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2008 DIGILAW 755 (CAL)

UNION OF INDIA v. Satish Chandra Upadhyay

2008-07-30

KALYAN JYOTI SENGUPTA, PRASENJIT MANDAL

body2008
Judgment :- (1.) BY a common judgment and order dated 16th December 1997 the learned tribunal has disposed of two matters, being O. A. 693 of 1996 and O. A. 942 of 1995. The parties are not concerned with O. A. 942 of 1995 since grievance, of the applicant, as mentioned, was redressed during pendency of the aforesaid matter. But the judgment and order, passed in O. A. 693 of 1995, has been assailed by Union of India as the learned Tribunal, by the aforesaid judgment and order, has given a declaration that the applicant, who is respondent before us, is deemed to have been appointed on ad hoc basis till he is regularised. (2.) THE fact of the case is very short and simple. On and from August 1993 the applicant was appointed to the post of Engineer and Ship Survey in the general Services on ad-hoc basis on a pay of Rs. 3700/- per month in the scale of Rs. 3700-125-4700-150-5000. His appointment specifically was for a period of one year; with effect from the date he takes over charge of the post or till the date when the Union Public Service Commissions nominee joins duty, whichever is earlier. It was also mentioned that his appointment could be terminated at any time by months notice given by either side. (3.) THEREFORE, it is clear that the appointment was completely on temporary basis. By a letter dated 23rd November 1994, applicants service was extended for a further period of six months from 15th of November 1994; by letter dated 29th March 1995, it was extended for a further period of six months from 18th May 1995 and by a letter dated 20th October 1995 extension was granted for further period of six months with effect from 18th November 1995 which was to expire on 17th May 1996. Unfortunately, before the aforesaid term expired, the applicant, while he was on duty met with an accident which disabled him to perform his duty. Thereafter, by a letter dated 28th May 1996 the respondent refused to grant extension beyond 17th May 1996. The aforesaid letter was preceded by another letter dated 29th March 1996 wherein it has been mentioned that the applicant will continue until 17th may 1996 or till submission of Medical Fitness Certificate whichever is earlier. Thereafter, by a letter dated 28th May 1996 the respondent refused to grant extension beyond 17th May 1996. The aforesaid letter was preceded by another letter dated 29th March 1996 wherein it has been mentioned that the applicant will continue until 17th may 1996 or till submission of Medical Fitness Certificate whichever is earlier. Therefore, it is clear that it was a case of refusal to grant extension and not a case of termination. (4.) IT was alleged before the learned Tribunal that refusal to grant further extension was mala fide and discriminatory as there could not be any reason for not granting extension, in as much as, some of the juniors were granted extension and in fact they are still in service on ad hoc basis. (5.) ON the aforesaid factual background, the applicant approached the learned Tribunal. But what prayer was made before the learned Tribunal is not known to us as copy of the application which was filed before the learned tribunal is not available. However, while going through the judgment we could note, on the facts and circumstances stated above, whether any relief could be granted by way of reinstatement or not. (6.) GOING by the terms of the appointment, it is very clear that appointment was absolutely on a temporary and/or ad hoc for limited period with provision for extension from time to time. Such extension was refused. We are of the view, ordinarily, Court of law or Tribunal cannot direct an employer to grant extension. But here we find, learned Tribunal has given a declaration that the applicant/employee is deemed to have been on ad hoc appointment. According to us, this land of relief cannot be granted. There may be various reasons for not granting extension but there is no reason mentioned here. Only point we find that the applicant has been refused extension while in case of other similarly placed candidates extension has been granted. It is no bodys case that there is no need of service. (7.) MR. Nayek, learned counsel for the applicant, submits, the aforesaid mandate of the learned Tribunal is not supportable under the law. We agree with the same that a mandate cannot be issued for continuation of the engagement on ad hoc basis just because some juniors to the applicant were allowed to continue. (7.) MR. Nayek, learned counsel for the applicant, submits, the aforesaid mandate of the learned Tribunal is not supportable under the law. We agree with the same that a mandate cannot be issued for continuation of the engagement on ad hoc basis just because some juniors to the applicant were allowed to continue. Learned counsel for the respondent, on the other hand, says, if this Court examines into great details then it will be clear that refusal to grant extension was nothing but an order of termination. (8.) IN the affidavit-in-opposition, before us, it is said that the applicant, after considering respondent/employees annual confidential report and performance, refused to grant extension. We cannot accept this new case made out before us. Before the learned Tribunal no such case was made out from either side. When such a reason is not reflected in the letter refusing to grant extension, we can neither entertain nor assume any reason. (9.) LEARNED counsel for the respondent, in support of his submission, has cited two Supreme Court decisions; one reported in AIR 1986 SC 1626 and the other reported in AIR 1992 SC 2130 . The first mentioned case appears to be a case of termination of ad hoc employment while tenure of service was subsisting. The Court, after making enquiry in depth, held that in the guise of expiry of the term, punishment was imposed as he was found to be unfit and a stigma was attached. Therefore, factually, the aforesaid case is not applicable in this case since before the learned Tribunal, it was no ones case that the order of refusal to grant was based on inefficiency. We refuse to believe the story of inefficiency, sought to be made out for the first time before this court. The latter decision ( AIR 1992 SC 2130 ) has observed many things regarding the conduct of the employer with regard to the treatment of ad hoc employees. But here we are dealing with a case as to whether the respondent/ employee should be asked to continue on ad hoc basis or not. (10) IN our opinion, it is for the employer to decide how an employee is to be dealt with and utilized and the Court cannot direct an employer to utilize its workforce in a particular manner. Direction of the learned Tribunal, in our view, has been made towards the aforesaid direction. (10) IN our opinion, it is for the employer to decide how an employee is to be dealt with and utilized and the Court cannot direct an employer to utilize its workforce in a particular manner. Direction of the learned Tribunal, in our view, has been made towards the aforesaid direction. We do not approve of the same. Learned Tribunal found that some other candidates, who were junior1 to the respondent employee, were retained whereas the respondent employee has been jettisoned. It was not the case before the learned Tribunal that there is no need of service for the post in which the respondent was serving. We fail to understand why this unfair treatment has been meted out so far as the respondent employee is concerned. Under such circumstances, we cannot up-hold, in its entirety, the judgment and order of the learned tribunal nor we are setting aside the same fully; we simply modify the judgment and order of the learned Tribunal in the following manner: the respondent authority shall consider the re-engagement of the applicant on ad hoc basis as it was done previously keeping in view that some other candidates who were junior to the applicant were allowed to continue. This shall be done within a period of one month from the date of communication of this order. If for any reason it is not possible then the same shall be communicated in writing to the applicant. The applicant will be entitled to participate in the selection process, to be held in future, before the Union public Service Commission. In that case Union Public Service Commission is to relax his age by three years if he exceeds maximum age limit. (11.) ALL endeavour should be made by the applicant before us to accommodate the respondent employee in the post which was kept vacant in terms of this order for his engagement; however, the decision is entirely left with the Government. With the aforesaid modification, this application is disposed of. Interim order passed earlier, stands vacated. Urgent xerox certified copy, if applied for, be supplied to the parties on priority basis. Application disposed of.