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2023 DIGILAW 445 (MP)

Aarti Dayma v. State of Madhya Pradesh

2023-04-01

RAVI MALIMATH, VISHAL MISHRA

body2023
ORDER 1. This petition has been filed seeking the following reliefs : " (i) To call for the relevant records of the case from respondents. (ii) To quash the impugned order dated 10.10.2020 (Annexure P-6) issued by respondent No. 3 by a writ of Certiorari for any other appropriate writ direction or order. (iii) To command the respondents to consider the case of the petitioners for continue on the post of guest faculty in Home Science on the basis of his positive merits. (iv) Allowed this petition with costs. (v) Pass such other orders as may be deemed appropriate in the facts and circumstances of the case to grant relief to the petitioner. " 2. It is the case of the petitioner that she was working in the respondent's department as Guest Faculty having a long experience. It is submitted that she was working since last more than 8 years as Guest Faculty with utmost honesty and sincerity. It is further submitted that she is working in the respondent college since 2016-17 and her appointment is through the selection process, which is legal and valid. She was continuously teaching but the respondents No.1 and 2 advertised the post of petitioner. Therefore, aggrieved by the action of the official respondents, petitioner filed a petition being Writ Petition No.5934 of 2017 and this Hon'ble Court vide order dated 13.9.2017 has categorically held that the guest faculty cannot be replaced by another guest faculty or until regular appointments are made. The respondent department issued the guidelines on 17.12.2019 for the guest faculties working against the post of Assistant Professor. The respondent fallen out the petitioner due to transfer against the order dated 13.9.2017. The official respondent had issued an order dated 25.2.2022 whereby clause 2.3 of the policy dated 17.12.2019 has been amended. The respondent No.4 had been first time appointed as guest faculty on 23.4.2022 at Government College Alot District Ratnam and thereafter she was relocated at the Holkar Science College, Indore vide order dated 2.9.2022. It is her case that on 7.10.2022, the official respondents transferred Dr. The respondent No.4 had been first time appointed as guest faculty on 23.4.2022 at Government College Alot District Ratnam and thereafter she was relocated at the Holkar Science College, Indore vide order dated 2.9.2022. It is her case that on 7.10.2022, the official respondents transferred Dr. Swagata Gupta, Assistant Professor (Chemistry) to the Government Holkar Science College, Indore and respondent No.3 issued a letter No.111/22 dated 10.10.2022 by which the petitioner came to know that the petitioner has been declared as fallen out in place of respondent No.4, which is contrary to the decision of Division Bench of this Court in the case of Pradeep Kumar Yadav and Others v. M.P State and Others (Writ Petition No.6159 of 2022) and other connected matters vide order dated 26.4.2022 as well as in the case of Saurabh Singh Baghel and others v. State of M.P and others reported in 2019 (1) MPLJ 643 , whereby it is categorically held that the guest faculty cannot be replaced by another guest faculty or until regular appointments are made. The petitioner has prayed that the similar relief may be extended to her. Therefore, the petition was filed. 3. Counsel for the respondent/State has objected to the averments of the writ petition pointing out the fact that the appointment of the petitioner was contractual in nature for a limited period. It is nowhere mentioned in the writ petition that the petitioner has been replaced by another guest faculty. In absence of any averment with respect to replacement of the petitioner with an other guest faculty, no interim protection can be granted to the petitioner because the appointment of the petitioner was contractual in nature. The judgement passed by this Court in the case of Pradeep Kumar Yadav (supra), is also to the extent that in case the petitioner has worked in the previous session and is being replaced by another set of contractual employee. The employer is having all rights to remove a contractual employee like petitioner on completion of her contract period considering the strength of students and requirement of work. But, in absence of any cogent explanation or justification regarding replacement of the petitioner, no relief can be extended. He has prayed for dismissal of the writ petition. 4. Heard the learned counsels for the parties and perused the record. 5. Admittedly, the appointment of the petitioner as guest faculty was on contractual basis. But, in absence of any cogent explanation or justification regarding replacement of the petitioner, no relief can be extended. He has prayed for dismissal of the writ petition. 4. Heard the learned counsels for the parties and perused the record. 5. Admittedly, the appointment of the petitioner as guest faculty was on contractual basis. It is not disputed that the petitioner had not been replaced by another set of contract teacher. Merely working for a temporary period does not entitle candidates like the petitioner to claim any indefeasible right of continuation of her work. The judgement passed in the case of Pradeep Kumar Yadav (supra), is of no help to the petitioner as the same speaks of the fact that the candidates should have worked in the previous session and they should not be replaced by another set of contractual employee/guest faculty. There should be a clear mentioning of the fact that petitioner being a guest faculty/contractual employee is being replaced by another guest faculty. It is a settled proposition of law that a guest faculty cannot be replaced by another set of guest faculty. The petitioner has failed to demonstrate that she has been replaced by another set of contractual employee or guest faculty. The employer is having a right to remove a guest faculty/contractual employee on completion of her contract period considering the number of students and requirement. Contractual employee can always be replaced by a regular teacher/employee. In absence of any justification to the aforesaid, no relief can be extended to the petitioners. 