Punjab-Haryana High Court
Sanjiv Kumar vs State Of Punjab And Ors on 15 January, 2024
Neutral Citation No:=2024:PHHC:004977
2024:PHHC:004977
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
216
CWP-1052-2018
Date of Decision : 15.01.2024
Sanjiv Kumar .....Petitioner
Versus
State of Punjab and others .....Respondents
CORAM: HON'BLE MR. JUSTICE NAMIT KUMAR
Present : Ms. Mehak Bedi, Advocate for
Mr. Vivek K. Thakur, Advocate for the petitioner.
Mr. Arun Gupta, AAG, Punjab.
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NAMIT KUMAR, J. (ORAL)
1. The petitioner has approached this Court by filing the
instant writ petition under Article 226 of the Constitution of India for
issuance of directions to the respondents to allow the petitioner to join
his duties as he has been removed from the service without assigning
any reason.
2. It has been averred in the petition that the petitioner is
working as a Gardener (Mali) in Municipal Council, Nangal Township
from the year 2012 and the petitioner was issued engagement letter
dated 28.12.2016 (Annexure P-1) on contract basis for a period of one
year. The terms and conditions of the contract are as under :-
"Subject:- Contractual engagement.
You are hereby offered contractual appointment on the
following terms and conditions as per approval given by
Govt. Notification No.62-Leg/2016 dated 24.12.2016 &
Municipal Council Nangal's Resolution No.10 dated
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26.12.2016. If you are willing to work, you may report to
the Executive Officer Municipal Council Nangal within 7
days of the receipt of this letter of engagement. The
contract engagement is subject to the approval of
Resolution No.10 dated 26.12.2016 by the Director Local
Govt. Punjab.
1. That you shall be required to discharge the duties
attached to the post of MALI;
2. That this engagement is purely contractual basis and
is of the period of one year from the date of joining unless
it is not revoked/terminated any time during the contract
period for any reason;
3. That your contractual engagement shall be governed
by the provisions of Rule 1.4 of the Volume I Civil Service
Rules, 1970;
4. That during the period this contract subsists, you
shall be paid fixed contractual amount of as per DC rate
per month;
5. That you shall be required to work on all working
days and in case of any absence, the contractual amount
shall be paid on pro rate basis;
6. That this engagement shall be construed as
'Appointment to any post in the council' and accordingly
you shall not be allowed to any benefit available to the
employees of the council;
7. That you shall always submit to the orders of the
Executive Officer and/or other officers under which you
are asked to work;
8. That this contract can be terminated any time
without any previous notice on the basis of medical
evidence declaring you unfit or you are becoming
incapacitated to discharge the normal duties and the
decision of the Executive Officer of the council in this
regard shall be final and binding;
9. That on expiry of the contract period, the
Contractual engagement without any further notice etc.
shall automatically stand terminated."
3. Since the abovesaid contract has not been renewed,
the petitioner has approached this Court with a prayer that he should be
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allowed to continue in service.
4. I have heard learned counsel for the parties and have gone
through the relevant documents.
5. Although, it has been averred that the petitioner is working
since 2012, however, no document to this effect has been attached with
the present writ petition except the engagement letter dated 28.12.2016
(Annexure P-1) whereby the petitioner was engaged on contract basis
for a period of one year. Since the engagement of the petitioner was on
contractual basis which has not been renewed by the
respondents/authorities, no legal right has accrued in favour of the
petitioner for continuation in service. It is a well settled proposition of
law that the appointments made on contract/ad-hoc basis does not
confer any right upon the employee. Even the engagement of the
petitioner is not inconfirmity with the provisions of Articles 14 and 16
of the Constitution of India as it is not the case of the petitioner that he
was engaged after following the due procedure of making appointments
that is advertising the post, seeking applications from the eligible
candidates and thereafter, after following the process of selection. There
is no violation of any legal or fundamental right of the petitioner. In this
regard, reference can be made to the judgment of the Hon'ble Supreme
Court passed in Secretary, State of Karnataka and others Vs. Umadevi
and others : 2006(2) S.C.T. 462. The relevant portion from the said
judgment is as under :-
"34. ........Thus, it is clear that adherence to the rule of
equality in public employment is a basic feature of our
Constitution and since the rule of law is the core of our
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Constitution, a Court would certainly be disabled from
passing an order upholding a violation of Article 14 or in
ordering the overlooking of the need to comply with the
requirements of Article 14 read with Article 16 of the
Constitution. Therefore, consistent with the scheme for
public employment, this Court while laying down the law,
has necessarily to hold that unless the appointment is in
terms of the relevant rules and after a proper competition
among qualified persons, the same would not confer any
