IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Writ Petition No. 11787 of 2009 DATE OF DECISION : AUGUST 6, 2009 GURMIT SINGH ....... PETITIONER(S) VERSUS STATE OF PUNJAB & ORS. .... RESPONDENT(S) CORAM : HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: Mr. CL Goyal, Advocate, for the petitioner(s). AJAI LAMBA, J. This Civil Writ Petition under Articles 226/227 of the Constitution of India has been filed praying for issuance of a writ in the nature of certiorari quashing order dated 10.3.1998 (Annexure P-7) whereunder the services of the petitioner were terminated with effect from 10.11.1997, as the petitioner had remained absent after the said date. Challenge has also been made to order dated 12.6.2009 (Annexure P-16) Civil Writ Petition No. 11787 of 2009 2 i.e. order under which the representation of the petitioner for restoring his services has been rejected. Challenge has also been made to order dated 20.5.1998 (Annexure P-17) whereby the Inspector General of Prisons, Punjab, has rejected the representation of the petitioner. It has also been prayed that order dated 24.3.1998 (Annexure P-6) transferring the petitioner from Central Jail, Patiala, to District Jail, Sangrur, be declared as valid, as the same has not been cancelled so far. The petitioner claims to be a national level Kabaddi player. In para-2 of the petition, it has been pleaded that the petitioner was invited in the tournament of the Jail Department, in February, 1995. Considering the quality of game played by the petitioner, the petitioner was appointed as a Warder by respondent No.3 i.e. Superintendent, Headquarters and Central Jail, Patiala, without any application having been made by the petitioner in that regard. Copy of the appointment letter has been placed on record as Annexure P-1. It has further been pleaded that the petitioner had been performing his duties as a Warder and had also been participating in games/tournaments. Rather, the respondents had been deputing the petitioner for participation in games. The Certificates have been placed on record as Annexures P-2 and P-3, which have been issued by the Kabaddi Federation of India. In para-4 of the petition, it has been pleaded that on 9.11.1997, the petitioner was not having any duty and was on weekly rest and, therefore, had gone to his Village Hodla Kalan. While coming back, the petitioner suffered acute back pain and, therefore, the petitioner went to Public Health Centre, Dhanaula Township. The petitioner was advised Civil Writ Petition No. 11787 of 2009 3 bed rest. The petitioner requested his father to inform the authorities about his ailment. Be that as it may, the petitioner received a communication dated 18.2.1998 through his father on 23.2.1998 (Annexure P-4), whereunder it has been given out that the petitioner was directed to report for duty immediately or else his services would be terminated. It has been claimed on behalf of the petitioner that the father of the petitioner approached the authorities with the medical record, however, he was stopped at the gate and was not allowed to enter. Finally, fitness certificate (Annexure P-5) was issued to the petitioner on 23.3.1998. The petitioner went to the office of respondent No.3 on 31.3.1998 to join duty but was told by the officials on duty that his services had been terminated. Despite pleadings from the petitioner that he had been ailing, no relief was given to the petitioner. The petitioner was asked to approach respondent No.2 i.e. Inspector General of Prisons, Punjab, who would decide the issue. On behalf of the petitioner, it is claimed that the petitioner went to the office of respondent No.2. Respondent No.2 informed the petitioner that he had been transferred from Central Jail, Patiala to District Jail, Sangrur. Accordingly, order dated 24.3.1998 (Annexure P-6) was given to the petitioner, a perusal of which indicates that the petitioner was transferred from Central Jail, Patiala to District Jail, Sangrur, along with the post. The petitioner claims that he joined duty at the transferred place on 31.3.1998. Subsequently, after a few days, the petitioner was informed that his services had been terminated on 10.3.1998. It has been Civil Writ Petition No. 11787 of 2009 4 claimed on behalf of the petitioner that the order of termination was not delivered to the petitioner at any point in time. The same, however, was produced in the Court of Additional Chief Judicial Magistrate, Sangrur, when the petitioner was being tried in connection with an FIR case registered against the petitioner for having forged letter of transfer (Annexure P-6), to which reference has been made hereinabove. Considering the action of the respondents in terminating his services as illegal, the petitioner filed a representation on 24.6.1998, copy of which has been placed on record as Annexure P-8. The petitioner was tried in case (FIR) No.263 dated 25.10.1998 under Sections 420, 468, 471, Indian Penal Code, registered at Police Station, Sangrur. The petitioner has been acquitted vide judgment dated 26.10.2004 (Annexure P-9). After acquittal of the petitioner, the petitioner approached the authorities seeking permission to join duty as a Warder. The petitioner, however, was informed that the case is pending against him. Finally, a legal notice was got served on the respondents. The petitioner got information under the Right to Information Act with a copy of letter dated 20.5.1998, wherein it has been stated that the representation of the petitioner had been rejected. On the strength of the pleadings, to which reference has been made hereinabove, it has been argued that although the petitioner was appointed for 89 days, however, no subsequent order was issued. The petitioner continued in service from 7.2.1995 for about 3 years and, therefore, his services were regularised, as per rules. Under the Civil Writ Petition No. 11787 of 2009 5 circumstances, without a charge-sheet and regular inquiry, the services of the petitioner could not have been terminated. In para-13 of the petition, it has been pleaded that other persons had filed writ petitions for regularisation of their services. This Court had directed regularisation of their services from the date of their joining. It has further been argued that under order of transfer dated 24.3.1998 (Annexure P-6), the petitioner had been transferred to District Jail, Bathinda and Sub Jail, Barnala, therefore, the Superintendent, Headquarter Jail, Bathinda, was the competent authority to issue orders. Order dated 10.3.1998 (Annexure P-7), passed by the Superintendent, Headquarter Jail, Patiala, was without jurisdiction. I have considered the contentions of the learned counsel for the