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2012 DIGILAW 702 (JK)

Hari Shoor v. State Of J&K

2012-11-06

Hasnain Massodi, M.M.Kumar

body2012
Per Massodi, J. 1. The Letters Patent Appeal on hand is directed against Writ Court judgment dated 25.02.2010, whereby writ Court has dismissed SWP Nos.1763/2009, 1733/2009, 1986/2009, 1900/2009 and 1734/2009 throwing challenge to order of Registrar, Sher-E-Kashmir, University of Agricultural, Science and Technology, Main Campus, Bhore Camp, Chatha, Jammu (for short SKUAST) dated 17.09.2009 disengaging the service of the appellants. The appellants also call in question the notice dated 11th September, 2009, issued by the Registrar, SKUAST, inviting offers from reputed contractors/agencies for supply of labourers to work against the positions that became available because of the disengagement of the service of the appellants. The appeals have been filed in the factual backgrounds set out in para (2) hereafter. 2. The appellants were appointed by the respondents on contractual basis to work in different capacities in SKUAST Campus B. The appellants after serving the respondent University for quite sometime, were disengaged when the allegations of their backdoor appointment surfaced against the University Authority(ies), for making the engagements. The appellants questioned the disengagement orders in the aforesaid writ petitions on the ground that the orders were made at their back without affording them an opportunity to explain their stand and were in violation of principle of natural justice. 3. The respondents oppose the writ petitions on the ground that the engagements/appointments in question were made de-hors the rules and without affording an opportunity to the all eligible candidates to compete for the posts/positions against which they were engaged. The respondents allege that a criminal case stands registered against the delinquent officers of the University responsible for making the engagements by the State Vigilance Organization including Dr. Nagendra Sharma, the then Vice Chancellor of the University, Shri A.K. Koul, the then Acting Registrar of the University, Shri Iqbal Singh, the then Estates Officer of the University and Shri V.K. Soi, the then Financial Controller of the University and their matter was under investigation. 4. It was further pleaded that the respondent University had taken a Policy Decision to outsource different works assigned to the contractual employees and had already issued a tender notice inviting offers from the Contractors/Agencies engaged in supply of labourers. 5. 4. It was further pleaded that the respondent University had taken a Policy Decision to outsource different works assigned to the contractual employees and had already issued a tender notice inviting offers from the Contractors/Agencies engaged in supply of labourers. 5. It was next pleaded that an Audit party headed by the Director General, Audit and Inspection, on Audit of the affairs of the respondent University conducted from 23rd April, 2009 to 25th April, 2009 had inter alia highlighted the irregularities committed in engagements of the contractual employees and the University decided to stop the payment to the contractual employees till the Screening Committee constituted by Vice Chancellor vide order No.AUJ/VC/APPt/260-66 dated 15th June, 2009 submitted its report. 6. The writ Court on going through the pleadings and the record made available by the parties found the writ petitions bereft of any merit and, accordingly, dismissed the writ petitions. The writ Court while dismissing the writ petitions observed that the status of the casual labourer/daily rated worker is different from that of the Government servant and that the Casual Labourer required to discharge transitory or casual duty, does not hold a post though he may be under the administrative control of the State/employer during the period he works on contract. The writ Court referring to law laid down by Supreme Court in "State of Karnataka and Others v. Umadevi (3) and others" (2006) 4 SCC 1 , held that the absorption, regularization or permanent continuance of temporary, contractual, casual, daily wage or adhoc employees, appointed/recruited and continued for long in public employment de-hors the constitutional scheme of public employment was not permissible under law. The writ Court also recorded disagreement that the plea raised by the appellants that they were required to be served from the notice before their disengagement. 7. The writ Court judgment is questioned in the Letters Patent Appeals on hand on the ground set out in the memoranda of appeals. The appellants reiterate the stand rejected in their writ petitions. The writ court is stated to have worked on the assumption that the appellants were not entitled to notice prior to their disengagement. It is stated that the appellants having worked for 6 to 15 years were not to be shown the door without affording them an opportunity to show cause against their disengagement. The writ court is stated to have worked on the assumption that the appellants were not entitled to notice prior to their disengagement. It is stated that the appellants having worked for 6 to 15 years were not to be shown the door without affording them an opportunity to show cause against their disengagement. It is next urged that the some of the appellants after having been initially engaged as Daily Rated Workers could not be converted into contractual workers and that their unilateral conversion by the respondent University would not strip off the appellants of their right to seek regularization. The appellants insisted that a number of employees of the University at the Ministry level, who were engaged on adhoc/contractual basis and later regularized by the respondent University and that there was no reason much less justifiable one available to the respondent University to disengage them and resort to outsourcing of the jobs performed by the appellants. The writ Court judgment is stated to be in conflict with law laid down in "State of Haryana v. Piara Singh" (1992) 4 SCC 118 . 