6. The Division Bench of this Court in the case of Saurabh Singh Baghel and others v. State of M.P and others reported in 2019 (1) MPLJ 643 have categorically held that a guest faculty cannot be replaced by another guest faculty. The petitioner has not mentioned anywhere in the writ petition that she has been replaced by another set of contractual employees. Under these circumstances, no relief can be extended to the petitioner as she will be dealt with as a contractual employee only. 7. The petitioner has not mentioned anywhere in the writ petition that she has been replaced by another set of contractual employees. Under these circumstances, no relief can be extended to the petitioner as she will be dealt with as a contractual employee only. 7. The law with respect to a contractual employee was considered by the Hon'ble Supreme Court in the case of State Bank of India v. S.N.Goyal reported in (2008) 8 SCC 92 as well as by the Division Bench of this Court in the case of Brijendra Gupta v. State of M.P. and Others (W.A.No. 617 of 2015) vide order dated 18.3.2016. 8. The Hon'ble Supreme Court in the case of S.N.Goyal (supra), held as under : "Where the relationship of master and servant is purely contractual, it is well settled that a contract of personal service is not specifically enforceable, having regard to the bar contained in section 14 of the Specific Relief Act, 1963. Even if the termination of the contract of employment (by dismissal or otherwise) is found to be illegal or in breach, the remedy of the employee is only to seek damages and not specific performance. Courts will neither declare such termination to be a nullity nor declare that the contract of employment subsists nor grant the consequential relief of reinstatement. The three well recognized exceptions to this rule are : ( i ) where a civil servant is removed from service in contravention of the provisions of Article 311 of the Constitution of India (or any law made under Article 309); (ii) where a workman having the protection of Industrial Disputes Act, 1947 is wrongly terminated from service; and (iii) where an employee of a statutory body is terminated from service in breach or violation of any mandatory provision of a statute or statutory rules. There is thus a clear distinction between public employment governed by statutory rules and private employment governed purely by contract. The test for deciding the nature of relief damages or reinstatement with consequential reliefs is whether the employment is governed purely by contract or by a statute or statutory rules. Even where the employer is a statutory body, where the relationship is purely governed by contract with no element of statutory governance, the contract of personal service will not be specifically enforceable. Even where the employer is a statutory body, where the relationship is purely governed by contract with no element of statutory governance, the contract of personal service will not be specifically enforceable. Conversely, where the employer is a non-statutory body, but the employment is governed by a statute or statutory rules, a declaration that the termination is null and void and that the employee should be reinstated can be granted by Courts." 9. Further, the Division Bench of this Court in the case of Brijendra Gupta (supra), has held as under :-- "Each of the appellants accepted these conditions and were fully aware that their services would be continued on contract basis only for a period of 2 years. It is a dif erent matter that the appellants were continued in service, but, by extending contract period, their appointment nevertheless, shall remain on contract basis. No document or Regulation has been filed by the appellants and atleast brought to our notice, which may even remotely suggest that there was an agreement reached between the parties that on completion of 5 years of contractual service the concerned employee would be regularized in service. The fact that the appellants have now become over age and will not be eligible for appointment elsewhere, cannot be the basis to answer the controversy. The matter has to be answered keeping in mind that the contractual employee cannot insist for regularization in absence of policy, scheme or regulation having the backing of law and enforceable against the employer. In the present case, no such document has been brought to our notice. As a result, it is not open to this Court to issue writ to direct the respondents to regularize the appellants in service. The fact that the appellants have served the respondent/Company for almost five years, by itself, cannot be the basis to issue such direction unless it is a case of legally enforceable right which has enured in favour of the appellants. That is not the case at hand." 10. Admittedly, the petitioner is a contractual employee. She has not been replaced by another guest faculty. The employer is having a right to discontinue her services, if there is no requirement and subject to availability of students or if the subject is taught by a regular faculty. 11. That is not the case at hand." 10. Admittedly, the petitioner is a contractual employee. She has not been replaced by another guest faculty. The employer is having a right to discontinue her services, if there is no requirement and subject to availability of students or if the subject is taught by a regular faculty. 11. From the aforesaid, it is apparent that the contract appointee is not having any indefeasible right to ask for continuation of her contract period. In the absence of any averment with respect to replacement by another set of contractual employees, no relief can be extended to the petitioner. 12. The writ petition sans merit and is accordingly dismissed. No order as to costs.