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2000 DIGILAW 586 (CAL)

Raj Kumar Dhali v. State of W. B.

2000-11-28

D.K.Seth

body2000
JUDGMENT D.K. Seth, J. In this writ petition, the petitioner has challenged the purported order of termination as well as the purported recruitment sought to be made through an advertisement contained in Annexure 'G' to this writ petition. Mr. Ganguly, learned Counsel for the petitioner, contends that the petitioner having been appointed in the post of Sub-Assistant Engineer and having worked there for long 3 years, has acquired a temporary statues and is entitled to regularisation and cannot be eased out by means of an order of termination and at the same time the respondents cannot fill up the vacancy by fresh recruitment. In support of his contention, he has relied upon the decision in the case of Central Inland Water Transport Corporation Limited vs. Brojo Nath Ganguli, reported in AIR 1986 SC 1571 , in order to contend that after the expiry of 120 days, the petitioner having acquired temporary status and having continued for almost 3 years, his appointment cannot be deemed to be fortutious appointment. He has also relied upon the decision in the case of Union of India vs. K. G. Radhakrishna Panickar and Ors., reported in 1998(8) SCC 111 , wherein the acquisition of temporary status after expiry of 120 days was recognised by the Apex Court. He has also relied upon the case of Dr. A. K. Jain and Ors. vs. Union of India and Ors., reported in 1987 (Supp.) SCC 497, to support the same contention. He had also relied upon the decision in the case of Rudra Kumar Sain & Ors. vs. Union of India & Ors., reported in 2000(4) SLR 787, and relied on paragraphs 14, 15, 16, 19 and 20 to contend that if any person having requisite qualification for being appointed to a particular post and he is so appointed with the approval and selection of appropriate authority and continues in the post for a fairly long period, than such appointment cannot be held to be stop-gap or fortutious or purely ad hoc. He has also relied upon the case of Keshar Chand vs. State of Punjab & Ors., by a Full Bench of the Punjab and Haryana High Court reported in 1988 (5) S.L.R. 27, where a similar view was taken. 2. Mr. He has also relied upon the case of Keshar Chand vs. State of Punjab & Ors., by a Full Bench of the Punjab and Haryana High Court reported in 1988 (5) S.L.R. 27, where a similar view was taken. 2. Mr. L. C. Bihani, learned Counsel for the respondents, on the other hand, contends that the petitioner had applied pursuant to the advertisement that was published specifically mentioning 'situation vacant' and had pointed out that it was for the purpose of execution of the scheme in that field. Therefore the petitioner having applied along with some other persons was asked to intimate as to whether he is interested in joining the post and if so, he may visit the office. The petitioner having agreed was given appointment pursuant to an agreement executed by him for a period of 6 months at a consolidated pay of Rs. 2000/- per month on the conditions mentioned in the said agreement. Though the petitioner was allowed to continue and his pay was enhanced but in effect the petitioner was not working against any post inasmuch as according to him the posts are to be created by the State Government. There was no such post against which the petitioner would be engaged. In order to execute certain scheme persons were being engaged on contractual basis. Therefore the petitioner could not continue in the absence of any post. 3. In reply, the learned Counsel Mr. Ganguly pointed out that the petitioner was initially given appointment for a period of 6 months, but the said agreement was not renewed whereas the petitioner was allowed to continue there-after ,6 months having expired some times in 1998, the petitioner having worked for more than 120 days after the expiry of the period of the agreement, the petitioner having acquired temporary status, he is entitled to continue in view of the decisions cited by him. 4. I have heard the learned Counsel at length. It appears that the recruitment was made pursuant to an advertisement which specifically advertised recruitment against a 'situation vacant'. The word 'situation vacant' has a different connotation which means that it was only an engagement for a period during which such situation continues. 