8. We have gone through the memoranda of appeals as also the writ Court record and have heard learned counsel for the parties at length. 9. The employment under the State is in the nature of Public Largesse and cannot be distributed selectively at whim and caprice of the appointing authority. Such employment irrespective of mode and manner adopted, i.e. regular, adhoc or contractual, if made without giving a fair opportunity to all those eligible for such employment, would not only run contrary to the recruitment rules but also offend right to equality, equal protection of laws and equality of opportunity in the matters relating to employment guaranteed under Article 14 and 16 of the Constitution of India. 10. In the case in hand, as rightly pointed out by the writ Court as many as 296 contractual appointments have been made by the University Authority(ies) throwing to winds the fundamental principles to be observed while making such engagements. The available record reveals that the respondents while making engagements did not issue any advertisement notice inviting applications from the eligible candidates for the available positions and giving such candidates an opportunity to compete for said posts. Resultantly, there was no competition amongst the eligible candidates for the posts against which the appellants were engaged. The available record reveals that the respondents while making engagements did not issue any advertisement notice inviting applications from the eligible candidates for the available positions and giving such candidates an opportunity to compete for said posts. Resultantly, there was no competition amongst the eligible candidates for the posts against which the appellants were engaged. The University Authority(ies) resorted to a pick and choose method not permissible under the Constitutional Scheme. 11. The University Authority(ies) while making the contractual appointments were motivated by self interest to such an extent, that they omitted to adhere to the basic features of the contractual appointment. The contractual appointment, it needs no emphasis, is in time frame and once the contract period comes to an end, the positions become vacant and are to be re-advertised. The University Authority(ies) surprisingly did not fix any term of contract while making the engagements. The engagement order in all the cases would read that the beneficiary was appointed on contractual basis without indicating in the order the period of contract or when the term of the contractual employee was to come to an end, unless extended. The University Authority(ies), blinded by their urge to confer undue benefits on the appellants, failed to notice that the posts against which contractual appointments made were not sanctioned and did not exist in the respondent University. It hardly needs to be emphasized that the appellants whether on regular basis or adhoc, temporary or contractual basis can be made only against the sanctioned posts. The contractual employment is only a mode to fill up the existing vacant posts on account of administrative exigencies till a regular selection is made. There can be no contractual appointment against a non existing post. The appellants, in the circumstances, are beneficiaries of fraud and deceit on the part of the University Authority(ies), disentitling the appellants from a claim to protection of their contractual appointments or to notice prior to cancellation of their appointments. The beneficiary of fraud and deceit cannot claim a right to perpetuate or justify the benefit illegally extended to him. The law on the subject is well settled and a reference in this regard may be made to law laid down in "State of Karnataka and ors. v. Ganapathi Chaya Nayak and Ors." (2010) 3 Supreme Court Cases 115, "Secretary, State of Karnataka and ors. The law on the subject is well settled and a reference in this regard may be made to law laid down in "State of Karnataka and ors. v. Ganapathi Chaya Nayak and Ors." (2010) 3 Supreme Court Cases 115, "Secretary, State of Karnataka and ors. v. Uma Devi and ors." 2006(4) SCC 1 , "Steel Authority of India Ltd. v. Union of India and ors." (2006) 12 Supreme Court Cases 233, "Chief Commissioner of Income Tax, Bhopal and ors. v. Leena Jain and ors." (2006) 11 Supreme Court Cases 350, "State of Karnataka and ors. v. Gadilingappa and ors." (2010) 2 Supreme Court Cases 728, 2004 Volume (VII) SCC 112 page 73, AIR 1974 SC 238 , AIR 1996 SC 2219 , 2000 SLJ 199 and AIR 2001 SC 201 . 12. The mere fact that the respondent University has made ad hoc appointments of Ministerial Staff at different levels and later regularized such appointments, does not in any manner brighten up the appellants' claim or otherwise change colour and complexion of the controversy. 13. For the reasons discussed above, we do not find merit in the present appeals. The appeals are, accordingly, dismissed. The respondent University, however, would do well to persuade contractors/agencies to whom the work discharged by the appellants has been outsourced to consider engaging the appellants for performance of the outsourced works. The contractors/agencies are expected not to be reluctant to engage the appellants having regard to the experience they are expected to have acquired while working as Contractual employees on the respondent University Campus.