(fy) HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petition No. 496 of 2005 Petitioner Ashok Gii-i Goswami Respoiideiits Versus State ofMadhya Pradesh and others -v» Post for order on ^S'April, 2008 Sd/- Satish K. Agnihotri Judge HIGH COIIRT OF CHHATTISGARH AT BITASPIJR PETITIONER RE^PONDENTS Wilt Petitioii N0,^6 uf2005 Ashok Giri Goswaiiii, aged about 26 years/son of Shri Bharat Giri Goswanii, by occupation Sendce, resident ofC/o late Abdul Aziz Khan, Vijay Sheelicate Co., Pandry, Raipur. VERSUS 1. State ofMadhya Pradesh through the Secretaty, Ministty of Health Services and Family Welfare, Bhopal. 2. The Director ofHealth Services, Bhopal 3. The ChiefMedical and Health Officer, Raipur. <SB: Hon'Me Mr. Satisli K. Asmhotn, J.} Present : Shri Parag Kotecba, Advocate for the petitionCT Ms. Sumta Jain, Panel Lawyer fbr tlie State. ORDER (Passed on^ ^rofApi-il, 2008) 1. The petitioner challeiiges the validity of the order dated 28.11.1991 (Document No. 5) whereby, the appoiiitment ofthe petitiQner vide order dated 12.08.1991 (Document No. 2), 011 the post of Peoti, as contmgency paid emplo^^ee, was caiicelled. 2. The facts, m iiutshell, are that the petitiotier was appomted as Field Worker oii dmiy wage^ basis temporaril^^ in the ofBce of District Malaria Officer, Mahasamund on 03.01.1991 (Dociiiiieiit No. 1). The petitiosier was, thereafter, selected for appointmeiit on the post ofChowkidar as CQntmgency paid employee on 12.08.1991 (Document No. 2). It was stated in the order that the appomtment is purely temporary and could be teniimated at any tmie. The petitionerjoined the post ofChowkidar on 20.08. 1991 (Document No. 4). Subsequently, on 28.11.1991, the appomtment ofthe petitioner on the post of Chowkidar a^ contmgeiic)^ paid employee was cancelled in compliance ofthe memo dated 22 11.1991 issued by the Director, Health Services^ GovemiTient ofMadhya Pradesh. Bemg aggrieved, the petitioner filed this petition seeking quashmg ofthe impugned order dated 28.11.1991 and fiirther a direction to allow the petitioner to perfbnii his duties with regiilar salary. Sliri Parag Kotecha, leamed coimsel appeamig for the petitioner would submit that the petitioiier was not a direct recniit, but promotee from the post of Field Worker Tlius, caiicellatioii of the appomtment order without assigning any reasons was bad in law aiid desen^es to be quashed. Per coiitra, Ms Sunita Jain, leamed counsel appearing for the State would submit that the appointment ofthe petitiorier 011 the po^t ofPeon was not by promotion. T!ie impugiied order was passed cancelling the earlier appomtmeiit order as there was ban durmg tlie said period when the appomtment made by the respoiident No, 3. Since the appomtment was made durmg the ban period, the appoiiitmerit was accordiiigly cancelled. Even otherwise, the appointmeiit was purely on temporary basis and that does not give any riglit to the petitioner to the post, evee ifhe has worked 011 the post for some time as appointment itselfwas void ab-initio. Shri Kotecha. next. cont.eiided thaf similarly sitiiated one employee Shri Mahesh Kamar Paii^ey was re-appoitited after his appointmetit was cancelled b}/ the same order dated 28.11 1991. The petitioner has produced a document dated 30.04.1992 (Ajmexure 9), whereby, Shri Mahesh Kumar Paiidey was re-appoitited. T have heard leamed counsel appearmg for the parties, pemsed the pleadings and documeiite appeiided thereto. Oii penisal oforders dated 03.01.1991 and 12.08.1991 (Document Nos. 1 & 2), it is evident that the appomtment ofthe petitioiier on the post of Chowkidar was piirely temporary. It is well settled prmciple of law that temporan7 employee has no rigtit to the post. Tliu^ reinstatemettf/contitmation ofthe sen7ice cannot be granted. The que^tion asto whether appomtment was void ab-imtio caimot be dedded for want of relevant docuiiierrts ie. memo dated 12.11.1991, issued by thc Director, Health Sen/'ices, as the same, de^pite ftiifficieiit opportumty granted to the parties, could not be produced. 8. In the case ofSeCTetaiy, State ofKamataka and othes's Vs. Umadevi (3) and others , a Constitution Bench ofthe Supreme Court observed as under: "45. Wliile directing that appomtments, temporary orcasual be regiilarized or made pemianent the courts are swa^ed by the fact that the person concenied has worked for sonie tmie and in some cases for a considerable length oftime. It is iiot as ifthe pereoii who accepte an engagemeiit either temporary or casual in oatiire, is not aware of the iiatiire of his employment. He accepts the emplo3^iient with open eyc^ li may be tnje that he h n<^t m a positioii to bargain-3wt at anrfs length-since h@ migbt have been searching fbr some employment so as to eke oirt his livelihood and accepts whatever he gets. But on that grouiid alone, it would not be appropriate to jettison the coiistitiitional scheme of appomtment and to take the view that a person who has temporarily or casually got employed should be directed to be contmued pemiaiiently. By domg so, it will be creatmg another mode ofpublic appomtment which is not pemiissible. "47. When a person eiiters a temporaty employment or get engagemeiit as a contractiial or casual worker and the engagement is not based 011 a proper selectioii as recogmzed hy the relevant mles or procedure, hc is aware ofthe coiiseqiiences ofthe appointmerrt being tempora^ casual or contractiial m nature. Such persoii catmot iovoke the theoty of legitimate expertation for bemg confimied m the post when aii appointment to the po^t could be made oiily by following a proper procedure fbr selection and m cases concemed, m coiisultatioH withthe Piiblic Service Commission." ;2006(4)SCC1. * ,.^^:^JS^-.. i'/s^\ il '; t '^] ^.^-" ^ 9. The pefitioiier is at libe^ to make represeiitation before the aiithority concemed m the light ofthe fact that oiie similarty sitiiated employee Shri Mahesh Kumar Paiide^/ was re-appointed after hm appomtment was cancelled^ ifso aclvised. 10. In view of the foregoing, there is no merit in the case. The petition is accordmgly disniissed. No order asto costs. Sd/- Satish K. Agnihotri Judge f 1