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2006 DIGILAW 1462 (ALL)

AMAR NATH TIWARI v. STATE OF UTTAR PRADESH

2006-05-23

S.RAFAT ALAM, SUDHIR AGARWAL

body2006
JUDGMENT By the Court—In the instant petition the petitioner has prayed for commanding the respondents to treat him in service; even beyond the session 2005-06 and continue to pay salary until regular selected candidate is received from the Commission. We have heard learned Counsel for the petitioner and also perused the writ petition. Admittedly the petitioner was appointed on honorarium basis with clear stipulation that he shall continue till the end of session or till the recommendation from the Commission whichever is earlier. Therefore, the petitioner having accepted the term and conditions mentioned in the letter of appointment, cannot now claim that he should be allowed to continue till the recommendation is received from the Commission for regular appointment. 2. A perusal of the appointment letter dated 1.12.2005 (Annexure-2) shows without any doubt that the appointment was made time bound i.e. upto end of the session or till regularly selected teacher is available whichever is earlier. It is not disputed that the session for which the petitioner was appointed is come to an end on 30.6.2006 and therefore, pursuant to the aforesaid order the petitioner may continue to work only till 30.6.2006 if candidate selected by the Commission is not available earlier. Therefore, the appointment of the petitioner in any case is only till 30.6.2006. In these circumstances, the contention of the petitioner if accepted, would amount to altering term of his appointment by this Court by making the outer terminal redundant. It is not permissible in law. Extension of the appointment by judicial order is not permissible. 3. Similar controversy came up for consideration before a Division Bench of this Court in the case of Alok Kumar Singh (Dr.) & 15 others v. State of U.P. and others, 2002(2) ESC 427 (All) wherein it has been held that the petitioners cannot claim any right to continue in service beyond the period of appointment provided in the letter of appointment. Since the matter is already concluded by a Division Bench judgment of this Court, interim order sought to be relied by the petitioners is of no help, as this Court is bound by the law laid down in the final judgment of this Court. Interim order do not lay down any binding precedent. 4. Besides, the appointment of the petitioner is for a fixed term i.e. till 30.6.2006 or till the regularly selected candidates join, whichever is earlier. Interim order do not lay down any binding precedent. 4. Besides, the appointment of the petitioner is for a fixed term i.e. till 30.6.2006 or till the regularly selected candidates join, whichever is earlier. In case no candidate selected by the Commission is available before 30.6.2006, the appointment of the petitioner shall come to an end by 30.6.2006 automatically by efflux of time. The appointment, being a fixed term appointment, it would amount to re-writing the appointment letter if the petitioner is allowed to continue beyond 30.6.2006 without there being any letter of appointment issued by the competent authority for the period subsequent to 30.6.2006. In the case of Director, Institute of Management Development, U.P. v. Pushpa Srivastava (Smt.), 1992 (4) SCC 33 the Hon’ble Apex Court held that the appointment, which is made for fixed tenure comes to an end on the expiry of the period of appointment provided in the letter of appointment and the incumbent need not be terminated as the termination of employment comes automatically by efflux of time. In this case also, admittedly, the appointment of the petitioner is for fixed tenure and in case the contention of the petitioner is accepted it will amount to giving an appointment by this Court for the period subsequent to 30.6.2006 substituting itself to the position of appointing authority. This is neither permissible in law nor should be done. When a procedure is prescribed to do a thing in a particular manner, it should not be done otherwise. 5. Same view has been taken by this Court in W.P. No. 20871 of 2006 Dr. Vijay Kumar Singh and others v. State of U.P. and others, decided on 25.4.2006; W.P.No. 25849 of 2006 Sarvesh Kumar Singh v. State of U.P. and others, decided on 11.5.2006; and W.P.No. 26908 of 2006 Dr. Tarun Kumar Sharma v. State of U.P. and others decided on 22.5.2006 6. Further a Constitution Bench of the Apex Court in Secretary, State of Karnataka and others v. Umadevi and others, JT 2006 (4) SC 420, in para 34 of the judgment has observed as under: “If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued.” 7. Learned Counsel for the petitioner further submits that on account of unemployment and lack of bargaining position, the petitioner cannot negotiate with the respondents on equal terms and therefore, the condition of engagement on contractual and honorarium basis for one session is exploitative and is arbitrary. We are afraid that even this submission cannot be accepted. Rejecting similar argument in Umadevi (supra), the Apex Court in para 36 of the judgment has observed as under : “It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with eyes open. It may be true that he is not in a position to bargain not, at arms length- since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the Court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the Court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succour to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term.” 8. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term.” 8. Learned Counsel for the petitioner attempted to argue that clauses No. 2 and 3 of the Government Order dated 7.4.98 are arbitrary and discriminatory. However, in absence of such relief or prayer made in the writ petition, the aforesaid argument of the learned Counsel for the petitioner cannot accepted. Even otherwise, it is not disputed that the appointment of the petitioner is in pursuance of the Government Order dated 7.4.98 and having availed the benefit of the said Government Order it is not open to the petitioner to advance submission against a part of the Government Order which does not suit to him now. Either he can take advantage of the Government order as it is or the entire order could have been challenged but it is not permissible to the petitioner to avail the benefit under the Government Order and also challenge some of the condition of the said Government Order. It is not disputed that, as per the conditions of the said Government Order as a whole, the appointment of the petitioner on honorarium basis was made and in the said G.O. the condition was that the petitioner’s appointment will be for one session only whereafter a fresh selection has to be made for the next session. Therefore, the petitioner has no legal right to continue after 30.6.2006 since the appointment letter is time bound. The relief sought by the petitioner, thus, cannot be granted. Therefore the writ petition being devoid of merit is hereby dismissed. Petition Dismissed. ———