4. I have heard the learned Counsel at length. It appears that the recruitment was made pursuant to an advertisement which specifically advertised recruitment against a 'situation vacant'. The word 'situation vacant' has a different connotation which means that it was only an engagement for a period during which such situation continues. However, in the advertisement the period has not been mentioned, but before giving appointment to the petitioner after he was selected pursuant to his application, - he was asked as to whether he was interested in joining the post and if he was interested, he may visit the office as is apparent from Annexure 'D' to the petition. Thus the petitioner was asked to report for duty on 31.10.1997 once the petitioner had signified his interest. From the record it appears that the petitioner had executed an agreement on 31.10.1997, the execution whereof has not been denied. The only objection that was taken is that the space for witness before the signature of the petitioner is vacant. In the xerox copy of the original agreement it is also soon that the said space remains vacant. Be that as it may, the petitioner did not disclose in the writ petition that there was an agreement. Neither he had disclosed that the advertisement pursuant to which he had applied was in respect of a situation vacant. However, at the same time in paragraph 5 of the affidavit-in-opposition the respondents had denied that the petitioner had applied pursuant to an advertisement. But in Court while producing the record, Mr. Bihani had argued that the petitioner had applied pursuant to an advertisement for situation vacant. 5. The agreement is Annexure 'A' to the affidavit-in-opposition. In the said agreement it was pointed out that the Digha Development Authority (D.D.A) offered the petitioner service in the post of Sub-Assistant Engineer on the terms and conditions set forth in the agreement and that the petitioner had agreed without any reservation to accept the same. It may be necessary to record some of the clauses of the said agreement which are quoted below: 1. The Digha Development Authority shall employ Sri Raj Kumar Dhali as S.A.E. (Civil) and post him at Digha in connection with the effective implementation of the schemes under the authority. 2. It may be necessary to record some of the clauses of the said agreement which are quoted below: 1. The Digha Development Authority shall employ Sri Raj Kumar Dhali as S.A.E. (Civil) and post him at Digha in connection with the effective implementation of the schemes under the authority. 2. The employment of Sri Raj Kumar Dhali shall be for a period of six months from the date of signing this agreement with the authority. 7. In consideration of such losy and faithful service, the authority shall pay to him a consolidated allowance of Rs. 2000.00 (Rupees two thousand only) per mensem. 12. Notwithstanding anything contained herein, this agreement may be determined by the Digha Development Authority on giving to Sri Raj Kumar Dhali either one calender month's notice, in writing or one month's allowance in lieu of notice. He may also reaign from the services with the Digha Development Authority on giving one calender month's notice in writing or on payment of one month's allowance in lieu of notice. 13. The engagement of Sri Raj Kumar Dhali under this agreement may, however, be terminated forthwith without any notice or payment in lieu of notice at any time, in the event of his conducting himself in any manner prejudicial to the interest of the Digha Development Authority and more particularly in the following cases:- i) Insorbriety. ii) Unauthorised absence. iii) Persistent unpunctuality in attendance to office. iv) Gross carelessness and lack of attention to or neglect of work or duties. v) Disobedience of lawful orders given by the Executive Officer, Digha Development Authority. vi) Breach of trust or breach of confidence with reference to official secrets or the authority. vii) Fraud or misappropriation or any other defalcation. viii) Breach of any of the Rules and Regulations of the authority. ix) Breach of any of the terms of this agreement. 6. It appears that the petitioner had applied against a 'situation vacant' and was asked to signify his consent to accept such appointment and he had also entered into a contract as is apparent from the execution of the agreement contained in Annexure 'A'. It appears that there were two witnesses who had signed. The space for signature of witnesses belong the signature of the petitioner remain vacant, but that does not mean that the petitioner has not signed in the absence of the witnesses who had signed the agreement. It appears that there were two witnesses who had signed. The space for signature of witnesses belong the signature of the petitioner remain vacant, but that does not mean that the petitioner has not signed in the absence of the witnesses who had signed the agreement. Such a technical defect cannot be looked into as making an agreement void. In case as contended by Mr. Ganguly by reason thereof the agreement is void, in that event the petitioner cannot claim any benefit out of the said agreement on account of his being appointed pursuant to the said agreement. 