IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 11813/2008 Reserved on: 24.2.2011 Decided on:9.3.2011 _____________________________________________ Deepak Joshi. …Petitioner. Versus State of H.P. and others. …Respondents. _______________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the petitioner : Mr. V.D. Khidtta, Advocate. For the Respondents: Mr. Anshul Bansal, Addl. A.G. with Mr. R.P. Singh, Asstt. A.G. ____________________________________________________ Justice Rajiv Sharma, Judge. Petitioner was appointed as Junior Basic Trained Teacher on contract basis on 10.12.1996 at Government Primary School, Heonad in Block Bakras, Tehsil Shillai, District Sirmour. He worked there upto 28.2.1997. Thereafter on the basis of fresh contract, he was posted at Government Primary School, Bounal on 10.3.1997 and remained there upto 12.12.1999. Thereafter on the basis of another agreement, he was appointed in Government 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 Primary School, Allian on 13.12.1999. A show cause notice was issued to the petitioner on 19.8.2002. He was given an opportunity to make representation for dereliction of duties and on the basis of his conviction under sections 341, 332, 353, 504 and 508 of the Indian Penal Code. He had remained unauthorisedly absent on 21.3.2002 and 22.3.2002. Petitioner filed reply to the same on 3.9.2002. Thereafter another show cause notice was issued to the petitioner by the Deputy Director, Primary Education on 18.10.2003. He was given time upto 17.11.2003 to file the reply. He filed the reply to the same on 18.11.2003. He was administered warning on 19.3.2004 by the Deputy Director, Primary Education. The contract was extended on 18.3.2004 with effect from 2.4.2004 to 31.3.2005, vide Annexure A-8. Petitioner was served with a memorandum dated 15.3.2005 by the Deputy Director of Primary Education, to which he filed reply on 18.3.2005. Services of the petitioner were terminated on 23.3.2005. 2. Mr. V.D. Khidtta has strenuously argued that the services of the petitioner could not be terminated without holding regular inquiry. He then contended that his client has not worked as Correspondent of Dainik Bhaskar while working as Junior Basic Trained Teacher. 3 3. Mr. Anshul Bansal, learned Additional Advocate General has supported the termination order dated 23.3.2005. According to him, since the petitioner was appointed on contract basis, no inquiry was required to be held. 4. I have heard the learned counsel for the parties and have perused the pleadings carefully. 5. The extension was granted to the petitioner with effect from 2.4.2004 to 31.3.2005. It will be apt at this stage to refer to terms and conditions enumerated in the agreement for employment entered into between the petitioner and respondent-State. Conditions No.3 and 4 (I) reads thus: “3. That he/she shall employee himself/herself efficiently and diligently and to the best of his/her ability as Teacher and that he/she devote his/her whole time to the duties of the service and shall not engaged Directly and Indirectly in any trade/business on occupation on his/her own account and that he/she shall not (except in case of accident or sickness certified by the civil surgeon/authorized Medical Officer) absent himself/herself from his/her said duties without having first obtained permission from the BPOEs/Head Teacher of the school or other authorized officer. The teacher will not be entitled for pay and allowances for the said period of absence. 4. The service of the party of the first part shall stand terminated as follows:- 4 I. Automatically at the end of 31.3.2005 years on fresh regular appointment or posting by transfer/promotion whichever is earlier. Without notice of the second party to the first party.” 6. A bare perusal of condition No.3 of the agreement makes it abundantly clear that the petitioner was required to discharge his duties efficiently and diligently to the best of his ability as a Teacher and was required to devote whole time to duties. He could not engage himself directly or indirectly in any trade or business or occupation on his own account. The agreement is to come to an end automatically on 31.3.2005. In the instant case, petitioner has been served with a memorandum dated 15.3.2005. Petitioner was apprised that in fact though he was appointed as contract teacher, he was also working as Correspondent of Dainik Bhaskar. Petitioner filed reply to the same, as noticed above, on 18.3.2005. The Deputy Director, Primary Education after taking into consideration the reply filed by the petitioner, terminated the services of the petitioner, as per conditions No.3 and 4 (1) of the contract. 7. The Sub Divisional Magistrate has also held an independent inquiry to find whether the petitioner was working as Correspondent of Dainik Bhaskar. Petitioner was given an opportunity of hearing on 22.9.2004. Complainant, 5 Sh. Kuldip Kumar was heard and the version of the petitioner was also taken into consideration. He admitted, during the course of inquiry that on 21.3.2004, he was at P.W.D. Rest House, Dadahu and the photo alongwith other Correspondents was his, though he has denied the publication of news on 5.11.2003. His only defence was that he sits with the Correspondents. 