Research › Search › Judgment

J&K High Court · body

2014 DIGILAW 27 (JK)

Oma Devi v. State Of J&K

2014-01-31

Hasnain Massodi, M.M.Kumar

body2014
Per Massodi, J. 1. Shri Mohinder Kumar-appellant herein was on 30.8.2007 engaged as Driver in Shri Mata Vaishno Devi University (hereinafter respondent University), on consolidated salary of Rs. 5000/- per month, for a period of six months. The term of his engagement was extended from time to time with one day break. He continued as such for next three years. The respondent - University, however, did not re-engaged him or extend his term of engagement after 3rd September, 2010. He filed a writ petition being SWP No. 2742/2010. He amongst various reliefs, sought a writ of mandamus commanding respondent-University to continue him as Driver on contractual/temporary basis and also to regularize him against an available post on the analogy his similarly placed colleagues were regularized. 2. Smt. Oma Devi w/o Sh. Mohinder Kumar was vide order dated 8.3.2010 engaged as Hostel Supervisor (Female) in the respondent University on a consolidated salary of Rs.4000/- per month. Earlier the aforesaid position was offered to her vide letter No. SMVDU/Adm./10/6234-35 dated 5.3.2010 and on her accepting the offer, formal engagement order was issued in her favour on 8.3.2010. She was later vide order No. SMVDU/Adm./10/6466-70 dated 26.3.2010 deputed as Hostel Supervisor to Shivalik Girls Hostel. She was disengaged w.e.f 16.6.2010. She filed a writ petition being SWP No. 245/2011. She like her husband, sought a writ of mandamus commanding respondents to allow her to continue as Hostel Supervisor on adhoc basis till the post of Hostel Supervisor was filled up by regular selection. 3. The respondents opposed the two writ petitions on almost identical grounds. The respondents questioned the maintainability of writ petitions on the ground that Shri Mata Vaishno Devi University did not fall within definition of "State" as defined under of Article 12 Constitution of India and therefore was beyond writ jurisdiction of the court. The respondents insisted that engagement in both the cases was for a fixed term extendable at the option of the University and the appellants / writ petitioner's therefore had no right to hold the position. The respondents pleaded that disengagement/non extension in term of engagement was necessitated due to a policy decision taken by the University to outsource works like maintenance of hostels, housekeeping, transport etc. The respondents denied that the decision to outsource few services or activities by the University was motivated by any ill will or malice towards the appellants/writ petitioners or their colleagues. The respondents denied that the decision to outsource few services or activities by the University was motivated by any ill will or malice towards the appellants/writ petitioners or their colleagues. 4. The writ court did not find merit in the case set up by the petitioners. It held the petitioners to have been appointed for a limited period and not to have a right to have their services regularized. It found the respondents to have acted within their powers while outsourcing the service and appointing M/s Good House Keeping to maintain hostels and supply necessary staff to the respondent-University. The writ petitions were accordingly dismissed by a common judgment dated 4.9.2013. 5. Shri Mohinder Kumar and his wife Ms. Oma Devi have filed two separate appeals being LPA (SW) No. 152/2013 and LPA (SW) 176/2013 against the writ court judgment. The writ court judgment is questioned on the grounds that non extension in term of engagement in case of appellant Mohinder Kumar and disengagement in case of Ms. Oma Devi, violated the mandate of Jammu & Kashmir Shri Mata Vaishno Devi University Act 1999 and Articles 14 and 16 Constitution of India. The appellants insist that in terms of the Act, they have a right to have their services regularized and failure on part of the respondent -University to extend term of appellants, is in conflict with the Act. It is pleaded that a number of similarly placed colleagues of the appellants have been regularised and non extension/disengagement in case of appellants is discriminatory in character and therefore violative of right to equality guaranteed under Article 14 Constitution of India in general and right to equality in the matters of employment under State under Article 16, in particular. 6. Heard and considered. 