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2008 DIGILAW 1773 (ALL)

Km. POONAM BAGHEL v. STATE OF UTTAR PRADESH

2008-08-26

SUDHIR AGARWAL

body2008
JUDGMENT Hon’ble Sudhir Agarwal, J.—The grievance of the petitioner is that she was appointed as Lecturer vide appointment letter dated 11.10.2007 in Dayalbagh Educational Institute (Deemed University) at Agra. Though the said appointment was for a period of one year being a fixed term temporary appointment but the petitioner is entitled to continue even thereafter since no person on the regular basis has been appointed on the said post. 2. However, I do not find any substance in the submission for the reason that the petitioner has no legal right to continue beyond the term of his appointment letter. The appointment letter clearly provides as under : “I am directed to inform you that the Managing Council for the Non-University General Educational Institute has appointed you as Lecturer in Home Science in the DEI Prem Vidyalaya Girls Intermediate College on temporary (fixed-term) basis for a period of one year only from the date you assume charge of the post, on a starting basic pay of Rs. 5,500/- per month in the pay scale of Rs. 5000-175-8650 plus admissible allowances under the rules of the Institute on the following terms and conditions : (1) You are appointed on temporary (fixed-term) basis against an existing vacancy which is likely to be filled up on regular basis and action for filling it up on regular basis is under process, therefore, your said service shall stand automatically terminated on expiry of your temporary (fixed-term) appointment or on resumption of duty by a regular incumbent on the post, whichever is earlier. (2) This temporary (fixed-term) appointment can also be terminated by either of the parties by giving one month’s notice or by paying one month’s salary in lieu thereof.” 3. Clause 5 thereof further reads as under : “5. This temporary (fixed-term) appointment of yours will not confer any prescriptive right for your future absorption in any service of the Institute.” 4. In view of the aforesaid terms and conditions of appointment letter it is evident that she was a tenure appointee for one year without any claim for renewal after the tenure is over. 5. It is not in dispute that as per the terms of appointment, engagement of the petitioner was only for a particular session and by efflux of time the same would come to an end. 5. It is not in dispute that as per the terms of appointment, engagement of the petitioner was only for a particular session and by efflux of time the same would come to an end. The question is whether the petitioner can claim a right to continue in institution despite the aforesaid condition of appointment. The letter of appointment in effect would already lose its efficacy by efflux of time that it would suo motu lapse on expiry of tenure. Whether the petitioner in such circumstance can be directed to continue even beyond that is the moot question to be considered and answered here. In my view reply would be in negative. The appointment of the petitioner being for a fixed tenure, she has no right to continue beyond the period indicated in the letter of appointment. It is evident that the appointment made is time bound. Extension of appointment by judicial order therefore is not permissible. A similar controversy came up for consideration before a Division Bench of this Court in Alok Kumar Singh (Dr.) and 15 others v. State of U.P. and others, (2002) 2 UPLBEC 1373 wherein it has been held that the petitioner cannot claim any right to continue in service beyond the period of appointment provided in the letter of appointment. 6. Besides, the appointment of the petitioner, a fixed term, would come to an end automatically by efflux of time. In case the contention of the petitioner is accepted, it would amount to re-writing the appointment letter allowing the petitioner to continue without there being any letter of appointment issued by the competent authority for a period after the tenure is over. In 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 a 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 thereto substituting itself to the position of appointing authority. 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 thereto 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. Similar view has been taken by this Court in Writ Petition No. 20871 of 2006, Dr. Vijay Kumar Singh and others v. State of U.P. and others, decided on 25.4.2006. Further a Constitution Bench of the Apex Court in Secretary, State of Karnataka and others v. Uma Devi 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 basis for one session is exploitative and is arbitrary. I am afraid that even this submission cannot be accepted. Rejecting similar argument in Uma Devi (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. 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. A Division Bench has reiterated the aforesaid view after following the aforesaid judgment in Sarvesh Kumar Singh v. State of U.P and others, Writ Petition No. 25849 of 2006 decided on 11.5.2006; and Amar Nath Tiwari v. State of U.P and others, Writ Petition No. 28632 of 2006 decided on 23.5.2006. 