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2019 DIGILAW 1682 (JHR)

Arvind Kumar v. State of Jharkhand

2019-09-20

S.N.PATHAK

body2019
JUDGMENT : 1. The petitioner has approached this Court for quashing the Memo No. 145 dated 27.01.2016 (Annexure-10) by which the petitioners have been terminated from the service. Further, prayer has been made for quashing the Memo No. 146 dated 27.01.2016 (Annexure-11) by which the private respondent has been appointed in place of petitioner No.2 on the same post. 2. The factual exposition as has been delineated in the writ petition is that the petitioner No.1 was appointed on 01.09.2008 as daily wager to the post of Computer Operator, however he was already working w.e.f. 19.07.2008. Similarly, the petitioner No.2 was appointed on 28.09.2010 to the post of Computer Operator as a daily wager though he was working under the respondent since 16.06.2009. The services of the petitioners came under Contract on 14.08.2014. In the year, 2013 Personal, Administrative Reforms & Rajbhasha Department came out with the Circular dated 03.08.2013 wherein it has been decided that from 03.08.2013 onwards the services of the Computer Operator will be taken only after getting the post sanctioned. The petitioners have worked to the full satisfaction of the respondents, but to their utter surprise, the services of the petitioners have been terminated vide order contained in Memo No. 14 dated 27.01.2016 without any show cause notice and without any opportunity of hearing. It is further the case of the petitioners that after terminating the services of the petitioners the contesting respondent No.6 has been appointed on the same day vide Memo No.146 dated 27.01.2016 from the panel which has lost its validity after completion of one year and no reasons have been assigned why she has been appointed and why the services of the petitioners have been terminated. Aggrieved by the said impugned orders i.e. order of termination and appointment of respondent No.6, the petitioners have been compelled to knock the door of this Court for redressal of their grievances. 3. Mr. Saurav Arun, learned counsel appearing on behalf of the petitioners submits that the order of termination dated 27.01.2016 at Annexure-10 and that of appointment of respondent No.6 at Annexure-11 are illegal, arbitrary and not tenable in the eyes of law. He further submits that without assigning any reason and without any charge of misconduct, the impugned order for termination from the services of the petitioners have been issued and as such, the order of termination is liable to be dismissed. He further submits that without assigning any reason and without any charge of misconduct, the impugned order for termination from the services of the petitioners have been issued and as such, the order of termination is liable to be dismissed. Learned counsel for the petitioners further submits that no adhoc employee can be replaced by another adhoc employee in view of that also the order of termination is bad in law. Learned counsel places heavy reliance on judgment/order of this Court passed in W.P.(S) No.4785 of 2009 vide order dated 24.11.2014 (Annexure-6) and W.P.(S) No.5424 of 2008 vide order dated 04.09.2015 (Annexure-7) and submits that the said orders/judgments covers the present case of the petitioners and as such, the order of termination is not tenable in the eyes of law. Learned counsel further submits that reasons cannot be substituted, by way of counter-affidavit and on this score itself, the impugned orders are fit to be quashed and set aside. 4. Per contra, counter-affidavit has been filed. Mr. Anup Agarwal, learned counsel appearing on behalf of the respondents vehemently opposes the contention of the learned counsel for the petitioners and justifying the impugned orders, submits that there is no illegality or infirmity in the impugned orders. Learned counsel draws the attention of the Court towards the appointment letter of the petitioners and argues that in the appointment letters itself it has been mentioned that appointment of the petitioners were purely temporary in nature and was also contractual and further, it was mentioned that there services can be removed without even stating any reasons with approval of the Principal Secretary of the Personal Department. Learned counsel further argues that once the petitioners have accepted the terms and conditions of the appointment letter, they cannot subsequently, challenge it by taking the plea of natural justice. Learned counsel further argues that no reasons were required to be assigned in view of the stipulations made in appointment letters of the petitioners. Learned counsel further argues that once the petitioners have accepted the terms and conditions of the appointment letter, they cannot subsequently, challenge it by taking the plea of natural justice. Learned counsel further argues that no reasons were required to be assigned in view of the stipulations made in appointment letters of the petitioners. Learned counsel for the respondents draws the attention of the Court towards para 7 of the counter-affidavit and submits that petitioners were not appointed on