entitled to seek relief as prayed for in this writ petition. It is contended that, as per terms and conditions of the contract of appointment made by the respondent represented by its Member-Secretary who was delegated with authority, the petitioner was governed by the said terms in fact and in law, no legal requirement on the part of the respondent to pass a separate order of termination. In fact, the respondent-Board represented by its Deputy Secretary has passed the termination order which was not necessary. Therefore, it is not correct to contend that, the termination order issued and served upon the petitioner is not by the competent authority. It is also further stated that by efflux of time since the respondent-Board did not renew the contract of employment, question of issue of separate order of termination was not necessary. Therefore, the submission made on behalf of the petitioner that order of termination is not passed by either Board or by the Member-Secretary is without any substance.
12. It is also further contended by Mr. Shailendra Kumar elaborating his submission that, in the year 1986 as per the proceeding referred to by him in the preceding paragraphs, post of 'Editor' was created on temporary basis as per Rule 28 of the Rules. The Board was empowered to appoint the petitioner against that temporary post on contract basis. Learned Counsel places strong reliance on clause (iii) of Rule 28(1) which reads thus:
"28. Salaries, allowances and conditions of officers and establishments of the Board.--(1) Save as provided in Section 7 of the Act, all appointments to posts of officers and establishments in the service of the Board shall be made by the Board:
Provided that-
(i) xx xx xx xx; (ii) xx xx xx xx;
iii) officers or specialists appointed on contract shall be entitled to leave and leave salary under the terms which may, from time to time, be made applicable to the Central Government servants on contract on similar salaries. Such officers shall be entitled to travelling allowance, dearness allowance or any other allowances as may from time to time, be provided for officers drawing similar salaries under the Central Government".
13. The power conferred upon the Board was invoked during the period of no rule as there were no regulations or rules framed as required under law. It is further stated, that the respondent appointed the petitioner against the temporary post on contract basis, no right of employment was conferred upon the petitioner. Learned Counsel in support of the said submission places strong reliance on the judgment of the Apex Court in Union of India and Others v Dinesh Kumar Saksena and Others , and Union of India and Another v Moti Lal and Others , for the proposition that, this Court in view of law declared in the aforesaid case should not exercise its extraordinary power under Article 226 of the Constitution of India directing the respondent-Board to absorb the petitioner against the post to which he had been appointed for two reasons namely: that post, against which he was appointed was a temporary post, secondly, his appointment was purely on contract basis. Further, the recruitment rules were framed in the year 1989 to fill up the post required to be strictly following the said recruitment rules (100% promotion). It is also further submitted that, the petitioner has not acquired any right on the basis of the internal note and the decisions taken by the Board as right must overcome from the order of appointment namely the contract of employment and the periodical appointment order issued in this regard.
14. Learned Counsel appearing on hehalf of the petitioner in support of his contention places reliance on the judgments rendered by the Apex Court in the cases viz, Central Inland Water Transport Corporation Limited and Another v Brojo Nath Ganguly and Another , Kumari Shrilekha Vidyarthi and Others u State of Uttar Pradesh and Others, and in Dinesh Kumar Saksena, supra.
15. Counsel for the petitioner also further pleaded in the petition at paragraph 7 that, having regard to the service rendered by the petitioner and respondent have assured him of regularising the appointment. The respondent-Board has been assuring the petitioner that his appointment will be regularised in fact the respondent has regularised the services of a number of persons who were initially taken on contractual basis. The petitioner was awaiting the regularisation of his appointment as indicated and promised by the respondent from time to time and further, the Member-Secretary-delegated authority has asked the willingness of the petitioner by his letter dated 3-6-1992 to continue his work in the respondent-Board should be indicated in writing to him. For which he has expressed his willingness to continue in the service of the respondent. This assurance has been violated therefore, this Court has to take into consideration this important aspect of the matter and exercise its power under Article 226 of the Constitution of India and grant the reliefs as prayed for by the petitioner. In this regard, the learned Counsel on behalf of the respondent submitted that there cannot be any promissory estoppel against the statutory provisions in view of Rule 28 of the Rules referred to above.
