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2014 DIGILAW 1484 (RAJ)

Anurag Kumar Sharma v. Union of India

2014-08-21

MOHAMMAD RAFIQ

body2014
JUDGMENT : All these five writ petitions have been filed by different petitioners, who were working with the respondents, aggrieved by the action of the respondents in discontinuing them from service by changing nomenclature/eligibility of the post held by them. Anurag Kumar Sharma, petitioner in Writ Petition No.16221/2013, was initially appointed with the respondent National Institute of Open Schooling, Regional Centre at Jaipur, on the post of Executive Officer vide order dated 13.08.2008. His appointment was made on contract basis on payment of consolidated salary, initially for a period of one year but the same was later on extended from time to time. The Regional Director of the national Institute of Open Schooling, Regional Centre, Jaipur, vide his letter dated 09.07.2013 on the basis of his performance, which was assessed to be 6.5 on the scale of 8, recommended to the Joint Director (Administration) at the Headquarters, NOIDA, for extension of services of the petitioner. But the name of the petitioner Anurag Kumar Sharma was not included in the order dated 23.07.2013 by which extension was granted to all other contractual employees. The petitioner approached this court when the respondents issued first advertisement on 30.08.2013 with permission of the head office for appointment on the post held by the petitioner. Such request was sent by email on 02.09.2013. It was proposed to invite applications from candidates for appointment on that post on interview basis. In the writ petition therefore it was prayed that a mandamus be issued to the respondents setting aside the order dated 23.07.2013, by which contractual appointment was not extended. Further prayer was for a direction to the respondents to continue the petitioner as Executive officer (non-academic). This court while issuing notice of the writ petition on 18.09.2013 directed that in the meanwhile, if any person is appointed on the post of Executive officer, it will remain subject to final outcome of the writ petition. When the matter was listed on 05.02.2014 after service of notice on the respondents, this court directed the respondents not to extend the contractual employment of any other person, if made, however, left it open for the respondents to appoint the petitioner on the same terms as before. When the matter was listed on 05.02.2014 after service of notice on the respondents, this court directed the respondents not to extend the contractual employment of any other person, if made, however, left it open for the respondents to appoint the petitioner on the same terms as before. Third interim order dated 09.05.2014 was passed in other four Writ Petitions to the effect that in the ongoing process for selection pursuant to advertisement (Annexure-3) the respondents may give preference to petitioners and others, whoever has longer duration of working with them, subject to their satisfying the eligibility criteria and may not engage fresh hands till petitioners and other contractual appointees, who have rendered services with them for longer period, are exhausted. When however another advertisement was issued by the respondents on 06.05.2014, for appointment on the post held by petitioner Anurag Kumar Sharma by redesignating it as Senior Executive officer (retired employee only), he had to file second stay application alleging therein that such advertisement has been issued only with a view to frustrating his writ petition. Although the nomenclature of the post was substantially the same and the post also would have the same nature of duties yet only with a view to depriving the petitioner of the right to continue in on the post, the respondents had re-designated it as Senior Executive Officer rather than Executive Officer and restricted eligibility for appointment only to retired employees. This court vide its order dated 23.05.2014 passed in Second Stay Application filed by petitioner Anurag Kumar Sharma, ordered that till next date, the respondents shall not make any appointment on the post of either the Senior Executive Officer or any other post pursuant to new advertisement. Four writ petitions filed by Sampat Sharma, (WP No.5345/2014), Pravin Kumar Vyas (WP No.5346/2014), Manish Kumar (WP No.5347/2014) and Satendra Singh (WP No.5359/2014) in fact seek to challenge the same advertisement dated 06.05.2014 when the respondents decided not to extend the term of the appointment of first three of them as Executive Assistant and of fourth, as Executive Officer, on contract basis after 21.04.2014. It needs to be mentioned that writ petitioner Sampat Sharma was engaged as Executive Assistant vide order dated 12.06.2013 on payment of consolidated monthly salary of Rs.13000/- for a period of 89 days with effect from the date of his joining at Regional Centre, Jaipur on contract basis. It needs to be mentioned that writ petitioner Sampat Sharma was engaged as Executive Assistant vide order dated 12.06.2013 on payment of consolidated monthly salary of Rs.13000/- for a period of 89 days with effect from the date of his joining at Regional Centre, Jaipur on contract basis. His services were extended from time to time and last extension order was issued on 23.01.2014 extending the services up to 21.04.2014. Petitioner Pravin Kumar Vyas was engaged as Executive Assistant vide order dated 16.08.2011 on contract basis on a consolidated salary of Rs.13,000/-per month for period of six months with effect from the date of his joining. His services were extended from time to time and last extension order was issued on 23.01.2014 extending his services up to 21.04.2014. Petitioner Manish Kumar was engaged as Executive Assistant vide order dated 20.03.2012 on contract basis on a consolidated salary of