Pradeep Kumar Trivedi v. Secretary, Vidhan Sabha Sachivalaya, Lucknow
1997-05-29
A.S.GILL
body1997
DigiLaw.ai
JUDGMENT (1.) THE petitioners invoke jurisdiction of this Court under Article 226 for issuance of order or direction in the nature of certiorari, thereby quashing the termination orders of their respective services and further order or direction in the nature of mandamus commanding the opposite party to allow the petitioners to continue to work on the posts and they be paid salary alongwith other benefits admissible under the service and to regularise their services. (2.) ACCORDING to the petitioners the Secretary Vidhan Sabha Sachivalaya, Lucknow, opposite party conducted a written test in the year 1985-86 for preparation of a waiting list of Lower Division Assistants (L.D. As.) and Typist to meet out the exigencies and workload during the period of Session of U.P. Legislative Assembly and to make stop-gap-arrangements. Both the petitioners passed the selection and their names were brought on the waiting list. They were allowed to work from time to time but they continued to work from 1-1-91 to 1-3-94 regularly without any break. The seniority list was also prepared and persons upto serial No. 58 i.e. above the petitioners have already been absorbed against the clear and regular vacancies. Their names appeared in the seniority list at serial Nos. 59 and 60 respectively. However, their ser vices have been dispensed with by an oral order of termination with effect from 2-3-94 arbitrarily. There were two posts lying vacant, against which the petitioners could have been allowed to work. The petitioners claim that they have right to hold the post, as they were duly selected and other selected persons are still working. According to the case of the opposite party the appointments of the petitioners were entirely on temporary/ad hoc basis towards stop-gap-arrangement on the posts created under the delegated powers of the Speaker for limited period and the term of the created posts, on which the petitioners were appointed came to an end and their services also stood terminated automatically. The seniority list, on the basis of which the petitioners have claimed seniority, was cancelled by the Hon'ble Speaker on 23-7-92.
The seniority list, on the basis of which the petitioners have claimed seniority, was cancelled by the Hon'ble Speaker on 23-7-92. It was claimed that the last appointment orders issued to the petitioners were against the posts which were created by order dated 31-5-93 for a period from 1-6-93 to 31-11-93, which was extended to 28-2-94 vide order dated 30-11-93 and since the posts were created upto 28-2-94 only, the appointments of the petitioners were co-terminus with the abolition of the posts. It is also claimed that other employees had filed writ petitions in the Court and the directions were received from this Court for keeping six posts alive, be sides the quota for scheduled castes and scheduled tribes candidates was not fulfilled and also that in the Legislative Assembly Secretariat there were 41 Telephone Operators/Supervisors, who had become surplus due to closure of PBX Exchanges, have been adjusted to work on clerical posts. Last plea was that since the petitioners did not have any right to any post, they could not claim regularisation on account of their working on stop-gap-arrangement. (3.) THE learned counsel for the parties have been heard. (4.) THE petitioners have annexed various appointments Transfer orders, Annexures 1 to 10, to indicate their appointments at different intervals of time by the opposite party and in the petition itself in para 4 petitioners have given the details of their appointments, which are reproduced below:- "Petitioner No. 1. 25-2-87 to 13-3-87 15-6-87 to 24-7-87 9-2-89 to 10-4-89 21-9-89 to 3-10-89 2-1-90 to 20-1-90 1-3-90 to 12-3-90 8-5-90 to 20-7-90 18-8-901030-11-90 1-1-91 to 28-2-94 Petitioner No. 2 1-3-88 to 5-5-88 29-9-88 to 10-10-88 4-2-S9 to 10-4-89 21-9-89to3-10-89 2-1-90 to20-l-90 25-1-90 to21-2-90 1-3-90 to3-4-90 12-4-90 to 30-4-90 1-5-90 to 30-11-90 1-1-91 to 28-2-94" The appointment orders specifically indicated the appointment as purely temporary, which could be terminated at any time without notice. The appointments were made either to meet the rush of work during the period of Vidhan Sabha Session only as the appointments referred to Sessional posts created under the different departmental orders. As per example the order dated 26-12-89 regarding the appointment of Km.