16. Having heard the learned Counsel appearing on behalf of the parties, following points are formulated for this Court's consideration:
Point No. 1:
Since the respondent-Board is an authority under Article 12 of the Constitution, was it open for it to appoint the petitioner on contract basis under the garb of exercising the power under Rule 28 of the rules and whether such appointment on contract basis continuously for a long period is legal and valid?
Point No. 2:
If the order of termination at Annexure-A is illegal and invalid, to what relief the petitioner is entitled to?
17. The Apex Court in the case of Central Inland Water Transport Corporation, supra, has considered the judgment in Uttar Pradesh Warehousing Corporation v Vijay Narain Vajpayee, in which the order of dismissal passed by the said Corporation was challenged. In paragraph 51 the following paragraph has been quoted:--
"I find it very hard indeed to discover any distinction on principle between a person directly under the employment of an agency or instrumentality of the Government or a Corporation set up under a statute or incorporated but wholly owned by the Government. It is self-evident and trite to say that the function of the State has long since ceased to be confined to the preservation of the public peace, the exaction of taxes and the defence of its frontiers. It is not the function of the State to secure 'social, economic and political justice', to preserve liberty of thought, expression, belief, faith and worship', and to ensure 'equality of status and of opportunity' "
In that case various judgments of the Supreme Court had been considered with regard to contract employment. At paragraph 100 it has been laid down that a clause opposed to public policy is void under Section 23 of the Indian Contract Act. In paragraph 104 it has been laid down as under:
"As the Corporation is "the State" within the meaning of Article 12, it was amenable to writ jurisdiction of the High Court under Article 226. It is now well established that an instrumentality or agency of the State being "the State" under Article 12 of the Constitution is subject to the constitutional limitations, and its actions are State actions and must be judged in the light of the fundamental rights guaranteed by Part III of the Constitution. ...... The actions of an instrumentality or agency of the State must, therefore, be in conformity with Article 14 of the Constitution. The progression of the judicial concept of Article 14 from a prohibition against discriminatory class legislation to an invalidating factor for any discriminatory or arbitrary State action has been traced in Tulsiram Patel case (at pages 473-476). The principles of natural justice have now come to be recognised as being a part of the constitutional guarantee contained in Article 14".
18. The Apex Court in Jacob M. Puthuparambil and Others v Kerala Water Authority and Others, has succinctly laid down the law that the employee serving for a reasonably long period and having requisite qualification for the job deserve to be regularised. Interpreting Rule 9-A(l) of Kerala State Subordinate Service Rules, 1959 with regard to power of "emergency appointment" of stop-gap nature for a limited period without previous approval of the Government, the Supreme Court with reference to Article 41 of the Constitution of India has held that long and continuous service of "such employee should not be terminated and instead, should be regularised by the authority. The law laid down is at paragraphs 7, 8, 9 and 15 as under:
"7. The question of regularisation in service must be examined keeping in mind the historical as well as the constitutional perspectives. During the colonial rule industrial growth in the country was tardy and most of the large sized industries were controlled by British interests. These establishments employed Indian labour on wages far below the sustenance levels. Men, women and even children were required to work for long hours in thoroughly unhygienic conditions. Because of large scale unemployment there was a surplus labour market which the employers could and did exploit. This virtually forced the labour to accept employment on terms unilaterally dictated by the employers. The relationship between the employer and the employee being purely contractual, then hire and fire rule governed. Those were the days of laissez-faire when contractual rights were placed above human rights. The concepts of dignity of labour and fair remuneration for work done were wholly alien. The workers had to work in appalling conditions and at low wages with no job security.
