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2022 DIGILAW 1580 (GUJ)

Kamal Dilipkumar Aacharya v. State Of Gujarat

2022-11-15

A.S.SUPEHIA

body2022
ORDER : 1. The present writ-petition has been filed for the following prayers:- “31(B). Your Lordships may be pleased to issue a writ of Mandamus by holding that the selection of the petitioner to his respective post was a regular selection, after following the regular process of selection and that he is entitled for regular pay scale from the date of his appointment and that his services cannot be terminated/discontinued in any manner contrary to one by which services of a permanent employee can be terminated and further be pleased to regularize the service of the petitioner from the date of his appointment and further be pleased to give all consequential benefits, monitory and non-monitory inclusive of the full back wages; (C) Your Lordships may be pleased to quash and set aside the order of transfer dated 26-28/05/2021 at Annexure-E and further be pleased to restore present petitioner on the original post of State Consultants for which petitioner was hired for.” 2. The petitioner, who is a contract employee is seeking a writ of mandamus holding his selection as a regular selection and also to regularize his services. Further, a direction is sought to quash and set aside the transfer order dated 26/28.05.2021. 3. Learned advocate Mr. H.J. Dholakia, appearing for the petitioner has submitted that the petitioner was initially appointed on the contractual basis by the order dated 30.04.2012 for a period of 11 months, and thereafter, he has been continued in service. It is submitted that by the impugned order, the petitioner has been illegally transferred to another place and after rendering services for so many years, now it was not open for the respondent authority, to transfer him. 4. Learned advocate has submitted that the petitioner is also entitled to absorption of service and the respondent authorities, has immediately illegally transferred the petitioner, for no reason by the order dated 26/28.05.2021 and no time was given for him and the transfer was done overnight. 5. Learned advocate has further submitted that for similarly situated contractual employees, working across the State, their contracts have been renewed and they are working in the same place, however, the petitioner has been transferred. 6. 5. Learned advocate has further submitted that for similarly situated contractual employees, working across the State, their contracts have been renewed and they are working in the same place, however, the petitioner has been transferred. 6. Per contra, Learned AGP has submitted that the petitioner, who was appointed on contractual basis for a period of 11 months and continued in service, is not entitled to any relief of that to of a regular employee and regularization. It is submitted that the petitioner cannot, as a matter of right, claim regularization and after having accepted the appointment order dated 30.04.2012 on contract basis, which he is governed with the terms and conditions mentioned therein. 7. Learned AGP has submitted that the transfer in the initial service and the petitioner being a contractual employee, can be transferred looking to the administrative exigency. It is not in dispute that the petitioner is appointed by the order dated 30.04.2012 on contractual basis for a period of 11 months with the conditions mentioned therein. 8. The condition No.14 of the appointment order reveals that the petitioner will have right to be absorbed in any Board, Corporation or Public Enterprises on regular set up of the State. Having accepted such conditions, the petitioner cannot claim regularization. 9. It is well settled principle of law that an employee, who is appointed on contractual basis is governed by the terms and conditions of contract. 10. At this stage, it would be apposite to refer to the observations made by the Division Bench in the judgement dated 27.04.2021 rendered in Letters Patent Appeal No.776 of 2021, wherein the Division Bench, after considering the array of the judgements of the Apex Court, on a similar issue, has held thus: "11. None of the arguments advanced by Mr. Syed, learned Senior Advocate appearing for the appellants appeal to us. This is not a case of replacement of temporary ad hoc employees by another set of ad hoc or temporary employees. The appellants were engaged on contractual basis for fixed period at fixed pay for specific work. Their period of engagement having come to an end there is no illegality in discontinuing their services. The appellants enjoyed the extension as and when the University thought it proper to grant them depending upon the requirement of work. 11.2 This is not a case of ad hoc replacing ad hoc employee. Their period of engagement having come to an end there is no illegality in discontinuing their services. The appellants enjoyed the extension as and when the University thought it proper to grant them depending upon the requirement of work. 11.2 This is not a case of ad hoc replacing ad hoc employee. If the appellants were engaged for a specific work and their requirement was for a fixed period and if the same is disputed, apparently such disputed facts cannot be resolved under writ jurisdiction. 