Anand Prakash Sharma vs Maharaja Agrasen College & Ors.
2009 Latest Caselaw 804 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          WP (C) Nos. 5425/2000


%                                      Judgment delivered on: 13.03.2009


Anand Prakash Sharma                       ...... Petitioner
                   Through: Mr. Rajehswar Gupta, Adv.

                           versus


Maharaja Agrasen College & Ors.                  .... Respondents
                   Through: Mr. Amit Kumar, Adv.

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1.       Whether the Reporters of local papers may               Yes
         be allowed to see the judgment?

2.       To be referred to Reporter or not?                      Yes

3.       Whether the judgment should be reported
         in the Digest?                                          Yes


KAILASH GAMBHIR, J. (Oral)

*

1. By this writ petition filed under Articles 226 and 227 of the

Constitution of India the petitioner seeks quashing and setting aside

of the verbal termination order of respondent No. 1 being illegal and

arbitrary and in violation of the fundamental rights of the petitioner.

The petitioner also seeks directions to direct the respondents to take

the petitioner back on his duty with continuity in service, without any

break and with full backwages till the date of reinstatement.

2. Brief facts of the case as set up by the petitioner in the present

case are:-

3. The petitioner appeared in the Tenth examination from the

Madhyamik Shiksha Parishad, Uttar Pradesh in the year 1990 and

successfully passed the same in Second Division. Thereafter the

petitioner got himself registered with the Employment Exchange,

Curzon Road, New Delhi vide registration No. DC/3117/93. Having

come to know that there are some vacancies lying vacant for the post

of Junior Assistant in the office of respondent No. 3, the petitioner

applied for the same. Along with the application, the petitioner also

enclosed a copy of the matriculation certificate issued by the

Madhyamik Shiksha Parishad, Uttar Pradesh. On the basis of the said

application as well as Matriculation Certificate, the petitioner was

called for the typewriting/computer test and on qualifying the same,

he was called for viva voce in which also the petitioner also came

successful. Thereafter, the petitioner was appointed as Junior

Assistant cum Typist in the basic pay of Rs. 950/- in the pay scale of

Rs. 950-1500 on 5th September, 1997 for a period of three months.

Thereafter, vide letter No. MAC/97-98/959 dated 4th December, 1997,

the services of the petitioner were dispensed with effect from 4th

December, 1997 (afternoon). Thereafter vide letter No. MAC/97-

98/967 dated 6th December, 1997, the services of the Petitioner were

dispensed with effect from 4th December, 1997 (Afternoon).

Thereafter, vide letter No. MAC/97-98/967 dated 6th December, 1997,

the petitioner was again appointed as Junior Assistant cum Typist for

a period of three months from 6th December, 1997. Vide letter No.

MAC/97-98/1155 dated 5th March, 1998, the services of the Petitioner

were dispensed with after completion of three months with effect

from 5th March, 1998 Afternoon. The petitioner was again appointed

as Junior Assistant cum Typist for a further period of three months

with effect from 7th March, 1998 vide letter No. MAC/97-98/1710.

Thereafter vide letter No. MAC/98-99/218 dated 6th June, 1998, the

services of the Petitioner were dispensed with effect from 6th June,

1998 Afternoon. Vide letter No. MAC/98-99/220 dated 8th June, 1998,

the petitioner was issued with an offer of appointment for a period of

three months for the post of Junior Assistant cum Typist. Thereafter,

vide letter No. MAC/98-99/415 dated 7th September, 1998, the

services of the petitioner were dispensed with effect from 7 th

September, 1998. Vide letter No. MAC/98-99/420 dated 9th

September, 1998, the petitioner was offered an appointment for the

post of Junior Assistant cum Typist with effect from 9 th September,

1998 for a period of three months. Thereafter vide letter No.

MAC/98-99/831 dated 8th December, 1998 the services of the

petitioner were dispensed with effect from 8th December, 1998 After

noon. Thereafter after a day's break, the petitioner was again

appointed as Junior Assistant cum Typist for a further period of three

months with effect from 10th December, 1998 vide letter No. MaC/98-

99/836. Thereafter, after completion of three months, the services of

the petitioner were dispensed with effect from 23 rd February, 1999

vide letter No. MAC/98-99/1016A dated 22nd February, 1999.

