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2016 DIGILAW 1897 (GUJ)

Parmar Gautamkumar Dahyabhai v. State of Gujarat

2016-09-02

J.B.PARDIWALA

body2016
JUDGMENT : J.B PARDIWALA, J. Ms. Kamani, the learned advocate appearing for the writ-applicant states that she has instructions from her client not to appear in the matter as the writ-applicant would be appearing in person. My court master has invited my attention to a letter dated 03/08/2016 addressed by the writ-applicant to the High Court stating that the matter may be decided considering the pleadings on record. 2. By this writ-application under Article 226 of the Constitution of India, the writ-applicant seeks to challenge the action on the part of the respondent no. 1-The Gujarat State Aids Control Society (for short ‘The Society’) in terminating his service as a contractual appointee. It appears from the materials on record that the Society an autonomous body created by the Government of Gujarat appointed the writ-applicant to the post of the Personal Assistant (English Stenographer) in the Society purely on a temporary and ad-hoc basis. Such appointment was made on 20/09/1999. It appears that thereafter time-to-time the contractual period was being extended. The last extension before terminating the services is dated 01/01/2002. 3. It appears that the Society was not satisfied with the performance of the writ-applicant as a Stenographer. In such circumstances, it thought fit not to extend the contractual period further and re-leave the writ-applicant from service. 4. Being dissatisfied, the writ-applicant has come up with this writ-application. 5. On behalf of the Society, an affidavit-in-reply has been filed interalia stating as under:- 3. I say that with reference to Para No. 1 & 2 of the petition there are no submissions. I say that with reference to Para No. 3 of the petition, it is respectfully stated that, the respondent authority i.e the Gujarat State AIDS Control Society is an autonomous body created by the Government with a view to prevent spread of HIV/AIDS in the State of Gujarat. For the purpose of implementation of various projects/programmes to achieve the said object of the society, the respondent authority was required to employ various personnel and therefore the respondent authority had issued an advertisement for recruitment of various persons purely on contractual basis. A copy of the advertisement in this regard, which is not placed on record by the petitioner, is annexed herewith and marked as Annexure-R/1 to this reply. A copy of the advertisement in this regard, which is not placed on record by the petitioner, is annexed herewith and marked as Annexure-R/1 to this reply. Thus, the advertisement itself provided that the appointment was to be made on purely contractual basis and on the basis of the said advertisement the petitioner had made an application for appointment on the post of Personal Assistant (English Stenographer). 4. It is respectfully stated that, the respondent authority became operation with effect from 1.4.1999 and since the procedure prescribed by the Government regarding recruitment of its staff was a lengthy process, various posts could not be filled in and due to the Code of Conduct imposed by the Election Commission at the relevant point of time, a request was made to go ahead with the recruitment as the appointment was to be made on contractual basis. A copy of the letter dated 12.7.1999 in this regard is already annexed with the petitioner as Annexure-2. 5. It is respectfully statd that, thereafter the vide order dated 20.9.1999 the petitioner was appointed on the post of Personal Assistant (English Stenographer) purely on temporary and ad-hoc basis for a period not exceeding one year. It is respectfully stated that, as per the terms contained in the said appointment order, an agreement was executed between the petitioner and the respondent authority on 23.9.1999, a copy of which is annexed herewith and marked as Annexure-R/2 to this reply. It is respectfully stated that, from the perusal of the said agreement it is evident that in condition No. 7 it was specifically agreed between the parties to the agreement that the appointment of the employee shall be on contractual basis for a stipulated time period and the employee shall have no legal rights whatsoever for continuation/retention/ reappointment in the service of the Society. It is respectfully stated that, since the said agreement contained the said condition, which was adverse to the petitioner, the petitioner has deliberately not placed a copy of the said agreement on record of this Honourable Court with a view to mislead the Honourable Court. 6. It is respectfully stated that, since the said agreement contained the said condition, which was adverse to the petitioner, the petitioner has deliberately not placed a copy of the said agreement on record of this Honourable Court with a view to mislead the Honourable Court. 6. It is respectfully stated that, on completion of the said contractual period of one year on 21.9.2000, service of the petitoiner was extended for a further period of 6 months with effect from 21.9.2000 The said contractual appointment was further extended for a period of three months vide order dated 6.3.2001 with effect from 21.3.2001 However, while extending the said period, the petitioner was instructed to improve his stenography and typing work on computer at the required minimum level during the extended period. Thereafter also, extension of three months was given to the petitioner vide order dated 16.6.2001 extending the contractual appointment of the petitioner upto 30.9.2001 with instructions to the petitioner to improve his stenography and typing work on computer at the required minimum level. 7. It is respectfully stated that, even after completion of the said period of extension there was no improvement in the work of the petitioner, however, with a view to give one more opportunity to the petitioner to see that minimum level efficiency is maintained by the petitioner his appointment was further extended for a period of 3 months upto 31.12.2001 However, while extending the said period the petitioner was clearly instructed to improve the work and performance upto minimum expected satisfactory level, within the above period, as a last chance. However, during the said period also there was no improvement in the stenography as well as typing skills of the petitioner and therefore upon completion the said extended period no more extension was immediately granted to the petitioner. 