IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.1732 of 1989 (O&M) Date of decision:06.09.2011 Vijay Sharma, Pharmacist, Indian Institute of Kayachikitsa, Patiala. ...Petitioner versus The Director, Central Council for Research in Ayurvedic and Siddha, S-10, Green Park Extension Market, New Delhi-110016, and another. ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Vijay Pal, Advocate, Mr. Saroj Malakar, Advocate, and Mr. Arvind Seth, Advocate, for Mr. Girish Agnihotri, Senior Advocate, for the petitioner. Mr. Pawan Kumar Mutneja, Advocate, for the respondents. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? No. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. ---- K.Kannan, J. (Oral) 1. The petitioner challenges the order issued on 31.12.1987 (Annexure P-4) reverting him to the original post of Pharmacist from the post of Research Assistant. The basis of such reversion was that the petitioner had been appointed against a leave vacancy of Dr. Bal Krishan Sharma and after he resumed his service in the post, the petitioner had been adjusted against the vacancy caused by one Dr.V.K. Garg, who had been transferred to Hastinapur. When later he also returned, the petitioner was required to be reverted. The position taken by the respondents to make the reversion is contested through this writ petition by the petitioner by stating that the post of Research Assistant was to be filled only by fresh selection by direct recruitment after written Civil Writ Petition No.1732 of 1989 (O&M) - 2 - examination followed by personal interview. After taking the permission from the higher authorities, two posts were advertised and the petitioner, claimed that he had applied under the general category, undertook the examination, was found eligible and after putting him through an interview, he had been appointed. However, it was only in the order of appointment, they had stated that he was being appointed on a leave vacancy and it must only be taken that he was appointed against a regular vacancy that had fallen vacant at that time. The petitioner would rely on a communication sent on 13.08.1986 by the Assistant Director (Administration) acting on behalf of the Director to the Assistant Director Incharge, Indian Institute of Kayachikitsa, Patiala, to say that the Central Council for Research in Ayurveda and Siddha had no objection to filling up two posts of Research Assistants and along with that letter there was also a copy of the revised recruitment rules that showed that the recruitment was conceived of only for a regular appointment and not merely for filling up of a leave vacancy. 2. The learned counsel appearing on behalf of the petitioner would rest his case on three grounds: (i) The appointment, which was given to him, although termed as on leave vacancy, was really an appointment to a regular vacancy after a written examination and interview and that would be seen from the fact that along with him, there was yet another candidate, who was selected against a reserved vacancy and on his premature resignation, another person by name Yash Pal was taken from the waiting list and appointed to the same post. If it were to be merely considered as a leave vacancy, there was no scope for Civil Writ Petition No.1732 of 1989 (O&M) - 3 - appointing another candidate, who had been wait listed and still later regularized; (ii) The second argument advanced is that there could be no estoppel against the petitioner urging that although his order of appointment had referred to his appointment as on leave vacancy, if there was a vacancy for a substantive post and he had also been appointed in response to a notification for such selection, the appointee could show that the condition imposed in the order of appointment was unconscionable, arbitrary and oppressive and the principle of estoppel would not apply; (iii) As a third limb of argument, it was contended that it was not as if an adhoc appointees were not regularized and he would point out to other candidates, who had joined subsequent to him as adhoc appointees, who were later regularized in their respective posts and the reversion only of the petitioner amounted to discrimination and violative of Article 14 of the Constitution. 3. As regards the first contention that the petitioner had been appointed only against a substantive post, the learned counsel for the respondents would point out that the recruitment rules contemplated a written test and interview and the reference to appointment of Raj Karan, and later of Yash Pal after the former had resigned, clearly showed that the appointment was done only after an interview and no written test was held. If this would emerge as a disputed question of whether a written statement was given or not, I would only refer to the petitioner’s own averment in the petition where he has stated that in para 4 that he had passed written test and then he was called for interview. I do not find a reply denying this express statement that he had passed the written test Civil Writ Petition No.1732 of 1989 (O&M) - 4 - anywhere in the written statement of the respondents. I cannot also see anywhere that when the notification was issued or when a communication was addressed to the Director that the recruitment was meant only for filling up a leave vacancy. At that time, a vacancy if at all, was only of Dr. V.K. Sharma and there was no need for appointment of a person from a scheduled caste category. It is not brought out anywhere that there was yet another leave vacancy about the same time which had to be filled up by appointing another person. The communication dated 13.08.1986 does not give any indication that the permission had been taken only for filling up a leave vacancy. It is possible that even for filling up leave vacancy, permission had to be taken, but the letter dated 13.08.1986 states to be in response to the letter of the establishment dated 24.06.1986. The respondents, who have filed several documents from the year 1981 have no filed the particular letter dated 24.06.1986, for, that would have given also a definite indication of whether they were making a request only for filling up a leave vacancy or not. I would take the non-filing of the document dated 24.06.1986 as relevant and a significant omission that would allow for taking an adverse inference against the respondents. 4. The issue will surely hinge on the effect of the order of appointment which clearly spells out that the petitioner was being appointed only in a leave vacancy. The order dated 12.01.1987 states that the petitioner was offered a post of Research Assistant against the leave vacancy. Again, when he was readjusted against the vacancy caused by Dr. V.K. Garg, going on a transfer, it does not state that it was Civil Writ Petition No.1732 of 1989 (O&M) - 5 - against any permanent post. The learned counsel refers to the judgment in Gordhan Singh Gulia Versus State of Haryana-1996(3) SCT 412 when the Division Bench held that a termination of adhoc employee on expiry of the term of his appointment as per conditions in his appointment letter, where admittedly posts existed and persons were required to work on such posts, would result in the termination being illegal. The Bench was holding in the context of an objection taken that termination of adhoc employment cannot be objected that a condition in the appointment letter limiting the appointment upto a particular date with the condition that his service would come to an end on that day and he would stand relieved on that date, would be arbitrary, oppressive, unconscionable and unconstitutional. The Division Bench held that a civil servant would not be estopped from challenging the terms and conditions of his appointment only because he has accepted the offer of appointment without protest. If on a previous issue, I have held that the proposals for appointment in the initial process was undertaken for a permanent vacancy and was not stated to be against a leave vacancy, the obstacle of estoppel would not result, if we follow the decision of the Division Bench in its finding that there could be no such estoppel in a situation where there existed a permanent vacancy and the recruitment was also done only against a permanent vacancy. 5. The petitioner also points out that there were other persons, who had been appointed subsequently against on adhoc posts, but who were regularized and there was a violation of Article 14. The petitioner would refer to a case of Dr.(Mrs.) Mridula Dua, who had been appointed Civil Writ Petition No.1732 of 1989 (O&M) - 6 - on 01.01.1988 as Research Assistant (Adhoc) and Dr. S.K. Singh as Research Assistant on 17.02.1989, both of whom got regularized subsequently. The petitioner would point out that he was himself appointed on an adhoc post earlier. The learned counsel for the respondent would contend that Dr.(Mrs.) Mridula Dua and Dr.S.K. Singh were appointed from New Delhi and Lucknow respectively and hence, the petitioner cannot treat himself on par with them. The counsel for the petitioner, however, rightly points out that the very same gradation list contains the name of Dr. V.K.Sharma from Patiala and unless it had been a case of an integrated list of seniority, there was no need for making a reference to Dr.(Mrs.) Mridula Dua and Dr. S.K. Singh in the same list that contains reference to Dr. V.K.Sharma from Patiala. 6. I uphold the contention raised by the petitioner and hold that the petitioner is entitled to succeed and quash the order of reversion made. The petitioner shall be treated as having been retained in the post of Research Assistant and shall be entitled to all consequential benefits attendant on treating the appointment made initially as in a regular post. The calculation of monetary benefits will be undertaken and the petitioner shall be fitted in the post appropriate to him taking the appointment to be regular appointment. The exercise shall be completed within 12 weeks from the date of receipt of copy of this order. 7. The writ petition is allowed on the above terms. (K. KANNAN) JUDGE 06.09.2011 sanjeev