The appointments were made either to meet the rush of work during the period of Vidhan Sabha Session only as the appointments referred to Sessional posts created under the different departmental orders. As per example the order dated 26-12-89 regarding the appointment of Km. Shakuntala Rani and Pradeep Kumar Trivedi as Typist reads as under:- "With effect from 2-1-1990 or the date of joining whichever is later, the following employees/candidates are hereby appointed in an officiating capacity on post and in pay scale mentioned above their names against Sessional posts created under the departmental order No. 5968/VS/Adhi./2/ 90, dated December, 26, 1989 and the chain thereof: 4. Km. Shankuntala Rani 5. Sri Pradeep Kumar Trivedi 2. All the above appointments are purely temporary and can be terminated at any time without notice. No T.A. is payable to the candidates at the time of joining or termination of service. Sd/- Bhal Chandra Shukla Sachiv." The order dated 12-3-90 in respect of petitioner Km. Shakuntala Rani is reproduced below:- "Km. Shakuntala Rani is hereby appointed in officiating capacity on L.D.A. post in the pay scale of Rs. 1200-30-1560-EB-40-2040 from the afternoon of March 12,1990 against the vacancy created due to medical leave sanctioned to Mr. Ashok Kumar Chaube, officiating L.D.A. Vidhan Sabha Sachivalaya from March 3,1990 vide office Memo No. 1394/Vi.Sa/Adhi./13/84 dated 7-3-90. The above appointment of Km. Shakuntala Rani is purely temporary and can be terminated any time without prior notice. Sd/- Bhal Chandra Shukla Secretary." (5.) BY the aforesaid order dated March 12, 1990 the petitioner Km. Shakuntala Rani was appointed against a leave vacancy of Ashok Kumar Chaube, officiating L.D.A. The nature of appointments of the petitioners, as indicated above and as per their case also was against time gap arrangements and on purely temporary basis for specific period. The contention of learned counsel for the petitioners is mainly in respect of allegations of the petitioners that they continuously worked from 1-1-91 to 28-2-94 and as such their case was required to be considered for regularisation and they could be allowed to continue against avail able vacancies. In order to appreciate the contention of the learned counsel, we have to refer to different orders intervening 1-1-91 to 28-2-94, the date on which their ser vices according to the opposite party came to an end.
In order to appreciate the contention of the learned counsel, we have to refer to different orders intervening 1-1-91 to 28-2-94, the date on which their ser vices according to the opposite party came to an end. Vide order, dated December, 28, 1990 the petitioner Pradeep Kumar Trivedi was appointed as L.D.A. in officiating capacity against a vacancy created on the appointment of one Ladli Prasad Singh as U.D.A. in the Vidhan Sabha. The appointment is mentioned to be with effect from 1-1-91 and clearly on temporary basis terminable at any time without any prior notice. Thereafter he was appointed on temporary basis on other vacancy on 1-7-91. On 1-8-91 he was appointed against the Sessional created post and likewise he was given fresh appointment on 17-8-91, 30-11-91, 13-12-91, 30-5-92 and 1-6-93. Similar are the orders pertaining to petitioner Km. Shakuntala Rani. Every fresh appointment was temporary in nature for a specified vacancy i.e. leave vacancy or vacancy caused by transfer or promotion of another employee or sessional created post. Admittedly on none of the posts the petitioners worked beyond specified period. Vide order dated 1-6-93 Pradeep Kumar Trivedi was transferred to a newly created post of Lower Division Assistant. According to the learned counsel for the petitioners the post on which the petitioner No. 1 was transferred even if was a created post for a period upto 28-2-94, the petitioner could have been adjusted to another post or could have been sent back or transferred to another post. Similar is the case of petitioner No. 2 Km. Shakuntala Rani who was also transferred on 1-6-93 on the vacancy of Lower Division Assistant, where also she worked only upto 28-2-94. (6.) THE case of the petitioners for adjustment against the vacant posts or for regularisation is not well founded. Admittedly, the petitioners have been working on purely temporary/ad hoc basis for stop- gap-arrangements, so because it was only during the Vidhan Sabha Session to coup with rush of work. Such temporary and stop-gap-arrangement appointments do not give any right to the post for such appointees. Mere continuation of service of a temporary hand even for a longer period will not vest in him any right to the post.
