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1995 DIGILAW 211 (RAJ)

Vinod : Gynaeshwar v. Distt. Judge, Pratapgarh : Distt. & Sessions Judge, Partapgarh

1995-02-24

V.S.KOKJE

body1995
JUDGMENT : 1. With the consent of the parties, both these petitions were heard together finally. 2. The petitioners were working as ad hoc lower Division Clerks in the Subordinate Courts in District Pratapgarh. On 1.2.94, the petitioners were appointed on ad hoc basis for a period of one year under Rule 23(3) of the Rajasthan Subordinate Courts Ministerial Establishment Rules; 1986. In the appointment orders, it was stated that a test was taken to test efficiency in Hindi and English typing and the petitioners were found up to mark. It was also stated in the appointment letter that the petitioners shall appear and clear the examination which may be taken for regular recruitment and shall also clear the typing test within one year. If they fail in the regular recruitment test, their services shall be liable to be terminated without notice. The District and Sessions Judge, Pratapgarh on 23.1.95 authorised the Civil Judge, Junior Division and Judicial Magistrate I Class, under him to terminate the services of petitioner Mukesh Kumar on his completion of the period of one year of appointment. Similar orders were issued in respect of other petitioners. The petitioners contention is that they have right to be continued till regular selection takes place. It is contended that in some other Districts of Rajasthan, such appointments have been continued till regular selections are made. It is also contended that three persons, who were appointed after the petitioners on 14.2.94, 4.5.94 and 5.5.94 respectively were continued in service and thus, the last come first go rule was violated. It is also contended that if the District Judge did not hold a regular selection test within a period of one year, the petitioners who were ready to take such test cannot be made to suffer. A Single, Bench decision of their Court in S.B.C. Writ Petition No. 4563/92 decided on 9.2.93, Ku. Basant Hisaria v. State of Rajasthan, as also a Division Bench decision of this Court in Anita Kothari v. State of Rajasthan, 1990 (1) RLR 87 were pressed into service. The decisions in State of Haryana and others v. Pyara Singh, AIR 1992 SC 2130 Beer Bajrang Kumar v. State of Bihar and others, AIR 1987 SC 1345 and Sunder Das v. Collector, Thane, AIR 1991 SC 1893 were also referred to. 3. The decisions in State of Haryana and others v. Pyara Singh, AIR 1992 SC 2130 Beer Bajrang Kumar v. State of Bihar and others, AIR 1987 SC 1345 and Sunder Das v. Collector, Thane, AIR 1991 SC 1893 were also referred to. 3. The respondents in their reply have taken the stand that the appointments being for a fixed period as a stop-gap arrangements under the Rule 23(3) of the rules, the petitioners did not have any vested right to continue in service beyond one year, the period for which the appointments were made. It is also submitted that under the administrative orders of this High Court the selection process in under way and selected candidates will be available to fill in the vacancies within a short time. As regards the junior employees being kept in service, it was pointed out that the appointment of those persons were also under Rule 23(3) for a period of one year and were liable to be terminated on expiry of that period of one year. It is also contended that the appointment of one Gyaneshwar who was appointed on 14.2.94 has accordingly come to an end and his services have been terminated and the services of other two persons will be terminated as soon as they complete the period of one year of their service. 4. Having heard the learned counsel, I am of the view that this petition does not deserve to be allowed. The appointment was clearly for a fixed period and whether to continue that any further is up to the employer. There cannot be any vested right in such matters. As regards the continuation of the appointment on sympathetic grounds, suffice it to say that a relief under Article 226 can be claimed on the basis of a vested right and not on the basis of sympathy. As regards the decisions cited, both the single bench decision of this Court and the Division Bench decision are distinguishable on facts. In Ku. Basant Hisaria's case (supra) the appointment was initially for a period of three months or till passing of competitive examination to be held by the Distt. and Sessions Judge, whichever was earlier. That term was extended for another two months or till the availability of regularly selected persons, whichever was earlier. In Ku. Basant Hisaria's case (supra) the appointment was initially for a period of three months or till passing of competitive examination to be held by the Distt. and Sessions Judge, whichever was earlier. That term was extended for another two months or till the availability of regularly selected persons, whichever was earlier. In the present case, the appointments do not contain any other contingencies, but the expiry of period of one year. Actually, in this decision, the learned Judge has spoken of exercise of power to terminate the services of such temporary employees. In the present case, in fact no termination order was necessary because the appointment itself was for a fixed term of one year, after which even without any order of termination the employment had to come to an end, In fact, for the continuation of such employee beyond the period of one year, a fresh appointment order was necessary and, therefore, the decision in Ku. Basant Hisaria is distinguishable on facts. So far as Division Bench decision in Anita Kothari's case is concerned there the petitioners were continued in employment for more than seven years by giving them appointment every year. This is not the case here. There is no scope for applying doctrine of legitimate expectation as the appointment order clearly stated that it was for one year and was not renewed thereafter for even once. The decision, therefore, can have no relevance in the circumstances of this case. 5. The grievance that last come first go rule is violated is also unreal. When employees are recruited for fixed period on ad hoc basis, employees employed later have to be allowed to complete the period for which they are appointed. In such cases it cannot be said that no new ad hoc appointment should be made to facilitate continuation in employment of the ad hoc employees earlier appointed beyond the original period for which they were appointed. It would not only be hazardous but impossible to apply the principle to employment which is given not through any regular process of recruitment but is given at random to those who come to know or are conveniently made to know of existence of any such vacancies and the intention of the authorities is to fill them as stop-gap arrangements. Petitioners cannot have any grievance if the bounty is shared by others similarly situated. 6. Petitioners cannot have any grievance if the bounty is shared by others similarly situated. 6. As regards the argument that different Distt. and Sessions Judges under the same High Court cannot follow different policies as regards the continuation of such employees, it has to be kept in mind that for the purpose of staff of the subordinate, Courts, each District has been accepted to be a separate unit. The recruitment in different districts is made separately. Situations in different districts, therefore, cannot be taken to be the same. Morevoer, if the regular process of selection is being stalled in other districts by making and continuing such ad hoc appointments, that example need not be followed in every district. The regular process of selection must be adopted as the normal course of recruitment and any ad hoc appointments must be made only as exception and in exceptional circumstances. Ad hoc appointments cannot be allowed to substitute the regular process of selection and the exception cannot be allowed to eat away the rule itself. It appears that when the respondents are starved of the staff by putting an end to ad hocism, the regular process of selection will be strictly adhered to. That seems to be the only way left to get out of this vicious circle of ad hocism or out of turn appointments expected to be regularised in course of time, which are nothing short of back door entries, becoming the regular feature of the process of recruitment and to ensure that recruitment according to the rules is made to obviate necessity of ad hoc appointments. 7. The respondents have stated in their reply that the regular process of selection shall be completed shortly. We do not know how shortly it is going to be and therefore, it is necessary to direct that no ad 'hoc appointment of LDCs shall be made in the District of Pratapgarh till the regular selection process is completed and candidates duly selected are appointed.The petition is, therefore, dismissed. There shall be no order as to costs.Petition dismissed.