Research › Search › Judgment

J&K High Court · body

2023 DIGILAW 419 (JK)

Nisha Rani v. U. T. of Jammu & Kashmir

2023-08-21

SANJEEV KUMAR

body2023
JUDGMENT : 1. The petitioners in all these petitions, who are post-graduate and more in different subjects, were engaged as Subject Specific Teachers (“SSTs for short”) under Rashtriya Madhyamik Shiksha Abhiyan, (“RMSA for short”). The aforesaid scheme is now subsumed and covered under Smagra Siksha scheme. 2. The petitioners, as is the case set up by them, were engaged/hired to provide SSTs for 110 up-graded High Schools, purely on contractual basis for one year on different dates indicated in the orders of their provisional engagement issued by the State Project Director, RMSA. The engagement was contractual in nature and for a period of one year on consolidated salary of Rs.30,283/- per month. The initial contractual engagement of the petitioners came to an end after the expiry of period of one year, however, vide Government Order No. 222-Edu of 2019 dated 09-07-2019, the Government accorded sanction to the temporary re-hiring of 550 SSTs for 110 High Schools upgraded under RMSA, who had already rendered their services during the year 2019, up to 30-06-2019, for one month, purely on contract basis from 10-07-2019 to 10-08-2019 in winter zone and from 15-07-2019 to 15-08-2019 in summer zone. It was specifically provided that, re-hiring shall be terminated on 10-08-2019 in winter zone and with effect from 15-08-2019 in summer zone or when provision of regular teaching staff is made by the department by way of rationalization, whichever was earlier. This is how, the petitioners, who had earlier worked for one year, also came to be re-hired for one month in terms of the aforesaid Government order and were terminated as per the stipulation contained therein. The petitioners are not in service with effect from 10-08-2019 in winter zone and 15-08-2019 in summer zone. 3. The petitioners are aggrieved of the action of the respondents taken in terms of Government order No. 222-Edu of 2019 (supra) and seek writ of mandamus commanding and directing the respondents to re-hire them as SSTs in the upgraded high schools, primarily on the ground that the need, for which the petitioners were engaged as SSTs, still exists. Petitioners also seek a direction to the respondents to allow the petitioners to continue in service after re-hiring and consequently regularise their services as SSTs. 4. Petitioners also seek a direction to the respondents to allow the petitioners to continue in service after re-hiring and consequently regularise their services as SSTs. 4. The writs prayed for in these petitions are sought primarily and essentially on the following grounds:- (i) That the engagements of the petitioners as SSTs, though on contractual basis, was to meet a specific requirement of 110 high schools in the UT of J&K, upgraded under RMSA and that need has not come to an end. The respondents still need the services of SSTs and, therefore, replacing the petitioners by making similar arrangement or even by way of rationalization within the department, is illegal, arbitrary and violative of Article 14 and 16 of the Constitution. (ii) That RMSA, under which the petitioners came to be engaged and which scheme subsequently was subsumed under Smagra Siksha, does not provide for supplying the requirement of SSTs by any mode other than by way of hiring on contractual basis. The respondents have, thus, acted contrary to the object and spirit of the scheme and have thrown out the petitioners merely on the ground that the respondents are in a position to provide SSTs for 110 upgraded High Schools by way of rationalization of existing regular teaching staff available in the School Education Department. (iii) That, other States in the country, who too have implemented the RMSA/ Smagra Siksha schemes, have allowed the hired staff to continue till the subsistence of the scheme. The respondents, by adopting a different method, have subjected the petitioners to hostile discrimination, viz-a-viz their counterparts working in other States. (iv) That the staff, other than the SSTs, has been allowed to continue by the respondents thereby creating a class within the class, which is not permissible in law and tantamount to subjecting the petitioners to differential treatment. 5. Respondents no. 1 to 6 (the official respondents) have filed their objections and have opposed the maintainability of the writ petitions, inter alia, on the following grounds:- (i) That the re-hired engagement of the petitioners came to an end with effect from 10-08-2019 in winter zone and 15-08-2019 in summer zone, and the writ petitions, seeking re-hiring, has been filed in the year 2021 i.e. after almost two years of their ouster and, therefore, the writ petitions are hit by delay and laches. (ii) That the engagement of the petitioners was purely contractual and for a fixed period and, therefore, there is no right vested in the petitioners to claim their continuation beyond their contractual period on any ground whatsoever. (iii) That the petitioners, having accepted their engagement orders along with their terms and conditions, cannot be permitted to turn around and say that some of the terms and conditions of their engagement order are bad being not beneficial to them. The petitioners cannot be permitted to approbate and reprobate. (iv) That the decision taken by the respondents to supply SSTs in the upgraded 110 High Schools by rationalization of existing teaching staff in the School Education Department, cannot be termed as unfair, arbitrary or irrational. It is submitted that once the School Education Department is self sufficient in providing the SSTs to these schools, it cannot be compelled to necessarily hire the people from open market by creating fresh financial liability on the government. 6. Having heard the learned counsel for the parties and perused the material on record, I am of the considered opinion that the writ petitions do not disclose violation of any legal, statutory or fundamental right of the petitioners. 