7. Nothing has been shown to this Court that the engagement was against a sanctioned post. But the attending materilas show that it was in a 'situation vacant'. A contractual appointment was given for a limited period which might have continued even after the expiry of the period limited by time without any extension or renewal of the agreement, but that will not improve the case and bring the same within the ratio decided as to the acquisition of temporary status in the case of Rudra Kumar Jain (supra) since the appointment was not made against a post. Had this appointment been made against a post, in that event the ratio decided in the said case could have been attracted. 8. Inasmuch as in the said case there was no dispute that the appointment was made against a post and that it was the question of grant of seniority that was involved in the said post there was no dispute with regard to the appointment against a post on the basis of such background equitable principle was invoked and the principle of acquisition of temporary status was brought in,• while treating the said appointment as an appointment which cannot be termed ad hoc, stop-gap or fortutious. The position becomes clear if we refer to relevant portion of paragraphs 19 and 20 respectively of the said decision as quoted below: "19 ...... If an appointment is made to meet the contingency arising on account of delay in completing the process or regular recruitment to the post due to any reason and it is not possible to leave the post vacant till then and to meet this contingency an appointment is made then it can appropriately be called as a 'stop-gap arrangement' and appointment in the post as ad hoc appointment. It is not possible to lay down any straight jacket formula nor give any exhaustive list of circumstances and situation in which such an appointment (ad hoc, fortutious or stop-gap) can be made. As such this discussion is not intended to enumerate the circumstances or situations in which appointments of officer can be said to come within the scope of any of these terms. It is only to indicate how the matter should be approached while dealing with the question of inter se seniority of officers in the cadre. 20. ...... a person who possesses the requisite qualification for being appointed to a particular post and then he is appointed with the approval and consultation of the appropriate authority and continues in .the post for a fairly long period, then such appointment cannot be held to be 'stop gap, or fortutious or purely ad hoc'." The above observation clearly indicates that the Court had proceeded on the basis that the appointment was made against a particular post. But here there is nothing to indicate that the petitioner was appointed against a post whereas the materials are overwhelmingly indicating that the petitioner was appointed against a 'situation vacancy' pursuant to a contract. 9. The conditions in the contract as quoted above clearly indicate that it was purely contractual appointment for a particular scheme. If the scheme had continued for more than 6 months and the petitioner is allowed to continue with the scheme as soon as the scheme is over the petitioner cannot claim any right to continue even if a new scheme is adopted. Paragraph 1 of the said agreement shows that he was appointed for implementation of the scheme under the authority. Paragraph 12 of the said agreement points out that his service can be terminated either be giving one month's notice or by giving one month's pay and allowance in lieu of notice. Similar right was also preserved for the petitioner who can resign with one month's notice or one month's pay in lieu of notice. Paragraph 13 has also stated that in case of misconduct his service only would be terminated without any notice. Thus the materials disclose that it was a contractual employment which cannot be extended beyond the scheme and the petitioner cannot be said to have acquired any right by reason of his continuance for a period of almost 3 years. 10. Paragraph 13 has also stated that in case of misconduct his service only would be terminated without any notice. Thus the materials disclose that it was a contractual employment which cannot be extended beyond the scheme and the petitioner cannot be said to have acquired any right by reason of his continuance for a period of almost 3 years. 10. The decision in the case of Brojo Nath Ganguly (supra) also does not help us in the present case inasmuch as in the said case the officers who were involved were permanent employees and on account of a contract with another company, officers were asked to enter into a service scheme by arrangement with Central Inland Water Transport Corporation Limited under a particular scheme since the company in which they were permanent employees was dissolved and they would receive a meagre compensation and as such the said regular employees did not have any option but to accept the scheme. In this background the said decision proceeded which is completely distinguishable with the facts of the present case where there was no such compulsion so far the petitioner is concerned. In this case, the petitioner was well aware before he had applied pursuant to the advertisement that it was