Mr. Krishna Behari Lal Bhatnagar vs Commissioner, New Delhi ...
2001 Latest Caselaw 235 Del

ORDER

Dr. Mukundakam Sharma, J.

1. Challenge is made in this writ petition, filed by the petitioner, to the order dated 26th March, 1999, passed by the respondent No. 1/NDMC terminating the services of the petitioner as Part-time Stenography Instructor and further stating that the petitioner could not be given any scope of future employment in NDMC. The petitioner has sought for issuance of a direction to the respondent/NDMC to take back the petitioner in service as Part-time Instructor Stenography (Hindi) and also to regularise the services of the petitioner and to pay the enhanced remuneration of Rs. 4455/- per month as is being paid to similarly situated part-time Instructors.

2. The petitioner was appointed as Hindi Stenographer Instructor on contract basis at a fixed emoluments of Rs. 1,000/- per month by order dated 15th February, 1994 and he was posted to the Women's Technical Institute run by the NDMC. A copy of the said order is placed on record. It indicates that under the orders of the Administrator, the petitioner was engaged as Hindi Stenographer Instructor on contract basis at a fixed emoluments of Rs. 1,000/- per month up to the period ending on 31st March, 1994. The said order further stated that the appointment was purely on temporary basis and would automatically come to an end on the expiry of the said term i.e. on 31st March, 1994 and that the said appointment would not confer any claim for regular appointment in NDMC.

3. It is stated in the petition that the said service on contract basis was extended from time to time. It further transpires from the records that an advertisement was taken out by the respondents for filling up the vacancy in the post of Craft Instructor (Hindi Stenography). In response to the said advertisement the petitioner submitted his application. It was also submitted that the petitioner submitted several representations for increasing his remuneration to Rs. 3,500/- per month which is being paid to similarly situated part-time teachers working in other vocational institutions. It is further stated that by letter dated 26th March, 1999, not only the services of the petitioner was terminated with immediate effect but, it was ordered by the respondents that the petitioner would not be given any scope of future employment in NDMC.

4.The respondents filed a counter affidavit contending, inter alice, that the appointment of the petitioner to the post of Part-time Hindi Stenography Instructor was on contract basis. It is further stated that the trade of Hindi Stenography was granted affiliation in July, 1994 and prior to the said date, 11 posts of instructors were created by the respondent/NDMC through Resolution No. 36 dated t March, 1991 to cater to the training requirements of the other trades excluding the Hindi Stenography. It is stated that all the aforesaid posts of Instructors were duly filled in before July, 1994 and pending the creation of a new post of Instructor for imparting training in Hindi Stenography and framing of recruitment rules for the said post, the NDMC decided to temporarily appoint a Part time Hindi Stenography Instructor on contract basis and accordingly the petitioner who offered his services to serve as a part time Hindi Stenography Instructor was engaged for a Period of 45 days initially on 15th February, 1994 ending on 31st March, 1994. It is stated that as the creation of post and framing of recruitment rules for the post of Hindi Stenography Instructor got delayed, the services of the petitioner were allowed to be extended from time to time on the basis of his own request, but all on contract basis.

5. It is further stated that there is no regular post in the nomenclature of Part-time Instructor in Hindi Stenography, nor any recruitment rules have been framed by the respondents for the said post but there is a post of Craft Instructor (Hindi Stenography) which is governed by the recruitment rules applicable to be Craft Instructor. As per the said recruitment rules, all the posts of Craft Instructor are required to the filled up through 100% promotion from amongst junior and senior Social Education Teachers having 5 years combined service in the cadre. In terms of the recruitment rules, the respondent/NDMC notified the post of Craft Instructor (Hindi Stenography) to the Delhi Subordinate Services Selection Board vide letter dated 22nd July, 1998 in which the petitioner was also a candidate. It is further stated in the additional affidavit filed by the respondents that subsequent to the same, the selection process for filling up the said post of Craft Instructor (Hindi Stenography) was finalised and one person, Shri Rajneesh Rana, has been selected for the post of Craft Instructor (Hindi Stenography) and a copy of the selection letter dated 13th January, 2000, selecting the said person is placed on record. It is also indicated that the petitioner could not be selected for the said post.

6. In the light of the aforesaid pleadings of the parties, I have heard the learned counsel appearing for the parties.

7. It is submitted by the counsel appearing for the petitioner that the petitioner having put in about 5 years of continuous services, the petitioner should have been regularised in the said post. Counsel for the petitioner also submitted that the petitioner submitted several representation to pay enhanced remuneration to him as is being paid to other Instructors. The said representations were not considered by the respondents and, therefore, there should be a direction to the respondents to pay higher remuneration to the petitioner on the basis of the principle of `equal pay for equal work'.

