Uttarakhand High Court
Manish Kumar Arya vs State Of Uttarakhand & Others on 25 March, 2021
Reserved
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (S/S) No. 1694 of 2019
Manish Kumar Arya ....... Petitioner
Vs.
State of Uttarakhand & others ......Respondents
Present: Mr. Alok Mahra, Advocate with Mr. D.K. Bankoti, Advocate for the petitioner.
Mr. P.C. Bisht, Additional CSC for the State.
Mr. Vinay Kumar, Advocate for respondent no. 4/Institute Management Committee.
Mr. S.C. Dumka, Standing Counsel for the Union of India.
With
Writ Petition (S/S) No. 1695 of 2019
Sunil Dutt ....... Petitioner
Vs.
State of Uttarakhand & others ......Respondents
Present: Mr. Alok Mahra, Advocate with Mr. D.K. Bankoti, Advocate for the petitioner.
Mr. P.C. Bisht, Additional CSC for the State.
Mr. Vinay Kumar, Advocate for respondent no. 4/Institute Management Committee.
Mr. S.C. Dumka, Standing Counsel for the Union of India.
With
Writ Petition (S/S) No. 1696 of 2019
Mobina Begum ....... Petitioner
Vs.
State of Uttarakhand & others ......Respondents
Present: Mr. Alok Mahra, Advocate with Mr. D.K. Bankoti, Advocate for the petitioner.
Mr. P.C. Bisht, Additional CSC for the State.
Mr. Vinay Kumar, Advocate for respondent no. 4/Institute Management Committee.
Mr. S.C. Dumka, Standing Counsel for the Union of India.
With
2
Writ Petition (S/S) No. 1701 of 2019
Mam Chand ....... Petitioner
Vs.
State of Uttarakhand & others ......Respondents
Present: Mr. Alok Mahra, Advocate with Mr. D.K. Bankoti, Advocate for the petitioner.
Mr. P.C. Bisht, Additional CSC for the State.
Mr. Vinay Kumar, Advocate for respondent no. 4/Institute Management Committee.
Mr. S.C. Dumka, Standing Counsel for the Union of India.
With
Writ Petition (S/S) No. 1702 of 2019
Km. Tanuja ....... Petitioner
Vs.
State of Uttarakhand & others ......Respondents
Present: Mr. Alok Mahra, Advocate with Mr. D.K. Bankoti, Advocate for the petitioner.
Mr. P.C. Bisht, Additional CSC for the State.
Mr. Vinay Kumar, Advocate for respondent no. 4/Institute Management Committee.
Mr. S.C. Dumka, Standing Counsel for the Union of India.
With
Writ Petition (S/S) No. 1789 of 2019
Khim Chandra Arya ....... Petitioner
Vs.
State of Uttarakhand & others ......Respondents
Present: Mr. Alok Mahra, Advocate with Mr. D.K. Bankoti, Advocate for the petitioner.
Mr. P.C. Bisht, Additional CSC for the State.
Mr. Vinay Kumar, Advocate for respondent no. 4/Institute Management Committee.
Mr. S.C. Dumka, Standing Counsel for the Union of India.
With
Writ Petition (S/S) No. 1852 of 2019
Mohd Shammi ....... Petitioner
Vs.
3
State of Uttarakhand & others ......Respondents
Present: Mr. Alok Mahra, Advocate with Mr. D.K. Bankoti, Advocate for the petitioner.
Mr. P.C. Bisht, Additional CSC for the State.
Mr. Vinay Kumar, Advocate for respondent no. 4/Institute Management Committee.
Mr. S.C. Dumka, Standing Counsel for the Union of India.
With
Writ Petition (S/S) No. 1853 of 2019
Mahesh Kumar ....... Petitioner
Vs.
State of Uttarakhand & others ......Respondents
Present: Mr. J.C. Karnatak, Advocate holding brief of Mr. Prasanna Karnatak, Advocate for the petitioner.
Mr. P.C. Bisht, Additional CSC for the State.
Mr. Vinay Kumar, Advocate for respondent no.4/Institute Management Committee.
Mr. S.C. Dumka, Standing Counsel for the Union of India.
With
Writ Petition (S/S) No. 1865 of 2019
Suresh Sharma ....... Petitioner
Vs.
State of Uttarakhand & others ......Respondents
Present: Mr. J.C. Karnatak, Advocate holding brief of Mr. Prasanna Karnatak, Advocate for the petitioner.
Mr. P.C. Bisht, Additional CSC for the State.
Mr. Vinay Kumar, Advocate for respondent no.4/Institute Management Committee.
