:::1^!!^.^.'.^^'. .»!».. 1! !E!h' ili'.: m .i" HIGH GOURTOF GHHATTISGARH: BILASP1 W.PNo. 1778 of 2001 Petitioner Respondents Nawish Kesharwani Guru Ghasidas Vishvavidyalay, Bilaspur and others. Post for order on/ 7/03/2008 Sd/- Satish K. Agnihotri Judge / 7/03/2008 •-Si, mGH COURT OF CHHATTISGARH AT BILASPUR PETITIONER RESPONDENTS Writ Petition No. 1778 of 2001 Nawish Kesharwani, S/o Late Shri D.P. Kesarwani, Aged about 35 years, Asstt. Engineer, Guru Ghasidas Vishwavidyalay, Bilaspur Resident of MIG-64, Nehm Nagar, Bilaspur (Chhattisgarh). VERSUS 1. Guru Ghasidas Vishvavidyalay, Bilaspur (Chhattisgarh). 2. State of Chhattisgarh, through, Secretary, Higher Education, Govt. ofChhattisgarh, Raipur. 3. S/Shri Ranu Trivedi, Daughter of Shri Phani Bhushan TrivediProject Officer, Guru Ghasidas University, Bilaspur. (WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA) (SB: Hon'ble Mr. Satish K. Agnihotri, J.) Present : Shri H.C. Shukla, Advocate with Shri R.K. Kesarwani, Advocates forthe petitioner. Shri Manindra Shrivastava, SeniorAdvocate with Shri Devendra Patel, Advocate for the respondent No. 1. Shri Vinay Harit, Deputy Advocate General for the State/respondent No.2. ORAL ORDER (Passed on ..^.^^ofMarch, 2008) By fhis petition, filed under Article 226/227 ofthe Constitution oflndia, the petitioner seeks a writ in the nature of certiorari, quashing the order dated 08.09.2001 (Annexure P/9) whereby, the promotion of the petitioner vide order dated 22.11.1999 for a period ofone year came to an end and the petitioner was directed to retum back the amount what he has been paid after 22.11 .2000. The facts, as stated by the petitioner are that the petitioner was appointed as Sub Engmeer with the respondent university on 12.10.91. Thereafter, he was confumed w.e.f. 12.10.93. On 02.04.97 (Annexure P/2), the petitioner was promoted on ad hoc basis to the post of <]o Assistant Engineer for a period of one year or until regular appointment of the Assistant Engineer. On 04.09.97 (Annexure P/3), the Registrar passed an order that the promotion of the petitioner on ad hoc basis to the post of Assistant Engineer for a period of one year or until regular appointment, is amended to the effect that the appointment of one year or till regular appointment would be replaced by until appointment by the Departmental Promotion Committee (for short 'DPC') and the petitioner was paid accordingly regular pay scale vide order dated 19.02.99 (Annexure P/4). On 22.11.99, the petitioner was again appointed on the promoted post of Assistant Engineer on ad hoc basis for a period ofone year. As such revision ofpay and increment ofthe post ofAssistant Engineer was also granted to him. By the impugned order dated 08.09.01 (Annexure P/9), the Registrar, on the basis of order issued by Executive Council, directed that the appointment of the petitioner on the post of Assistant Engineer for a period ofone year on ad hoc basis came to an end on 21.11.2000. It was further directed that any payment of salary paid after 22.11.2000 was recoverable from the petitioner under the provisions of Fundamental Rules. Thus, the petitioner has filed this petition impugning the order dated 8.9.2001. Shri H.C. Shukla, with Shri R.K. Kesarwani, leamed counsel appearing for the petitioner would submit that the petitioner was promoted on the post of Assistant Engineer as per recommendations of Departmental Promotion Committee CDPC) vide order dated 22.11.99 (Annexure P/5). The University sent a communication to the State Govemment on 14.07.95 (Annexure R 1/1) that one post of Sub Engineer/ Draughtsman be upgraded to fhe rank of Assistant Engineer. The Govemment, on 19.09.96 (Aimexure R 1/2) sough more information with regard to setup and sanctioned post of Draughtsman, Sub Engineer and Assistant Engineers. Vide communication dated 29.10.96 (Annexure R 1/3), the Registrar of the respondent university was informed by the govemment that if a Sub Engineer having qualification of Assistant Engineer is available, he may be upgraded to the post of Assistant Engineer. Accordingly, on 22.1.97 (Annexure R 1/4) the petitioner was promoted on ad hoc basis to the post ofAssistant Engineer for aperiod ofone year or till regular appointment of the Assistant Engineer. A Screening Committee was constituted on 16.06.99 (Annexure P/14) comprising of Professor and Head of the Department (Commerce), as Chairman, Professor and Head of the Faculty (Arts), Member and Director, Mahavidyalaya Parishad as Coordinator. Thus, the appointment of the petitioner was made on the basis of recommendation of the Screening Committee. The petitioner did possess qualification of Assistant Engineer i.e. B.E. (Civil Engineering). 