Jayashree Bijwe vs Union Of India And Ors.
1993 Latest Caselaw 201 Del

JUDGMENT

Santosh Duggal, J.

(1) The petitioner, was taken as a Senior Scientific Officer Grade-11 by the Indian Institute of Technology, (IIT for short), for the Centre known as I.T.M.M.E.C. Centre pursuant to an advertisement being No.7/86. The petitioner pleads that she held at the time a degree of M.Tech in Modem Methods of Chemical Analysis and Control from Iit, Delhi, and. that in the advertisement, referred to above, following areas for which appointment was supposed to be considered were indicated: 1.Lubricants and Lubrication. 2. Friction and wear, 3. Condition Monitoring and Maintenance Engineering. 4. Performance diagnostics and dynamics.

(2) The petitioner contends that this advertisement did not indicate that the post was of a temporary nature, and accordingly in terms of the statute of the Iit it was deemed to be in respect to a permanent post, and on that assumption, the petitioner applied, and after due selection process by a statutory Selection Committee, was selected for the aforesaid post, and was offered the same by letter dated 31.12.86.

(3) While stating, however, that this offer of appointment did indicate that the appointment would be on a temporary basis for a period of one year in the first instance; she contended that this being at variance to the terms advertised, the appointment was to be treated as on permanent basis.

(4) The petitioner contends that she was given to understand that these were standard terms of appointment, and that earlier also scientific officers who were taken on this basis, were confirmed, and that the rules of the Institute provided for confirmation of all temporary employees, and that it was not a tenure post, nor was the appointment contractual nor by way of ad hoc arrangement, and it was offered in such a manner that the petitioner either had to take it or leave it. She pleads that in face of the gross inequality of bargaining power, the petitioner had no choice but to accept the appointment assured of the fact that the rules of the Institute provided for confirmation of all temporary employees. According to the petitioner, her acceptance of the offer was put up for approval of the Chairman of the Board of Governors of Iit, and she was given appointment letter dated 16.1.87 after approval of the Chairman, formally appointing her as Sso Grade Ii, with effect from 31.12.86 (A.N.). This appointment was subsequently extended by a period of one year by Institute's Memorandum dated 2.12.87.

(5) The petitioner alleges that prior to her extension, she was given to understand that her appointment bad been justified for a special Instrument (Emission Spectrometer), but the said Instrument expected from Norwegian grant failed to arrive, but she was informed by the Head of Department Prof. O.P. Chawla that notwithstanding this position, it had been decided that she would continue .serving as Sso Ii in the Centre, and they had decided to utilise her services for other jobs, and that her regularisation would be proposed during the second year of her term according to rules. She asserted that the Head of Department had even shown her his recommendation to allay her apprehensions, and she was informed that there were a number of other sophisticated instruments for which they needed persons of the calibre of the petitioner, and it was in this background that by Memorandum dated 2.12.87, her term was extended for another one year.

(6) It is further averred in the writ petition that the said Instrument eventually arrived and was handed over to the I.T.M.M.E.C. Centre on 28.11.88, but since it was purchased from Institute's funds, it was being treated as a Central facility though lodged in Itmmec Center which, according to the petitioner, is an internal arrangement of the IIT. She pleads that during her employment, her work was duly appreciated, and as far back as in 1974, the Board of Governors had resolved that all temporary workers, including those working against non-existing posts be confirmed in accordance with the recommendations of the Sub-Committee appointed by the Board, and that this Resolution has been over the years treated as standing decision, and number of employees were confirmed against permanent vacancies, as and when those became available by treating their temporary service towards the period of probation and the confirmation was made from the date vacancy became actually available or on completion of one year's service, whichever was later, with the approval of the Director.

(7) The petitioner also placed reliance on a subsequent Resolution passed by the Board of Governors, being Resolution No.94/85, which reads as under:    "RESOLVED that the conformation of .temporary employees at the Institute, be regularised in accordance with the Government of India rules, after they had put in a minimum of one year service against available posts at the same or higher level."  

(8) The policy to accommodate all persons working with the Iit, according to her, was so unequivocally adopted by the Iit that by a subsequent Resolution No-61/86, even daily waged employees, who after 1983 had completed 240 working days each year in any block of two years were also to be treated for regularisation. The petitioner claims that her claim was on a far better footing as she had worked for about 2-1/2 years against a permanent sanctioned post after having been selected through a duly constituted Selection Committee. .   