Rs.12,000/- per month for period of six months with effect from the date of his joining. His services were extended from time to time and last extension order was issued on 23.01.2014 extending the services up to 21.04.2014. Petitioner Satendra Singh Baghel was also engaged as Executive Officer, vide order dated 24.03.2005 on contract basis on a consolidated salary of Rs.8400/-per month for period of 89 days with effect from the date of his joining. His services were extended from time to time and last extension order was issued on 23.01.2014 extending the services up to 21.04.2014 on monthly salary of Rs.22,000/-. These petitioners have approached this court contending that their appointment has not been extended in the garb of the interim order dated 05.02.2014 of this court in first Writ Petition No.16221/2013 filed by Anurag Kumar Sharma, supra, whereas that order was confined to that particular writ petitioners and to the post held by him and not in general. Petitioners are also aggrieved by the action of the respondents in changing nomenclature of the post of Executive Assistant held by them to that of Data Entry Operator and of the post of Executive Officer as Senior Executive Officer. While the National Institute of Open Schooling had its Headquarter at NOIDA, with 19 regional centers throughout the country. Approximately 100 persons are engaged and working on different posts on contract basis on the same terms and conditions as the petitioners. While the National Institute of Open Schooling had its Headquarter at NOIDA, with 19 regional centers throughout the country. Approximately 100 persons are engaged and working on different posts on contract basis on the same terms and conditions as the petitioners. The term of appointment of the petitioners was extended after expiry of initial contractual period by order dated 23.01.2014. The respondents have now invited applications for filling up six posts of Data Entry Operator and one post of Senior Executive Officer (retired employee only) by the impugned advertisement dated 06.05.2014. It is contended that the post of Data Entry Operator carries the same duties as that of Executive Assistant on which the petitioners were engaged. The duties of the petitioners were in admission branch to make general enrollment number and to type and dispatch the letters, make punching of admission forms, examination related and general work in which they were required to make entry in the record of received admission forms and checking of admission forms as National Institute of Open Schooling admission norms, sent comments to students for incomplete documents or error and to issue of general letters, handing over the admission, examination and other fees demand drafts immediately after made accounts section, dispatch the I-cards to individuals students to their home address, maintaining records of Asl., preparation of files of individuals Als and Database and other work assigned from time to time by the Regional Director as typing of Hindi and English official letters etc. It is therefore contended that the post of Data Entry Operator is identical to that of Executive Assistant. Change of the nomenclature of the post has been devised as a method only with a view to depriving the petitioners of the right to continue in same. Shri K.L. Gupta and Shri Kapil Choudhary, representatives of the respondents, contested the writ petitions. While arguing the writ petition of Anurag Kumar Sharma, they submitted that neither legal nor fundamental rights of the petitioner have been infringed. It is contended that an advertisement for filling up the post of Executive Officer was issued in June, 2008 pursuant to office order dated 20.06.2008. While arguing the writ petition of Anurag Kumar Sharma, they submitted that neither legal nor fundamental rights of the petitioner have been infringed. It is contended that an advertisement for filling up the post of Executive Officer was issued in June, 2008 pursuant to office order dated 20.06.2008. Petitioner Anurag Kumar Sharma having requisite qualification, appeared for interview and was short listed to work on contract basis as Executive Officer It is contended that the Petitioner was engaged on contract basis from time to time but there was no co-relation between one and another appointment. The persons working on contract basis have no right to insist on their continuation in service. Now when the fresh advertisement has been issued on 06.05.2014, the petitioner can participate in the process of selection and if found suitable, his case for fresh appointment may be considered. The petitioner accepted the contractual appointment knowing fully well that he has no vested right to claim absorption nor to otherwise continue in service. Contesting the other four writ petitions, it is argued by the representatives of the respondents that term of the petitioners were extended up to 21.04.2014 vide order dated 23.01.2014 but term has not been further extended on the basis of order passed by this court dated 05.02.2014 in Writ Petition No.16221/2013 filed by Anurag Kumar Sharma, in which this court directed the respondents not to extend the contractual employment of any other person, if made. Had the term of the petitioners been extended, it would have amounted to disobeying the order of this court. Alternatively, it is argued that the duties of the post of the Executive officer are entirely different than the post of Senior Executive Officer, who is required to look after the work of admission and printing of marking scheme in coordination with senior officers. It is denied that the duties of the post of Data Entry Operator is identical to that of Executive Assistant. All these are distinct and different posts. Dealing with the case of petitioner Anurag Kumar Sharma first, this court finds that the post on which he was engaged was designated