8. After we attained independence the pace of industrial growth accelerated. Our Constitution makers were aware of the hardships and insecurity faced by the working class. The Preamble of our Constitution obligates the State to secure to all its citizens social and economic justice, besides political justice. By the Forty-second Amendment, the Preamble of the Constitution was amended to say that ours will be a socialistic democracy. In furtherance of these promises certain fundamental rights were engrafted in Part III of the Constitution. The Constitution guarantees 'equality', abhors discrimination, prohibits and penalises forced labour in any form whatsoever and extends protection against exploitation of labour including child labour. After extending these guarantees, amongst others, the Constitution makers proceeded to chart out the course for the governance of the country in Part IV of the Constitution entitled 'Directive Principles of State Policy. These principles reflect the hopes and aspirations of the people. Although the provisions of this part are not enforceable by any Court, the principles laid down therein are nevertheless fundamental in the governance of the country and the State is under an obligation to apply them in making laws. The principles laid down therein, therefore, define the objectives and goals which the State must endeavour to achieve over a period of time. Therefore, whenever the State is required to make laws it must do so consistently with these principles with a view to securing social and economic freedom so essential for the establishment of an egalitarian society. This part, therefore, mandates that the State shall strive to promote the welfare of the people by minimising the inequalities in income and eliminating inequalities in status, facilities and opportunities; by directing its policy towards securing amongst others, the distribution of the material resources of the community to subserve the common good; by so operating the economic system as not to result in concentration of wealth; and by making effective provision for securing the right to work as also to public assistance in cases of unemployment, albeit within the limits of its economic capacities. There are certain other provisions which enjoin on the State certain duties, e.g., securing to all workers work, a living wage, just and humane conditions of work, a decent standard of life, participation in management, etc., which are aimed at improving the lot of the working classes. Thus, the Preamble promises socio-economic justice, the fundamental rights confer certain justiciable socio-economic rights and the Directive Principles fix the socio-economic goals which the State must strive to attain. These three together constitute the core and conscience of the Constitution.
9. India is a developing country. It has a vast surplus labour market. Large scale unemployment offers a matching opportunity to the employer to exploit the needy. Under such market conditions the employer can dictate his terms of employment taking advantage of the absence of the bargaining power in the other. The unorganised job seeker is left with no option but to accept employment on 'take it or leave it' terms offered by the employer. Such terms of employment offer no job security and the employee is left to the mercy of the employer. Employers have betrayed an increasing tendency to employ temporary hands even on regular and permanent jobs with a view to circumventing the protection offered to the working classes under the benevolent legislations enacted from time to time. One such device adopted is to get the work done through contract labour. It is in this backdrop that we must consider the request for regularisation in service.
15. ..... employees who have been working on the establishment since long, and who possess the requisite qualifications for the job as obtaining on the date of their employment, must be allowed to continue on their jobs and their services should be regularised. It is unfair and unreasonable to remove people who have been rendering service since some time as such removal has serious consequences. The family of the employee which had settled down and accommodated its needs to the emoluments received by the bread winner, will face economic ruination if the job is suddenly taken away. Besides, the precious period of early life devoted in the service of the establishment will be wholly wasted and the incumbent may be rendered 'age barred' for securing a job elsewhere. It is indeed unfair to use him, generate hope and a feeling of security in him, attune his family to live within his earnings and then suddenly to throw him out of job. Such behaviour would be an affront to the concept of job security and would run counter to the constitutional philosophy, particularly the concept of right to work in Article 41 of the Constitution".
The same principle has been reiterated in State of Haryana v Paira Singh.
19. In view of the law declared by the Apex Court, the respondent-Board is an instrumentality of the State as defined under Article 12 of the Constitution. Hence, Parts III and IV of the Constitution are applicable.
20. Under Rule 28(1)(iii) of the Rules the Board has the power to appoint officers or specialists on contract basis. The officers/specialists so appointed on contract basis are entitled to travelling allowance, dear-ness allowance and other allowances applicable to officers under the Central Government. Thus, it is a public employment. In view of Articles 14 and 16 of the Constitution of India, it does not lie in the mouth of the respondent-Board to defeat the constitutional rights of an employee/officer taking undue advantage of unemployment problem prevailing in the country.
21. Exercising the enabling power under Rule 28 of the Rules, the conduct of the Board in employing the petitioner on contract basis for a particular period and continuing the services periodically and extracting perennial nature of work without regularising the services for several years is opposed to the public policy. The same is also contrary to Section 23 of the Indian Contract Act. The action is violative of Articles 14, 16 and 21 of the Constitution. Therefore, in view of the law laid down by the Apex Court in the decisions referred to above, the power of contract employment contemplated under Rule 28 of the Rules with the respondent-Board to that extent is bad in law. Hence, the exercise of power under Rule 28 of the Rules by the respondent appointing the petitioner on contract basis against the post of Editor, in which post he has worked continuously for a long period discharging perennial nature of work, is a clear case of arbitrary and unreasonable exercise of power.
