Abhay Ram vs State Of U.P.Thru Principal ...
2023 Latest Caselaw 8333 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
Court No. - 33
 
Case :- WRIT - A No. - 17769 of 2013
 
Petitioner :- Abhay Ram
 
Respondent :- State Of U.P.Thru Principal Secretary And Ors.
 
Counsel for Petitioner :- H.N.Singh,Vineet Kumar Singh
 
Counsel for Respondent :- C.S.C.,D.D.Chauhan
 

 
Hon'ble Rajiv Joshi,J.

1. Heard Sri H.N. Singh, learned Senior Advocate assisted by Sri Vineet Kumar Singh, learned counsel for the petitioner and Sri Promod Kumar Srivastava and Ms. Shivi Mishra, learned Standing counsel for the State-respondents.

2. The instant writ petition under Article 226 of the Constitution has been filed for the following reliefs:-

" I. Issue a writ, order or direction in the nature of certiorari for quashing the impugned order dated 7.11.2012 passed by the Project Director District Village Development Agency, Etawah (Annexure No. 8 to the writ petition).

II. Issue a writ, order or direction in the nature of mandamus commanding the respondents to issue appointment order to the petitioner as Rojgar Sewak of Gram Panchayat, Mahalai, Block Jaswantnagar, Etawah and pay his wages month to month, if and when same fall due.

3. It is contended by learned counsel for the petitioner that certain posts of Gram Rojgar Sewak were advertised, against which petitioner applied and he was also selected and in the select list, his name was mentioned at serial no. 6 in the agenda/order dated 25.3.20211 passed by the District Magistrate, Etawah but no appointment letter was issued to the petitioner. In the meantime, impugned order dated 7.11.2012 was passed by the respondent-3 Project Director District Village Development Agency, Etawah rejecting the entire selection as the Committee headed by District Magistrate on the ground that the resolution dated 21.10.2011 passed by the Village Management Committee prior to the meeting of the Selection Committee has not been considered and as such approval has not accorded to the petitioner's appointment vide impugned order dated 7.11.2012. Hence, the present writ petition has been filed for the quashing impugned order.

4. The counter affidavit has been filed on behalf of the State, in which, it is stated that the petitioner was selected by the Selection Committee and his name was mentioned at serial no. 6 but the approval has not been accorded to the petitioner vide impugned order as the resolution dated 21.10.2011 passed by the Village Management Committee has not been considered prior to the meeting of the Selection Committee and as such there is no illegality or infirmity in the order impugned. It is next submitted by learned Standing counsel that the petitioner has no right to be appointed as Gram Rojgar Sewak as no meeting of the Goan Sabha was held for selection of Gram Rojgar Sewak prior to the advertisement and as such the entire process pursuant to the advertisement was irregular and untenable in the eyes of law. In support of his contention has placed reliance upon the judgment of the Division Bench of this Court vide order dated 20.11.2018 passed in Writ Petition No. 54840 of 2013 ( Rajesh Bhardwaj vs. Union of India) examined the nature of employment offered to a contractual employee.

5. I have considered the arguments so raised by learned counsel for the parties and gone through the record.

6. The appointment on the post of Rojgar Sewak has not been approved by the impugned order as the resolution dated 21.10.2011 passed by the Village Management Committee has not been considered prior to the meeting of the Selection Committee and therefore, no appointment letter has been issued to him by the competent authority.

The judgment passed by the Division Bench of this Court in Rajesh Bhardwaj case (supra), the relevant paragraphs 31 to 41, which reads as under:-

"31. As we have already said that CUPGL even if taken to be a 'State' within the meaning of Article 12 of Constitution, this by itself would not mean that petitioner can claim status of a Government Servant or holding a post governed by 'status'. Nature of engagement/ appointment of petitioner is not to be governed by 'status' but by a 'contract of service' entered into between master and servant. A distinction between an appointment under a contract and status was noticed and explained by Supreme Court in Roshan Lal Tandon Vs. Union of India AIR 1967 SC 1889. Court held that when a matter is governed by status, the employee has no vested contractual rights in regard to the terms of service but where employment is purely in the realm of a simple contract of employment, it is strictly governed by terms and conditions of employment settled between the parties. To remind the difference between 'status' and 'contractual appointment', we may take up case of a Government Servant. Origin of employment in a Government department is contractual. There is an offer and acceptance in every case but once appointed to the post or office, the person appointed, i.e., Government Servant, acquires a status and his rights and obligations are no longer determined by consent of both the parties but same are governed by Statute or statutory rules which may be framed and altered unilaterally by employer, i.e., the Government. Legal position of a Government Servant, thus, is more one of 'status' than of a 'contract'. The hallmark of 'status' is that attachment to a legal relationship of rights and duties must be by public law and not by mere agreement of parties. Relationship between Government (employer) and Government Servant (employee) 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. In the language of jurisprudence, 'status' is a condition of membership of a group, whereof powers and duties are exclusively determined by law and not by agreement between the parties concerned. Thus, where appointment and conditions of service are governed by Statute, relationship of 'employer' and 'employee' is that of 'status' and not a mere contract. However, in other cases, it is purely a contract of service resulting in a relationship of ordinary master and servant.

