ANANT RAM SHARMA v. STATE OF UTTAR PRADESHAND OTHERS
1998-12-08
D.K.SETH
body1998
DigiLaw.ai
D. K. SETH, J. ( 1 ) THE petitioner was engaged as Road Roller Cleaner in Rural Engineering Service Department on daily wage basis. Subsequently, he was engaged for a fixed period of six months and his last such appointment was made by an order dated 17. 12. 1993 contained in Annexure-3 to the writ petition. It is apparent that the petitioner had worked as such for sometime earlier. The petitioners service was sought to be terminated by an order dated 4. 3,1994 with immediate effect. This order was challenged in Writ Petition No. 10293 of 1994 by the petitioner. By an order dated 23. 3. 1994, operation of the said order was stayed. A copy of the said order is annexure-5 to the writ, petition. It is alleged that the said Writ Petition No. 10293 of 1994 is still pending. The petitioner was thereafter informed by a letter dated 24. 6. 1994 that by the order dated 17. 12. 1993 the petitioners appointment was for a period of six months and that the said period having expired, the petitioner was relieved. Copy of this order is Annexure-2 to the writ petition which has since been challenged herein. ( 2 ) LEARNED counsel for the petitioner contends that once the petitioner has been appointed regularly, his service could not be terminated in the manner it has been done. Even if it is treated to be an order of termination, in effect it was retrenchment which requires compliance with the provisions in respect of retrenchment Including payment of one months notice or notice pay in lieu thereof. Neither one months notice nor notice pay in lieu thereof, has been given to the petitioner, and therefore, the order impugned is liable to be quashed. Learned counsel for the petitioner has relied on two unreported Decisions, one rendered on 3. 2. 1997 in Writ Petition No. 22156 of 1990, Shiv Kumar v. State of U. P. and others and the other decision dated 20. 12. 1996 rendered in Writ Petition No. 31499 of 1990. between Raj Kumar Gupta and State of U. P. through Secretary Village Development, U. P. . Lucknow, contending that in identical situation, those orders were passed and, therefore, this writ petition should be disposed of in terms of the said orders. ( 3 ) MR.
12. 1996 rendered in Writ Petition No. 31499 of 1990. between Raj Kumar Gupta and State of U. P. through Secretary Village Development, U. P. . Lucknow, contending that in identical situation, those orders were passed and, therefore, this writ petition should be disposed of in terms of the said orders. ( 3 ) MR. K. R. Singh, learned standing counsel on the other hand contends that the appointment being a fixed term appointment, the petitioner cannot claim any right to continue after expiry of the fixed term stipulated in the order of appointment. He has relied on a decision in the case of Santosh Kumar v. State of U. P. and another, 1993 (1) UPLBEC 322 and Director Institute of Management Development. U. P. v. Smt. Pushpa Srivastava, AIR 1992 SC 2070 , in support of his contention. ( 4 ) I have heard both the learned counsel at length. The petitioner admittedly was a daily wage labour for some time. Subsequently, by virtue of the appointment order contained in Annexure-3 being dated 17. 12. 1993, he was given appointment for a period of six months with the condition that the appointment was purely temporary and could be terminated at any point of time with one months notice. The petitioners service was purported to be terminated by order dated 4. 3,1994 with immediate effect but without any notice. This order has since been stayed by virtue of order dated 23. 3. 1994 passed in his earlier Writ Petition No. 10293 of 1994. Thereafter, the petitioner was relieved on expiry of six months period in terms of his appointment by order dated 24. 6. 1994. ( 5 ) IT is not disputed that the petitioner was appointed for a fixed period as stipulated in the order of his appointment contained in Annexure-3 to the writ petition, and that this period was not extended and he was relieved by order dated 24. 6. 1994 (Annexure-2 ). In the case of Santosh kumar. (supra), it was held that if the appointment is for a fixed term and such term is extended from time to time, even then the appointment will come to an end on the last date of the term automatically.