9. learned Counsel for the petitioner sought to place reliance on certain interim orders passed by this Court at the time of admission permitting the petitioners to continue till candidates regularly selected are available. However, this aspect of the matter has been considered by a Division Bench of this Court in Civil Misc. Writ Petition No. 812 (S/B) of 2007, Dr. learned Counsel for the petitioner sought to place reliance on certain interim orders passed by this Court at the time of admission permitting the petitioners to continue till candidates regularly selected are available. However, this aspect of the matter has been considered by a Division Bench of this Court in Civil Misc. Writ Petition No. 812 (S/B) of 2007, Dr. Manish Dixit and others v. State of U.P. and others, decided on 19.7.2007 and this Court held as under : “Learned Counsel for the petitioner sought to place reliance on an interim order dated 23.5.2007 passed by this Court in W.P. No. 221 (S/B) of 2007 and the judgment dated 15.11.2006 passed by a Division Bench of this Court in W.P. No. 1560 (S/B) of 2006. We find, from perusal of the aforesaid order, that the condition of appointment and various issues which have been considered by us in this case were neither raised nor argued nor decided in the aforesaid orders. Therefore in our view, the said orders cannot be treated to be a binding precedent to give relief sought by the petitioners in this writ petition particularly when the various issues which have been considered by us in the writ petition have already been decided finally by several Division Bench judgments of this Court as referred hereinabove. Learned Counsel for the petitioners further placed some orders passed by this Court relating to disposal of the writ petition at the admission stage, copies whereof are on page Nos. 38-39 of the writ petition but there also we find, that the issues as have been considered here were not raised in those cases. Therefore the aforesaid judgments cannot be said to be binding precedent on the various issues which have been considered by this Court in the present case.” 10. At this stage, it would also be appropriate to notice that earlier it was held by the Apex Court that right to earn livelihood is part and parcel of ‘right to life’ under Article 21 of the Constitution and this was equated with the right to employment. However, the Apex Court in Uma Devi (supra) has rejected this submission that Article 21 would include the right to employment and in para 42 of the judgment has held as under : “42. However, the Apex Court in Uma Devi (supra) has rejected this submission that Article 21 would include the right to employment and in para 42 of the judgment has held as under : “42. The argument that the right to life protected by Article 21 of the Constitution of India would include the right to employment cannot also be accepted at this juncture. The law is dynamic and our Constitution is a living document. May be at some future point of time, the right of employment can also be brought in under the concept of right of life or even included as a fundamental right. The new statute is perhaps a beginning. As things now stand, the acceptance of such a plea at the instance of the employees before us would lead to the consequence of depriving a large number of other aspirants of an opportunity to compete for the post or employment. Their right to employment, if it is a part of right to life, would stand denuded by the preferring of those who have got in casually or those who have come through the back door. The obligation cast on the State under Article 39(a) of the Constitution of India is to ensure that all citizens equally have the right to adequate means of livelihood. It will be more consistent with that policy if the Courts recognise that an appointment to a post in Government service or in the service of its instrumentalities, can only be by way of a proper selection in the manner recognised by the relevant legislation in the context of the relevant provisions of the Constitution. In the name of individualizing justice, it is also not possible to shut our eyes to the constitutional scheme and the right of the numerous as against the few who are before the Court. The Directive Principles of State Policy have also to be reconciled with the rights available to the citizen under Part III of the Constitution and the obligation of the State to one and all not to a particular group of citizens. We, therefore, overrule the argument based on Article 21 of the Constitution.” 11. The Directive Principles of State Policy have also to be reconciled with the rights available to the citizen under Part III of the Constitution and the obligation of the State to one and all not to a particular group of citizens. We, therefore, overrule the argument based on Article 21 of the Constitution.” 11. The Apex Court also considered the question as to whether a writ of mandamus can be issued by the Court directing the employer either to absorb the employee in permanent service or to allow him to continue, and in this context has held as under : “In order to that a mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it." 12. It is not the case of the petitioner that respondents are under a legal duty or the petitioner has statutory or fundamental right to seek direction to continue the petitioner till regular selected candidate is available. 13. In view of the aforesaid discussion, I do not find any merit in this writ petition. Dismissed. No order as to costs. ————