22. It is clear from the petition averments that the petitioner was initially appointed as Editor of the magazine called "Indian Silk" on contract basis for a period of two years from 5-6-1986. The same was renewed from time to time. The last contract came to an end on 4-6-1992. A day prior to that, i.e., on 3-6-1992 the petitioner was called upon to indicate his continuance further vide Annexure-B. Petitioner communicated his willingness to continue vide Annexure-C on the same day. However, on 9-6-1992 the petitioner was informed vide Annexure-A that the competent authority has not agreed to renew the contract of the petitioner and hence his services were terminated, The action is contrary to law laid down by the Supreme Court.
23. The creation of the post of Editor by the respondent-Board and appointing the petitioner to the same on contract basis from time to time continuously for more than six years would clearly indicate that there is a need of permanent post of Editor. Though the same has been termed as 'temporary' or 'contractual for a specified period', the permanent need of the post cannot be lost sight of. The extension of contract of the petitioner from time to time and the services utilised for nearly six years continuously would amply demonstrate that the petitioner was discharging perennial nature of job. Calling such a nature of job as 'temporary' or contractual for a specified period is wholly untenable and bad in law.
24. The post of Editor was created under the Cadre and Recruitment Rules in the year 1989. For more than three years thereafter the services of the petitioner was continued in the said post. The case of the petitioner has been considered for the post and as per the note in the records produced, it is seen that in paragraph 41 it is stated that relaxation of qualification and the method of filling up of the post is warranted and it has been ordered to send a proposal to the Ministry seeking relaxation and absorption of the petitioner. However, subsequently it is held that since the post was temporary and was being filled up on contract basis, the petitioner has no claim over the post. This type of decision is opposed to the public policy. Instead of taking further steps to absorb the petitioner permanently, the Board has taken altogether a different decision totally brushing aside the valuable services rendered by the petitioner for over six years. Though the appointment was on contract basis, in reality it was permanent in nature.
25. The submission of the learned Counsel for the petitioner is that the impugned order of termination at Annexure-A is not passed by the competent authority, namely, the Member-Secretary. The order at Annexure-A is issued by the Deputy Secretary (Administration). He was not the authority who has appointed the petitioner. As per the Resolution dated 28-4-1986 of the Board, vide Item 5 the administrative powers of the Board were delegated to the Chairman-cum-Member-Secretary. Hence, this Court has to hold that Annexure-A has been issued by an incompetent authority.
26. For the aforesaid reasons, Point No. 1 is answered in the negative.
27. In the light of the conclusion arrived at that the petitioner was discharging public duties and his nature of appointment was permanent in nature and since he has been unlawfully prevented from discharging his duties, the same has to be assumed as 'termination simpliciter'. Since the removal/termination order was not passed by competent authority, it is nullity in the eye of law and the same cannot be sustained. However, the submission of the learned Counsel for the respondent-Board is that since the petitioner was a contract employee, as per the terms of the contract, by efflux of time his employment came to an end with effect from 4-6-1992 and therefore no separate order of termination was required to be pa'ssed. The submission is misconceived and untenable.
28. The next point to be determined is with regard to the reliefs to which the petitioner is entitled to. No material is placed before the Court that the petitioner has been working and has been earning for himself and his family members livelihood from the date of removal till this date. Since the order of termination has rendered the petitioner unemployed and the same is bad in law and contrary to the law laid down by the Supreme Court, the petitioner is entitled for full salary as he has undergone the agony and trauma all these years.
29. Accordingly, the writ petition is allowed and the impugned order at Annexure-A is quashed. Respondents are directed to reinstate the petitioner in the post in which he was working and if there is no post available, to create a supernumery post and absorb him to that post. Respondents shall pay the back salary to the petitioner from the date of his removal upto this date within two months from the date of receipt of a copy of this order.