7. From plain reading of the advertisement notification issued by the Administrative Officer, RMSA, applications from permanent residents of Jammu and Kashmir State, possessing the prescribed academic/professional qualification were invited for contractual engagement as Subject Specific Teachers (SSTs) at secondary level in 110 High Schools upgraded under RMSA during 2014-15. As per the note appended in the advertisement notification, it was made clear that engagement was purely on contractual basis on a consolidated salary of Rs.30283/- per month and the duration of the engagement would be only for a period of one year. The selected candidates were called upon to file an affidavit/undertaking duly attested by Judicial Magistrate First Class, that he/she would not claim any entitlement for absorption in the government service or in the society at any stage of his/her engagement. 8. Be that as it may, it is a fact that petitioners accepted the selection and engagement made pursuant to the aforesaid advertisement notification. The respondents were very specific in making it clear to the petitioners in their engagement letters also that their engagement was purely contractual for a period of one year on consolidated salary without there being any right of regularization. The respondents were very specific in making it clear to the petitioners in their engagement letters also that their engagement was purely contractual for a period of one year on consolidated salary without there being any right of regularization. The petitioners accepted the engagement for one year and their one year’s term came to an end. There was no extension given by the respondents to their term of engagement. However, pursuant to a decision taken by the State Administrative Council on 08-07-2019, the Government, vide Order No. 222 of 2019 (supra), accorded sanction for temporary re-hiring of 550 SSTs, including the petitioners, for a period of one month, both in summer and winter zone of the State. It was specifically made clear in the Government order that the fresh contract would come to an end and shall be terminated on 10-08-2019 in winter zone and 15-08-2019 in summer zone, or till provision of regular teaching staff by the department by way of rationalization was made. This is how the petitioners accepted the aforesaid Government order and having submitted undertaking in the prescribed manner, continued for one month in the year 2019. 9. It is thus clear that the petitioners are out of arrangement since August, 2019. The writ petitions came to be filed by the petitioners only in the year 2021 i.e. after expiry of almost two years and, in the meanwhile, as is the stand of the respondents, the SSTs in the schools, which were earlier served by the petitioners, have been provided by the respondents from within the School Education Department by way of rationalization. Although two years period for bringing a cause before the Court under Article 226 of the Constitution of India may not be an inordinate delay attracting delay and laches, yet in the given facts and circumstances of the case, where the petitioners have been ousted from their temporary contractual engagements and have been replaced by regular teaching staff available in the School Education Department by way of rationalization, the delay in approaching the Court assumes importance and cannot be ignored. The attempt of the petitioners to seek their re-hiring through the intervention of the Court, in the facts and circumstances, can only be said to be afterthought. 10. The attempt of the petitioners to seek their re-hiring through the intervention of the Court, in the facts and circumstances, can only be said to be afterthought. 10. It is settled position of law that the contractual employee has no vested right to continue nor is it normally open for the Court to give any direction to the employer to continue the contract or to change the status of the contractual employment. In the case of Yogesh Mahajan v. Prof. R. C. Deka, Director AIIMS, (2018) 3 SCC 218 , Hon’ble the Supreme Court in para nos. 6, 7 and 8 has observed thus:- “6. It is settled 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 his 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 given 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. 7. We are also in agreement with the view expressed by the Central Administrative Tribunal and the High Court that the petitioner is not entitled to the benefit of the decision of this Court in Uma Devi. There is nothing on record to indicate that the appointment of the petitioner on a contractual basis or on an ad hoc basis was made in accordance with any regular procedure or by following the necessary rules. That being so, no right accrues in favour of the petitioner for regularisation of his services. The decision in Uma Devi does not advance the case of the petitioner. 8. That being so, no right accrues in favour of the petitioner for regularisation of his services. The decision in Uma Devi does not advance the case of the petitioner. 8. Insofar as the final submission of the petitioner to the effect that some persons were appointed as Technical Assistant (ENT) in May 2016 is concerned, we are of the view that the events of 2016 cannot relate back to the events of 2010 when a decision was taken by the All India Institute of Medical Sciences not to extend the contract of the petitioner. The situation appears to have changed over the last six years and the petitioner cannot take any advantage of the changed situation. There is no material on record to indicate what caused the change in circumstances, and merely because there was a change in circumstances, does not mean that the petitioner is entitled to any benefit. On the other hand, it might have been more appropriate for the petitioner to have participated in the walk-in interview so that he could also be considered for appointment as Technical Assistant (ENT), but he chose not to do so.” 11. With regard to regularization, it would be apt to refer to the observations made by Hon’ble the Supreme Court in para 25 of Osiar Prasad and Ors. v. Emp. In. Rel. To Mgt. of S.C. Washery, (2015) 4 SCC 71 , which reads thus:- “28. It is a settled principle of law that absorption and regularization in the service can be claimed or/and granted only when the contract of employment subsists and is in force inter se employee and employer. Once it comes to an end either by efflux of time or as per the terms of the Contract of employment or by its termination by the employer, then in such event, the relationship of employee and employer comes to an end and no longer subsists except for the limited purpose to examine the legality and correctness of its termination. 