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2017 DIGILAW 892 (JK)

Vijay Raina v. Union of India

2017-09-28

MOHAMMAD YAQOOB MIR

body2017
JUDGMENT : 1. Aggrieved by the judgment and decree dated 05.06.2003, passed by the Court of Principal District Judge, Srinagar, instant appeal has been filed. 2. Appellant vide order dated 14th March, 1978, was appointed as Clerk Grade-II purely on ad hoc basis with a condition that the order will not confer, on her, any right or privilege for continued regular appointment on the post with a further condition that her services will be terminated without prior notice as soon as the candidates are nominated by the Staff Selection Commission for appointment to the post of Clerk Grade-II in the office of Station Director. 3. Vide memorandum No.1(7)/78-S dated 26th June, 1978, appellant has been informed that Shri G. Q. Rah, Clerk Grade-I (Ad hoc) AIR, Leh, has been re-transferred to Srinagar Station as Clerk Grade-II, consequently her services will stand terminated from the date Shri G. Q. Rah joins the Station. 4. The appellant filed a suit titled “Km. Vijay Raina Vs. Union of India and others” for declaration so as to declare order No.1(7)/78-S dated 26th June, 1978, void, illegal, unenforceable with a further prayer that the plaintiff is and shall be deemed to be continuously and uninterruptedly in her service entitled to function on her post and to discharge her duties, to receive pay/compensation allowances and other amounts amounting to Rs.18000/ up to institution of the suit and also declare her entitled to receive the same amount monthly like other government servants. 5. The respondents filed the written statement stating therein that none of the rights of the appellant (plaintiff) has been violated. She has been terminated strictly in accordance with terms and conditions of her appointment order dated 14th March, 1978. 6. On the basis of respective pleadings, following two preliminary issues were framed on 17.02.2003: (1) Whether the suit is premature and liable to be dismissed, if so, how? (OPD) (2) Whether the suit is not maintainable in the present form, if so, how? (OPD) 7. Learned trial court decided the issue No.1 in favour of the appellant (plaintiff) and against the respondents (defendants) whereas findings on issue No.2 have been returned in favour of the respondents (defendants) and against the appellant (plaintiff). (OPD) (2) Whether the suit is not maintainable in the present form, if so, how? (OPD) 7. Learned trial court decided the issue No.1 in favour of the appellant (plaintiff) and against the respondents (defendants) whereas findings on issue No.2 have been returned in favour of the respondents (defendants) and against the appellant (plaintiff). Learned trial court while recording finding has opined that since the plaintiff was appointed on ad hoc basis till further orders, by a subsequent order dated 26th June, 1978, her services stood terminated in the circumstances mentioned in the said order. Admittedly, plaintiff was holding post on ad hoc basis. Ad hoc employee has no right to hold the post. Under the garb of ad hoc appointment, no person has a right to claim permanent absorption or continuance to hold the post permanently. In support of finding has referred to below mentioned judgments: (1) S. P. Vasudeva Vs. State of Haryana ( AIR 1975 SC 2292 ); (2) Habibullah Mir Vs. State of J&K (1994 S. L. J 571); (3) Dr. Surender Singh Jamwal Vs. State of J&K ( AIR 1996 SC 2775 ) 8. Then has concluded that the appointment of the plaintiff was on ad hoc basis, the defendants had to post G. Q. Rah against the post held by the plaintiff, therefore, they were justified in terminating the plaintiff. Plaintiff was not holding the post substantively nor was she having a lien on the post, as such, she could not be continued in service. The suit, as such, has been dismissed and decree accordingly framed. 9. Precisely, learned counsel for the appellant (plaintiff) projected that the services of the appellant could be terminated only when a candidate would have been nominated by the Staff Selection Commission for appointment to the post of Clerk Grade-II because in the order of appointment it is mentioned that her services will be terminated without prior notice as soon as the candidates are nominated by the Staff Selection Commission for appointment to the post of Clerk Grade-II. What the respondents have done is that they have terminated services of the appellant for accommodating Shri G. Q. Rah who was transferred from Leh Station, which was not a condition for termination of services of the appellant, therefore, respondents have illegally issued the order of termination dated 26th June, 1978. 10. What the respondents have done is that they have terminated services of the appellant for accommodating Shri G. Q. Rah who was transferred from Leh Station, which was not a condition for termination of services of the appellant, therefore, respondents have illegally issued the order of termination dated 26th June, 1978. 10. Letter bearing No.1(7)78-S dated 9th March, 1978, sent to the appellant suggests that the respondents have conveyed it to her that in view of interview for the post of Clerk Grade-II on ad hoc basis, Station Director, Radio Kashmir, Srinagar, is pleased to offer you, on recommendations of the Selection Board, a temporary post of Clerk Grade-II (on ad hoc basis) in Radio Kashmir, Srinagar, on the terms and conditions incorporated therein. Condition No.(ii), (iii), (iv)(a) and (iv)(b) are relevant to be quoted: (ii) Your appointment is purely temporary and until further orders on adhoc basis and will be terminated as soon as the vacancies are filled on regular basis by the nomination of persons through subordinate Service Commission New Delhi. (iii) She has to prove her ability to type at the required speed of 30 words per minute within a period of six months with effect from she joins her duties at this stations. (iv)(a) You will be on probation for two years which period may be extended or curtailed at the discretion of the competent authority. (iv)(b) You will be on probation for two years which period may be extended or curtailed at the discretion of the competent authority. You will have to pass departmental test before the completion of probation. The test will be held every year and you will be given two chances. Failure to qualify in the test within the stipulated period will render you ineligible to continue in service beyond the probationary period.” 11. The conditions clearly suggest that the appointment of appellant on ad hoc basis was terminable as soon as vacancies were filled up on regular basis by nomination of persons through Subordinate Service Commission, New Delhi. Second condition would suggest that she had to prove her ability to type at the required speed of 30 words per minute within a period of six months. She was to remain on probation for two years. Then before completion of probation, she had to pass departmental test. 12. Second condition would suggest that she had to prove her ability to type at the required speed of 30 words per minute within a period of six months. She was to remain on probation for two years. Then before completion of probation, she had to pass departmental test. 12. Taking all the conditions of the said communication into view, in a way there could be a legitimate expectation of continuation subject to a controlling condition i.e. provided in the meantime any candidate is not nominated through Subordinate Service Commission. However, retransfer of Shri G. Q. Rah Clerk Grade-I as Clerk Grade-II would suggest that with his joining post would not remain available. 13. It is trite that an ad hoc appointee cannot claim a right to hold the post permanently when the terms and condition of the order are explicit suggesting that the service shall be terminated without prior notice with a further condition that the order does not confer any right of regularization of services and the arrangement was made pending regular recruitment. The appellant, subject to filling of the vacancy by a candidate nominated by Staff Selection Commission, had a right to continue for a period of two years on probation which period could be curtailed or extended but, in essence, the relief sought in the suit, as referred hereinabove, was not grantable, as has been rightly declined by the trial court. 14. Keeping in view the terms and conditions of the appointment order and then the position of ad hoc appointment, no enforceable right existed which would justify maintainability of the suit, therefore, finding returned by the trial court is in consonance with law, does not call for any interference. 15. Viewed thus, appeal being without merit is dismissed. Decree be drawn up accordingly. 16. Trial court record along with copy of the judgment and decree be sent to the trial court. Appeal dismissed.