8. Mr. Anshul Bansal has drawn the attention of the Court to Annexures R-2 and 3. It is manifestly clear from these Annexures that the petitioner had been working with the daily Edition of Dainik Bhaskar and operating from Dadahu. Petitioner could not engage himself in any other profession, as per terms and condition incorporated in the agreement. He was supposed to teach the students whole day. It is evident that the action to terminate the services of the petitioner was on the basis of entire service record. He had been convicted under sections 341, 332, 353, 504 and 508 of the Indian Penal Code. He has remained willfully absent also. He was warned on 19.3.2004. It has also come in the report of Sub Divisional Magistrate, Annexure R-1, that the petitioner was released on probation under section 4 of the Probation of Offender Act. He had not sought any 6 permission to leave his station and he has admitted that he used to come back to Dadahu. 9. Petitioner had been appointed on contract. The contract was entered between the petitioner and respondent-State on 18.3.2004 whereby the same was valid upto 31.3.2005. Petitioner had no indefeasible right to get the contract renewed. His appointment was upto 31.3.2005. Since the petitioner was not discharging his duties satisfactorily, he was served with a memorandum dated 23.3.2005. He filed the reply and after taking into consideration the reply, his services were terminated strictly as per the conditions incorporated in the agreement dated 18.3.2004, Annexure A-8. 10. Their Lordships of the Hon’ble Supreme Court in Rajasthan State Road Transport Corporation and another versus Charan Singh, (2007) 15 SCC 789 have held that it is well settled that in case of temporary employees, that too those who are appointed on ad hoc basis their services can be put to an end if the same are not satisfactory on examination of the total service record. Their Lordships have held as under: "6. Further, the law is well settled that in cases of temporary employees, that too those who are appointed on ad hoc basis their services can be put to an end if the same are not satisfactory on examination of the total 7 service record. If termination of services is as on that basis, no inquiry need be held. If that is so, all the courts have gone at tangent and have decided the matter on irrelevant facts, therefore, the orders made by the High Court affirming the orders of the trial court and the first appellate court shall stand set aside and the suit filed by the respondent shall stand dismissed.” 11. ‘Regular Government servant’ and ‘contractual appointment’ has been explained by their Lordships of the Hon’ble Supreme Court in Union Public Service Commission versus Girish Jayantilal Vaghela and others, (2006) 2 SCC 482 as under: “6. The problem of defining what is an employer and employee relationship and what is an independent entrepreneurial dealing frequently arises before the courts. Difficulty arises in defining what is a "contract of service" and what is "contract for service". In Cassidy v. Ministry of Health (1951) 1 All ER 574 : (1951) 2 KB 343 (CA), after referring to some earlier decisions, it was held that in a "contract for services" the master can order or require what is to be done, while in the other case (a contract of service) he can not only order or require what is to be done but direct how it shall be done. The House of Lords in Short v. J. & W. Henderson, Ltd(1946) 174 LT 417: 115 LJPC 41 (HL), laid down the attributes of employer-employee relationship which have been followed in later decisions. In this case the appellant, who was a dock labourer, sustained injuries by accident and claimed compensation against the respondents under the Workmen's Compensation Act, 1925. The respondents contended that the appellant was not a workman within the meaning of Section 3(1) of the said Act but was a member of a joint stevedoring 8 adventure. The House laid down the following four indicia of contract of service, namely, (a) the master's power of selection of his servant; (b) the master's responsibility of payment of wages or other remuneration; (c) the master's right of suspension or dismissal; and (d) the master's right to control the method of doing the work. It was also observed that a contract of service may still exist if some of these elements are absent altogether, or, present only in an unusual form and that the principal requirement of a contract of service is the right of the master in some reasonable sense to control the method of doing the work, and that this factor of superintendence and control has always been treated as critical and decisive of the legal quality of the relationship. 8. Rule 2(h) of Central Civil Service (Classification, Control and Appeal) Rules, define a Government servant and it reads as under : "2(h) "Government servant" means a person who- (i) is a member of a Service or holds a civil post under the Union, and includes any such person on foreign service or whose services are temporarily placed at the disposal of a State Government, or a local or other authority; (ii) is a member of a Service or holds a civil post under a State Government and whose services are temporarily placed at the disposal of the Central Government; (iii) is in the service of a local or other authority and whose services are temporarily placed at the disposal of the Central Government." 