11.3 The next submission that there are vacancies in the University against which the appellants could be continued also fails for the above reason. Lastly that the University is exploiting by not filling up the regular posts would be a policy decision of the University and this Court cannot enter into that aspect. Insofar as Civil Applications are concerned, the challenge to the e-tender for engaging an outsourcing agency cannot be entertained for the reason that it was not the subject matter before the learned Single Judge. 11.4 The judgment in the case of State of Haryana and others vs. Piara Singh and others (supra), would have any application to the facts of the present case. It was a case considering the regularization of the ad hoc / temporary employees and the observations made in paragraphs 46 and 47 to the effect that an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee but should be replaced by a regularly selected candidate in order to avoid arbitrary action on the part of the employer. In the present case, the stand of the University is that the University does not require any further services in the office / department where the appellants were working. So it is not a case of replacement of ad hoc by ad hoc or contractual by contractual. The question is as to whether the work exists for which services would be required or not would be a question of fact and can be only decided by leading evidence by the parties. So it is not a case of replacement of ad hoc by ad hoc or contractual by contractual. The question is as to whether the work exists for which services would be required or not would be a question of fact and can be only decided by leading evidence by the parties. Such disputed question or issue cannot be decided under Article 226 of the Constitution.” 10.1 The Division Bench has categorically held that if the period of engagement on contractual basis comes to an end, there is no illegality in discontinuing services of such employees and they enjoyed the extension as and when their service was required. The Division Bench has also held that such action cannot be said to be replacement of temporary ad hoc employees by another set of ad hoc or temporary employees. 11. The Apex Court in the case of Vidyavardhaka Sangha & Anor. vs. Y.D. Deshpande & Ors., (2006) 12 SCC 482 , has held that the persons who are appointed on ad hoc or temporary for a fixed period, their appointment comes to an end by the efflux of time. The Apex Court has held thus: “4.It is now well-settled principle of law that the appointment made on probation/ad hoc basis for a specific period of time comes to an end by efflux of time and the person holding such post can have no right to continue on the post. In the instant case as noticed above, the respective respondents have accepted the appointment including the terms and conditions stipulated in the appointment orders and joined the posts in question and continued on the said post for some years. The respondents having accepted the terms and conditions stipulated in the appointment order and allowed the period for which they were appointed to have been elapsed by efflux of time, they are not now permitted to turn their back and say that their appointments could not be terminated on the basis of their appointment letters nor they could be treated as temporary employee or on contract basis. The submission made by the learned counsel for the respondents to the said effect has no merit and is, therefore, liable to be rejected. The submission made by the learned counsel for the respondents to the said effect has no merit and is, therefore, liable to be rejected. It is also well-settled law by several other decisions of this Court that appointment on ad hoc basis/temporary basis comes to an end by efflux of time and persons holding such post have no right to continue on the post and ask for regularisation etc.” 12. While examining a similar issue, the Supreme Court, in the case of Yogesh Mahajan vs R.C.Deka, Director, All India Institute of Medical Sciences, 2018(3) S.C.C. 218 , has observed thus: “It is settle law that no contract employee has a right to have his or her contract renewed from time to time. That being so, we are in agreement with the Central Administrative Tribunal and the High Court that the petitioner was unable to show any statutory or other right to have the contract extended beyond 30th June, 2010, at best, the petitioner could claim that the concerned authorities should consider extending his contract. We find that in fact due consideration was give to this and in spite of a favourable recommendation having been made, the All India Institute of Medical Sciences did not find it appropriate or necessary to continue with his services on a contractual basis. We do not find any arbitrariness in the view taken by the concerned authorities and therefore reject this contention of the petitioner.” 13. The Apex Court, in the case of GRIDCO Limited vs. Sadananda Dolo, (2011) 15 SCC 16 , on which the reliance is placed by the petitioner, has reiterated the principle of law with regard to the termination of contractual employees. The Apex Court observed thus:- “26. A conspectus of the pronouncements of this court and the development of law over the past few decades thus show that there has been a notable shift from the stated legal position settled in earlier decisions, that termination of a contractual employment in accordance with the terms of the contract was permissible and the employee could claim no protection against such termination even when one of the contracting parties happened to be the State. Remedy for a breach of a contractual condition was also by way of civil action for damages/compensation. Remedy for a breach of a contractual condition was also by