right on the appointee. If it is a contractual appointment,
the appointment comes to an end at the end of the contract,
if it were an engagement or appointment on daily wages or
casual basis, the same would come to an end when it is
discontinued. Similarly, a temporary employee could not
claim to be made permanent on the expiry of his term of
appointment. It has also to be clarified that merely because
a temporary employee or a casual wage worker is
continued for a time beyond the term of his appointment,
he would not be entitled to be absorbed in regular service
or made permanent, merely on the strength of such
continuance, if the original appointment was not made by
following a due process of selection as envisaged by the
relevant rules. It is not open to the court to prevent regular
recruitment at the instance of temporary employees whose
period of employment has come to an end or of ad hoc
employees who by the very nature of their appointment, do
not acquire any right. High Courts acting under Article
226 of the Constitution of India, should not ordinarily issue
directions for absorption, regularization, or permanent
continuance unless the recruitment itself was made
regularly and in terms of the constitutional scheme. Merely
because, an employee had continued under cover of an
order of Court, which we have described as 'litigious
employment' in the earlier part of the judgment, he would
not be entitled to any right to be absorbed or made
permanent in the service. In fact, in such cases, the High
Court may not be justified in issuing interim directions,
since, after all, if ultimately the employee approaching it is
found entitled to relief, it may be possible for it to mould
the relief in such a manner that ultimately no prejudice will
be caused to him, whereas an interim direction to continue
his employment would hold up the regular procedure for
selection or impose on the State the burden of paying an
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employee who is really not required. The courts must be
careful in ensuring that they do not interfere unduly with
the economic arrangement of its affairs by the State or its
instrumentalities or lend themselves the instruments to
facilitate the bypassing of the constitutional and statutory
mandates.
36. While directing that appointments, temporary or
casual, be regularized or made permanent, courts are
swayed by the fact that the concerned person has worked
for some time and in some cases for a considerable length
of time. It is not as if the person who accepts an
engagement either temporary or casual in nature, is not
aware of the nature of his employment. He accepts the
employment with eyes open. It may be true that he is not in
a position to bargain -- not at arms length -- since he might
have been searching for some employment so as to eke out
his livelihood and accepts whatever he gets. But on that
ground alone, it would not be appropriate to jettison the
constitutional scheme of appointment and to take the view
that a person who has temporarily or casually got
employed should be directed to be continued permanently.
By doing so, it will be creating another mode of public
appointment which is not permissible. If the court were to
void a contractual employment of this nature on the ground
that the parties were not having equal bargaining power,
that too would not enable the court to grant any relief to
that employee. A total embargo on such casual or
temporary employment is not possible, given the exigencies
of administration and if imposed, would only mean that
some people who at least get employment temporarily,
contractually or casually, would not be getting even that
employment when securing of such employment brings at
least some succor to them. After all, innumerable citizens
of our vast country are in search of employment and one is
not compelled to accept a casual or temporary employment
if one is not inclined to go in for such an employment. It is
in that context that one has to proceed on the basis that the
employment was accepted fully knowing the nature of it
and the consequences flowing from it. In other words, even
while accepting the employment, the person concerned
knows the nature of his employment. It is not an
appointment to a post in the real sense of the term. The
claim acquired by him in the post in which he is
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temporarily employed or the interest in that post cannot be
considered to be of such a magnitude as to enable the
giving up of the procedure established, for making regular
appointments to available posts in the services of the State.
The argument that since one has been working for some
time in the post, it will not be just to discontinue him, even
though he was aware of the nature of the employment when
he first took it up, is not one that would enable the
jettisoning of the procedure established by law for public
employment and would have to fail when tested on the
touchstone of constitutionality and equality of opportunity
enshrined in Article 14 of the Constitution of India.
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
recognized 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 concerned cases, 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."
6. In view of the above, finding no merit in the instant writ
petition, the same is dismissed with no order as to costs.
15.01.2024 (NAMIT KUMAR)
Kothiyal JUDGE
Whether Speaking/reasoned Yes/No
Whether Reportable Yes/No
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