(9) The petitioner further asserted that in January 1989, i.e. after expiry of second year of temporary employment, the Establishment Section had even initiated a special assessment process for the purpose of her confirmation, and she had filled up the Special Assessment Report, and had handed over the same to the Head of Department, copy whereof has been attached as Annexure I, but she was abruptly served with an order dated 6.3.89 to the effect that:    "SHE is hereby given notice of one month that her appointment to the post of Senior Scientific Officer, Grade Ii in the I.T.M.M.E.C. Centre shall stand terminated with effect from the 5th April, 1989 (A.N.)."  

Simultaneously her term of appointment, which bad expired on 31.12.88 (A.N.) was extended retrospectively till the 5th April, 1989.   

(10) The petitioner has challenged this termination of her services, by means of one month's notice contending that the decision taken to discontinue her services and the consequential order dated 6.3.89 was wholly arbitrary, and smacks of "hire and fire policy" resorted to by the Iit, which could not be countenanced in the present state of law, particularly when it was not the case of abolition of any post, and that the post against which she was employed was a permanent one, and further that although she had been recruited for maintenance and running of a special instrument (Emission Spectrometer), but her services were terminated, just as that instrument arrived, without assigning any reason, and without giving any opportunity of being heard. She alleges that she understands that this has been done to smoothen the way for another Sso Ii employed in a project of the Centre, and to that end some adverse remarks had been recorded by the Head of the Establishment Section which have not been conveyed to the petitioner. She states to have made a representation, on 20.3.89, appealing to the Director against this order, which was described as uncalled for, unjust, arbitrary, illegal and unconscionable, but without any success.

(11) The petitioner now prays for issuance of awrit, order or direction quashing the impugned order dated 6.3.89 whereby her services were terminated with effect from 5.4.89,and also a declaration that the petitioner was entitled to continue in service after 5.4.89, with all consequential benefits, and mandamus to the respondents not to terminate her services, and allow her to continue with effect form 5.4.89, or any other appropriate writ, order or direction that may be deemed fit on the facts and circumstances of the case.

(12) The grounds on which challenge has been made to impugned action of the respondents in terminating her services are that the post against which she was employed was a permanent post, and there was no indication that the incumbent would not be confirmed against the said post, and that although the .appointment was described temporary in the first instance, but all the other terms and conditions as applicable to permanent employees were part of the offer of appointment implying confirmation in due course, and that the petitioner was never informed that the appointment would not be treated as regular, or she would not be entitled to confirmation or that the said appointment was liable to termination, after serving for considerable period, or on the happening of a particular contingency not contemplated in the statutes, by which the appointment was to be governed. She further contends that the termination of the services was wholly arbitrary, keeping in view the resolutions of the Board of Governors, being Nos-24/74 and 94/85, particularly when the post against which she was appointed still continues, and that she should have been considered for confirmation in terms of the policy of the Institute after her satisfactory service of one year, and had it been so, the respondents would not have been entitled to terminate her services by one month's notice, without assigning any reason, and that this is a colourable exercise of power, and that there has never been any complaint or adverse note against her, and that her termination in law amounts to dismissal/removal attaching a stigma, and that the terms of appointment dictated by the Institute in the form of "take it or leave it" basis are deterimental to the employees, and are liable to be declared void and inoperative, as unconsciounable, unfair, unreasonable, arbitrary and opposed to public policy.

(13) The petitioner has also taken up an objection that termination of her services, under orders of the Director shall itself be void ab initio, as her appointing authority was Chairman of the Board of Governors, with whose approval she had been appointed.

(14) The writ petition has been contested by respondents 2 and 3 by controverting all the allegations made by the petitioner, contending that the petitioner had no right to the post against which she was appointed for a fixed term, and that her services were terminated, as being no longer required, on a proper assessment of her work, in the Centre, and that the impugned action of terminating her services was taken under orders of the Director, because he was the appointing authority, inasmuch as the post of SSO-II being non-academic, and -lower in rank than the post of Lecturer, the Director was competent to make appointment at the relevant time, in terms of section 25(b) of the I.I.T. Act., as the post of SSO-II did not fall within the category of posts contemplated under section 25(a). It was added further that the petitioner could not have any grievance on this account because her temporary appointment for the second year had been extended only under orders of the Director, and in case the petitioner alleges that he was not the appointing authority, then her very extension, after expiry of one year would be without any authority, and she had no right to continue in the post after expiry of one year.

