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2014 DIGILAW 670 (PAT)

Bimlesh Kumar Pandey v. State of Bihar

2014-06-17

AJAY KUMAR TRIPATHI

body2014
ORDER 1. Petitioners are 23 in number and want quashing of Advertisement No. INST 1 of 2013, dated 19.9.2013, published in the daily newspaper Hindustan, by virtue of which application for appointment of 76 English Instructors for the Industrial Training Institutes in Bihar has been invited. In addition, they also want a direction from the Court to extend the tenure of the petitioners service as English Instructors since their contract has expired on 31.3.2013. 2. The reason for making such a prayer is that the present set of petitioners came to be appointed on contract basis on the basis of Resolution No. 1458, dated 3.7.2009 as Directorate of Employment and Training, Department of Labour Resources, Government of Bihar needed to fill up some vacant posts available in the various Industrial Training Institutes. The petitioners responded to the advertisement published on 14.8.2009, which is Annexure-2. Reading of the said advertisement would indicate that the appointment on the post of English Instructors was required to be made on contract basis. The contract was supposed to subsist for 12 months but it could be extended or reduced in the wisdom of the respondents. 3. These petitioners found themselves eligible and made applications. It is their case that out of 76 posts, only 43 posts of English Instructors could be filled up. The appointments were made of the selected candidates on verification of their educational qualification, police verification as well as medical fitness. Annexure-4 is appointment letter. 4. After their appointment, they have been made to work like regular employees. They have given details of the various training programmes they had to undergo including the so-called eligibility test before extension of their contract for further period of 12 months. 5. Looking at the performance and quality of work rendered by the petitioners they were sanguine that they would be absorbed or appointed on a permanent basis because there was no complaint in relation to their work. Extension of contract from time to time was also an indicator to the said fact. However, to the shock and horror, they came to discover that the Government was taking steps for filling up the post of English Instructors afresh again on contract basis, for which the Advertisement No. 1 of 2013 contained in Annexure-19 was issued on 19.9.2013. 6. Extension of contract from time to time was also an indicator to the said fact. However, to the shock and horror, they came to discover that the Government was taking steps for filling up the post of English Instructors afresh again on contract basis, for which the Advertisement No. 1 of 2013 contained in Annexure-19 was issued on 19.9.2013. 6. The petitioners are aggrieved because their future is at stake and they fail to comprehend as to why the respondents are not willing to fill up the posts on a substantive basis and what was the occasion to replace one set of contractual appointees with another set of contractual appointees. By permitting such kind of indulgence to the State, it will be giving encouragement to exploitative technique, which is not permissible to a welfare State and does have reflection on their right under Articles 14 and 21 of the Constitution of India. 7. It is also their stand that the advertisement did give an indication that their appointment was no doubt on contractual basis but this was supposed to be continued till the posts were required to be filled up on a regular basis. The advertisement contained in Annexure-19 does not indicate that it was a step in that direction. Reading of the same would indicate that it is an effort to replace one set of contractual appointees with another because the terms and conditions of the impugned advertisement is in identical terms, so far as eligibility and qualifications etc. are concerned. The only difference, which is discernable, is that some kind of a modality or different steps have been indicated in the impugned advertisement which a candidate has to undergo for such selection. 8. Counsel for the petitioners also submits that looking at the period when such engagement was done in the year 2010 and the period, which has gone past since such engagement, these petitioners have only gained experience in the last few years, which showed weigh in their favour for their continuance because they also have a legitimate expectation to continue especially when there is nothing adverse emerging from any of the stand of the State authorities in the counter affidavit or any other document, on record. 9. 9. When the writ application was taken up on 25.10.2013 the learned single Judge after hearing the parties passed an order of stay by directing that no contractual appointment will be made on posts on which petitioners were working till further order if the same had not already been done. 10. The State authorities were directed to file a counter affidavit and explain their conduct as well as the issues raised in the writ application. Their stand is that the petitioners have no right. It was a contractual engagement and the petitioners were well aware of the terms and conditions of the advertisement. Since this was a temporary arrangement and their selection was based purely on the basis of marks, without holding any written test or interview, there cannot be a case for issuance of a mandamus. They also take a plea that the last of their extension ended on 31.3.2013 as there was no approval of the competent authority for continuance of the engagement on contractual basis. 11. Counsel for the State also contends that since they accepted the terms and conditions of the contractual appointment and as per policy decision taken by the General Administration Department contained in Memo No. 17415 dated 20.12.2012, contained in Annexure-A, such contractual appointments are not required to be continued. 12. Yet another averment in the counter affidavit is that many a candidates responded to the advertisement contained in Annexure-19 with better qualifications and the whole object is to find experienced people to be appointed on such posts since the previous engagement was a stop gap measure so that the interest of the students did not suffer due to vacancy position and in view of the above, there is difficulty in maintaining the claims of these petitioners. 13. A rejoinder application has been filed by the petitioners where they have taken a plea that the concerned department has overlooked the recommendation of the Cabinet. There is no bar in continuing with contractual engagements as a Resolution dated 21.5.2013 (Annexure-21) would indicate and a false kind of plea has been taken only with the object of ousting the claim of the petitioners and to justify fresh engagements again on contract. There is no bar in continuing with contractual engagements as a Resolution dated 21.5.2013 (Annexure-21) would indicate and a false kind of plea has been taken only with the object of ousting the claim of the petitioners and to justify fresh engagements again on contract. In fact, a recent decision of the Hon’ble High Court passed in C.W.J.C. No. 12728 of 2012 has deprecated such kind of conduct and behaviour of respondents to replace one set of contractual appointees with another which is nothing but exploitative action of the State and violative of Articles 14 and 16 of the Constitution of India. 14. Reliance has been placed by the petitioners on yet another decision of a learned single Judge rendered in the case of Prashikshit Mahila Berojgar Swasthya Karyakarta vs. State of Bihar, 2010 (4) PLJR 509 . The Court after taking into consideration the diverse position with regard to such contractual engagements gave a decisive direction to fill up the vacant posts on a regular basis instead of resorting to the mode of contractual engagements. 15. Having taken consideration of the rival positions, which emerge in the present writ application, one fact is evident that these petitioners were no doubt engaged on contractual basis, which was capable of extension or termination, according to the requirement of the respondents. These petitioners have also continued to deliver on the basis of such contractual engagement. When the respondent State has been extending their term from time to time what is the necessity now to issue yet another advertisement again to fill up those posts, which add up to 80 now, on contractual basis is not being fully explained. 16. The Court would have had no reservation in rejecting the claim of the petitioners provided the respondents were trying to fill up these posts on regular basis but it is a fact that what is being done by the respondents is to replace one set of contractual appointees with another set of contractual appointees. This amounts to use and throw by the State and since the State is not a private employer and is bound by certain ethos of the Constitution of India, the Court cannot permit them to adopt such a modality. The justification given by the State in their counter affidavit does not satisfy this Court as to the requirement under which the impugned advertisement contained in Annexure-19 has been issued. The justification given by the State in their counter affidavit does not satisfy this Court as to the requirement under which the impugned advertisement contained in Annexure-19 has been issued. 17. In view of same, Annexure-19 is quashed. Since there was an interim order passed as far back as 25.10.2013, the petitioners would continue to perform their job on contractual basis leaving it free to the State to fill up the posts on substantive basis, if they so want but the Court cannot permit them to replace these petitioners by another set of contractual appointees whatever be their wisdom and justification for doing so which does not satisfy Article 14 of the Constitution of India. 18. Writ is allowed in terms of the above.