any sanctioned post as there was no such post but considering need/ requirement of the office, these petitioners were allowed to work temporarily on daily wages basis vide order dated 01.09.2008 and 28.09.2010 respectively and in the appointment letters itself it was mentioned that their services can be terminated at any point of time without giving prior notice. Learned counsel further argues that the appointment itself was contractual and appointment of the petitioners itself was made dehors the Rules, there is no illegality or infirmity in the impugned orders. The appointment of the respondent No.6 was done by following the terms and conditions of the Rules as applications were invited and after interview as well as written/typing test, respondent No.6 having secured highest marks and her name was recommended and as such, she was appointed as Computer Operator. The appointment of respondent No.6 was done through transparent procedures and in case of the petitioners no procedure was ever adopted neither any roster clearance was considered. Learned counsel further submits that as respondent No.6 has obtained highest marks and was eligible and qualified for the same, but ignoring the said fact, she was denied appointment and petitioners were considered illegally in place of her. 5. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that no case is made out for interference for the following facts and reasons:- 1. The petitioners were appointed as daily wagers on purely contractual basis. 2. In the appointment letters itself, which are annexed in the writ petition, it was clearly mentioned that their services can be terminated without assigning any reasons at any point of time. 3. Contractual employees have no right to continue beyond their period of contract. 4. The petitioners were appointed as daily wagers on purely contractual basis. 2. In the appointment letters itself, which are annexed in the writ petition, it was clearly mentioned that their services can be terminated without assigning any reasons at any point of time. 3. Contractual employees have no right to continue beyond their period of contract. 4. The appointment was made dehors the rules and as such, no reasons were required for terminating their services, which was done as per the terms of appointment letters itself. 6. The order of termination is not stigmatic as no misconduct has been leveled against them. There is no violation of Article 14 and reasons were not required to be assigned in view of terms of appointment letter itself. The case relied upon by learned counsel for the petitioners is of no help to them as in W.P(S) No. 4785 of 2009, in the appointment letter/Agreement dated 26.08.2008, there was a specific stipulation Clause No.14 to give one month’s prior written notice or one month’s remuneration in lieu of notice by either side before the issuance of termination order. 7. In the instant case, no such agreement was ever entered upon rather in view of the stipulation made in appointment letters itself, no reasons ought to have been assigned before issuance of termination order and as such, order of termination is fully justified and the case relied upon by the learned counsel for the petitioners is distinguished. The reasons for removal of the petitioner has been mentioned in the impugned order itself as the appointment of the petitioners were temporary in nature and they can be removed without any notice or without assigning any reason. 8. The Hon’ble Apex Court in case of State of Karnataka Vs. Uma Devi, reported in 2006 4 SCC 1 has held thus: 47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognised by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post. 9. The Hon’ble Apex Court in case of Renu Vs. District & Sessions Judge, reported in (2014) 14 SCC 50 has held thus : 17. Thus, the aforesaid decisions are an authority on prescribing the limitations while making appointment against public posts in terms of Articles 14 and 16 of the Constitution. What has been deprecated by this Court time and again is “back-door appointments or appointment dehors the rules”. 18. In State of U.P. v. U.P. State Law Officers’ Assn. this Court while dealing with the back-door entries in public appointment observed as under: (SCC pp. 217-18, para 19) “19. … The method of appointment is indeed not calculated to ensure that the meritorious alone will always be appointed or that the appointments made will not be on considerations other than merit. In the absence of guidelines, the appointments may be made purely on personal or political considerations, and be arbitrary. This being so those who come to be appointed by such arbitrary procedure can hardly complain if the termination of their appointment is equally arbitrary. Those who come by the back door have to go by the same door. … From the inception some engagements and contracts may be the product of the operation of the spoils system. There need be no legal anxiety to save them.” (emphasis supplied) 10. As a sequel of the aforesaid observations, rules, guidelines and judicial pronouncement, no interference is warranted in the instant case and as such, writ petition stands dismissed.