6. Shri Shukla, would further submit that the impugned order is arbitrary, punitive and visits with civil consequences. The said order is in violation ofArticle 14, 16 and 21 ofthe Constitution oflndia. Leamed counsel relies on decision of the Supreme Court, in the matter of E.P. Royappa Vs. State of Tamil Nadu & another in support of his contention that even ifthe appointnlent ofthe petitioner was on ad hoc or officiating capacity, the petitioner cannot be removed from the service and the petitioner is entitled to the protection of Article 14 and ' (AIR 1974 SC 555) \ 16 ofthe Constitution oflndia. Secondly, though the word ad hoc was used but the appointment of the petitioner was on the basis of recommendation of DPC, thus, the same cannot be held as dehors the mles. Shri Shukla further relies on a decision of the Supreme Court in the matter of Secretary, State of Karnataka & others Vs. Uma Devi & others . Thirdly, the appointment of the petitioner was against the sanctioned post, thus the promotion of the petitioner on the post of Assistant Engineer was on regular basis, in accordance with the procedure prescribed for promotion of an employee. In regard to payment of arrears, leamed counsel relies on decision ofthe Supreme Court in fhe matter of Secretary-cum-Chief Engiaeer, Chandigarh Vs. Hari Om Sharma & others . The impugned order is contrary to public policy. The principle of audi alteram partem would be applicable in the present case as the petitioner has been condemned without affordmg an opportunity ofhearing. Per contra, Shri Manindra Shrivastava, Senior Advocate with Shri Devendra Patel, appearing for the respondent No. 1/university would contend that the promotion ofthe petitioner vide order dated 22.11.99 was clear to the extent fhat the promotion of the petitioner was on ad hoc basis for a period ofone year which came to an end on 21.11.2000 whatever payment was received after 21.11.2000, fhe same is liable to be recovered ftom the petitioner since the promotion of the petitioner was for limited period for one year. The same was never extended beyond the period of one year, the petitioner illegally continued thereafiter. Thus, the petitioner is not entitled to any benefit including (AIR 2006 SC 1806) (1998) 5 SCC 87) 10. salary of the post beyond the period of one year. He would further contend that the Executive Council of the University in its meeting dated 11.09.1994, resolved to upgrade one post ofDraughtsman as the post ofAssistant Engineer and the proposal was sent for approval to the State Govemment vide letter dated 14.07.1995 (Annexure R 1/1). The State Govemment vide its letter dated 19.09.1996 (Annexure R 1/2 ) raised certain queries to which answering respondent vide its letter dated 28.09.1996 clarified the factual position that there is no post of Assistant Engineer. The State Govemment vide its letter dated 29.10.96 granted approval to upgrade one post of Draughtsman as Assistant Engineer with stipulated that if the existing Sub Engineer possesses necessary qualification then the said post ofAssistant Engineer may be filled up (Annexure R 1/3). However, Govemment did not grant any fmancial aid to the post, therefore, the Executive Council in its meeting dated 05.02.97 upgraded one post of Draughtsman as Assistant Engineer.'and the petitioner was given purely ad hoc order of appointment vide order dated 02.04.97 (Annexure R 1/4 ). This order was only for a period ofone year or till regular appointment ofAssistant Engineer. Thereafter as per resolution of the Executive Council dated 31.05.97 (Annexure R 1/5) petitioner's ad hoc promotion was continued until Departmental promotion. The contention ofthe petitioner that he was duly selected by DPC is not correct. The Search Committee (Screening Committee) was constituted to examine the case and the same was not a duly constituted DPC as required under Statute 31 . This was neither a committee as prescribed under Section 49 of Chhattisgarh Vishwa Vidhayalaya Adhiniyam, 1973 nor was constituted under specific orders of the Executive Council. The Executive Council in its meeting dated 20.06.99 resolved to give ad hoc/temporary promotion to the petitioner only for a period of one year subject to the approval ofthe Govemment on the basis ofthe report of the Screening Committee pursuant to which the promotion order dated 22.11.99 was passed. The ad hoc promotion to the post of Assistant Engineer