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2022 DIGILAW 1584 (GUJ)

Yashaswi Ashwinbhai Aacharya v. State Of Gujarat

2022-11-16

A.S.SUPEHIA

body2022
ORDER : 1. The present writ petitions have been filed challenging action of the respondent authorities for not renewing the contract of their appointment. Further, a prayer is made for reinstating the petitioners with full salary. 2. Both the petitioners were appointed on the contractual basis in the year 2011. The appointment orders dated 30.11.2011 indicate that they were appointed on the contract basis for a period of 11 months. The conditions attached with the appointment orders reveal that they were appointed on fixed monthly remuneration of Rs.12,000/-. They were being appointed under the Integrated Child Protection Scheme (ICPS) Guidelines. Condition Nos.E and F of such appointment orders reveal that they can be terminated by giving prior notice of seven days in the case of indiscipline and in other case by giving prior notice of 30 days or sudden termination by either side will be in lieu of a salary amounting to 30 days of work. It appears that thereafter, the petitioners’ contract of service has been extended and by the impugned order dated 29.10.2020, they are relieved from service by observing that since the contract period is getting over on 29.10.2020, their service would not be required. Being aggrieved, the petitioners have filed the present writ petitions. 3. Learned advocate appearing for the petitioners has submitted that the impugned orders of termination are required to be quashed and set aside since the respondent authorities could not have terminated the service of the petitioners after renewal of the contract from time to time since 2011. It is submitted that no reasons are assigned, while terminating the service of the petitioners and in fact, the contract of the service was required to be renewed in wake of the fact that the contract has been extended since 2011. Thus, he has submitted that the respondents may be directed to renew the contract and further regularize their service. 4. Per contra, learned AGP has submitted that the petitioners have no right to their post as they were appointed on contractual basis for the period of 11 months and merely because the contract has been extended for so many years intermittently, they cannot claim the right to the post. It is submitted that as and when their services were required, the contract was entered upon and when their contract period was over, the respondent authorities thought it fit not to extend the same. 5. It is submitted that as and when their services were required, the contract was entered upon and when their contract period was over, the respondent authorities thought it fit not to extend the same. 5. Heard the learned advocates for the respective parties and also perused the documents as pointed out by them. 6. It is not in dispute that the petitioners were appointed on the contractual basis in the year 2011 for 11 months. The conditions attached to their contract reveal that their status is contractual status and Condition No.1 specifically mentions that the contractual employee is not considered as a staff member of the District Child Protection Unit (DCPU) and is only a contractual employee of the organization. The contractual employee is entitled to the fixed monthly remuneration of Rs.12,000/- only as per the contract. Condition Nos.E and F mention the termination of service by giving prior notice of seven days in case of indiscipline and in other cases, notice of 30 days and for sudden termination by either side will be in lieu of a salary amounting to 30 days of work. It is not the case of the petitioners that they are not paid the salary amount for 30 days work. 7. In an identical case and on issue of nonrenewal of the contract, this Court in the judgement dated 07.02.2022 passed in Special Civil Application No.11394 of 2018, has held thus: “11. At this stage, it would be apposite to refer to the observations made by the Division Bench in the aforesaid judgement dated 27.04.2021 rendered in Letters Patent Appeal No.776 of 2021, wherein the Division Bench, after considering array of the judgement 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. Such disputed question or issue cannot be decided under Article 226 of the Constitution.” 11.1 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 their services of such employees and they enjoyed the extension as and when their service was required. Such disputed question or issue cannot be decided under Article 226 of the Constitution.” 11.1 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 their 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. 12. The Apex Court in the case of Vidyavardhaka Sangha (supra) 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. 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.” *** *** *** 17. Thus, in the present case, it cannot be said that the respondent authorities have acted illegally since the petitioners are relieved after the contract period was over and not during the subsistence of the contract. Thus, in the present case, it cannot be said that the respondent authorities have acted illegally since the petitioners are relieved after the contract period was over and not during the subsistence of the contract. Merely, because their contract was extended, the same will not create any right of holding the post. An absolute right vests in the respondents, whether the petitioners can be appointed or engaged by way of fresh contract or not.” 8. The said judgement was further challenged in appeal being Letters Patent Appeal No.358 of 2022 and by the order dated 17.03.2022, the Division Bench of this Court has rejected the appeal. Thus, as per the settled proposition of law, contractual employee is governed by the contract entered with the employer and Article 16(1) of the Constitution of India is not applicable. The contractual employee, who is appointed on fixed pay does not have any right to such post and their appointment comes to an end after such contract period is over and such right is not available, even after such contract is renewed. It is also well settled that after having accepted the terms and conditions stipulated in the appointment orders cannot suggest that termination is illegal, after they were discontinued or terminated, after efflux of time. The contractual employees have no right to have his or her contract renewed from time to time and they cannot claim any protection against such termination. 9. Thus, the issue raised in the present writ petitions is no more res integra as the contractual employee cannot insist their contract to be renewed. 10. The writ petitions fail. NOTICE is discharged. 11. Registry to place a copy of this order in the connected matter.