Akram Jafri vs The State Of Madhya Pradesh
2021 Latest Caselaw 1235 MP

     HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
                       JABALPUR

Case No.                                          W.P. No.16560/2020
Parties Name
                                              Akram Jafri and others
                                                         vs.
                                            The State of M.P. and others

Date of Order                           05/04/2021
Bench Constituted                    Division Bench
Order passed by                      Justice Prakash Shrivastava
                                     Justice Virender Singh
Whether approved for reporting No
Name of counsels for parties         For petitioners:     Shri   R.K.      Sanghi,
                                     Advocate

                                     For    respondents:     Shri     Piyush
                                     Dharmadhikari, Government Advocate
Law laid down                                             -
Significant paragraph numbers                             -

                                   ORDER

(05.04.2021)

Per : Prakash Shrivastava, J.

By this writ petition, the petitioners have prayed for a direction to the respondents to continue them in service and have further prayed for a direction to treat them regular employees. The further relief has been prayed to reinstate them in service forthwith on regular basis treating them to be a duly selected candidate.

2. The case of the petitioners is that they were selected and appointed on the post of Stenographer-3 on contract basis in pursuance to the advertisement dated 07.10.2012. The petitioners were posted in various District Courts and their contract period was extended from time to time. The petitioners No.2, 3 & 4 had filed Writ Petition No.5624/2015, which was disposed of by this Court with certain observations. Further case of the W.P. No.16560/2020

petitioners is that similarly situated employees in other departments of the State have been regularized or have been continued on contract basis but the services of the petitioners have been put to an end with effect from 29.09.2018. The petitioners had earlier filed Writ Petition No.29471/2018 but in view of the return filed by the respondents, they had withdrawn the writ petition by order dated 25.02.2020 with liberty to file a fresh petition and thereafter the present writ petition has been filed.

3. The submission of learned counsel for the petitioners is that the appointment of the petitioners was after following the due recruitment process, therefore, they were the regular employees and their services ought to have been regularized. In support of his submission, he has placed reliance upon the judgments of the Supreme Court in the matter of Yogesh Mahajan Vs. Professor R.C. Deka, Director, All India Institute of Medical Sciences, (2018) 3 SCC 218 and State of Jammu and Kashmir and others Vs. District Bar Association Bandipora, (2017) 3 SCC 410.

4. As against this, learned counsel for the respondents has opposed the writ petition by submitting that the petitioners were contract employees and their services have been terminated, therefore, now no right exists in their favour.

5. Having heard the learned counsel for the parties and on the perusal of the record, it is noticed that in the advertisement dated 19.08.2012 itself, it was made it clear that the appointment was on contract basis. The petitioners were appointed in pursuance to the advertisement dated 19.08.2012. In the said advertisement, it was also made clear that the claim for regularization will not be considered. Clause 3 of the advertisement reads as under :

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6. The record further reflects that some of the writ petitioners along with others had filed Writ Petition No.5624/2015 claiming the same relief of regularization in service and the prayer in this regard was rejected by this Court while passing the order dated 19.01.2016. Taking note of the fact that the appointment was on contract basis and there is no scheme of regularization, therefore, the petitioners will be free to participate in the selection process when the posts are notified and applications are invited from public. The Division Bench of this Court on 19.01.2016 had passed the following order in W.P. No.5624/2015 and connected petition :

"W.P.No.5624/2015 & W.P. No.4670/2015 19.01.2016 W.P. No.5624/2015 Shri Atul Rai, Advocate for the petitioners. Shri Samdarshi Tiwari, Additional Advocate General for the respondents/State.

Delinked from the group. Heard counsel for the parties.

The principal relief claimed in this petition is to direct the State Government to immediately sanction the post of Stenographers and to provide necessary fund to them, further direct the respondents to regularize the petitioners on the post of Stenographer.

As regards first part of the relief, the counsel for the State submits that requisite posts of Stenographers have been sanctioned by the State Government after due approval on 12.01.2016. In that sense, this relief does not survive for consideration.

The second part of the relief to issue direction to respondents to regularize the petitioners, there is no scheme for regularization of Stenographers, who have been appointed on contract basis to meet the increased workload. Once the posts are created, the High Court will have to notify the said posts and invite applications from public. The petitioners who are presently working on contract basis will be free to participate in the said process subject to eligibility.

Petition is disposed of on the above terms."

7. Hence, in view of the aforesaid order, it is not open to the said petitioners to come to this Court again and claim regularization or any benefit on the basis of their contract appointment. The issue which the W.P. No.16560/2020

petitioners are raising in respect of regularization had already been concluded against them by the aforesaid order.

8. That apart, the petitioners' services on contract have already been terminated on 29.09.2018. No such order of termination of contract has been challenged in the present writ petition. The Supreme Court in the matter of State Bank of India and others Vs. S.N.Goyal, (2008) 8 SCC 92 has held that the remedy against termination of contract appointment is damages by observing as under :

"17. Where the relationship of master and servant is purely contractual, it is well settled that a contract of personal service is not specifically enforceable, having regard to the bar contained in Section 14 of the Specific Relief Act, 1963. Even if the termination of the contract of employment (by dismissal or otherwise) is found to be illegal or in breach, the remedy of the employee is only to seek damages and not specific performance. Courts will neither declare such termination to be a nullity nor declare that the contract of employment subsists nor grant the consequential relief of reinstatement. The three well recognized exceptions to this rule are:

(i) where a civil servant is removed from service in contravention of the provisions of Article 311 of the Constitution of India (or any law made under Article 309);

(ii) where a workman having the protection of the Industrial Disputes Act, 1947 is wrongly terminated from service; and

(iii) where an employee of a statutory body is terminated from service in breach or violation of any mandatory provision of a statute or statutory rules.