as Executive Officer. He continued in service of the respondents for almost five years. While extending the services of all other employees, the respondents by order dated 23.01.2014, did not extend the appointment of petitioner Anurag Kumar Sharma. He continued in service of the respondents for almost five years. While extending the services of all other employees, the respondents by order dated 23.01.2014, did not extend the appointment of petitioner Anurag Kumar Sharma. This appointment had been persisting for last five years on contract basis and was being extended from time to time. For appointment on the post of Executive Officer (nonacademic), a candidate was required to possess following qualification/eligibility:- “1. Executive Officer (Non-Academic) a) Graduate in any discipline b) Minimum 03 years experience of Administration including HRD/Finance and Accounting/Audit/Civil/Electrical etc. (or) Conduct of examination/Internal Assessment at the Board/University level (or) Handling Student Support Services including school admissions and school management. c) Experience in Organization of Seminars, Conference and liaison with various Government/Non Government Agencies. d) Working knowledge of Computer Operation. e) Working knowledge of Hindi/English.” For appointment on the post of Senior Executive Officer (Retired Employee Only), a candidate is required to possess following qualification/ eligibility:- “Senior Executive Officer (Retired Employee Only) A. Qualification and Experience i) Graduate in any discipline ii) Minimum 05 years experience of Administration including HRD/Finance and Accounting etc. (or) conduct of examination/internal Assessment at the Board/University level (or) handling student support services including school admissions and school management. iii) Experience in organization of seminars, conference and liaison with various government/Non government Agencies. iv) Working knowledge of computer operation. v) Working knowledge of Hindi/English.” Evidently, the respondents have re-captioned the post of Executive Officer as Senior Executive Officer with same qualification, eligibility and experience. They have further added the words that it would be manned only by retired employees. This was done at the time when already the petitioner having filed the writ petition on 04.09.2013, was in litigation with the respondents. First advertisement has thus been issued on 06.05.2014 in the background of interim orders passed by this court. Petitioner Anurag Kumar Sharma had to approach when the term of his appointment was not extended even when the work was available and he was willing to work, whereas all other petitioners were given extension by order dated 23.01.2014. First advertisement has thus been issued on 06.05.2014 in the background of interim orders passed by this court. Petitioner Anurag Kumar Sharma had to approach when the term of his appointment was not extended even when the work was available and he was willing to work, whereas all other petitioners were given extension by order dated 23.01.2014. Action of the respondents in issuing fresh advertisement dated 06.05.2014 by changing designation of the post of Executive Officer to Senior Executive Officer, restricting the eligibility for appointment to only retired employees, was obviously a play adopted by the respondents to frustrate, nay – circumvent, three interim orders passed by this court The first interim order was passed on 18.09.2013 in the writ petition of Anurag Kumar Sharma that in the meanwhile, if any person is appointed on the post of Executive Officer, it will remain subject to final outcome of the writ petition. After service of notice on the respondents, when the matter came up on the board for orders on 05.02.2014, the court was informed that the respondents had already appointed another person as Senior Executive Officer. It was in that context that direction was given to the respondents not to extend the contractual employment of any other person, if made, however, leaving it open for them to appoint the petitioner on the same terms as before. It is this interim order, which has been construed by the respondents to mean that contractual appointment of all other employees, including other four writ petitions, appointed on the post of Executive Assistant/Executive Officer, may not be extended. This is not only incorrect interpretation of the order of this court but is rather misinterpretation as any interim order passed in writ petition has to be appreciated in the context of that particular case and not in general. The dispute in the writ petition of Anurag Kumar Sharma was with regard to appointment of another person on the post of Executive Officer and therefore the interim stay order was passed, and the action the respondents in relying this order to discontinue the services of other four petitioners on the post of Executive Assistant/Officer, was wholly justified. This court vide interim order dated 05.02.2014 in its second part made it more clear that it would be open for the respondents to appoint the petitioner on the same terms as before. This court vide interim order dated 05.02.2014 in its second part made it more clear that it would be open for the respondents to appoint the petitioner on the same terms as before. Two parts of this order were required to be construed together in the context of the dispute arising in the writ petition, which was regarding non-extension of the term of appointment of the petitioner on the post of Executive Officer. It was on the post held by him that someone else was appointed, thus taking into consideration grievance of the petitioner, this court directed not to extend the contractual employment of any other person, if made, leaving it open, however, for the respondents to appoint the petitioner on the same terms as before. Evidently non-extension of the term