Bombay High Court
Kalpesh S. Mandlik And Another vs State Of Maharashtra, Thr. Maha. Rail ... on 28 August, 2024
Author: Nitin W. Sambre
Bench: Nitin W. Sambre
2024:BHC-NAG:9604-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 2484 OF 2024
1. Shri. Kalpesh S. Mandlik,
Age 37 yrs, Occ. Service,
R/o.2, Aradhana Nagar,
House No. 2698/2, Mayur Peth,
Kharbi Road, Nagpur 440 034
Tahsil and District Nagpur Maharashtra.
2. Shri Yogesh Funde,
Age 35 yrs, Occ. Service,
R/o. Bazar Chowk, Salekasa,
District Gondia, Maharashtra. ......PETITIONERS
...V E R S U S...
1. State of Maharashtra,
through Maharashtra Rail Infrastructure
Development Corporation Ltd.
A Joint Venture of the Government of
Maharashtra and Ministry of Railways,
Through its Assistant Manager,
HR Department, Office at 2nd Floor,
Hoechst House, Nariman Point,
Mumbai 400 021 (Maharashtra State)
E-mail : [email protected]
2. Maharashtra Rail Infrastructure
Development Corporation Ltd.,
through its Group General Manager,
Office at 3rd Floor, Girish Heights,
Opposite VIMS Hospital, Sadar,
Nagpur 440 001 (Maharashtra State).
3. Human Resources (HR) Department,
Through its Assistant Manager,
Maharashtra Rail Infrastructure
Development Corporation Ltd.,
2nd Floor, Hoechst House,
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Nariman Point, Mumbai. 400 021
(Maharashtra State)
E-mail : [email protected] .....RESPONDENTS
---------------------------------------------------------------------------------------------
Mr. Y.R. Kinkhede, Advocate for the petitioners.
Mr. S.P. Dharmadhikari, Senior Advocate a/b Mr. U.P. Dable, Advocate for
Respondent No.1.
---------------------------------------------------------------------------------------------
CORAM:- NITIN W. SAMBRE &
ABHAY J. MANTRI, JJ.
CLOSED FOR JUDGMENT ON : 18.07.2024
JUDGMENT PRONOUNCED ON : 28.08.2024.
JUDGMENT (Per: Abhay J. Mantri, J.)
Rule. Heard finally with the consent of learned counsel
for the parties.
2. The petitioners have invoked the writ jurisdiction to
challenge the notices dated 20.03.2024 issued by respondent No. 3,
thereby rescinding the petitioners' contract prior to the completion
of the contractual period of their services.
3. The brief facts of the case are that the petitioners were in
employment with respondent Nos. 1 and 2. Respondent No. 1
appointed petitioner No. 1 on 14.01.2019 on the post of Senior
Executive (Civil) on a contract basis for a period of three years w.e.f.
14.01.2019, extendable up to 5 years. The contract period was to
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expire on 13.01.2022. Likewise, petitioner No. 2 was appointed on
01.08.2019 on the post of Executive (Civil) on a contract basis for a
period of three years, and the contract period was to expire on
30.07.2022, which was extendable up to 5 years. Clause 10 of the
said appointment letters deals with the termination of services.
Thereafter, respondent No.1 issued a promotion/extension letter in
favour of the petitioners on 09.01.2024 and 20.04.2021. According
to the letters, petitioner No. 1 was promoted to Assistant Manager
(Civil), and his contract was extended till 12.07.2024. Likewise,
petitioner No. 2 was promoted from E.O. to E-1 Grade, and his
contract period was extended up to 31.07.2024.
4. However, vide email/communications dated 20.03.2024,
respondent No.1 surprisingly terminated the petitioners' services in
view of clause 10 of the appointment letters prior to the completion
of the contractual period. Hence, the petitioners are before this
Court by way of this petition.
5. Respondent No.1 filed a reply and contended that the
petitioners were appointed on a contract basis for a specific role.