(15) Before proceeding with the consideration and determination of the various points urged in this writ petition, and countered by the respondents, I would like to advert to certain facts, brought on record during pendency of the writ petition, as these are likely to assume relevance in the moulding of the relief that might be granted eventually to the petitioner.

(16) Sometime after the writ petition was filed, the petitioner came by an advertisement issued by the Iit in July 1989 notifying, inter alia, vacancy for a post of the,SSO Grad Ii for the Centre. The petitioner immediately moved an application before the Court being C.M.3993/89, slating that the respondents had not till that date filed a counter affidavit to the writ petition, but had in the meantime advertised for the said post, namely, that of Sso Grade Ii, in the national dailies, and that she apprehended that some other candidate will be recruited. Copy of the said advertisement was filed as Annexure I with the application. She also contended that the respondents are even advertising the work done by her as . achievements of the Institute, and annexed a document as annexure Ii in support of this contention. She, therefore, prayed that besides staying the operation of the impugned order of terminating her services with effect from 5th April 1989,the Court also stay operation of the Advertisement No.13/89,restraining appointment of any other candidate against this post of Sso Grade Ii, advertised by the respondents. The Court thereupon issued an interim order dated 13.9.89, which was modified by order dated 20.9.89 to the following effect: . "The interim order dated 13th September, 1989 is modified to the extent that the respondents will not appoint a person as Senior Scientific Officer Grade Ii in the Centre for Industrial Tribilogy, Machine Design and Maintenance Engineering, till the next date."

(17) The interim order was extended on the subsequent date, but on the case coming up for hearing on 8.12.89, when the Court issued rule in the writ petition; Mr. P.P.Rao, Senior Advocate appearing as counsel for respondents 2 and 3, Along with Mr. A. Mariaputham, made a statement at the time with reference to Cm 3993/89, to the effect that:    ".....THErespondents will offer the post of Senior Scientific Officer, Grade Ii in the Centre for Industrial Tribilogy, Machine Design and Maintenance Engineering to the petitioner, if the post is to be filled   

(18) The Court then observed that in view of the statement made; no further orders were necessary, and the application shall stand disposed of accordingly.   

(19) When the writ petition came up for hearing in due course, it was mentioned that inspite of the statement made to Court by the Senior Advocate Shri P.P.Rao, the respondents have not so far taken any steps to fill up the post, much less offer it to the petitioner, whereupon this Court by a detailed order dated 16.10.92 raised certain queries and directed the respondents to file an affidavit in that respect.   

(20) An additional affidavit has since been filed pursuant to those directions by the Assistant Registrar (legal) Iit on 28.11.92 stating that unlike other Institutions, in the Iit there bad not been fixed number of posts in any grade/level in the Centres, and that total number of posts for the Centre is fixed and sanctioned, and that the question as to how many appointments will be made in the grade/level of Professor/ CDE/PSO or Assistant Professor/SDE/SSO-I or Lecturer/Design Engineer/SSO Ii is determined from time to time depending upon the requirement of the ongoing research activities/projects in the area of specialisation, and that while making recruitment, every effort is made that different areas of specialisation required for effectively carrying out the ongoing projects are met, and the level at which such specialisation is required at any given time is also kept in view. It was also stated that in view of the Resolution Nos.BG/113/85 and BG/72/89, the Board of Governors permitted the Institute to vary the ratio at any given time while making appointments. The only restriction placed on the Institute is that while making appointments, the total sanctioned strength for any particular Department or Centre should not be exceeded.

(21) The fact of issuance of advertisement No.13 of 1989 advertising, inter alia, the post of Sso Grade Ii was admitted, but an attempt was made at explanation stating that the said advertisement mentioned certain areas of specialisation, and none of them belonged to the specialisation of the petitioner, and that at the time of issuing of the advertisement, against total sanctioned strength of 22 in the Centre, there were four vacancies, and that steps were taken up for filling up different vacancies in different areas of specialisation, and that out of the four persons selected, none of them belonged to the specialisation of the petitioner, and further that out of those four, only two joined with the resuit that two vacancies still remain, and that the next advertisement issued by the Institute for the Centre was Advertisement No.6 of 1990 dated 4.9.90, and at that time the vacancy position was five out of the 22 sanctioned strength. That advertisement called for applications only for filing up posts on the academic side, and could not apply to the petitioner.

(22) Another advertisement was referred to being Advertisement No.6/91 dated 24.6.91 which, inter alia, related to the post of Sso Grade Ii, but again the plea was that the said advertisement was for a different area of specialisation.