way of civil action for damages/compensation. With the development of law relating to judicial review of administrative actions, a writ Court can now examine the validity of a termination order passed by public authority. It is no longer open to the authority passing the order to argue that its action being in the realm of contract is not open to judicial review. A writ Court is entitled to judicially review the action and determine whether there was any illegality, perversity, unreasonableness, unfairness or irrationality that would vitiate the action, no matter the action is in the realm of contract. Having said that we must add that judicial review cannot extend to the Court acting as an appellate authority sitting in judgment over the decision. The Court cannot sit in the arm chair of the Administrator to decide whether a more reasonable decision or course of action could have been taken in the circumstances. So long as the action taken by the authority is not shown to be vitiated by the infirmities referred to above and so long as the action is not demonstrably in outrageous defiance of logic, the writ Court would do well to respect the decision under challenge.” 14. Finally, way back in 1950, the Constitution Bench in the case of Satish Chandra Anand vs Union of India, AIR 1953 SC 25, in a similar issue, has enunciated thus: “12. There was no compulsion on the petitioner to enter into the contract he did. He was as free under the law as any other person to accept or to reject the offer which was made to him. Having accepted, he still has open to him all the rights and remedies available to other persons similarly situated to enforce any rights under his contract which have been denied to him, assuming there are any, and to pursue in the ordinary courts of the land such remedies for a breach as are open to him to exactly the same extent as other persons similarly situated. He has not been discriminated against and he has not been denied the protection of any laws which others similarly situated could claim. The remedy of a writ is misconceived. 13. Article 16(1) is equally inapplicable. The whole matter rests in contract. He has not been discriminated against and he has not been denied the protection of any laws which others similarly situated could claim. The remedy of a writ is misconceived. 13. Article 16(1) is equally inapplicable. The whole matter rests in contract. When the petitioner's first contract (the five year one) came to an end, he was not a permanent government servant and Government was not bound either to re-employ him or to continue him in service. On the other hand, it was open to Government to make him the offer it did of a continuation of his employment on a temporary and contractual basis. Though the employment was continued, it was in point of fact, and in the eyes of the law, under a new and fresh contract which was quite separate and distinct from the old even though many of its terms were the same. Article 16(1) deals with equality of opportunity in all matters relating to employment or appointment to any office under the State. The petitioner has not been denied any opportunity of employment or of appointment. He has been treated just like any other person to whom an offer of temporary employment under these conditions was made. His grievance, when analysed, is not one of personal differentiation but is against an offer of temporary employment on special terms as opposed to permanent employment. But of course the State can enter into contracts of temporary employment and impose special terms in each case, provided they are not inconsistent with the Constitution, and those who chose to accept those terms and enter into the contract are bound by them, even as the State is bound. When the employment is permanent there are certain statutory guarantees but in the absence of any such limitations Government is, subject to the qualification mentioned above, as free to make special contracts of service with temporary employees engaged in works of a temporary nature, as any other employer.” 15. The synopsis of the afore-noted observations of the Apex Court is as under:- a) Article 16(1) of the Constitution is not applicable and everything is governed by contract. The persons holding the temporary/ad hoc or contractual posts for a fixed period do not have any right to such posts, and their appointment comes to an end, after such period gets over. The persons holding the temporary/ad hoc or contractual posts for a fixed period do not have any right to such posts, and their appointment comes to an end, after such period gets over. Such right is not available even if the contract is renewed intermittently, c) The contractual employees have no right to have his or her contract renewed from time to time, e) the State can enter into contracts of temporary employment and impose special terms in each case, provided they are not inconsistent with the Constitution, and those who choose to accept those terms and enter into the contract are bound by them, even as the State is bound. 16. Thus, the petitioner has no right to the post on which he has been appointed on contractual basis. Merely because, he has continued for so many years the same can not entitle him the benefit of having regularized in the same post. As far as the transfer order is concerned, the same cannot be interfered with as the respondent authorities can transfer the contractual employee as per the work requirement. 17. Hence, the writ-petition fails and is hereby rejected. Notice discharged.