After completing their role, the contract has been rescinded by
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giving a month's notice in terms of clause 10 of the appointment
letters. Therefore, the petitioners are not entitled to claim the relief
as claimed. It is further averred that the said project is to be
completed by the end of 2024. Therefore, rescinding the
petitioners' contract was taken in the organisation's interest; thus,
no illegality was committed by issuing the impugned notices.
Further, without admitting any of the contentions raised by the
petitioners and with a view to end the litigation, respondent No. 1
was inclined to complete their contractual period but not for any
further period after that. The petitioners have no right to claim
continuity till the appointment of a regular employee in view of
their contractual appointment. Therefore, the said contention in
that regard is devoid of merit and categorically opposed by the
respondents. Lastly, it is averred that the Executive (Civil) and
Senior Executive (Civil) are not of regular sanctioned posts, so a
question of regularisation of their services does not arise. Hence, the
respondent prayed for the dismissal of the petition.
6. Mr. Kinkhede, the learned counsel for the petitioners, has
drawn our attention to clause No.10 of the appointment letters and
argued that respondent No.1 could terminate the services of the
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petitioners on the ground of 'indiscipline, insubordination,
misconduct, unsatisfactory performance or breach of any terms and
conditions of the appointment letter', else they were not empowered
to terminate the services before completion of the contractual
period. He has also taken us through the termination order and
canvased that no reason has been assigned to the termination order;
therefore, issuance of an impugned termination order is illegal and
bad in law. Consequently, he urged to quash and set aside the
impugned notices.
7. To buttress the contentions, he has relied upon the law
laid down in the case of Secretary, State of Karnataka and Others Vs.
Umadevi (2) and Others, [(2006)4 SCC 44]; Gridco Limited and Another
Vs. Sadananda Doloi and Others, [(2011)15 SCC 16; K. Ragupathi Vs.
State of Uttar Pradesh and Others, [(2022)6 SCC 346; State of Haryana
and Others Vs. Piara Singh and Others, [(1992)4 SCC 118] . He pointed
out paragraph Nos. 45 to 47 in the case of Secretary, State of
Karnataka and Others (supra) and argued that in view of the law
laid down in the aforesaid case, termination of the services of the
petitioners by respondent No.1 is bad in law and liable to be set
aside. He also submitted that the petitioner be permitted to
continue as long as the scheme continues or until the respondents
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complete the regular recruitment process.
8. Per contra, Mr. S.P. Dharmadhikari, the learned Senior
Counsel for respondent No. 1, strenuously argued that the
petitioners were appointed on a contractual basis and, therefore,
after the expiry of the contractual period, they are not entitled to
claim continuity in service. The learned Sr. Counsel further submits
that respondent No.1 has terminated their contract. Therefore, the
petitioners are not entitled to claim for further extension beyond the
contractual period or till the regular appointment is made. Hence,
he urged for the dismissal of the petition.
9. We have appreciated the rival contentions of the parties,
gone through the record and the citations relied upon by the
learned counsel for the petitioners.
10. It is pertinent to note that vide impugned
Email/Communication dated 20.03.2024, respondent No. 1
rescinded the services of the petitioners from 19.04.2023, i.e. prior
to the completion of their contract period.
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11. That being so, the petitioners approached this Court and,
vide order dated 12.04.2024, obtained the interim protection as per
clause 4 of the order, which reads thus:
"4. In view of the fact that the term of the
petitioners is yet to expire, there shall be a status
quo as on today".
12. It is to be noted that as per the order of extension of
contractual services, the services of petitioner No. 1 were extended
up to 12.07.2024 and of petitioner No. 2 up to 31.07.2024 and both
the period expired during subsistence of interim order dated
12.04.2024. Moreover, respondent No. 1, in paragraph No. 6 of the
reply, categorically averred that the respondent is inclined to permit
the petitioners to complete their contract period. We would like to
reproduce paragraph No. 6, which reads thus:
"6. However, without admitting to any of the
contentions raised by the petitioners, and with a
view to end the present litigation, the answering
respondent is inclined to let the petitioners complete
their contract period with the Corporation, but not any
further. It is submitted that the petitioners do not
possess any right to continue with the answering
respondents beyond their contract period; they are
purely contractual employees. Their appointment
order also makes the said position very clear."