Mr. S.C. Dumka, Standing Counsel for the Union of India.
Mr. Pankaj Kumar, Advocate holding brief of Mr. Neeraj Garg, Advocate for UPNL.
With
Writ Petition (S/S) No. 1898 of 2019
Brijesh Kumar ....... Petitioner
Vs.
State of Uttarakhand & others ......Respondents
Present: Mr. J.C. Karnatak, Advocate holding brief of Mr. Prasanna Karnatak, Advocate for the petitioner.
Mr. P.C. Bisht, Additional CSC for the State.
Mr. Vinay Kumar, Advocate for respondent no. 4/Institute Management Committee.
Mr. S.C. Dumka, Standing Counsel for the Union of India.
4
Mr. Pankaj Kumar, Advocate holding brief of Mr. Neeraj Garg, Advocate for UPNL.
With
Writ Petition (S/S) No. 1795 of 2019
Jaspal Singh ....... Petitioner
Vs.
State of Uttarakhand & others ......Respondents
Present: Mr. Alok Mahra, Advocate with Mr. D.K. Bankoti, Advocate for the petitioner.
Mr. P.C. Bisht, Additional CSC for the State.
Mr. Vinay Kumar, Advocate for respondent no.4/Institute Management Committee.
Mr. S.C. Dumka, Standing Counsel for the Union of India.
With
Writ Petition (S/S) No. 1699 of 2019
Vishal Deep ....... Petitioner
Vs.
State of Uttarakhand & others ......Respondents
Present: Mr. Alok Mahra, Advocate with Mr. D.K. Bankoti, Advocate for the petitioner.
Mr. P.C. Bisht, Additional CSC for the State.
Mr. Vinay Kumar, Advocate for respondent no.4/Institute Management Committee.
Mr. S.C. Dumka, Standing Counsel for the Union of India.
With
Writ Petition (S/S) No. 1700 of 2019
Mahendra Singh Palni ....... Petitioner
Vs.
State of Uttarakhand & others ......Respondents
Present: Mr. Alok Mahra, Advocate with Mr. D.K. Bankoti, Advocate for the petitioner.
Mr. P.C. Bisht, Additional CSC for the State.
Mr. Vinay Kumar, Advocate for respondent no.4/Institute Management Committee.
Mr. S.C. Dumka, Standing Counsel for the Union of India.
With
Writ Petition (S/S) No. 1776 of 2019
Kuldeep Singh Rana ....... Petitioner
5
Vs.
State of Uttarakhand & others ......Respondents
Present: Mr. Alok Mahra, Advocate with Mr. D.K. Bankoti, Advocate for the petitioner.
Mr. P.C. Bisht, Additional CSC for the State.
Mr. Vinay Kumar, Advocate for respondent no.4/Institute Management Committee.
Mr. S.C. Dumka, Standing Counsel for the Union of India.
With
Writ Petition (S/S) No. 1909 of 2019
Pradeep Singh Rawat ....... Petitioner
Vs.
State of Uttarakhand & others ......Respondents
Present: Mr. Alok Mahra, Advocate with Mr. D.K. Bankoti, Advocate for the petitioner.
Mr. P.C. Bisht, Additional CSC for the State.
Mr. Vinay Kumar, Advocate for respondent no.4/Institute Management Committee.
Mr. S.C. Dumka, Standing Counsel for the Union of India.
Mr. Pankaj Kumar, Advocate holding brief of Mr. Neeraj Garg, Advocate for UPNL.
With
Writ Petition (S/S) No. 1900 of 2019
Daulendra Singh ....... Petitioner
Vs.
State of Uttarakhand & others ......Respondents
Present: Mr. J.C. Karnatak, Advocate holding brief of Mr. Prasanna Karnatak, Advocate for the petitioner.
Mr. P.C. Bisht, Additional CSC for the State.
Mr. Vinay Kumar, Advocate for respondent no.4/Institute Management Committee.
Mr. S.C. Dumka, Standing Counsel for the Union of India.
Mr. Pankaj Kumar, Advocate holding brief of Mr. Neeraj Garg, Advocate for UPNL.
With
Writ Petition (S/S) No. 1517 of 2019
Jitender Singh Negi ....... Petitioner
Vs.
State of Uttarakhand & others ......Respondents
6
Present: Mr. Shailendra Nauriyal, Advocate with Mr. Susheel Kumar, Advocate for the petitioner.
Mr. P.C. Bisht, Additional CSC for the State.
Mr. Vinay Kumar, Advocate for respondent no.4/Institute Management Committee.
