Mohd. Shakil v. Nuclear Power Corporation of India Ltd.
2012-04-25
MAHESH BHAGWATI, NARENDRA KUMAR JAIN
body2012
DigiLaw.ai
Hon'ble BHAGWATI, J.—Since both the afore-stated appeals are related and pertain to one order dated 10th January, 2012, rendered by the learned Single Judge, they have been heard together and are being disposed of by this common judgment. 2. The appellants have impugned in the instant intra-court appeals, the order dated 10th January, 2012, whereby the learned Single Judge dismissed both the writ petitions filed by the appellants/petitioners and proforma respondents against the respondents nos. 1 and 2. 3. Adumbrated in brief, the facts of the case are that pursuant to the applications and their subsequent interview on 5th November, 2006, the respondents appointed some of the appellants/petitioners for a period of one year and some of them for a period of two years, as Fixed Term Supervisor/Engineer from the date of assuming duty at Rajasthan Atomic Power Project, Units 5 and 6. The terms of appointment were specifically mentioned in the order of appointment of all the appellants/petitioners with a categorical condition that the services on Fixed Term Basis would automatically stand terminated on expiry of the fixed tenure. It is revealed that after expiry of the said period of one or two years, as the case may be, the Fixed Term appointment was extended in some cases for two years, in some cases for one year and in some for five months, as enumerated in their respective appointment letters. 4. The case of the appellants and proforma respondents is that albeit, they were given appointment on Fixed Term, but after completion of their fixed term tenure, their services were not regularized despite there being several requests, as they were appointed against the permanent posts substantively. The appellants also submitted before the respondents no. 1 and 2 that they were fully qualified and suitable for the post and to discharge the work assigned to them, yet their prayer was not heeded to and their service was terminated. 5. The respondents no. 1 and 2 submitted, in unequivocal terms, stating that the appointment of the appellants/petitioners was on Fixed Term upon a construction project. It was specifically mentioned in the appointment letter that their services on Fixed Term shall automatically stand terminated on the expiry of the period of the Fixed Term appointment. The respondents no. 1 and 2 also pleaded that there was no vacant post in existence, whereupon the appellants/petitioners could be accommodated.
It was specifically mentioned in the appointment letter that their services on Fixed Term shall automatically stand terminated on the expiry of the period of the Fixed Term appointment. The respondents no. 1 and 2 also pleaded that there was no vacant post in existence, whereupon the appellants/petitioners could be accommodated. Otherwise too, all the substantive posts were being filled in by way of regular appointment or by way of transfer of regular employees from other projects of Atomic Power. The respondents in support thereof filed an affidavit too, which occupies a place on record. Thus, the respondents tangibly gainsaid to regularize the services of the appellants. 6. Heard the learned counsel for the parties and carefully perused the relevant material on record including the impugned order rendered by the learned Single Judge. 7. Learned counsel for the appellant while reiterating the grounds of appeal canvassed that the appellants were appointed against the substantive post, of course on temporary basis, but since they had been working for the last 3-4 years continuously and further they were qualified, competent and suitable for the said post of Supervisor/Engineer, their services ought to have been regularized by the respondents no. 1 and 2. Learned counsel further canvassed that the respondents ultimately, have to fill in the vacant posts by way of appointing other persons. If it is so, then why should the case of the appellants not be considered and their services be regularized? In support of his arguments, learned counsel has cited one judgment of Division Bench of this High Court rendered in the case of Amzad Khan vs. State of Rajasthan & Anr. (D.B. Civil Special Appeal (Writ) No. 1388/2007, decided on 28.1.2009). 8. E converso, the learned counsel for the respondents no. 1 and 2 vehemently opposed the submissions made by the learned counsel for the appellants, defended the impugned order and stated the same to be just and proper, which did not warrant any intervention. 9. Having reflected over the submissions made at the bar and carefully scanned the relevant material on record, the fact of the appointment of the appellants on Fixed Term for a period of one year or two years, as the case may be and thereafter further extension is not found to be disputed. It is also not in dispute that the appointment was made by the respondents no.