(23) In this setting of facts, two questions arise for consideration, namely, as to whether the petitioner has a case when she pleads that she has a right to continue after initial appointment, for one year by order dated 10.1.87 effective from 31.12.86 (AN), and whether her termination by older dated 6.3.89, with one month's notice, was liable to be set aside, on the grounds stated by her. But an independent question can still arise as to whether she had a right to be considered, and offered an appointment pursuant to the advertisements, particularly No. 13 of 1989, with reference to which senior counsel appearing for respondents 2 and 3 made a categorical statement to Court that the petitioner shall be offered appointment for this post in case the post is to be filled in.

(24) In so far as the basic question raised in the writ petition is concerned, namely, the legality or validity of order of termination, the salient features of the case are that there was no permanent vacancy in the grade of Sso Ii, in accordance with the sanctioned strength of the Centre, but petitioner was given an appointment in this grade against higher post of a Professor, in view of the flexibility principle, adopted by the Iit in terms of resolution Nos-24/74 and 94/85. In the advertisement pursuant to which selection process was initiated, namely, advertisement No.7/86, which was termed as "Announcement for Recruitment to Staff Position", in so far as the Itmmec Centre was concerned, post of Sso Grade Ii was one of the posts proposed to be filled up, and areas for which appointments were proposed to be made, were indicated as:- "(A)Lubricants and Lubrication. (b) Friction and Wear. (c) Condition Monitoring and maintenance Engineering. (d) Performance diagnostics and dynamics"

and the qualifications' required were also indicated. The advertisement, however, did not indicate whether the posts were proposed to be filled up on permanent or temporary basis.

(25) PETITIONER'S contortion is that in the absence of any indication that the posts would be filled up on temporary basis, it was to be presumed in terms of Statute 12.9 of Iit Act that it was meant to be a permanent post. This proposition is not tenable for the short reason that all that this Statute 12.9 requires is that while advertising a post to be filled in by the Iit, "the terms and conditions of the post shall be advertised by the Registrar." This would not mean necessarily that it was a statutory or a mandatory requirement for indicating in the advertisement as to whether the post was to be filled up on temporary or permanent basis, as the expression "terms and conditions of the post" have different connotations, than nature of the tenure, and even if it be assumed that this also constitutes one of the terms and conditions, even then merely because the advertisement of 1986, pursuant to which the petitioner applied, did not indicate that it was to be filled up on temporary basis, would not give rise to any presumption infavor of the candidate applying for the post that it would be treated as a permanent post.

(26) I say so, because the advertisement under reference was not specifically for the post of SSO-II but generally for posts of all levels and grades, by reason of absolute flexibility prevailing in the Iit, to the effect that incase the requirement at the given time, is of a lower level scale post, and not of the higher level; even if there is no vacancy against quota of the lower level post, the appointment could be in the lower level against the higher grade post, holding the latter in abeyance but since it is very clearly stipulated in the resolutions that the higher post would not be deemed to have been downgraded, it cannot be said that the permanent vacancy of the higher scale can be transferred to the lower scale, as the filling up of the post is only meant to be a stop gap arrangement till either the requirement is met on temporary basis or permanent vacancy becomes available in that particular grade.

(27) The petitioner, therefore, did not acquire a right to any permanent post in the scale of Sso, Grade Ii, merely for reason of omission in the advertisement to mention as to whether the tenure of the post proposed to be filled in was of a permanent nature or temporary one, in view of the clear position that there was no vacancy available against the quota for the post of Sso Grade II.

(28) The petitioner can also have no cause for grievance on the plea that she was misled into applying for this post for the short reason that the offer of appointment given to her; pursuant to her selection, by letter dated 31.12.86 was in clear and explicit terms stating that "the appointment is against a higher post and is in purely temporary capacity for a period of one year in the first instance", and further vide clause 8 under the heading, "Termination of Service",that : "during the period of temporary appointment, services are liable to termination with one month's notice in writing, given by either side."

(29) This offer of appointment thus, apart from showing that the post was being offered in a temporary capacity for initial period of one year, further conveyed categorically that the appointment was being made against a higher post with the clear implication that no permanent vacancy in the grade of Sso Ii was available at that time. It was this offer of appointment which the petitioner accepted and pursuant to which appointment letter was given, appointing her to the post of Sso Ii in the scale of 700-40-900-EB-40-1100-50-1300 with effect from 31.12.86 (AN), reiterating i that her services will be governed by the terms and conditions, as mentioned in the office letter No. 1ITD/Estt-I/2888 dated dated 31.12.86, namely, the letter containing offer of appointment.

