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Gujarat High Court · body

2019 DIGILAW 845 (GUJ)

Vimalkumar D. Khunt v. Junagadh Municipal Corporation

2019-10-03

A.S.SUPEHIA

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JUDGMENT : A.S. SUPEHIA, J. 1. The present petition has been confined to the petitioner Nos. 4, 10, 11, 12 and 13, as per the statement made by the learned advocate Mr. Pandya for the petitioners. 2. The present petition has been filed seeking quashing and setting aside the order of termination dated 31.08.2006 and further order of the General Board dated 01.11.2006. 3. Learned advocate Mr. Pandya for the petitioners has submitted that the petitioners were appointed to the post of Sanitary Inspector after their names were called from the Employment Exchange for the sanctioned ten posts. He has submitted that the petitioners were continued on ad hoc basis and ultimately, terminated by the impugned order dated 31.08.2006. In view of the order of the General Board dated 01.11.2006, he has submitted that the petitioners were constrained to file writ petition being Special Civil Application No. 20251 of 2006, since their services were terminated. He has submitted that the aforesaid writ petition was disposed of vide order dated 21.09.2006 by directing the corporation to consider the representation to be filed by the petitioner and after considering the same, by the impugned order dated 01.11.2006, the request of the petitioner for reinstatement was not allowed due to financial loss suffered by the corporation. 4. Learned advocate Mr. Pandya for the petitioners asserted that the respondent corporation could not have terminated the services of the petitioner since they were appointed on the sanctioned post of Sanitary Inspector. Thus, he has submitted that the impugned order of termination and further order of the General Board may be quashed and set aside. 5. Per contra, learned advocate Mr. Joshi for the respondent corporation has submitted that the appointments of the petitioners were purely on contract basis and they accepted their conditions, wherein, it is specifically mentioned that the services will liable to be terminated as and when the same are not required. He has submitted that the petitioners cannot claim as a matter of right of being appointed to the post of Sanitary Inspector on the basis of that they were called from the Employment Exchange. It is submitted that no regular procedure was undertaken by the corporation before such appointment since their services were already required for a specific period. 6. I have heard the learned advocates for the respective parties. The documents as pointed out by them are also perused. 7. It is submitted that no regular procedure was undertaken by the corporation before such appointment since their services were already required for a specific period. 6. I have heard the learned advocates for the respective parties. The documents as pointed out by them are also perused. 7. It appears that the names of the petitioners were called from the Employment Exchange for appointment on the post of Sanitary Inspector and after holding the interview, they were selected for such post as the work of Sanitary Inspector was required. They were appointed by the order dated 23.08.2004 purely on contract basis for six months on fix wages of Rs. 3,500/-. Thus, the appointment of the petitioners was purely on ad hoc and contractual basis. Thus, being an ad hoc employee and appointed on contractual basis, they cannot claim regular appointment on the sanctioned post on the ground that they were appointed on such post. 8. The three Judge Bench of the Supreme Court in the case of Uttar Pradesh and others Vs. Ex-pilot Officer Arun Govil, AIR 1990 SC 458 has held thus: "10. It is not disputed that the scheme under which the respondent had been appointed provided for an appointment by contract for a specified term which could be extended from time to time and that the term of the respondent had been extended on different occasions after his first appointment and he was not entitled to continue in service beyond 30th August, 1985 unless there was a further extension. Clauses 6 & 7 of the first order of appointment stated that the respondent was entitled to the leave admissible for temporary employees and for other matters he was to be treated as a temporary Government employee during the tenure of this office. The appellant government never accepted the position that the respondent was entitled to be treated as a regular employee who had a vested right to continue to hold the post till he attained 58 years of age. … ......... " Thus, the petitioners cannot assert of being continued beyond the period for which they were appointed on contractual basis unless the respondent has extended such contractual appointment. … ......... " Thus, the petitioners cannot assert of being continued beyond the period for which they were appointed on contractual basis unless the respondent has extended such contractual appointment. Thus, it is the sole discretion of the employer to extend the service contract of such employees, and the employees working on ad hoc and contract basis do not have any right to assert that they shall be regularly appointed. 9. The Constitution Bench of the Supreme Court in the case of Secretary, State of Karnataka Vs. Umadevi, 2006 (4) SCC 1 , while examining the rights of daily wagers and the employees engaged on contract and ad hoc basis has observed thus: "43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment come to an end of ad hoc employees who by the very nature of their appointment, do not acquire any right. High Courts acting under Article 226 of the Constitution of India, should not ordinarily issued directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because, an employee had continued under cover of an order of court, which we have described as 'litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. … ............. " Thus, the Constitution Bench of the Apex Court has held that if it is a contractual appointment, the appointment comes to an end at the end of the contract, and if the engagement or appointment is on daily wages or casual basis, the same would come to an end when it is discontinued. 10. In this view of the matter, no interference is required in the impugned orders. The writ petition is dismissed. Rule discharged. Interim relief, if any, stands vacated.