Such temporary and stop-gap-arrangement appointments do not give any right to the post for such appointees. Mere continuation of service of a temporary hand even for a longer period will not vest in him any right to the post. More so if the post on which such appointments are made is abolished or comes to an end, the appointment also terminates with the end of post and the holder of the post ceases to continue from the date of abolition of the post. It has been so observed by the Hon'ble Supreme Court in case Shri Maheshwari Senior Higher Secondary School and another v. Bhikha Ram Sharma and others (1996) 2 LBESR 185 (SC). Admittedly the post of Lower Division Assistant is to be filled up by direct recruitment through selection by the U.P. Public Service Commission according to U.P. Vidhan Sabha Service Rules, 1974. According to the petitioners after the enforcement of 1974 Rules only in the year 1974 a selection was held by the U.P. Public Service Commission and thereafter no regular selection has been held. THE appointments to the Lower Division Assistants and Typists etc., thus, are being made from time to time as per requirement and these appointments can not be termed as regular appointments. Admittedly such appointments are in contradistinction of regular appointments and unless a person is appointed after following the procedure prescribed for regular appointment, he cannot claim a substantive status nor he can claim a right to hold the post. On the same analogy it can be observed that where a selection is required to be made by the Public Service Commission, an ad hoc appointee cannot claim the regularisation of service merely because he has served for a particular length of time. THE petitioners being purely on temporary basis could not claim adjustment against a vacant post or for re-transfer to the posts from which they were transferred because being temporary hand they cannot claim any lien on a post from where they were transferred to the last post on which they were appointed. Besides, they cannot claim adjustment against the vacant post as well merely because they worked for a specified period on the post which came to an end. Moreover, the petitioners could not claim any right to the vacancy of 1994 when the selection list in which their names figured was cancelled in the year 1992.
Besides, they cannot claim adjustment against the vacant post as well merely because they worked for a specified period on the post which came to an end. Moreover, the petitioners could not claim any right to the vacancy of 1994 when the selection list in which their names figured was cancelled in the year 1992. THE learned counsel has also contended that one Dinesh Kumar Pandey, who is junior to the petitioners was retained in service but the opposite party in the supplementary counter affidavit has categorically denied if there was any list maintained in Vidhan Sabha Secretariat, in which the name of the petitioner Pradeep Kumar Trivedi appears at serial No. 93 or that of Dinesh Kumar Pandey at serial No. 94 and it has been denied if any person junior to the petitioner has been retained. THE learned counsel for the petitioners has not referred to any specific rule on the basis of which the petitioners could claim regularisation. He referred to Rule 28-A of the Vidhan Sabha Service Rules and the copy of Rules has been annexed as Annexure No. 3. A reference to Annexure No. 3 would show that there is no Rule 28-A, besides Rule 28 refers procedure to recruitment to the post of under Secretary, Committee Officer etc. etc. and this Rule is not applicable in the cases of L.D.As or Typists. It has already been observed above that the very nature of appointment of the petitioners does not en visage any regularisation and no such direction for regularisation of the service of the petitioners can be issued when they do not hold any post after their last appointment came to an end. THE appointments of the petitioners from time to time co-related with the availability of work with the Vidhan Sabha Secretariat. THE case of the petitioners is somewhat similar to Census Department, which likewise makes appointments as and when more employees are required on account of census work and similar to petitioners they are temporarily employed to handle the work, which is for limited duration. The case of employees of Census Department for regularisation was considered by the Hon'ble Supreme Court in case of Union of India and others v. Dinesh Kumar Saxena and others (1995) 2 SLR 383 .
The case of employees of Census Department for regularisation was considered by the Hon'ble Supreme Court in case of Union of India and others v. Dinesh Kumar Saxena and others (1995) 2 SLR 383 . The facts also disclose that even after the termination of services of the employees various posts were still available, but in view of nature of appointment of employees for census work, the Hon'ble Supreme Court observed that no such direction could be issued for regularisation of their posts al though they have worked for 8 to 10 years with the Census Department. The Directorate of Census Department was directed to consider the cases of employees, who had worked temporarily in connection with the census operations, but were subsequently retrenched, for their absorption against the regular vacancies, if the employees were otherwise eligible and qualified for the post. Similarly the opposite party in this case can be directed to consider the case of the petitioners for appointment against the vacancies available or likely to fall vacant, if they are otherwise eligible for the appointment. (7.) IN the light of discussions above, this writ petition fails and is dismissed. However, the opposite party is directed to consider the case of the petitioners for appointment against the available vacancies or likely to fall vacant, subject to the petitioners being eligible for the post. Petition dismissed.