There is thus a clear distinction between public employment governed by statutory rules and private employment governed purely by contract. The test for deciding the nature of relief--damages or reinstatement with consequential reliefs--is whether the employment is governed purely by contract or by a statute or statutory rules. Even where the employer is a statutory body, where the relationship is purely governed by contract with no element of statutory governance, the contract of personal service will not be specifically enforceable. Conversely, where the employer is a non-statutory body, but the employment is governed by a statute or statutory rules, a declaration that the termination is null and void W.P. No.16560/2020

and that the employee should be reinstated can be granted by courts. (Vide : Dr. S. Dutt vs. University of Delhi, UP Warehousing Corpon. Vs. Chandra Kiran Tyagi, Sirsi Municipality vs. Cecelia Kom Francies Tellis, Vaish Degree College vs. Lakshmi Narain, J. Tiwari vs. Smt. Jawala Devi Vidya Mandir and Dipak Kumar Biswas vs. Director of Public Instruction."

9. The Co-ordinate Bench of this Court in the matter of Rajendra Prasad Bakoriya Vs. Secretary the State of M.P. and others vide order dated 26.08.2016 passed in Writ Petition No.8150/2011 has held that the writ petition against the termination of contract appointment after tenure is over is not maintainable. The Co-ordinate Bench in the case of Rajendra Prasad Bakoriya (supra) has held that :

"6. It is true that the appointment of the petitioner was made on contractual basis. It was for a fixed term. This is settled in law that in such cases remedy of the employee is to claim damages for wrongful dismissal or for breach of contract. Writ petition cannot be entertained. It is profitable to refer certain Supreme Court judgments, which are reproduced hereinunder:

7. In 1969 (2) SCC 838 (Executive Committee, U.P. Warehousing Corporation Vs. Chandra Kiran Tyagi), the Apex Court has held as under:

"The law relating to master and servant is clear. A contract for personal service will not be enforced by an order for specific performance nor will it be open for a servant to refuse to accept the repudiation of a contract of service by his master and say that the contract has never been terminated.

The remedy of the employee is a claim for damages for wrongful dismissal or for breach of contract. This is the normal rule and that was applied in Barber's case (2) and Francis' case (2). But, when a statutory status is given to an employee and there has been a violation of the provisions of the statute while terminating the services of such an employee, the latter will be eligible to get the relief of a declaration that the order is null and void and that he continues to be in service, as it will not then be a mere W.P. No.16560/2020

case of a master terminating the services of a servant. This was the position in Vine case.

23. From the two decisions of this Court, referred to above, the position in law is that no declaration to enforce a contract of personal service will be normally granted. But there are certain well-recognized exceptions to this rule and they are: To grant such a declaration in appropriate cases regarding (1) A public servant, who has been dismissed from service in contravention of Article 311; (2) Reinstatement of a dismissed worker under Industrial Law by Labour or Industrial Tribunals; (3) A statutory body when it has acted in breach of a mandatory obligation, imposed by statute."

[Emphasis supplied]

8. xxx xxx xxx"

It has further been held :-

"9. In 2009 (16) 385 (Reji Kumar and others Vs. Director of the Health Services, Kerala and others), the Apex Court has held as under:

"5. The High Court, however, has dismissed the writ application. There was an interim order from this Court when the matter was listed for admission and on the basis of the statement made by the counsel appearing for the appellants that they are continuing in service, they have been permitted to continue in service till disposal of the appeal.

7. Even otherwise, when the appointment itself is for a fixed tenure, though the nature of the tenure is a temporary one, the appointment comes to an end after expiry of the tenure and there would be no relationship of master and servant thereafter until the relationship is continued by a fresh letter of appointment or by intervention of any Court's order. We are told that when the appellants approached the High Court, the Court had not granted any interim order. By the time they approached the Court the term of one year had expired."

[Emphasis Supplied] W.P. No.16560/2020

10. In the light of aforesaid legal position, this petition cannot be entertained. The term for which the petitioner was appointed is admittedly over. Thus this petition is not entertained. The petitioner is free to avail the remedy of civil suit or any other remedy available to him as per law."

10. Similar is the view taken by the Co-ordinate Bench of this Court in the subsequent order dated 11.11.2016 passed in Writ Petition 15502/2016 in the matter of Shivratri Barmaiya vs. The State of M.P. & others.

11. So far as the judgment in the matter of Yogesh Mahajan (supra) is concerned, in that case also it has been held that the contract employee has no right to have his contract renewed in absence of any statutory or other right in his favour and at best he can claim due consideration of extending his contract. He has also placed reliance upon the judgment in the matter of State of Jammu and Kashmir (supra) but in that case also the direction of the High Court to the State Government in respect of regularization of the employees when various issues relating to their regularization remain undecided, has been found to be faulty and such a decision has been set aside by passing an order of remand.

12. Having regard to the aforesaid position in law and considering the fact that the petitioners were contract employees and in terms of their appointment itself they have no right of regularization and their services have already come to an end and also keeping in view the earlier order of this Court in Writ Petition No.5624/2015, we are of the opinion that no relief can be granted to the petitioners at this stage. Hence, the writ petition is found to be devoid of any merit, which is accordingly dismissed.

            (PRAKASH SHRIVASTAVA)                                  (VIRENDER SINGH)
                 JUDGE                                                   JUDGE
DV


Digitally signed by
DINESH VERMA
Date: 2021.04.06
12:21:55 +05'30'