7. The appellants, as their engagement orders would reveal, were engaged as Driver and Housekeeper respectively, for a fixed term on consolidated pay. In case of appellant Mohinder Kumar initial engagement order was for a period of six months on a consolidated pay of Rs. 5000/- per month. In case of appellant Ms. Oma Devi engagement was on consolidated salary of Rs.4000/- per month. In case of appellant Mohinder Kumar initial engagement order was for a period of six months on a consolidated pay of Rs. 5000/- per month. In case of appellant Ms. Oma Devi engagement was on consolidated salary of Rs.4000/- per month. The offer of engagement, made by the respondent-University on 30.8.2007 in case of appellant Mohinder Kumar and 5.3.2010 in case of appellant Oma Devi made it clear that their engagement was not to give rise to any right of regular absorption in University service and that their engagement was liable to be terminated at any time by giving them a notice or pay in lieu of notice. In case of appellant Mohinder Kumar the initial period of engagement was six months and in case of appellant Oma Devi it was fixed as three months. The respondent-University extended the term of engagement in case of appellant Mohinder Kumar vide orders dated 26.3.2008 for a further period of six months and thereafter vide orders dated 19.9.2008, 24.3.2009, 16.09.2009 and 08.04.2010. The period of engagement was thereafter not extended as the respondent -university decided to engage a private contractor to provide the services of housekeeping etc. Same is the position in case of appellant No.2. 8. The appellants having regard to the offer made to them by the respondent - university, duly accepted by them and the terms of initial engagement order, cannot claim to have a right to continue or to be re-engaged much less to be regularized and permanently absorbed in the University service. 9. The appellants cannot draw any support from the university statutes in as much as, they do not get a right under the Statutes to have their services regularized. Chapter 34, para - 4 (iv) of the University Statutes is relevant to present controversy and needs to be notices. It. reads as under:- "The appointments to the above categories shall be initially on contract basis for a period of one year, which may be extended by another one year, which shall be treated as period of probation. On satisfactory completion of the period of probation, appointment shall be followed, by a contract for five years inclusive of the period of probation. During this period, the services may be terminated and/ or an employee may leave by giving one month's notice." 10. On satisfactory completion of the period of probation, appointment shall be followed, by a contract for five years inclusive of the period of probation. During this period, the services may be terminated and/ or an employee may leave by giving one month's notice." 10. A bare look at the Statute would reveal that University retains power to terminate the services of an employee during initial period of two years or even after he is retained for more than two years, during extended period of three years. The University therefore acted within its powers while deciding not to extend the term of engagement of the appellants. 11. Ld. Counsel for the appellants insisted that the appellants, because of the services rendered, are clothed with a right to get their services regularized. Reliance in this regard is placed on Nihal Singh and others v. State of Punjab & Ors. 2013(5) Supreme 718 . However, the case law relied upon, does not extend support to the appellant's case as the facts of aforementioned case are markedly distinguishable from the facts of the case in hand. In Nihal Singh's case the appellants were appointed as Special Police Officers under Police Act 1861. The appointments were made in exercise of statutory powers under the Act and the appointees were allowed to work for a long time without interruption and without their services terminated. They continued to perform their duties as Special Police Officers, deputed to guard different banks at the time they approached the High Court for a direction to respondent State to regularize their services. It is against the aforestated factual backdrop that the Supreme Court held the petitioners entitled to regularization of their services and directed the State Government to regularize their services by creating necessary posts. In the present case as already pointed out, appellants were appointed for a fixed term and though their term of engagement was extended after a break of one day, yet the respondent-university after few extensions, decided to engage a contractor to maintain its hostels and provide other services. The writ court therefore was right in concluding that the appellants did not have right to ask for extension in their term of engagement or to have their services regularized. 12. We for the reasons discussed, do not find any ground made out as would persuade us to take a view different from one taken by the Ld. The writ court therefore was right in concluding that the appellants did not have right to ask for extension in their term of engagement or to have their services regularized. 12. We for the reasons discussed, do not find any ground made out as would persuade us to take a view different from one taken by the Ld. Single Judge. Both the LPAs i.e. LPASW No.D-176/2013 and LPASW No. 152/2013 along with connected CMAs, in the circumstances, merit to be dismissed. 13. Dismissed.