(30) The petitioner had, thus, accepted the appointment offered to her with the clear understanding that it was being filled up on a temporary basis for a period of one year, and against a higher available post. The other terms and conditions, set out in the offer of appointment, are usual ones and become operative only when the temporary appointment matures into a permanent one, and do not by themselves carry the implication that the post was of a permanent nature, irrespective of the clear terms that it was of a purely, temporary nature, for a fixed period of one year. In terms of Statute 14 of the Iit Act, as also under established service law jurisprudence, temporary appointments are a recognised tenure, and the petitioner does not have any case when she challenges this mode of appointment as an instance of "hire and fire policy" or Henry Viii Clause or obtaining acceptance from an aspiring candidate on "take it or leave it basis" by exploiting the situation, in which the candidate is placed.

(31) I, therefore, do not find it possible to uphold the contention of the petitioner that on the facts of the case she should be treated to have been appointed against a permanent post, for the short reason that no permanent post was available in the grade to which she was appointed, and her letter of appointment pursuant to her acceptance of the offer clearly stated that the post was in temporary capacity for a period of one year.

(32) That being so, the petitioner did not acquire any right to hold the post merely by virtue of her appointment, and it is not her case that at the time her services were terminated, a permanent post in the grade of Sso Ii had become available or had fallen vacant. The resultant situation, therefore, at the time of termination of her services was that still there was no permanent post available in her grade. The question would then arise, did she have a right to insist on her continuance in temporary capacity till a permanent post became available? I do not think, so because inspite of the given practice of flexibility in terms of resolution of the Board of Governors, particularly . 94/85 essentially the sine qua non is that regularisation of a temporary employee, can be considered only if the sanctioned posts are available. Conversely, if there are no sanctioned posts, in the given grade, even the flexibility rule, as contained in the resolutions of the Board of Governors of Iit would not be of any avail to the concerned employee, and hypothetically if the work requirement, that activated temporary appointment, ceases then there can be no insistence by the temporary employee for continuance even in temporary capacity.

(33) Mr. Rohatgi laid great emphasis on the fact that in view of the existing resolutions, particularly resolution 94/85, and also the past practice in certain cases, when temporary employees have been confirmed in permanent posts after certain period of time, the petitioner could harbour a legitimate expectation that in her case too, the said practice and the flexibility rule would be adhered to, particularly when the Iit is a statutory body, and is expected to practise fair play and take decisions devoid of arbitrariness and ad hocism.

(34) Before I proceed to discuss the principle of reasonable expectation, I would like to dispose of one more objection taken up by the petitioner as to the competence of Director of Iit under whose orders/signatures the order of termination has been issued. The contention is that the appointing authority for the post of SSO-II is Chairman of Board of Governors and not the Director, and petitioner's initial appointment was made under his orders, and as such, the termination order passed by the Director was unsustainable for want of competence to do so.

(35) This contention is controverter by the respondents by denying that the appointing authority in petitioner's case was Chairman of Board of Governors and not the Director. It is explained that .the file for approval for initial appointment of the petitioner as SSO-II was submitted to the Chairman of the Board of Directors for the reason that budgetary sanction for utilising vacant post of Professor for appointing the petitioner in the lower level grade of SSO-II was required, but otherwise in the normal course the Director was the appointing authority. The appointment to the post of SSO-II, according to Mr. Jaitley, would be governed by clause (b) of section 25, for the reason that this post belonged to the category of non-academic staff, and at the relevant time the scale of pay of this post was lower than the scale of pay of a Lecturer, and that Director, in effect, was the appointing authority is also apparent from a reading of the order of extension of the temporary employment of the petitioner for another year, as the same was issued under orders of the Director.

(36) Mr. Rohatgi's contention in reply to the first submission, namely, the applicability of clause(a) or clause (b) is that the scales of the post of SSO-II have been revised on a subsequent date retrospectively, and stood equated to that of a Lecturer, and as such it was not correct to say that this post was of a pay scale lower than that of a Lecturer.

