Smt. Nidhi Uniyal vs State Of Uttarakhand & Others
2021 Latest Caselaw 5274 UK

          IN THE HIGH COURT OF UTTARAKHAND
                      AT NAINITAL
                 Writ Petition (S/S) No. 489 of 2020

Smt. Nidhi Uniyal                                         .......Petitioner
                                      Vs.

State of Uttarakhand & others                            .....Respondent

Mr. Devendra Singh Bohra, Advocate, for the petitioner. Mr. N.P. Shah, Standing Counsel, for the State of Uttarakhand.

Hon'ble Sharad Kumar Sharma, J (Oral)

The challenge given by the petitioner, who was posted as an ANM in the Community Health Centre (CHC), Dwarahat, District Almora, is to the impugned notice dated 28.02.2020, which was issued by the respondent No.3, under the rules called as "Uttaranchal Temporary Government Servants (Termination of Service) Rules, 2003".

2. In support of his contentions, while giving challenge to the said notice dated 28.02.2020, the petitioner has primarily contended that looking to the nature of appointment of the petitioner, if the appointment letter itself is scrutinized, since it observes, that the petitioner was recruited after the due selection process, since it observes that the petitioner's appointment was on a probation, the inference drawn by the petitioner is that the use of term "probation", and having been selected after undergoing the process of selection, would infer that the petitioner is not a temporary government employee, in order to bring herself within the ambit of the Rules of 2003, which describes the temporary services in its sub-rule (2) as to be officiating or substantive service on a temporary post or officiating service on a permanent post under the Government.

3. The learned counsel for the petitioner submits, that since after the appointment, the petitioner was placed under a probation, in that eventuality, the nature of the appointment of the petitioner would

be treated as to be a permanent, and the Temporary Government Servant Rules Of 2003, would not apply hence the notice of termination of services is bad.

4. Let us scrutinized, this argument of the learned counsel for the petitioner in the light of the conditions, which were imposed in her letter of appointment as issued by the respondents, which reads that the petitioner though has been appointed on a probation, but the use of word therein describing her nature of appointment, has been referred as to be "temporary".

5. Under the service jurisprudence, the nature of appointment can be classified into different categories of appointments for example daily wager, contractual, temporary, adhoc and permanent. In the present case, when the letter of appointment of the petitioner itself uses the word "temporary", this court is of the view that the temporary appointment cannot be read in correlation or in paralence to be, as if an adhoc appointment, because under the service laws adhoc appointment is only made as against the permanent post sanctioned under the cadre strength of the Department. The very use of word "temporary" in the letter of appointment of the petitioner brings her within the ambit of Government Servant Temporary Servant Rules, 2003.

6. Merely because of the fact, that for the purposes of being considered for appointment of the petitioner, the petitioner was since qualified as per the Rules, and was invited to participate in the process of selection, which she had readily participated and was ultimately declared, as to be selected, her participation in the process of selection, her holding of requisite qualification will itself yet again do not provide her a status of being a permanent employee in order to exclude the applicability of the Rules of 2003, because the service law even when the appointments are made for the daily wager or on a contractual basis or a temporary employee or an adhoc, it will always be in relation to those persons, who hold the qualification in accordance with the Rules. In fact, rather the qualification happens to

be the prima facie basic inherent factor, which has to be considered irrespective of the nature of appointment, which is to be made by the Department, so merely because the petitioner had a qualification, that cannot be inferred or to be taken as to be, that it was the permanent appointment.

7. In order to respond to the second Limb of the argument of the learned counsel for the petitioner, that the vacancies were advertised, and she had participated in the process of selection. That yet again will not itself confers a permanent status of appointment to the petitioner, because participation in a process of selection itself is not conferring right to the petitioner under law.

8. This Court is of the view, that even for the purposes of a nature of contractual or adhoc or a temporary appointment, the service law do not create a bar, that their respective appointing authorities are precluded to hold a process of selection qua the candidates who are qualified in accordance with the Rules, and were satisfying the minimum eligibility criteria to be considered to be appointed. Holding of the selection process is yet again a tool, which is provided to the employer in order to assess the capability, efficiency and utility of a person for being appointed in the Department, whether he qualifies a test of efficiency with regards to the nature of service which he has to discharge.

9. In that eventuality, even for temporary, contractual or adhoc appointment, if the process of selection is held that doesn't itself mean, that the appointment thus consequently made is a permanent appointment, once the terms of the appointment and its contents itself uses the word "temporary".

10. The learned counsel for the petitioner in order to draw a distinction from the nature of the appointment, and while deliberating on the issue, had sought to built up his case based on certain pleadings

raised by the respondents in their counter affidavit, that the petitioner's appointment was made as against the substantive posts.

11. This Court is of the view that the pleadings of the counter affidavit, itself cannot exclusively qualify the nature of appointment or the conditions of appointment mentioned in the accepted letter of appointment issued to the petitioner, to which the petitioner has already submitted, and in relation thereto, a reference may be had to the judgment, which has been quite elaborately followed by the Courts, as rendered by the Constitution Bench of the Hon'ble Apex Court in a judgment reported in 1978 (1) SCC 405, "Mohinder Singh Gill and another Vs. The Chief Election Commissioner, New Delhi and others", wherein, it has provided that the respondents cannot in their counter affidavit deliberate or elaborate on an issue by way of a pleading, which is contrary to the basic contents of the documents, which is placed before the Court for its consideration. The relevant paragraph No.8, of the aforesaid judgment reads as under:-

"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to effect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.

Orders are not like old wine becoming better as they grow older:

A Caveat.

12. Thus the contention which has been raised by the learned counsel for the petitioner in view of the judicial intention of the Mohinder Singh Gill's case, the pleadings raised by the respondents in the counter affidavit, which happens to be in contradiction to the contents of the letter of appointment itself and its intention contained, therein, that cannot be isolatedly extracted by the petitioner to enable her to acquire a status of, that being a regular employee, particularly when, the language of the letter of appointment itself provides; that the petitioner was appointed on a temporary basis. Temporary appointment under its normal connotations, is only an appointment which is made by way of an arrangement, and it is not in correlation to or which is ever made as against a substantive vacancy, which stands sanctioned in the cadre strength of the Department.

13. Hence, the temporary appointment as reflected from the letter of appointment of the petitioner itself, it cannot be read, as if it was a permanent appointment, to exclude the application of the Temporary Government Service Rules of 2003, for the purposes of issuance of notice, impugned in the writ petition for the purposes of dispensing the services of the petitioner, after giving her 30 days notice, as provided, therein.

14. In that view of the matter, and for the reasons already dealt with above, the contention of the petitioner is not accepted by this Court, and it is always a prerogative of the employer, that an employee who has been appointed on a temporary basis, they can always have a resort to the procedure provided under the Rules of 2003, for the purposes of dispensation of services of the temporary government servant, and that too this Court is of the view that for the purposes of passing of an order under the Rules of 2003, no adherence of principle of natural justice is required for the reason, that it is not a stigmatic order, which creates any obstruction to the petitioner, in getting any future appointment in any other Government Department.

15. In that view of the matter, the notice issued to the petitioner under the Rules of 2003, doesn't apparently seems to suffer

from any error. Hence, the writ petition lacks merit, and the same is accordingly dismissed.

(Sharad Kumar Sharma, J.) 22.12.2021 NR/