12. 12. The judgment of Hon’ble the Supreme Court in the case of State of Haryana vs. Piara Singh, (1992) 4 SCC 118 , would not be attracted in the case on hand as it is not the case of any of the petitioners that he/she has been replaced by a similar arrangement by re-hiring SST from the open market by initiating fresh process of selection, rather it is the positive case of the respondents that they do not need to hire the contractual SSTs, for, they are self sufficient and are in a position to supply SSTs in the newly upgraded High Schools under RMSA by rationalization of its teaching staff available in the Department. 13. In similar set of circumstances Hon’ble the Supreme Court, in the case of Rajasthan State Roadways Transport Corporation v. Paramjeet Singh, (2019) 6 SCC 250 , has held that contractual employees would have no right to continue or to challenge their termination after the period of contract is over. 14. In view of the settled legal position, I am of the firm opinion that the petitioners, having been terminated after the expiry of their contract, have no vested right of continuance and thereafter regularisation, as is claimed by them. The petitioners, having accepted their engagement, shall be deemed to have accepted the terms and conditions of the engagement as well. It is not only once but at different stages the petitioners were made aware about the nature of engagement. The advertisement notification clearly provided that the engagement is purely contractual and only for a period of one year with no right of extension or regularisation. When the engagement letters were issued in favour of the candidates like the petitioner, who were selected pursuant to the advertisement notification, it was once again made it clear to the petitioners and the engagees that their appointment is purely temporary, contractual and for a fixed period of one year. 15. It is true that by way of Government order, the contractual engagees, like the petitioners, working in winter zone and summer zone of the State, were re-hired or re-engaged for a period of one month, making it clear to them that their engagement will come to an end after the expiry of period of one month. This is exactly what has happened after the expiry of one month. The petitioners reconciled with the obvious and accepted their termination. This is exactly what has happened after the expiry of one month. The petitioners reconciled with the obvious and accepted their termination. It is only after almost two years, the petitioners woke up to raise the issue of re-hiring probably being informed by their counterparts working in other States about their continuance in the temporary engagement. The petitioners have not been able to refer to any stipulation in either of the schemes i.e. SSA/RMSA or Smagra Shiksha which may cast any obligation on the respondents to supply or provide SSTs at the secondary school education level in the School Education Department only by way of hiring from the open market. That being the position, none can prevent the respondents to utilize the services of existing pool of duly qualified teaching staff having Post Graduation in various subjects to meet the requirement of 110 High Schools upgraded under RMSA during 2014-15. Once the respondents are self sufficient in providing SSTs in the High Schools, this Court cannot compel them to necessarily hire the petitioners and others from open market and create additional liability. The stand of the respondents is specific and I have no reasons not to accept it that respondents have been in a position to provide SSTs from amongst the Post-graduate teachers in various subjects serving as teachers in the School Education Department. 16. Be that as it may, since no right to continue in the engagement beyond the period of contract inheres in the petitioners, as such, the petitioners cannot maintain these petitions for seeking a mandamus to the respondents to necessarily hire the petitioners even if they don’t require their services and are in a position to provide SSTs from amongst its teaching staff by way of rationalization. 17. It is worthwhile to mention that pursuant to the interim directions passed in these matters, the respondents have considered the grievances of the petitioners but have found them untenable in law and meritless. Respondents have passed speaking orders which have been placed on record along with their reply affidavit in case of Mumta Bhagat [WP (C) No. 1523/2021]. I have gone through the consideration order and same reflects the correct position of law and facts and, therefore, is complete answer to the submissions made on behalf of the petitioners. 18. Respondents have passed speaking orders which have been placed on record along with their reply affidavit in case of Mumta Bhagat [WP (C) No. 1523/2021]. I have gone through the consideration order and same reflects the correct position of law and facts and, therefore, is complete answer to the submissions made on behalf of the petitioners. 18. Learned counsel for the petitioners could not point out as to how the consideration orders passed by the respondents and the stand taken by them in their reply affidavit is arbitrary, unfair or irrational. There are allegations of mala fide levelled against the respondents. The SSTs and other ministerial staff constitute two different classes and, therefore, cannot be put in the same bucket. The respondents have found substitutes of the petitioners by rationalization of its existing staff but it may not be so in case of the ministerial staff required to run and operate the RMSA scheme. The plea of arbitrariness and discrimination sought to be built by the petitioners is without any substance and, therefore, is rejected. 19. For the foregoing reasons I find no merit in these writ petitions and the same are, accordingly, dismissed.