petitioner. Despite specific query, learned counsel for the petitioner has not been able to draw the attention of the Court towards any order or document that entrusts a right in the petitioner to continue to serve as a Warder. Order of regularisation of services has not been placed on record to establish that the services of the petitioner had ever been regularised. Under the circumstances, the only order on the strength of which the petitioner claims his right to continue to serve as a Warder is Annexure P- 1. A perusal of Annexure P-1 indicates that the petitioner was appointed as “temporary Warder for 89 days”. The Hon'ble Supreme Court of India has considered the rights of a person who is appointed on a temporary basis, for a fixed period, such as the petitioner, in Secretary, State of Karnataka and others v. Umadevi Civil Writ Petition No. 11787 of 2009 6 and others, (2006) 4 SCC 1. It has been held in paras 43, 45 and 47, as under:- “43. Thus, it is clear that adherence to the rule 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 of the 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 persons, 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 of his 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 term 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 rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. High Courts acting under Article 226 of the Constitution Civil Writ Petition No. 11787 of 2009 7 of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because, an employee had continued under cover of an order of Court, which we have described as 'litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates.” “45. While directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the concerned person has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with eyes open. It may be true that he is not in a position to bargain -- not at arms length -- since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to Civil Writ Petition No. 11787 of 2009 8 jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succor to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not (sic) one that would enable the jettisoning of the Civil Writ Petition No. 11787 of 2009 9 procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution.” “47. 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 of the consequences of the 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 cases concerned, 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 permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.” Following the ratio of the judgment of the Hon'ble Supreme Court of India in Umadevi's case (supra), it transpires that the order (Annexure P-1) does not give a right to the petitioner to presume that because he was allowed to continue for a period beyond 89 days, his services had been regularised. This is particularly so because no order of regularisation has been placed on record, although in para-12 of the petition, the following has been claimed:- Civil Writ Petition No. 11787 of 2009 10 “12. That although, as per the appointment order dated 07.02.1995, annexure P-1, the petitioner was appointed as Warder for 89 days only on temporary (ad-hoc) basis. However, no further order or letter was issued regarding his appointment and the petitioner continued in service for more than three years after his appointment i.e. his services were regularized and as per the rules in operation, no order for his termination or dismissal could be passed without any charge sheet and regular enquiry or affording him personal hearing, which was never done by any of the respondents.” In this view of the matter, I do not find that the petitioner has any right to claim regularisation of services. The petitioner was not inducted in accordance with the rules and regulations. It is the pleaded case of the petitioner that the petitioner had not even applied for appointment as a Warder and yet was given appointment. It, therefore, follows that the petitioner has no right to continue in service, much less to be regularised. So far as challenge to order dated 10.3.1998 (Annexure P-7) i.e. order of termination, is concerned, it stands admitted that the petitioner absented from 10.11.1997 till the passing of the said order. An explanation is sought to be given by way of this writ petition in regard to justification for absence. The same, however, cannot be accepted in writ jurisdiction, it being the admitted case that no application for leave had been given and no leave had been sanctioned at any point in time. The petitioner also claims a right to continuer in view of order dated 24.3.1998 (Annexure P-6). I, however, find that the petitioner cannot draw any mileage from the said order (Annexure P-6). Civil Writ Petition No. 11787 of 2009 11 So far as competence of the authority to pass order (Annexure P-7) is concerned, at the point in time when the order of termination was passed, the petitioner was posted at Patiala. The petitioner absented while serving at Patiala. A communication dated 18.2.1998 (Annexure P-4) was sent to the petitioner, which was received by the petitioner through his father, requiring the petitioner to report for duty. This communication (Annexure P-4) itself justifies the action of the respondents in terminating the services of the petitioner on 10.3.1998, particularly in view of nature of appointment of the petitioner. So far as the claim of the petitioner in view of judgment passed by the Additional Chief Judicial Magistrate, Sangrur, is concerned, suffice it to say that the Court was considering the conduct of the petitioner in forging letter of transfer dated 24.3.1998 (Annexure P-6). Simply because the petitioner has been acquitted in the said case, would not entitle him to continue in service. The basis of passing order dated 10.3.1998 (Annexure P-7) is absence of the petitioner without sanctioned leave and absence from work without leave is a fact admitted by the petitioner. So far as impugned orders (Annexures P-16 and P-17) are concerned, the authorities have considered the ground of continuous absence without leave, as a sufficient ground for dispensing with the services of the petitioner. I find no illegality in the said orders. The claim of the petitioner that other persons who had approached this Court for regularisation of services were given the relief, is of no consequence in so much as the petitioner has not placed reliance Civil Writ Petition No. 11787 of 2009 12 on any order under which the petitioner might be entitled to regularisation of his services. The petition is, accordingly, dismissed in limine. August 6, 2009 ( AJAI LAMBA ) Kang JUDGE 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest?