SCA/6569/1993 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 6569 of 1993 For Approval and Signature: HONOURABLE MR.JUSTICE ANANT S. DAVE ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= PURUSHOTTAM K VANKAR - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MS SADHANA SAGAR for Petitioner(s) : 1, MS ASMITA PATEL AGP for Respondent(s) : 1 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 26/02/2008 ORAL JUDGMENT 1) This petition under Article 226 of the Constitution of India is preferred by the petitioner with a prayer to quash and set aside SCA/6569/1993 2/10 JUDGMENT the impugned order of termination passed by respondent No.2 and to issue further direction to reinstate the petitioner in service with full back-wages and to regularize the services of the petitioner. 2) Ms.Sadhna Sagar, learned counsel for the petitioner, submits that the petitioner was appointed on 7.8.1984 for 29 days on the post of Peon, which continued from time to time. After giving artificial break of one day, the petitioner was continued till February, 1993 and thus the petitioner has served the respondent authority as a Peon for about more than 9 years. Learned counsel for the petitioner further submits that the petitioner was appointed as a Peon in the regular pay scale Rs.196-232. To substantiate this fact, the petitioner has also produced pay slips. It is the case of the petitioner that later on from 1.10.1991 to 31.10.1991 the petitioner worked as Attendant and from 1.11.1991 with one day artificial break the petitioner continued to serve at the residence of the Managing Director of the Corporation. In support of this submission, learned counsel for the petitioner also relies on a certificate issued by the Personal Assistant of the Managing Director. Learned counsel for the petitioner further submits that in the pay slip prepared by the authority nowhere it is mentioned that the petitioner is appointed on temporary basis. Therefore, SCA/6569/1993 3/10 JUDGMENT according to learned counsel for the petitioner it was a continuous service and only with a view to deprive the petitioner from getting the benefits of regular employee, artificial breaks of one day were given, which action of the respondent authorities is illegal, unfair, unreasonable and violative of principles of natural justice and deserves to be quashed and set aside. 3) Learned counsel for the petitioner further submits that though the post was permanent and work was available, the petitioner was replaced by another junior, therefore, the action of the respondent authorities is illegal, malafide, arbitrary, and violative of Article 14 of the Constitution of India. 4) Learned counsel for the petitioner, relying on Rule 33(1) of the Bombay Civil Services Rules and submits that without issuing one month notice or in lieu of the notice one month notice pay, no order of termination could have been passed. Except the above, no other submissions are made by learned counsel for the petitioner. 5) Ms.Asmita Patel, learned AGP, submits that no power under Article 226 of the Constitution of India can be exercised by this court in a case where appointment of an employee in the set up of Government is purely temporary, conditional, contractual and for a fixed period. According to learned AGP, initial appointment of the petitioner itself reveals that it was for a SCA/6569/1993 4/10 JUDGMENT fixed period of 29 days and against a temporary post. The appointment letter contains a specific condition that services of the petitioner will be terminated even without issuing notice or following any procedure and no reasons are required to be assigned by the Authority. According to learned AGP, subsequent orders of reappointment of the petitioner on completion of 29 days, are on similar conditions. Learned AGP has drawn the attention of this Court to the certificate issued by Personal Assistant to the Managing Director of the Corporation and submits that Personal Assistant of the Corporation has no authority to issue such certificate and discharge of duties as a Peon at the residence of the Managing Director of the Corporation was not authorized. In any manner, according to learned AGP, the appointment of the petitioner was purely temporary and contractual and not in accordance with recruitment rules. 6) Learned AGP further submits that the appointment of another employee on the temporary post of Peon is also conditional and the appointment order of that employee also contains several conditions and it was for a fixed salary of Rs.700/- p.m. Therefore, according to learned AGP, no case is made out in favour of the petitioner. Learned AGP also relies on the following decisions :- SCA/6569/1993 5/10 JUDGMENT a) Arunaben Atmaram Dudhrejiya v. Union of India reported in 2007(1) GLR 865 b) Jadav Nikeshkumar Mafatlal v. State of Gujarat reported in 2007(1) GLH 88. In the case of Jadav Nikeshkumar Mafatlal (supra), learned Single Judge relied on the decision of the Apex Court in the case of Secretary, State of Karnataka v. Uma Devi reported in (2006)4 SCC 1 and held that no right is accrued in favour of an employee who is appointed on a temporary post for a fixed term and relation of the employee and employee is governed by the terms of the contract viz. the appointment letter. Therefore, according to learned AGP, no procedure is required to be followed and no notice is required to be issued before terminating such appointment, in terms of the letter of appointment. 7) Having heard learned counsel for the parties and perusing the record of the case, including the decisions of this Court and Apex Court in this regard, where learned Single Judge of this Court has relied on the case of Uma Devi (supra) and found that any employee who was appointed purely on temporary basis and not in accordance with the recruitment rules, cannot claim any right of regularization and power under Article 226 of the Constitution of India cannot be exercised by issuing any direction to the respondent authority. SCA/6569/1993 6/10 JUDGMENT 8) I am in complete agreement with the aforesaid decisions rendered by the learned Single Judge of this Court relying on the decision of the Apex Court in the case of Uma Devi (supra). The petitioner cannot claim any status of even temporary servant as indicated in rule 33(1) of the Bombay Civil Service Rules and no protection as envisaged under Rule 33(1)(b) can be invoked by the petitioner. 9) Considering the nature of work and administrative exigency if the petitioner was appointed on regular pay scale and paid accordingly at the end of 29th day, such an employee does not incur any legal right in his favour to claim any benefit of regularization or protection under Rule 33(1)(b) of the Bombay Civil Services Rules. 10)In the case of Arunben (supra), learned Single Judge of this Court has relied on the following decisions of the Apex Court and held that persons appointed on fixed term basis, on expiry of the term, such persons have no right to continue in service and High Court would not issue direction to continue such persons in service as it would amount to interference in administrative policy decision of State authority :- a) Indian Drugs & Pharmaceuticals Ltd. v. Workman, Indian Drugs & Pharmaceuticals Ltd., reported in 2006 AIR SCW 5994; SCA/6569/1993 7/10 JUDGMENT b) Chief Commissioner of Income-tax, Bhopal & Ors. v. M/s.Leena Jain & Ors. reported in 2006 AIR SCW 6066; c) Account Officer (A&I) A.P.SRTC and Others v. P. Chandra Sekhara Rao and Others, reported in 2006 III LLJ 1055; d) R.S.Garg v. State of UP and Others, reported in JT 2006 (7) SC 1; e) Ekta Shakti Foundation v. Government of NCT of Delhi, reported in AIR 2006 SC 2609; f) Ramchandra Murarilal Bhattad & Ors. v. State of Maharashtra & Ors, reported in 2006 AIR SCW 6304; g) Indian Financial Assn., Seventh Day Adventists v. M.A.Unneerikutty and Anr. Reported in 2006 AIR SCW 5470; h) State of Orrisa v. Gopinath Dash & Ors. Reported in 2005 AIR SCW 6536; i) Banarsidas and others v. State of Uttar Pradesh and others, reported in AIR 1956 Sc 520; j) National Fertilizers Ltd. & Ors. v. Somvir Singh, reported in AIR 2006 SC 2319; k) Pratapji Nathaji Thakore v. State of Gujarat & Ors. Reported in 2006 (2) GLR 1751; l) Principal, Mehar Chand Polytechnic & Anr. v. Anu Lamba & Ors. Reported in JT 2006 (7) 322; m) State of West Bengal and another v. Alpana Roy and others, reported in AIR 2005 SC 3657; Considering all the above decisions relevant for the purpose of deciding the issue in question, ultimately in paras 8 and 9 learned Single Judge observed as under :- SCA/6569/1993 8/10 JUDGMENT “8. In light of the aforesaid observations made by the Apex Court, if the facts of this case are considered, the initial appointment of the petitioners for 11 months dehors the statutory rules under Article 309. Meaning thereby that the petitioners were not appointed under the Recruitment Rules framed by the respondent State Government under Article 309 of the Constitution of India. But, ad-hoc appointments were made by ad-hoc selection for a limited period of 11 months which comes to an end after completion of the aforesaid period. Therefore, after a period of 11 months, service of the petitioners comes to an end automatically. Similar type of orders on same condition, second order was issued in their favour and thereafter, 3rd order was also issued in their favour which comes to an end on 6.1.2007. Therefore, when petitioners were not appointed on regular basis against the permanent post under the recruitment rules framed under Article 309 of the Constitution of India, then, such appointment itself is ab-initio void and nullity. Therefore, petitioners have no legal right and statutory right or constitutional right to challenge any of the condition mentioned in the appointment order. Not only that, petitioners are also not entitled the regularization in service because their appointments are void ab-initio and dehors the statutory rules. 9. In the facts of this case, there is no further appointment order issued by respondents in favour of petitioners either in fixed salary or any regular scale. So, in absence of order being a contractual appointment comes to an end after completion of 11 months period, SCA/6569/1993 9/10 JUDGMENT petitioners have no legal right statutory right or constitutional right to claim regularization or permanent job or continuation in service in a regular scale, therefore, in absence of legal right or statutory right, writ of mandamus cannot be issued against the respondents while exercising the power under Article 226 of the Constitution of India. Therefore, according to my opinion, petitioners are not having any legal right to remain continued in service in absence of further order as their contract period has come to an end on 6.1.2007, therefore, petitioners cannot claim continuation in service in absence of further fresh order to be issued by respondents in favour of petitioners. Therefore, according to my opinion, there is no substance in the present petitions. Accordingly, present petitions are disposed of. Ad-interim relief granted by this Court on 3.1.2007 stands vacated”. 11)In view of the above law laid down by the Apex Court, case of the petitioner cannot be considered for reinstatement or regularization. The prayer to quash and set aside the oral order of termination cannot be accepted because the Services of the petitioner expired or come to an end by afflux of time and since the appointment is purely temporary and for a fixed period, the authority was not duty-bound to follow principles of natural justice. No legal right is vested to the petitioner to continue in service. No provision is shown by which it can be said that the petitioner acquired any legal right to continue in the service and this Court SCA/6569/1993 10/10 JUDGMENT cannot exercise power under Article 226 of the Constitution of India by issuing any direction to the respondent authorities to reinstate the petitioner in service. 12)Even the alleged replacement of the petitioner by another employee is also not based on any material. However, learned AGP has submitted that a lady was appointed for time being at a fixed salary of Rs.700/- in the year 1993 and she was also not continued or regularized in service. Therefore, there is no discrimination whatsoever, as alleged by the petitioner, and therefore, also no right accrues to the petitioner when appointment itself is conditional, contractual and for a fixed term, dehors the recruitment rules and against a temporary vacancy, as reflected in the order dated 28.8.1992. No case is made out to exercise power under Article 226 of the Constitution of India. 13)In view of the above discussion, this Special Civil Application fails and is hereby dismissed. Rule discharged. However, there shall be no order as to costs. (ANANT S. DAVE, J.) *pvv