9. It will be noticed that under sub-rule (i), a person who is a member of service or holds a civil post under the Union is a Government servant. Similarly, under sub-rule (ii), a person who is a member of a service or holds a civil post under the State Government 9 is a Government servant. Therefore, it is a holder of a civil post whether under the Union or State Government, who will be a Government servant for the purposes of the Central Civil Services (Classification, Control and Appeal) Rules. We are not concerned here with sub rule (iii) whereunder a person in the service of a local or other authority and whose services are temporarily placed at the disposal of the Central Government gets the status of a Government Servant. 12. Article 16 which finds place in Part III of the Constitution relating to fundamental rights provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. The main object of Article 16 is to create a constitutional right to equality of opportunity and employment in public offices. The words "employment" or "appointment" cover not merely the initial appointment but also other attributes of service like promotion and age of superannuation etc. The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made. A regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner which may in some cases include inviting applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete 10 would violate the guarantee enshrined under Article 16 of the Constitution. (See B.S. Minhas vs. Indian Statistical Institute ((1983) 4 SCC 582 : 1984 SCC (L&S) 26 : AIR 1984 SC 363). 13. Article 309 lays down that subject to the provisions of the Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State. The proviso to this Article confers power upon the President or the Governor, as the case may be, to make rules regulating the recruitment and the conditions of service of persons appointed to services and posts in connection with the affairs of the Union or the State. Article 311 affords several protections to persons employed in civil capacities under the Union or a State. In view of clause (2) of this Article, holder of a civil post under the Union or a State cannot be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and he is given a reasonable opportunity of being heard in respect of those charges. 14. A private employer in India enjoys almost a complete freedom to select and appoint anyone he likes and there is no statutory provision mandating advertisement of the post or selection being made strictly on merit, even where some kind of competitive examination is held. A private employer has absolute liberty to appoint a less meritorious person. Except those who are covered by the definition of "workman" and are governed by the provisions of Industrial Disputes Act or any such allied enactment, an employee working in a private establishment normally does not enjoy any statutory protection regarding his tenure of service. 16. The nature of right possessed by a Government servant and also his status after his appointment to a post under the Government was 11 considered by a Constitution Bench in Roshan Lal Tandon v. Union of India ((1968) 1 SCR 185 : AIR 1967 SC 1889) 1889 and it was held as under in para 6 of the reports : "[6.] .......... It is true that the origin of Government service is contractual. There is an offer and acceptance in every case. But once appointed to his post or office the Government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government. In other words, the legal position of a Government servant is more one of status than of contract. The hall-mark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties. The emolument of the Government servant and his terms of service are governed by statute or statutory rules which may be unilaterally altered by the Government without the consent of the employee. It is true that Article 311 imposes constitutional restrictions upon the power of removal granted to the President and the Governor under Article 310. But it is obvious that the relationship between the Government and its servant is not like an ordinary contract of service between a master and servant. The legal relationship is something entirely different, something in the nature of status. It is much more than a purely contractual relationship voluntarily entered into between the parties. The duties of status are fixed by the law and in the enforcement of these duties society has an interest. In the language of jurisprudence status is a condition of membership of a group of which powers and duties are exclusively determined by law and not by agreement between the parties 12 concerned. The matter is clearly stated by Salmond and Williams on Contracts as follows : 'So we may find both contractual and status-obligations produced by the same transaction. The one transaction may result in the creation not only of obligations defined by the parties and so pertaining to the sphere of contract but also and concurrently of obligation defined by the law itself, and so pertaining to the sphere of status. A contract of service between employer and employee, while for the most part pertaining exclusively to the sphere of contract, pertains also to