a situation vacancy and was also asked before he had accepted the appointment as to whether he was interested in such an appointment and then he had executed an agreement with his eyes open. The decision in the case of Keshar Chand (supra) by the Punjab and Haryana High Court is completely on a different question which does not apply in the facts and circumstances of this case. The decision in the Rudra Kumar Sain (supra) also does not help us in the present case since in the said case the appointment was not made against a situation vacancy and that in the said case there were certain provisions in the Railway Establishment mainly while interpreting the same. The question of 120 days of continuous service for acquiring temporary status was taken into consideration. In the absence of any such rule under which the petitioner can claim it is not possible to attract the ratio decided therein. 11. Similarly the decision in the case of Dr. The question of 120 days of continuous service for acquiring temporary status was taken into consideration. In the absence of any such rule under which the petitioner can claim it is not possible to attract the ratio decided therein. 11. Similarly the decision in the case of Dr. A.K. Jain (supra) also does not help us since in the said case an ad hoc appointment was made against such a post which was subsequently filled up by direct recruitment after 4 years of continuous service on being appointed on ad hoc basis. But this said decision has not given any reason but had formulated a scheme for absorption of these officer who was appointed on ad hoc basis. The decision was given in 1987 after which the entire outlook has since been changed. The present trend in such case has since been reflected by various judgment of the Apex Court which are altogether different. In the case of State of Himachal Pradesh vs. Suresh Kumar Verma, 1996(2) SLR 321 , the Apex Court had also observed that judicial process cannot be utilised to support the mode of recruitment de hors the rules. In the case of Dr. Surinder Singh Jamawal vs. State of Jammu & Kashmir, reported in JT 1996(6) SC 725, the Apex Court had also observed that ad hoc or temporary appointment de hors the rules pending regular rule does not confer any right to regularisation. In the case of State of Haryana vs. Pyara Singh, reported in AIR 1992 SC 2130 , the Apex Court had obstructed the backdoor entry. In the case of State of Uttar Pradesh vs. Kausal Krishna Sukla, reported in 1999 (1) SCC 691, the Apex Court had held that an appointment limited by time does not confer any right to continue beyond the time limited or claim for regularisation. The same view was reiterated by the Apex Court in Director, Institute of Management and Development, U. P. vs. Smt. Puspa Srivastava, reported in AIR 1992 SC 2070 . 12. In the present case the petitioner had relied upon Rule 5 which deals with the question of probotation. Mr. Ganguly contended that in view of the said Rule the petitioner deem to have acquired a right to be confirmed, on the expiry of the period mentioned in the said Rules. But it is pointed out by Mr. 12. In the present case the petitioner had relied upon Rule 5 which deals with the question of probotation. Mr. Ganguly contended that in view of the said Rule the petitioner deem to have acquired a right to be confirmed, on the expiry of the period mentioned in the said Rules. But it is pointed out by Mr. Bihani that Rule 3 makes Rule 5 inapplicable in respect of contractual agreement, the appointment in the present case being a contractual one, Rule 5 cannot be attracted. But this question is again relevant only when the appointment is made against a regular post. In the absence of any material to show that the petitioner was engaged against a regular post the appointment pursuant to an advertisement for a situation vacancy does not confer any right either to claim regularisation or absorption or to claim either temporary or permanent status as claimed by the petitioner. 13. Mr. Ganguly has also relied upon the certificate issued by the authority that the petitioner had been working satisfactorily with DDA. But on perusal of the records it appears that the petitioner himself had asked for issuance of the said certificate through an application made by him as well as he had also prayed for no objection certificate to enable him to apply for recruitment through PSC. This is a certificate which has been obtained by him to enable him to apply for selection before Public Service Commission. He cannot utilise the same for any other purpose. However, despite the said circular unless it is shown that he was engaged in a post, the benefit he is claiming, cannot be conferred on him. 14. In the circumstances, I am unable to pursuade myself to agree with the contentions advanced by Mr. Ganguly in Court. 15. In the result, the writ petition fails and is dismissed, but without any order as to costs. Writ petition dismissed.