of other four petitioners in the garb of misinterpretation of the interim order passed by this court in Writ Petition No.16221/2013 filed by Anurag Kumar Sharma, was wholly illegal. If at all the respondents had any doubt about the correct interpretation of the order, they were required to approach this court and seek clarification. Moreover, the change of designation of the posts of Data Entry Operator only with a view to non-suit the petitioners, was wholly capricious, arbitrary and colourable exercise of power. The post of Executive Assistant had the same eligibility qualification as that of the Date Entry Operator and almost similar nature of duties as appears from the new advertisement dated 06.05.2014. The qualification and experience prescribed for the post of Data Entry Operator is that a candidate should be Graduate in any stream; working on computer with a speed of not less than 8000 key depression per hour; knowledge of English/Hindi and a least one year relevant experience of working with any reputed Private/Public sector company or Government organization. The petitioners claim that they possessed all these qualifications. The dispute does not end here. The way in which the respondents have treated the petitioners, who are unemployed youths and offered their services on considerably negligible remuneration, looking to their qualifications, leaves much to be desired. The respondents have devised a method of getting rid of them by changing the designation/nomenclature of the post of Executive Officer to Senior Executive Officer, and the post of Executive Assistant to Data Entry Operator. The respondents have devised a method of getting rid of them by changing the designation/nomenclature of the post of Executive Officer to Senior Executive Officer, and the post of Executive Assistant to Data Entry Operator. The petitioners have produced before this court sufficient material regarding duties of the posts of Executive officer and Executive Assistant in order to show that the duties of those posts are similar to the posts of Senior Executive Officer and Data Entry Operator. The petitioners have also proved that services of other persons working on the posts of Executive Officer and Executive Assistants have been retained in all other centers of the respondent National Institute of Open Schooling except at Jaipur. In fact, they have issued fresh advertisement by the National Institute of Open Schooling at its Regional Centre – Dharamshala, requiring the candidates to submit the applications on 07.08.2014 for the post of Office Assistant and Executive Assistant, and on 08.08.2014 for the post of Executive Officer, so as to hold walk-in-interview to fill up the said positions purely on contract basis, initially for six months, which can be extended further. This advertisement makes it clear that at other centers the respondents are filling up the posts with old designations, whereas at Jaipur center alone they have changed the nomenclature of these posts as Senior Executive Officer and Data Entry Operator. The action of the respondents thus suffers from vice of malice both in law and facts. When already the second interim order was passed on 05.02.2014 in the Writ Petition No.16221/2013 filed by Anurag Kumar Sharma directing the respondents not to extend the contractual employment of any other person, if made, it was the duty of the respondent to comply with that order, but they issued fresh advertisement by changing the nomenclature of the posts. The action of the respondents in deciding to change the nomenclature of the pots with the same eligibility and qualification and same duties restricting such posts only to retired hands, clearly demonstrate the intention of the respondents to deliberately non-suit the petitioners. This action of theirs is wholly illegal, arbitrary and unconstitutional and violates the right of equality enshrined under Article 14 of the Constitution of India as also the right of equal opportunity in the matter of appointment enshrined under Article 16 of the Constitution of India. This action of theirs is wholly illegal, arbitrary and unconstitutional and violates the right of equality enshrined under Article 14 of the Constitution of India as also the right of equal opportunity in the matter of appointment enshrined under Article 16 of the Constitution of India. The Supreme Court as also this Court has repeatedly criticized the practice of replacing existing contractual employees by fresh hands and when are engaged on contract basis. It is trite that an ad hoc employee cannot be substituted by another ad hoc employee and same analogy applies to a contractual employee. The respondents want to avail the service of another set of persons on contract basis, which practice is contrary to the ratio of decision of the Supreme Court in State of Haryana and Others Vs. Piara Singh and Others – (1992) 4 SCC 118 and Mohammad Abdul Kadir and Another Vs. DGP Assam and Others – (2009) 6 SCC 514, wherein it has been held that one set of contractual employees cannot be replaced by another set of contractual employees. The action of the respondents is nothing but highly arbitrary, capricious and colourable exercise of power. In the result, the writ petitions are allowed. Action of respondents in terminating/discontinuing service of the petitioners is declared illegal. The respondents are directed to continue petitioners on the posts of Executive Officer and Executive Assistant, or with changed nomenclature as Senior Executive Officer and Data Entry Operator, as the case may be, on the same terms as before, till the duration of the scheme, without requiring them to apply afresh on each occasion. The appointments of the petitioners shall however be co-terminus with the duration of the scheme. This also disposes of stay applications in all the writ petitions. Parties to bear their own costs.