8. I have also heard the learned counsel appearing for the respondents who while refuting the submissions of the learned counsel appearing for the petitioner submitted that the petitioner cannot be regularised in the post of Hindi Stenography Instructor as there is no such post of Part-time Instructor in Hindi Stenography. He also submitted that so far the post of Craft Instructor (Hindi Stenography) is concerned, the same is a regular post governed by the recruitment rules and for the said post, an advertisement was made and applications were invited and a selection process was held in accordance with the provisions of the recruitment rules in which the petitioner could not be selected and, therefore, the petitioner cannot have any grievance.

9. In the light of the aforesaid submissions of the learned counsel appearing for the parties, let me scrutinise the records and give my decision on the issues raised.

10. The appointment of the petitioner was to the post of Hindi Stenographer Instructor. The said appointment as is indicated from the order dated 15th February, 1994, was on contract basis for a fixed period. The reason for giving extension to the petitioner in the said post has been explained by the respondents in their counter affidavit. It is also on records that there is no regular post in the nomenclature of Part-time Instructor in Hindi Stenography. It is admitted in the counter affidavit that there is a post of Craft Instructor (Hindi Stenography) which is governed by the recruitment rules and in terms of the provisions of the recruitment rules the said post was advertised in respect of which the petitioner was also an applicant but, in the selection process he was not selected. The petitioner having appeared in the selection process and he having not been found suitable for the said post and one Shri Rajneesh Rana having been selected for the said post of Craft Instructor (Hindi Stenography), no relief could be granted to the petitioner as is sought for in this petition, to take him back in service of the respondents.

11. The last contract appointment of the petitioner was issued on 1st February, 1999 extending the term of part time appointment of the petitioner for three months beyond 31st December, 1998 on the existing terms and conditions of his appointment. By the virtue of the said order, the service of the petitioner was extended up to 1st March, 1999 and thereafter the service of the petitioner was terminated under letter dated 26th March, 1999. Therefore, as of today the petitioner is continuing in service pursuant to the interim order passed by this Court. When the post of Craft Instructor (Hindi Stenography) is now filled up through the regular process of selection by appointing the selected candidate, therefore, the petitioner has to make way for the said person to be appointed.

12. The petitioner was appointed on contract basis in the post of Part-time Shorthand Instructor (Hindi) for a specified period de hors the rules and in that view of the matter termination of the service of the petitioner in order to fill up the post of Craft Instructor (Hindi Stenography) by a duly selected candidate must be held to be valid. In this connection, reference may be made to the decision of the Supreme Court in Dr. Kishore Vs. State of Maharashtra and others; reported in (1997) 3 Supreme Court Cases 209. The facts of the said case appear to be similar to the facts of the present case. In the said case also the petitioner had no right to the post and as soon as a duly selected candidate was posted in his place, he has to make way for the duly selected candidate.

13. So far the contention of the petitioner that the petitioner should be paid enhanced remuneration on the principle of `equal pay for equal work' as is being paid to similarly situated persons like the petitioner is concerned, the same is also found to be without merit for the petitioner was appointed on contract basis from time to time on fixed emoluments. The petitioner accepted all the aforesaid appointments without any protest nor he agitated the same before any appropriate forum before the order of termination was issued against the petitioner. When the petitioner with his eyes open accepted the appointments on fixed emoluments, he cannot resile from the accepted position and seek for payment of higher emoluments as is being paid to other Instructors who were appointed on regular basis, as is stated in the counter affidavit. The initial appointment of the petitioner was de hors the rules and, therefore, he cannot claim equal treatment to that of those persons who were regularly appointed Instructors.

14. Another contention of the counsel appearing for the petitioner was that by the impugned order, the respondents have put a total ban on the future employment of the petitioner in NDMC. In this connection, reference may be made to the aforesaid stipulation in the said order:-

"Further, he will be given any scope of future employment in NDMC."

In my considered opinion, this stipulation in the order amounts to putting a total ban and prohibition on the future appointment of the petitioner in NDMC. In case a vacancy arises in respect of which the fulfills the qualification and criterion, the petitioner petitioner has a vested right to make an application and also has a right to be considered for appointment to the said post. No such ban as sought to be put by the respondents prohibiting the petitioner from getting any future employment in NDMC, can be imposed. The said part of the order, in my considered opinion, is illegal and is liable to be set aside. The impugned order is clearly divisible. By the first part the service of the petitioner was terminated and by the second part the aforesaid ban was imposed. The order terminating the service of the petitioner is held to be valid whereas the latter part of the order putting prohibition and ban on the petitioner getting future employment in NDMC stands quashed.

15. The writ petition stands disposed of in terms of the aforesaid order with the observations and directions made therein. The interim order stands vacated. Pending applications stand disposed of accordingly. There shall be no order as to costs.