in temporary capacity does not confer any right on the petitioner to hold the post ofAssistant Engineer. The petitioner was paid salary of Assistant Engineer and increments would not make the appointment as regular appointment. The Executive Council in its meeting dated 05.09.01 resolved that the appointment ofthe petitioner was temporary on the post of Assistant Engineer only for a period of one year which came to an end on 22.11.2000. It was further resolved that ifthe Govemment grants sanction for the post ofAssistant Engineer with fiill aid then the post may be filled up according to rules (Annexure R 1/7). Leamed counsel relies on decision of the. Supreme Court in the matter of Punjab State Electricity Board & Another Vs. Baldev Singh". 11. I have heard rival contentions ofthe parties, pemsed the pleadings and documents appended thereto. It is evident that the promotion of the petitioner by initial order dated 2.4.1997 (Annexure P/2) and thereafter by order dated 22.11.1999 (Annexure P/5), on temporary basis, was for a period of one year. It was clearly stated in the order dated 22.11.1999 that the petitioner would be entitled to all allowances of the post. Sanction ofthe post by order dated 29.10.1996(Annexure R-l/3) by the State Govemment was not creation ofpost ofAssistant Engineer but up- {(1998) 5 SCC 450} gradation of one post from the two vacant posts of Drafts Man. It provides that the Sub-Engineer working in the University may be promoted on the post of Assistant Engineer, subject to having the requisite qualification for the post of Assistant Engineer. On perusal of the minutes of the meeting dated 20.6.1999 (Annexure P/12) of the Executive Council it is apparent that the petitioner was promoted on the post of Assistant Engineer for a period of one year on temporary basis. In the minutes it was written that the promotion ofthe petitioner was on the basis ofthe recommendation ofDPC. On reading ofthe notification dated 16.6.1999 (Annexure P/14) it appears that the petitioner was promoted on the basis of the recommendation made by fhe Screening Committee, comprising of the Professor aad Head of the Department (Commerce), as Chairman, Professor and Head of the Faculty (Arts faculty) as Member and Director, Mahavidyalaya Parishad as Coordinator (Samanvayak). The order dated 19.2.1999 (Annexure R- 1/6), wherein it is provided that the petitioner would not be entitled to arrears and annual increment, as the appointment of the petitioner was on ad hoc basis for a period of one year, till he is regularly promoted on the post of Assistant Engineer. In the minutes of the Executive Council dated 5.9.2001 (Annexure R-l/7), it was resolved that the post of Assistant Engineer, if not approved with full aid, the promotion should be made in accordance with Rules and appointment ofthe petitioner for a period of one year had already come to au end on 21.11.2000. It is thus, well established that promotion ofthe petitioner was on temporary basis. It is further found that though the Executive Council has mentioned that the promotion of the petitioner for a period of one year 12. V was on the basis ofthe recommendation ofDPC but on perusal oforder dated 16.6.1999 (Annexure P/14) it is clear that the Screening Committee had made the recommendation, not DPC. Thus, it is established that the appointment of the petitioner on the basis of the recommendation made by the Screening Committee was for a period of oneyear on temporary basis from 22.11.1999 to 22.11.2000. It reads as under:- 3n^?r <ft :-rft?T ^?Rqr-ft <i44^fl ^ ^^"rRr 'Hgi^* 'si^t '^ ^K TK ^tl-IIH %. 8000-275-13500 ^' SRSlPft WT^ ^^ q^ ^ f^ air^r f?rf§r^ ^ urrift t i R^cjf^yid'y ^ Pt'idl-l.'HI'i ^-i' Sf^f '{f^ »ft^v ?T'It i *i'>f4Rq<; ^ ai^ii^tiK (•i'<;R»!ii1< Rrarft) ^<?ltlRiq The impugned order dated 8.9.2001 was passed as the tenure of promotion ofthe petitioner came to an end on 22.11.2000 (Annexure P/9, which reads as under: q>Tfq? : 1576/^TT./^?TT./2001 R-11'* 8.9.2001 3TT^?T R?<iRkiid-4 *i44Rqc; ^t ^iftcr anqr^ ta^ fWq; 5.9.2001 ^' TK ^qf^ 3T.3T.-3 ^' fti? ^P? Pl"f«l^'tll'i SIT^T ^qRP -2361/^aT./^raT./99. f^W 22.11.99 gRT <ft ^t?! <p^l<qi4l, ^Vf^f W T^a ^ -^ RP? SRSIT^ ^>q ^ -9610* ^'^ ^ TR ^R TRPT cft IT^ q<;1~lRl f^.Tfq>-21.11.2000 q>t T^i q^ ^t Sf^S ^ ^ TR ^M'^At WIP<T ?t ^,^1 t. 3RT: WfTCT Tff-tT ^t umft t 1 f^-fi^ 21.11.2000 ^ 'ifK, wem STT^?T ^ ft.ir, w^r tfsi«<»i 4^ft ^> 3RTf6[^(f ^rR tRR? ^ STTETT? TR qf^ ^T-T aisRa ^? RTETT ^rar t tit ^ 'i?¥E?