Mr. S.C. Dumka, Standing Counsel for the Union of India.
Mr. Pankaj Kumar, Advocate holding brief of Mr. Neeraj Garg, Advocate for UPNL.
With
Writ Petition (S/S) No. 1410 of 2019
Brijpal ....... Petitioner
Vs.
State of Uttarakhand & others ......Respondents
Present: Mr. Shailendra Nauriyal, Advocate with Mr. Susheel Kumar, Advocate for the petitioner.
Mr. P.C. Bisht, Additional CSC for the State.
Mr. Vinay Kumar, Advocate for respondent no.4/Institute Management Committee.
Mr. S.C. Dumka, Standing Counsel for the Union of India.
Mr. Pankaj Kumar, Advocate holding brief of Mr. Neeraj Garg, Advocate for UPNL.
With
Writ Petition (S/S) No. 1525 of 2019
Manmohan Singh Bisht ....... Petitioner
Vs.
State of Uttarakhand & others ......Respondents
Present: Mr. Shailendra Nauriyal, Advocate with Mr. Susheel Kumar, Advocate for the petitioner.
Mr. P.C. Bisht, Additional CSC for the State.
Mr. Vinay Kumar, Advocate for respondent no.4/Institute Management Committee.
Mr. S.C. Dumka, Standing Counsel for the Union of India.
Mr. Pankaj Kumar, Advocate holding brief of Mr. Neeraj Garg, Advocate for UPNL.
With
Writ Petition (S/S) No. 1526 of 2019
Bhuvneshwar Prasad ....... Petitioner
Vs.
State of Uttarakhand & others ......Respondents
Present: Mr. Shailendra Nauriyal, Advocate with Mr. Susheel Kumar, Advocate for the petitioner.
Mr. P.C. Bisht, Additional CSC for the State.
Mr. Vinay Kumar, Advocate for respondent no.4/Institute Management Committee.
Mr. S.C. Dumka, Standing Counsel for the Union of India.
Mr. Pankaj Kumar, Advocate holding brief of Mr. Neeraj Garg, Advocate for UPNL.
7
With
Writ Petition (S/S) No. 1667 of 2019
Brijpal ....... Petitioner
Vs.
State of Uttarakhand & others ......Respondents
Present: Mr. Shailendra Nauriyal, Advocate with Mr. Susheel Kumar, Advocate for the petitioner.
Mr. P.C. Bisht, Additional CSC for the State.
Mr. Vinay Kumar, Advocate for respondent no.4/Institute Management Committee.
Mr. S.C. Dumka, Standing Counsel for the Union of India.
Mr. Pankaj Kumar, Advocate holding brief of Mr. Neeraj Garg, Advocate for UPNL.
Judgment
Hon'ble Ravindra Maithani, J.
Common questions of law and facts are involved in all
these writ petitions, therefore, they are being decided by this common
judgment.
2. The Court proceeds to discuss the facts of Writ Petition
(S/S) No.1694 of 2019 and thereafter reveal the facts of other cases.
Writ Petition (S/S) No.1694 of 2019
3. It is the case of the petitioner that Government of India
(GOI) launched a Scheme for up-gradation of 500 Government ITIs,
out of 18096 Government ITIs in the country, which started from the
year 2005-2006. Thereafter, GOI announced the up-gradation of
remaining 1396 ITIs into centers of excellence through public-private
partnership (PPP) (for short "the Scheme"), for which financial
approval of Rs.750.04 crore was accorded in the year 2007-08 and
thereafter grants were also released. As per this Scheme, for each
selected ITIs, an Institute Management Committee (IMC) was to be
registered under the relevant provisions of the Societies Registration
Act, 1860 (for short "the Societies Act") by the concerned State
Government. It was the responsibility of IMCs to manage the affairs of
the concerned ITI. In order to run the Scheme, a Memorandum of
Agreement (MOA) was signed between the Central Government, State
Government and the Industry partner. The financial responsibility of
running the Scheme was also elaborated and an interest free loan upto
Rupees 2.5 crore was to be given by the Central Government directly
to the IMCs for up-gradation of ITIs. This interest free loan was to be
kept by IMCs in a separate bank account. The Scheme also provided as
to how to utilize this amount. The implementation of the Scheme at the
Central level was to be monitored by the National Steering Committee
and at the State level by the State Steering Committee. Various ITIs in
the State of Uttarakhand were also selected under this Scheme. The
Scheme was subsequently amended also.