Thereafter again vide letter No. MAC/99-2000/59 dated 5th April,

1999, the petitioner was appointed as Junior Assistant cum Typist for

a period of three months with effect from 5th April, 1999. As usual,

the services of the petitioner were dispensed with after completion of

three months with effect from 3rd July, 1999 Afternoon vide letter No.

MAC/1999-2000/874 dated 3rd July, 1999. Thereafter with effect from

5th July, 1999, the petitioner was given an appointment for a period of

three months as Junior Assistant cum Typist vide letter No.

MAC/1999-2000/275 dated 5th July, 1999. Before completion of three

months on 5th October, 1999, the petitioner was asked by the

Principal, Maharaja Agrasen College, not to sign the Attendance

Register and was made to work for one week from 11th September,

1999 to 11th September, 1999 on which date he was asked not to

come any more by virbal direction. Aggrieved with the said verbal

order of termination of services the present petition has been

preferred by the petitioner.

4. Mr. Rajeshwar Gupta, counsel appearing for the petitioner

submits that the petitioner was appointed on the post of Junior

Assistant-cum-typist w.e.f. 5th September, 1997 for a period of three

months and thereafter except for some artificial breaks he remained

in service on the said post till 5th October, 1999. On 5th October, 1999

the petitioner was verbally asked by the Principal of respondent No. 1

not to sign attendance register, but was still made to work till 11th

October, 1999. Mr. Rajeshwar Gupta, counsel further submits that the

petitioner was appointed against a sanctioned vacancy for the post of

Junior Assistant-cum-Typist and he was even granted regular pay

scale of Rs. 3050-75-3950-80-4590 as would be evident from the letter

dated 9th September, 1998. Counsel further submits that although a

regular vacancy against a sanctioned post existed with respondent

No.1, but still as a ploy the petitioner was being given temporary

employment for three months period each with artificial breaks and

such conduct on the part of respondent No. 1 would show that

deliberately the petitioner was deprived to be appointed on

permanent basis against the regular vacancy. Counsel thus submits

that such action on the part of respondent No.1 is not only arbitrary,

but blatant violation of the fundamental rights of the petitioner

besides being in violation of the principle of natural justice. Counsel

for the petitioner further submits that the petitioner had worked for

more than 240 days and therefore, he is also entitled to protection

under Section 25F of the Industrial Disputes Act and admittedly the

respondent had not followed the mandate of Section 25F of the

Industrial Disputes Act before terminating the petitioner from his

service. Counsel for the petitioner further submits that a detailed

representation was sent by the petitioner vide representation dated 1 st

November, 1999, but he was informed that further engagement was

not given to the petitioner on account of the fact that he had

submitted forged certificate of matriculation. Counsel for the

petitioner further submits that prior to this the respondent never

raised such complaint against the petitioner rather there was no

complaint of any nature whatsoever against the petitioner during his

entire tenure of service. In support of his arguments counsel for the

petitioner placed reliance on the following judgments:-

1. Management of M.C.D. vs Prem Chand Gupta & Anr. 1999

X AD (S.C.) 371.

2. Dinesh Kumar Himatlal Nimavat vs State of Gujarat and

Anr. 1998 (1) SLR 84

3. The Zilla Parishad, Nagpur and Anr. Vs Moreshwar S/o

Vithobaji Mendhekar and Anr. 2004 Lab. I.C. 2505

4. V. Jayaramaiah and Anr. Etc. etc. vs Director, Sri

Venkateswara Institute of Medical Sciences, Tirupati 2004 (7)

SLR 311

5. Haryana Financial Corporation vs Presiding Officer 2004

Lab I.C. 4387

6. Div. Manager, New India Assurance Co. Ltd. vs A.

Sankaralingam Civil Appeal No. 4445/2006 dated 3.10.2008

7. Ratanlal and Ors. Vs State of Haryana and Ors. AIR 1987

SC 478.

5. Counsel for the petitioner has specifically drawn attention of this

Court to the judgment of the Apex Court passed in Civil Appeal No.