13. Considering the extension letters /order and paragraph
No. 6 of the reply and facts of the case, it is evident that the
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petitioners have completed their extended period of services during
the pendency of the petition. The only question remains " whether
the impugned notices issued by respondent No.1 to the petitioners
are legal or not." In this regard, we would like to reproduce the
contentions in the legal notices as under:
"In terms of clause No. 10 of your Appointment Letter
No. MRIDC/HR/Posting dated 14.01.2019. You are
being given one month's notice for rescinding your
contract employment with MRIDC.
You are requested to kindly hand over
the SIM and other company assets, if any, provided
by the MRIDC during your services before or on the
last working day. i.e. 19.04.2024 (AN)."
Likewise, we reproduce clause 10 of the appointment
letters dated 14.01.2019 and 01.08.2019 of the petitioners as
under:
"10. MRIDC reserves the right to terminate your
services at any time on the grounds of indiscipline,
insubordination, misconduct, unsatisfactory
performance or breach of the terms and conditions
of this letter by giving one month's notice or
without any notice on payment of one month's
salary in lieu of notice".
14. A perusal of clause 10 reveals that respondent No.1 has
the right to terminate the petitioners' services at any time on the
grounds of indiscipline, subordination, misconduct, unsatisfactory
performance or breach of any of the terms and conditions of the
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appointment letter only. However, in the impugned termination
notices/orders, respondent No.1 has not assigned any reason for the
termination of services of the petitioners but only mentioned that in
terms of clause 10 of the letter, their services have been terminated.
In fact, as per clause No. 10, the right to terminate the petitioners'
services by respondent No.1 has accrued only after violation of the
conditions/terms mentioned therein. However, without assigning
any grounds/reasons or giving an opportunity for a hearing, the
petitioners' services have been terminated before the completion of
the contractual period. Hence, in our opinion, the issuance of the
said notices is illegal and bad in law and is liable to be quashed and
set aside.
15. Furthermore, the petitioners also claim that after the
contractual period is completed, they may be permitted to continue
to work on their respective posts until the respondents carry out the
regular selection process. It is pertinent to note that the petitioners'
services were on a contractual basis and were not on a regular basis
to claim continuity beyond the contractual period. It is to be noted
that the petitioners have accepted the employment on a temporary
basis. Therefore, permitting them to claim continuity in services
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would not be proper. If the petitioners are permitted to continue in
service, then it would create another mode of public employment,
which is not permissible. In such circumstances, the petitioners
cannot invoke the theory of legitimate expectations for being
continued in the services without following due process of law.
Respondent No.1 categorically stated that both posts were not
sanctioned, so the question of regularisation did not arise.
Moreover, respondent No.1 averred that the project will be
completed by the end of 2024. In such an eventuality, the
petitioners are not entitled to claim continuity in service.
16. At the same time, we cannot lose sight of the fact that if
the project/scheme continues and if the respondent intends to
replace the petitioners by appointing new candidates on an ad hoc
basis, in these circumstances, in our opinion, the petitioners have a
preferential right to claim continuity in service until the
appointment of a regular employee is carried out by following due
process of law.
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17. In the aforesaid background, we deem it appropriate to
pass the following order:
i) The petition is partly allowed.
ii) The impugned termination orders/notices dated
20.03.2024 at Annexure No. 6 are hereby quashed and
set aside.
iii) Needless to clarify, if the project/scheme continues
and respondents intend to replace the petitioners by
appointing a new ad-hoc employee, in that eventuality,
the petitioners are entitled to claim continuity in the
services until the respondents initiate a regular
appointment process, in accordance with the law.
18. The petition stands partly allowed in the afore-stated
terms. No order as to cost.
(ABHAY J. MANTRI, J.) (NITIN W. SAMBRE, J.)
R. Belkhede,
Personal Assistant
Signed by: Mr. R. S. Belkhede
Designation: PA To Honourable Judge
Date: 28/08/2024 17:08:38