(37) I have given my careful thought to the respective contentions but I am afraid the petitioner is not on strong grounds while assailing the order of termination on the ground of lack of competence of the Director to issue the same for the reason, firstly that the respondents are right in contending that the Director was the appointing authority is apparent from the fact that order extending petitioner's temporary employment by one year was issued by him. The explanation that the initial appointment was submitted to the Chairman of Board of Governors for approval for the reason of budgetary sanction to utilise the post of a Professor for appointing a candidate against a lower level post also seems to be plausible, but otherwise also, the initial order of one year temporary appointment exhausted itself by efflux of time, with effect from 31.12.87. The right to continue therefore accrued to the petitioner only by virtue of the extension order issued, and it is while she was serving on an extended tenure as a temporary employee that impugned order of termination of her services was issued.

(38) It is, therefore, a case where the appointment that stood terminated by the impugned order had been made by the Director, and in this case it will be the Director who has to be treated to be the appointing authority. The petitioner herself stated .in her representation made after termination of her services that she had been appointed originally on an initial tenure of one year for the reason that there were no vacancies available at the junior level, and she was taken against a higher post. The order of extension issued on 2.12.87 also indicated that it had been issued with approval of the comptetent authority, and that authority was the Director, according to record, because it was under his orders that the services of the petitioner were extended for further period of one year, and it is not now open to the petitioner to challenge the order of termination on the ground of lack of competence in the Director to issue the order.

(39) I also find substance in respondents' contention that retrospective revision of scale of pay would not be of any consequence for this purpose, because at the time the orders a were issued, the scale of pay was lower than that of a Lecturer, and the post was of a non-academic nature, and thus section 25(b) appears to have been the relevant provision to govern the powers of appointment.

(40) Reliance by Mr. Rohatgi on an affidavit filed by the Director in reply to some contempt of court petition filed by another employee who had been directed under orders of the Court to be appointed SSO-II is also of no avail because the judgment of the Court itself was dated 14.1.92, and the Director's affidavit was filed subsequently. Apparently, the scales of pay stood revised by that time, and on revision of scales of pay, the pay of SSO-II was equated with that of the Lecturer, then apparently when this affidavit was filed in- May 1992, section 25(a) would have been applicable, and Chairman of Board of Governors would have been the competent authority. There is thus no contradiction in the stand taken in the present case vis-a-vis the affidavit referred to above, and as such the principle of contemporary exposition on the part of the concerned authority cannot be pressed into-service by the petitioner.

(41) Now, reverting to the plea of reasonable expectation, the question that arises is as to what is the scope of this principle of reasonable expectations that can legitimately be entertained by a person on the basis of past practices, or precedents of a public body. The area is not entirely grey, and there are certain decisions available, which enunciate guidelines within which this principle can operate.

(42) The two recent decisions, on which Mr. Rohatgi placed reliances, are in the case of Navjyoti Co-operative Group Housing Society etc, vs. Union of India and others, and Food Corporation of India vs. M/s.Kamdhenu Cattle Feed Industries, . In both these cases while laying down the principle that a public authority, which can also take within its ambit a public sector undertaking, is expected to take fair decisions, avoiding all arbitrariness and that correspondingly the employee can legitimately form an expectation that there will be non-arbitrariness in the decisions taken by the public authority, and the same would be governed by bona fide actions and fair play; but at the same time, the court recognised situations where this principle could not be extended, such as consideration of public good or there being no option for the public authority, but to act in a given case in the manner it so acted.

(43) The present is a case where the petitioner would ordinarily be justified in harbouring a reasonable expectation that in view of the resolutions of the Board of Governors, particularly Resolutions No.24/74 and 94/85, resolving that endeavor shall be made by the Iit to absorb all candidates taken even on temporary basis; but a reading of these resolutions makes it abundantly clear that it is subject to a paramount condition, namely, availability of a post . The plea of the respondents in, this case is that there was no permanent post available, at the time petitioner's term of temporary employment came to an end, and the work requirement had also ceased, and a considered decision was taken that her services were not required to be continued.

(44) Mr. Jaitley has further submitted, and rightly so, that no mala fide is attributed to the Head of Department, and other authorities, who took the decision, and that ordinarily the Court cannot interfere, and start scrutinising the work requirement of the Institute in order to examine the claim of the petitioner for continuance against a post to which, she was appointed on a temporary basis. The relevant records of the Institute in so far as they pertain to the question of initial appointment as well as noting regarding proposal as to extension were produced on direction by the Court, and have been perused by me, and I am satisfied that the issue was examined threadbare, and the decision not to give further extension to the petitioner was not taken arbitrarily, but after discussion between the concerned authorities, and eventually on the Head of Department's insistence that as on that date services of the petitioner were not required for the reason that the Spectrometer that had been anticipated to be installed in this Centre, and for maintenance whereof petitioner was specifically appointed, had since been placed at the strength of the central facilities of the Institute, and was not exclusively earmarked for the Itmmec Centre, and correspondingly there was no liability on the Centre to lookafter maintenance of the said instrument, and in any Case a junior technical hand could do this job.