4445/2006 dated 3.10.2008 to support his argument that even a part

time employee is entitled for protection under Section 25F of the

Industrial Disputes Act.

6. Refuting the said submissions, counsel for the respondents on

the other hand submits that respondent No. 1 is a college of

University of Delhi, which is a statutory body created under the Delhi

University Act. It is further submitted by the counsel that in order to

carry out the function of the college, some time it becomes necessary

to engage various employees on temporary/ad hoc basis till the time

the regular appointments under the rules and regulation are made.

The contention of the counsel for the respondent is that the petitioner

was one such employee who was appointed purely on temporary/ad

hoc basis from time to time pending regular selection. Counsel for the

respondent further submits that as per the terms and conditions of

the appointment of the petitioner his services were purely temporary

terminable at the end of the said temporary period of three months.

As regards various extensions granted by respondent No. 1 to the

petitioner, the counsel submits that the said extensions were being

given keeping in view the requirement of the petitioner for

engagement of his services for the said temporary period. Contention

of counsel for the respondent is that the petitioner cannot claim right

over his appointment simply because of the fact that he was being

given various extensions, which was solely depending on the

exigencies of the work and need of respondent No. 1 to engage the

services of the petitioner for the said temporary period. Counsel for

the respondent further submits that in February, 1999 the service of

the petitioner were dispensed w.e.f. 23rd February, 1999 whereafter

he was appointed again on 5th April, 1999 after a gap of about more

than 40 days, which would mean that artificial breaks were not for

small periods. Counsel for the respondent also pointed out that the

petitioner gave a false explanation for not being able to join during

the long gap by stating that during the said period he was hospitalized

in St. Stephan hospital. From the medical certificate placed on record

by the petitioner, it is manifest that he was in the hospital for the

period w.e.f. 11.2.1999 till 19.2.1999 during which period he was

already in the employment of respondent No. 1. Counsel further

submits that once the petitioner was not appointed against any

sanctioned vacancy under the rules and regulations of respondent No.

1, he cannot claim any vested right over the said post of Junior

Assistant-cum-Typist. In support of his argument, counsel for the

respondent placed reliance on the judgment of the Apex Court in

Secretary, State of Karnataka & Ors. Vs Umadevi & Ors. AIR

2006 SC 1806.

7. I have heard learned counsel for the parties and perused the

record.

8. The issue is no more res integra with the authoritative

pronouncement of the Apex Court in Umadevi's case (supra). It is

now well settled that an appointment made on probation/ad-hoc

basis/contractual basis/temporarily for a specific period of time comes

to an end by efflux of time and the person holding such post can have

no right to continue on the post. The petitioner has not placed any

document on record to show that he was appointed on the post of

Junior Assistant-cum-typist against any regular vacancy or against any

sanctioned post or pursuant to any advertisement issued in this

regard by respondent No. 1 inviting application for appointment on

the post of Junior Assistant-cum-typist against regular vacancy. No

doubt that once a regular vacancy exists the practice of Government

Authorities appointing persons on temporary basis with this periodical

extension has to be deprecated yet, however, the Apex Court in

Umadevi's case (supra) has clearly held that such temporary

extension cannot come to the rescue of such an employee to claim

legitimate expectation to be appointed on regular basis on such post.

Para 38 of the judgment of the Apex Court are reproduced as under:-

"38. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognised by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post."

9. Indisputably the petitioner was initially given appointment on

the said post for a period of three months and on which post he was

given certain extensions. Merely because of the fact that the

petitioner was given certain extensions on the said post cannot give

any right to the petitioner to claim appointment on the regular post of

Junior Assistant-cum-Typist once he was not selected against a

regular post. The contention of the counsel for the petitioner is that

the petitioner had worked for more than 240 days, preceding the date

of his oral termination, this also cannot come to the rescue of the

petitioner as no industrial dispute was raised by the petitioner by

setting machinery under the Industrial Disputes Act in motion. The

judgment of the Apex Court in Civil Appeal No. 4445/2006 is,

therefore, also of no help to the petitioner.

10. Considering the aforesaid circumstances, I do not find any merit

in the petition. The same is hereby dismissed.

March 13, 2009                           KAILASH GAMBHIR, J.
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