that of status so far as the law itself has seen fit to attach to this relation compulsory incidents, such as liability to pay compensation for accidents. The extent to which the law is content to leave matters within the domain of contract to be determined by the exercise of the autonomous authority of the parties themselves, or thinks fit to bring the matter within the sphere of status by authoritatively determining for itself the contents of the relationship, is a matter depending on considerations of public policy. In such contracts as those of service the tendency in modern times is to withdraw the matter more and more from the domain of contract into that of status." (Salmond and Williams on Contracts, 2nd edition, p.12)" 19. It, therefore, follows that employment under the Government is a matter of status and not a contract even though the acquisition of such a status may be preceded by a contract, namely, an offer of appointment is accepted by the employee. The rights and obligations are not determined by the contract of the two parties but by statutory rules which are framed by the Government in exercise of power conferred by Article 309 of the Constitution and the service rules can be unilaterally 13 altered by the rule making authority, namely, the Government. 20. There is no dispute that respondent no.1 was engaged or hired on contract to work as Drugs Inspector for a period of six months from the date of joining or till a candidate selected by UPSC joined on regular basis, whichever was earlier. The contract further stipulated that even if a regularly selected candidate did not join, respondent no.1 shall stand relieved on the expiry of six months. In Director, Institute of Management Development v. Pushpa Srivastava ((1992) 4 SCC 33 : 1992 SCC (L&S) 767 : (1992) 21 ATC 377 : AIR 1992 SC 2070) it was held that where the appointment is purely on ad hoc basis and is contractual and by efflux of time the appointment comes to an end, the person holding such post can have no right to continue in the post. It was further held that this is so even if the person is continued from time to time on ad hoc basis for more than a year. In State of Haryana v. Surinder Kumar ((1997) 3 SCC 633 : 1997 SCC (L&S) 844) the respondents were appointed as clerks on contract basis. They filed a writ petition in the High Court for their regularisation which was allowed and a direction was issued for payment of wages on the principle of 'equal pay for equal work' and also regularisation of their services. In appeal this Court reversed the judgment of the High Court holding that as the respondents' recruitment was not made in accordance with the rules and they were appointed on contract basis on daily wages, they cannot have any right to the post as such until they are duly selected and appointed. This decision was followed by a three-Judge Bench in State of Haryana v. Charanjit Singh (JT 2005 (12) 475 CC 321) and it was held that where a person is employed under a contract, it is the contract which will govern the terms of contract of service and not the rules framed under Article 309 of the Constitution governing the conditions of service to the 14 post on which he is employed. It is, therefore, clear that respondent No. 1 did not have any right to continue as Drugs Inspector after expiry of the six months period for which he had been appointed. 21. It is neither pleaded nor there is any material to show that the appointment of respondent no.1 had been made after issuing public advertisement or the body authorized under the relevant rules governing the conditions of service of Drugs Inspectors in the Union Territory of Daman and Diu had selected him. His contractual appointment for six months was de hors the rules. The appointment was not made in a manner which could even remotely be said to be compliant of Article 16 of the Constitution. The appointment being purely contractual, the stage of acquiring the status of a Government servant had not arrived. While working as a contractual employee respondent no.1 was not governed by the relevant service rules applicable to Drugs Inspector. He did not enjoy the privilege of availing casual or earned leave. He was not entitled to avail the benefit of general provident fund nor was entitled to any pension which are normal incidents of a Government service. Similarly he could neither be placed under suspension entitling him to a suspension allowance nor he could be transferred. Some of the minor penalties which can be inflicted on a Government servant while they continue to be in Government service could not be imposed upon him nor he was entitled to any protection under Article 311 of the Constitution. In view of these features it is not possible to hold that respondent no.1 was a Government servant.” 12. In the instant case, petitioner was appointed on contract basis. He has been afforded ample opportunity of being heard on the basis of memorandum dated 15.3.2005, to which he has filed the reply on 18.3.2005. The Deputy 15 Director, Primary Education after taking into consideration the reply, has terminated the services of the petitioner on 23.3.2005. 12. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in the petition and the same is dismissed. No costs. (Rajiv Sharma), Judge 9.3. 2011 *awasthi*