It is also not in dispute that the appointment was made by the respondents no. 1 and 2 for a fixed term in accordance with the procedure laid down in the Scheme Annexure-R/1, wherein the conditions for Fixed Term appointment, as stated by the Single Bench in the impugned order, were enumerated. A bare perusal of the terms and conditions of the appointment letters of the appellants tangibly suggests that the appointment of the appellants on the post of Supervisor/Engineer was for a fixed period, say for one year or two years, w.e.f. the date of assuming duty at Rajasthan Atomic Power Project, Units 5 and 6. It further suggests in unequivocal terms that their services on Fixed Term basis would automatically stand terminated on the expiry of the above period. Since, the appointment of the appellants was for a fixed term and this fixed period, albeit, was extended further from time to time, but, the condition for further extension remained again on Fixed Term and after the expiry of the said tenure, their services were terminated, as per the condition of the respective appointment letters. Simply on account of the fact that some of the appellants were posted to work on projects 7 and 8, after expiry of their first Fixed Term appointment, does not confer upon them a right to continue and get their services regularized. Nevertheless, it is totally wrong for the appellants to plead that they were appointed on fixed term against the substantive post. There is not even a shred of evidence on record to substantiate this plea of the appellants. 10. The Constitution Bench of the Hon'ble Apex Court in the case of Secretary, State of Karnataka & Others vs. Umadevi & Others reported in (2006) 4 SCC 1 has held thus:- “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 open eyes. It may be true that he is not in a position to bargain-not at arm's length-since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets.
He accepts the employment with open eyes. It may be true that he is not in a position to bargain-not at arm's 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, perpetuate illegalities 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.” (Emphasis supplied) 11. It is not necessary to notice all the decisions of the Hon'ble Apex Court on this aspect. By and large what emerges from all the judgments is that regular recruitment should be insisted upon; only in a contingency can adhoc appointment be made in a permanent vacancy, but the same should soon be followed by a regular recruitment and that appointment to non-available posts should not be taken note of for regularization. The appellants who were appointed on Fixed Term basis and on contract to meet out short term requirement of a project cannot be permitted to be regularized on the substantive post, because the vacancies against the substantive posts are required to be filled in by way of the procedure laid down under the rules.
The appellants who were appointed on Fixed Term basis and on contract to meet out short term requirement of a project cannot be permitted to be regularized on the substantive post, because the vacancies against the substantive posts are required to be filled in by way of the procedure laid down under the rules. The Single Bench having discussed all these aspects, adlongum, observed as under:- “Once the appointment has been made on fixed term, then, obviously the petitioners are required to be governed as per the terms and conditions of the appointment, therefore, no directions can be given by the Court to regularize or allow the petitioners to work beyond the term of appointment. In this case, after passing interim order by this Court, the respondents are making payment of salary to the petitioners but not taking work from the petitioners only for the sake of compliance of the order passed by this Court because the petitioners are claiming continuance in Projects 7 and 8 whereas the petitioners were appointed in Projects 5 and 6 and they were not appointed in the Rajasthan Atomic Power Project Units 7 and 8. For this reason also, the petitioners cannot claim continuous in service in another unit; so also, no direction can be given for extension of term by the Court because term of fixed term appointment is prescribed in the scheme itself and appointment was made according to the said scheme.” 12. The upshot of above discussion is that the appellants have no claim to get their services regularized, as their appointment was contractual and on a Fixed Term for a period of say one or two years, which was extended from time to time. Since, it was categorically stated in the appointment letters that their services shall automatically stand terminated after the expiry of the Fixed Term tenure, the appellants do not get any right to plead for regularization of their service. The impugned order of the learned Single Judge is found to be perfectly just and proper, which warrants no intervention. 13. For the reasons stated above, both the aforesaid appeals fail and the same being bereft of any merit, stand dismissed. 14. Consequent upon the dismissal of the special appeals, both the stay applications do not survive and the same also stand dismissed. 15. A copy of this judgment be placed in the connected appeal.