8. However, thereafter the petitioner's appointment was further extended for a period of 3 months from 31.12.2001 as a temporary arrangement on total temporary basis and order was passed accordingly and the petitioner had resumed duties on 3.1.2002, thus the said appointment was to come to an end on 2.4.2002 The said order clearly stipulated that the services of the petitioner can be dispensed with at any time without assigning any reasons even earlier to the contracted three months time. The said contractual appointment, purely as a stop gap arrangement and temporary basis for a limited fixed period, was accepted by the petitioner and accordingly the petitioner had consciously joined the service on 3.1.2002 The said contractual appointment came to an end on 2.4.2002 and thereafter no further extension was granted to the petitioner and accordingly the appointment of the petitioner on contractual basis came to an end. 9. I further say that, in spite of frequent instructions, since there was no improvement in the work/performance of the petitioner was found and number of mistakes and errors were being noticed in dictations and stenography, the petitioner was even issued a memo dated 4.10.2001, whereby the petitioner was once again instructed to improve his quality of work and performance, latest within 90 days, failing which the petitioner was informed that the respondent authority would be constrained to relieve the petitioner from the contractual appointment. A copy of the said Memo dated 4.10.2001 is annexed herewith and marked as Annexure-R/3 to this reply. 10. I further say that in view of the above referred facts and circumstances, as the appointment of the petitioner was purely on contractual basis for a temporary period, the petitioner cannot claim any right on the basis of the said contractual appointment, after having consciously agreed to abide by the terms and conditions prescribed in the agreement. 11. I say that so far as the contention with regard to reduction of pay of the petitioner is concerned, it is respectfully stated that the appointment of the petitioner was in the fixed pay of Rs.7,500/- in the cadre of Personal Assistant. However, as stated hereinabove, since there was no improvement in the work of the petitioner and his performance was not upto the satisfaction of the respondent authority, the pay-scale of English Computer Literate Steno in the fixed pay of Rs.6000/- was given to the petitioner, as a good will gesture in order to see that the petitioner was not rendered jobless. 12. I say that so far as the allegation levelled against the authorities of the respondent Society is concerned the same are absolutely false and got up and the said allegations are specifically denied. 13. 12. I say that so far as the allegation levelled against the authorities of the respondent Society is concerned the same are absolutely false and got up and the said allegations are specifically denied. 13. I say that in spite of the fact the contractual appointment of the petitioner came to an end on 2.4.2012, the petitioner had unauthorizedly put his signature in the muster role without informing or without taking any permission and thereby he had tampered with the Record of the office and for this act of the petitioner a written complaint was given to the Meghaninagar Police Station on 19.4.2002 A copy of the said complaint dated 19.4.2002 is annexed herewith and marked as Annexure-R/4 to this reply. 14. I say that so far as the contentions raised by the petitioner to the effect that he was informed that he would be given order for appointment after Project Director Shri. V.C Patel joins the office upon completion of his leave period on 26.4.2002 is concerned, the same is absolutely false and got up and therefore the same is also specifically denied. As a matter of fact, the petitioner and the Police Inspector of Meghaninagar Police Station had visited the office of the respondent authority on 17.4.2002 and in presence of the Police Inspector the petitioner was informed that he can personally meet the Project officer and ventilate his grievance, if any, after he resumes his duties upon completion of his leave period. 15. I say that so far as the contention of the petitioner to the effect that his appointment was made through Gujarat Public Service Commission is concerned, the same is also false and is contrary to record and therefore the same is specifically denied. I further say that the recruitment of the staff of the Society does not fall under the purview of Gujarat Public Service Commission and therefore the contention of the petitioner that his appointment was made through Gujarat Public Service Commission is absolutely false and is contrary to record. 16. I further say that the recruitment of the staff of the Society does not fall under the purview of Gujarat Public Service Commission and therefore the contention of the petitioner that his appointment was made through Gujarat Public Service Commission is absolutely false and is contrary to record. 16. I say that the appointment of the petitioner being on contractual basis for a purely temporary period, no reliefs as claimed by the petitioner can be granted him, more particularly in view of the fact that, the performance of the petitioner was not satisfactory and he did not improve his performance, inspite of the fact that he was given opportunity to improve his performance on various occasions. I further say that, even otherwise, in view of the contractual appointment for a fixed period, the service of the petitioner comes to an end automatically upon the expiry of the said period in accordance with the terms incorporated in the agreement with the petitioner, appointing him on a purely temporary and ad-hoc basis, which appointment was consciously accepted by the petitioner. 6. Having regard to the stance of the respondent no. 1 and also, taking consideration the fact that the appoint of the writ-applicant was purely on contractual basis, no case worth the name was made out for grant of the reliefs as prayed for in this writ-application. 7. As a result, this application fails and is hereby rejected.