6. 1994 (Annexure-2 ). In the case of Santosh kumar. (supra), it was held that if the appointment is for a fixed term and such term is extended from time to time, even then the appointment will come to an end on the last date of the term automatically. When appointment is made for a fixed term, it comes to an end automatically by efflux of time and the appointee has thereafter no right to continue to work on the post. In the case of Smt. Pusfipa Srivastava (supra), it was held that where appointment is purely on ad hoc basis and is contractual and by efflux of time the appointment comes to an end, the person holding such post cannot claim any right to continue on the post. He cannot claim regularisation in service on the basis that he was appointed on ad hoc basis for more than a year. In the present case, the appointment being a fixed term appointment and the same having not been extended beyond the said term and the appointment having come to an end automatically, release of the petitioner does not confer any right which could be established in the writ jurisdiction. Unless the petitioner has a legal right, it is not open to him to invoke writ jurisdiction. In writ jurisdiction, legal rights can be enforced. But if there is no legal right, the question of its enforcement in the writ jurisdiction does not arise. ( 6 ) LEARNED counsel for the petitioner had relied on two unreported decisions cited above claiming that in identical matters, some orders were passed. A perusal of the copies of two orders produced in Court by the learned counsel, shows that those matters deall with appointment of junior Engineers. The appointment of Junior Engineers stands on a different footing particularly when they were not appointed on fixed term and had been working for more than 240 days in a year, which is a fact distinguishable from the facts involved in the present case, inasmuch as the petitioner in the present case was engaged as Road Roller Cleaner initially on dally wage basis and subsequently was given a fixed term appointment for six months. By no stretch of imagination, it can be said that the facts of this case are identical with those of two unreported decisions cited above.
By no stretch of imagination, it can be said that the facts of this case are identical with those of two unreported decisions cited above. Therefore, those two unreported decisions do not help us in the facts and circumstances of the present case. ( 7 ) LEARNED counsel for the petitioner has relied on Rule 4 of the U, P. Temporary Government servants (Termination of Service) Rules. 1975, which is quoted below for ready reference : "notwithstanding anything in these Rules, the tenure or continuance of engagement or employment of the following categories of the persons shall be governed by the terms of their engagement or employment and notice in these rules shall be construed to require the giving to them, or by them of one months notice or pay or penalty in lieu thereof before the termination of their engagement of employment (a) persons engaged on contract ; (b) persons not in whole time employment of Government ; (c) persons paid out of contingencies ; (d) persons employed in a work charge establishment ; (e) persons re-employed after superannuation ; (f) persons employed for a specified period whose services stand determined on the expiry of that period ; (g) persons employed for a specified period on condition that the period may be curtailed on any time ; (h) persons appointed in short term arrangement for vacancies whose service stand determined on expiry of the arrangement or vacancy. " relying on the above rule, learned counsel for the petitioner contends that even in the case of fixed term appointment as contemplated in clause (g), a notice is also required, therefore, the impugned order contained in Annexure-2 cannot be sustained. ( 8 ) A plain reading of the provision shows that notice is required only where service is terminated before expiry of the period fixed. Inasmuch as clause (g) provides that the persons employed for a specified period on condition that the period may be curtailed at any time and his service sought to be terminated before expiry of the fixed period, only then the question of notice would arise. There could not be any question of notice when the term is fixed and the said fixed term is not extended as is held by the Apex Court in the decision cited hereinbefore.
There could not be any question of notice when the term is fixed and the said fixed term is not extended as is held by the Apex Court in the decision cited hereinbefore. ( 9 ) THE learned counsel for the petitioner further contends that since the order of appoinimcnl contains stipulation after fixed term that the service could be terminated at any time with one months notice, it was the intention of the employer that even if the appointment Is dispensed with at any stage, notice is a must. The contention does not seem to be correct. Inasmuch as when the appointment itself is for a fixed term, there is no scope for continuance after expiry of the fixed term. The appointment letter itself was a notice that the appointment will come to an end upon expiry of the fixed period. Therefore, it was a notice of six months. Therefore, this contention is also of no help to the petitioner. ( 10 ) FOR the reasons aforesaid, the writ petition fails and is accordingly dismissed. There will, however, be no order as to costs. ( 11 ) BEFORE parting with the case, it seems that the petitioners another writ petition being Writ petition No. 10293 of 1994, in which the order dated 4. 3. 1994 (Annexure-4) was challenged, has also become infructuous by reason of the order passed in the present writ petition, therefore, the writ Petition No. 10293 of 1994 is treated to be on days list and the same is accordingly dismissed as infructuous. However, there will be no order as to costs.