32. In the present case also, relationship of employment between petitioner and CUPGL is purely and simply an ordinary contract of service which is not governed by any statute or statutory provision. In such cases, a contract of service cannot be sought to be enforced by Court of law by giving relief of reinstatement or continuance in employment as this relief is barred under Act, 1963."

After noticing the above principles, the Division Bench thereafter proceeded to hold as under:-

"36. The matter was again considered by a Constitution Bench in Sirsi Municipality Vs. Cecelia Kom Francis Tellis (1973) 1 SCC 409 and therein Court held that cases of dismissal of a servant fall under three broad heads. The first head relates to relationship of master and servant governed purely by contract of employment. Any breach of contract in such a case is enforced by a suit against wrongful dismissal and for claiming damages. Just as a contract of employment is not capable of specific performance similarly breach of contract of employment is not capable of finding a declaratory judgment of subsistence of employment. A declaration of unlawful termination and restoration to service in such a case of contract of employment would be indirectly an instance of specific performance of contract for personal services. Such a declaration is not permissible under the Law of Specific Relief.

37. Second category noticed by Court is where master and servant's relationship is governed by Industrial Law. In such cases, a servant, who is wrongfully dismissed, may be reinstated since Industrial Law contains special provisions and this is a departure from the reliefs available under Indian Contract Act and Specific Relief Act which do not provide for reinstatement of a servant.

38. The third category is where employment is in State or other public or local authorities or bodies created under statute. In such cases, if termination is contrary to Rules, Court can declare such termination illegal and grant relief of reinstatement for the reason that in such case, Court keeps employer within the limits of its statutory powers. The above view has been reiterated in Executive Committee of Vaish Degree College, Shamli and others Vs. Lakshmi Narain and others AIR 1976 SC 888 (paras 9, 10, 13 and 17); Smt. J. Tiwari Vs. Smt. Jawala Devi Vidya Mandir and others, AIR 1981 SC 122 (paras 4 and 5); and Life Insurance Corporation of India Vs. Escorts Ltd., and others AIR 1986 SC 1370 (paras 101, 102). Similar view has been taken by this Court also in A.K. Home Chaudhary Vs. National Textile Corporation U.P. Ltd., Kanpur 1984 UPLBEC 81; B.M. Varma Vs. State of U.P. and others 2004 (4) AWC 2866; and Vivek Kumar Mishra and others Vs. State of U.P. and others, 2008(4) ESC 2811.

39. Recently also, in Kailash Singh Vs. The Managing Committee, Mayo College, Ajmer anD others. (2018) 10 SCALE 638, where dispute related to termination of an employee of Mayo College, Court held that employment was governed by simple contract of employment and, hence, no relief of reinstatement can be granted, but employee, if wrongfully terminated, may claim damages.

40. Following the above authorities, same view has been expressed and reiterated by this Court subsequently also in State of U.P. & Others Vs. Anil Kumar Singh Yadav & Others (2013) 2 UPLBEC 1588 and Writ Petition (Writ-A) No. 36854 of 2001 (Rajesh Kumar Srivastava Vs. State of U.P. and others) decided on 09.05.2016.

41. In view of discussions made hereinabove, no relief, as sought for, can be granted to petitioners. Both the writ petitions lack merits and are, accordingly, dismissed."

7. The judgment of Division Bench has been followed in Writ- A No. 37760 of 2017 decided on 23.2.2021 (Shaijad Khan Vs. State of U.P. & Ors), wherein, this Court has clearly observed that the appointment on the post of Gram Rojgar Sewak was not an appointment to any post nor any status is conferred on the basis of such appointment and the appointment otherwise was purely in the nature of contract of personal service, which cannot be enforced. The only remedy available would be to seek damages.

8. In the facts of the present case also the appointment is being sought on the post of Rojgar Sewak. The engagement as Rojgar Sewak is purely a contractual appointment, which is regulated by the Government Order dated 23.11.2007. The said Government Order clearly provides that such appointment is for a period of one year and can be extended for a maximum term of two years. Paragraph 7 of the Government Order dated 23.11.2007 provides that the decision of the Gram Panchayat would be final in case any dispute regarding contract arises.

9. In view of the above, since the appointment claimed in this case is contractual in nature and the petitioner otherwise has not been issued any formal letter of appointment, no writ would lie for issuing an appointment letter to the petitioner.

10. The writ petition lacks merit and is accordingly, dismissed.

Order Date: 22.3.2023

Akbar