(45) It is petitioner's own case in the writ petition that she was initially appointed for the reason that installation of Spectrometer was expected, and a technical hand was required to look after its maintenance etc. That being so, the report given by the Head of the Department a year earlier before the expiry of term of first year, that petitioner's services may continue, and she may have to be considered even for confirmation in due course, was in the context that Spectrometer was expected to be installed, but requirements of work exigency having changed thereafter, opinion given subsequently when the term of second year expired cannot be faulted, because that was given on the basis of situation as it then existed.

(46) It is also pertinent to note that although the petitioner has made some allegations in the writ petition that her services were terminated abruptly by giving one month's notice in order to accommodate some other person, but not only that, these were not pursued; there is no suggestion even when number of affidavits were subsequently filed that some one else had been appointed as SSO-II by the Centre after termination . of her services, for the purpose of the Spectero meter or even otherwise.

(47) In this setting of facts, petitioner's challenge to the termination of her temporary employment is not sustainable.

(48) The cases on which Mr. Rohatgi placed reliance to the effect that the provisions made by employers for termination of services of an employee by serving one month or three month's notice was not inconsonance with public policy, cannot be stretched to the present case, for the reason that those cases, namely, Central Inland Water Transport Corporation Ltd. & another vs. Brojo Nath Ganguly & another, 1986 (2)SCC278 and Delhi Transport Corporation vs. D.T.CMazdor Congress & others, , related to the cases of permanent employees, and it was in that context that the Court held that the rules providing for termination of services of a permanent employee ' by notice of a stipulated period, without any show cause notice or opportunity of hearing, were liable to be quashed. The provision for termination of services of a temporary employee by one month's notice is there in the Central Civil Services (Temporary Service) Rules, 1965, which has been adopted by the Institute also, and is not shown to have been challenged in any case. Accordingly, an employee appointed temporarily for a limited period or on ad hoc basis cannot insist on regularisation when there was no post available.

(49) Mr. Jaitley also placed reliance on the judgment of the Supreme Court in the case of Delhi Development Horticulture Employees' Union vs. Delhi Administration, Delhi and others, , that persons appointed against posts on a temporary government scheme cannot claim any right for regularisation of their service simply because of completion of 240 days or more days, when the exigency of work did not so. require, or when there were no regular posts available. Similarly, it was held in the case of Satyanarayan Sharma and others vs. National Mineral Development Corporation Ltd. and others, , that in the absence of any vacancy for absorption and regularisation, claim of regularisation of certain employees, employed as daily rated workers, could not be entertained because the necessary condition was that there should be a vacancy available for them.

(50) The case reporter as Kumari Shrilekha Vidyarthi and others vs. State of U.P. and others, , on which Mr. Rohatgi placed strong reliance/is wholly distinguishable, because there the term of persons appointed as District Government Counsel was abruptly terminated en bloc without assigning any reason, and it was then that it was held that the action was invalid, arbitrary and irrational. It was further held that independent of any statutory rights available to the appointees, and even if the rights had flowed only from the contract of appointment, the impugned circular issued in exercise of the executive power of the State must satisfy Article 14 of the Constitution, and if it is shown to the contrary, action must be struck down.

(51) The ratio of that decision would not be attracted to the present case because that was an instance of arbitrary exercise of the executive powers of the State, and not relating to ordinary service matters. It was held on the other hand by the Supreme Court in the case of State of Uttar Pradesh and another vs. Kaushal Kishore Shakla, , that termination simplicitor in terms of contract of service, and rules of ad hoc or temporary service, could not be held to be invalid, simply because action had been taken without show cause or hearing.

(52) Mr. Jaitley also relied on a decision of the Supreme Court in the case of State of Punjab vs. Jagdip Singh and others, , in support of his contention that in the absence of substantive vacancies, there could be no confirmation or extension of temporary service.