^^' ^ 3f^^r Pi^iPid ^? <ft '•ri^r v-?1 ^^Rqr-ft %t f^ 7r^ sri^ •yidl-1 ^t q^cft <ft •Nt?r ^wraT-ft ^ ^t uIT^^ft | ct>i44Rqq ^ siT^nyir? (ipwft^iEpir Ri^cQ) <%Cltl(T|q 13. It is further clear that the approval ofthe post ofAssistant Engineer was not with the full fmancial aid by the State Govemment, therefore the Executive Council decided to fill up the post, in accordance with fhe Rules and the promotion of the petitioner came to an end after completion ofone years oftenure as per the appointment order. 14. A constitution Bench ofthe Hon'ble Supreme Court in the matter ofE. P. Royappa (supra) held as under:- "86. It is also necessary to point out that the ambit and reach of Articles 14 and 16 are not limited to cases where the public servant affected has a right to a post. Even if a public servant is m an ofHciating position, he can complaint ofviolation ofArts. 14 and 16 ifhe has been arbitrarily or unfairly to-eated or subjected to mala fide exercise ofpower by the State machine. It is, therefore, no aaswer to the charge of infringement of Articles 14 and 16 to say that the petitioner had no right to the post of Chief Secretary but was merely officiating in that post. That might have some relevance to Art. 311 but not to Articles 14 and 16......" 15. The Hon'ble Supreme Court m the matter of Punjab State Electricity Board (supra), cited by leamed counsel for the respondents held as under:- "4. Having heard the leamed counsel for the parties and examining the materials on record we have no hesitation to hold that in the facts and circumstances of the case the question of giving an opportunity ofhearing to the plaintiff before passing the order dated 10 8-1-1981 does not arise. Since the plaintiffs appointment/promotion to the post of Assistant Lineman was purely on ad hoc basis and fhe higher authorities directed to discontinue such ad hoc appointment, the competent authority passed the impugned order posting the plaintiff against his substantive post of Charge I Mate. The plaintiff had not acquired any right to the post of Assistant Lineman and further, the impugned order dated 8-1-1981 cannot be held to be penal innature." 16. Subsequently, a constitution Bench ofthe Supreme Court in Secretary, State ofKarnataka (supra) held, as under:- "34. ...... ..Thus, it is clear that adherence to the mle 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 ofthe 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 person, 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 ofhis 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 temi 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 mles........." 11 // 17. 18. \ "38. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware ofthe consequences ofthe appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concemed cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them pennanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be iavoked to seek a positive relief of being made permanent inthe post." It was further held that "in the guise of upholding rights under Article 21 ofthe Constitution oflndia, a set ofpersons cannot be preferred over a waste majority ofpeople waiting for an opportunity to compete for State employment." The other cases cited by the petitioners are not applicable to the facts of the present case, as it is not a case of demotion or reversion but continuation ofservice on promotion, on temporary basis, to the post. Applying the well settled principles of law, as above stated, to the facts of the present case, the petitioner has no right to the post, as his promotion was on temporary basis, for a period of one year, may be held as contract appointment. Even if there was a vacancy, the respondent/aufhority was not under an obligation to extend the period further. The appointment on promotional basis, even on the basis of the recommendation ofDPC/Screening Committee, was oiily for a period of 19. 20. 12 ^~ one year. Thus, no right has accrued in favour of the petitioner to continue further. With regard to the recovery of salary after a period of 22.11.2000 till 8.9.2001, since the petitioner has worked on the post of Assistant Engineer, without any obstruction, the petitioner is not liable to pay excess amount paid to him for workmg on the post of Assistant Engineer. In view ofthe foregomg, the petition is allowed partly to the extent of recovery ofthe excess amount. The impugned order dated 8.9.200Ito the extent of non-continuation of service of fhe petitioner, as Assistant Engineer, is unexceptionable, just and proper, which warrants no interference. No order as to costs. Sd/- Satish K. Agnihotri Judge ThaJsur ...J