(53) The same principle was enunciated in the case reported as Dr.Keshav Ram Pal, Reader and Head of Sanskrit Department and Offg. Principal, Lajpat Rai Post-Graduate College, Sahibabad, Distt. Ghaziabad, U.P., vs. U.P. Higher Education Services Commission, Allahabad and others, , where while holding that persons taken on employment even as casual workers, could not be denied certain benefits, simply because they had accepted the employment with full knowledge of the. disadvantage, but even then it was-held that in the absence of sanctioned posts, for the present they could not be regularised.

(54) In view of the aforesaid, petitioner's plea for a right of continuance in service on the expiry of extended year of temporary employment on the ground that the resolutions of the Board of Governors of the Institute provided for absorption of such employees, as far as possible, and in view of the past practices where flexibility had been observed, cannot be entertained for the reason that these resolutions were subject to the condition, as already noticed, of the sanctioned post being available, and in view of the clear position shown by the respondents that at the time the question of continuance of petitioner's service came up, there was no vacant post of SSO-II, and further that the work requirement at the relevant time did not necessitate continuance of the ad hoc arrangement by continuing the post against a higher post on temporary basis.

(55) As a result, petitioner's writ for quashing of the order of the order of termination of service effective from 5.4.89, and for mandamus that she should be confirmed in the post of the SSO-II, without any break, cannot be allowed. But the question nevertheless remains as to whether the respondents are justified in persistently denying appointment to the petitioner inspite of the vacancy now being available, as advertised by them in July-August 89, being Advertisement No. 13/89 notifying, inter alia, the post of Sso Grade Ii, with one of the specifications being 'Tribology' as well as 'Materials related Tribology' and 'Tribological Design'.

(56) It has already been noticed in earlier part of this judgment, on petitioner's approaching the Court, by means of Cm 3993/89, during hearing whereof Shri P.P.Rao, Senior Counsel for respondents 2 and 3 made a statement to Court that has also been extracted in the foregoing portion.

(57) This statement, in my considered view, is in the nature of an undertaking to the Court for filling up this advertised post of SSO-II,only by appointing the petitioner as and when the post was .to be filled in.

(58) The explanation now is that there was no vacancy in the field of specialisation of the petitioner. This seems to be an after-thought because no such plea was put foward at the time of hearing of Cm 3993/89. It is an undisputed fact that the petitioners area of specialisation is the subject of 'Lubricants and Polymer Tribology', as notified by the respondents in the Prospectus for the year 1988-89 placed as Annexure R-IV on record, and that subject of Tribology was one of the specifications notified for the post of SSO-II vide Advertisement No.13/89. It is also on record, as evidenced by Annexure Ii of this application, that the petitioner has been working on various projects relatable to her subject of Tribology, and other specialisations, and her work was not found necessarily to be linked with the maintenance of the Spectrometer, particularly in view of the fact that Spectrometer was received and installed long after the appointment of the petitioner, and not even during the one year, where after she was given extension, and there is clear unmistakable indication that her services were utilised in areas other than mere maintenance of the Spectrometer.

(59) In, face of this established position, the analogy of the decision in the case of J.Rangaswamy vs. Government of Andhra Pradesh and others, , that the Court was not competent to go into as to what qualifications were essential for a given post is not available, because present is a case where the issue before the Court is not one of opinion, as to whether the petitioner possesses the qualification or specialisation for the post advertised, but a question of fact as to whether the specifications indicated in the advertised post also pertain to petitioner's specialisation. Since, as already noted, the petitioner possesses necessary specialisation in the study of Tribology, and also in view of the unequivocal statement made by the learned Senior Advocate that the petitioner will be offered this post as and when it is filled up, without qualifying it with any reservation that there was no vacancy in the area of specialisation of the petitioner, the petitioner, has to be held to be possessing the qualifications, as included in the specifications contained in the advertisement. She had already gone through the selection process by a duly constituted Selection Committee. She worked for more than two years in the Centre as SSO-II, and it is respondents' own plea that there was no complaint against her working or performance.

(60) I am aware that ordinarily no mandamus, directing appointment ought to be issued, and the directions, at best, can be for consideration of a candidate, for a given post, but in view of the facts stated above, it is a fit case where mandamus can justifiably be issued directing respondents 2 and 3 to appoint the petitioner in the post of SSO-II, advertised by Advertisement No.13/89, which post has not till date been filled up, and currently there is also a vacancy for the post of SSO-II.

(61) Accordingly, while disallowing other prayers of the petitioner, I hereby direct respondents 2 and 3, to appoint the petitioner to the post of SSO-II in the Itmmec Centre within, a period of two months from today.

(62) No order as to costs.