4. In order to implement the Scheme, respondent no. 4 -
Secretary/Principal Institute Management Committee, Government
Industrial Training Institute, Dineshpur, District Udham Singh Nagar
issued an advertisement for one post of Instructor (Employability
Skills) and for other posts. The petitioner responded to the
advertisement and he was appointed on 15.01.2016 for the academic
session 2015-16. Thereafter, the engagement of the petitioner was
extended on various occasions up till 2018-19. But, on 01.07.2019, the
petitioner was asked not to continue and it was an oral direction.
Aggrieved by discontinuation of his engagement, the petitioner filed
the writ petition seeking directions to the respondents to permit him to
continue with the work on the post of Instructor as well as grant him
minimum salary for the contract Instructor as provided under the
Scheme.
5. Respondent no. 1 - State of Uttarakhand has filed the
counter affidavit in the matter. According to the State, the IMCs have
to make arrangements to hire the contract faculty to provide the
training to the candidates and there is no requirement of prior approval
or permission from the Government for making appointment of the
contract faculties. As also it is stated that for removal of these contract
faculties from their services, there is no requirement to get prior
approval or permission from the Government.
6. Respondent no. 4 -IMC has also filed its counter
affidavit. It is the specific case of the IMC that the appointment of the
petitioners is purely temporary on contract basis for a limited period,
that too, on non-government posts; the IMC is running out of funds;
out of Rupees 20 lakh allocated for expenditure under the head of
manpower, the IMC had already spent Rupees 20.46 lakh. It is the case
of the IMC that under the Scheme, a free loan of Rs.2.5 crore was
granted to IMC. The loan was to be repaid and in case of default in
repayment, there is a stipulation of penalty. The IMC has already been
required by the communication dated 29.11.2019 of the State
Government to deposit the first installment of Rs.12.50 lakh.
Other cases:-
7. In WPSS Nos. 1695 of 2019, 1696 of 2019, 1701 of 2019,
1702 of 2019, 1789 of 2019, 1852 of 2019 and 1853 of 2019, the case
of the petitioners is same as that of petitioner in WPSS No.1694 of
2019. Petitioners in all these petitions have a similar case. They all,
according to them, have been terminated from service on oral
directions.
8. In WPSS Nos.1795 of 2019, 1699 of 2019, 1700 of 2019
and 1776 of 2019, the case of the petitioners is same but they have also
sought quashing of the order, by which they have been removed from
service.
9. In WPSS Nos.1900 of 2019, 1898 of 2019 and 1865 of
2019, the case of the petitioners is similar to that of petitioner in WPSS
No. 1694 of 2019 and the reliefs are also same, except one more relief
regarding incentive allowance which is sought in the petitions.
10. In WPSS No. 1909 of 2019, the petitioner was engaged
on contract basis through Uttarakhand Purv Sainik Kalyan Nigam
Limited (for short "UPNL"). The petitioner in this case sought the
relief similar to that of Writ Petition (S/S) No. 1694 of 2019 along with
the quashing of the order dated 20.07.2019, by which his services were
terminated.
11. In WPSS Nos. 1517 of 2019, 1410 of 2019, 1525 of 2019,
1526 of 2019 and 1667 of 2019, the case of the petitioners is same as
that of petitioner in WPSS No. 1694 of 2019. The only difference is
that these petitioners were deployed on contract basis through UPNL.
Arguments:-
12. Learned counsel for the petitioners Mr. Alok Mahra
would submit that the petitioners are eligible for their appointment as
Instructors; they have been working as such, but the respondents want
to discontinue their services in violation of the provisions of MOA.
Reference has been made to Section B clause 4 (g) of MOA (at
Annexure No.2), which is as hereunder:-
"(g) Ensure that the sanctioned strength of
instructors in THE ITI is always filled up and in no case the
vacancies shall exceed 10 percent of the sanctioned strength
at any point of time."
13. Based on the above stipulation in the MOA, it is argued
that under the Scheme all the sanctioned strength of the Instructors in
ITIs is to be filled up and in no case the vacancies shall exceed 10%.
While referring to Section B clause 4 (c) (vi), it is submitted that it is
the obligation of the IMCs to make appointment of the faculties on
contractual basis as per need. This clause is as hereunder:-
"(c). Delegate to THE IMC adequate administrative and
financial powers to
.....
.....
(vi) appoint contract faculty as per need."
14. It is submitted that more than 50 % posts in the ITIs are
vacant in the regular cadre. They are not being filled up. Learned
counsel would also submit that the stance taken by the IMC that they
are short of funds is not correct because under the head manpower, the
budget allocation has increased from Rs. 25-30 lakh to Rupees Fifty
Lakh. Reference has been made to amended guidelines for
implementation under the Scheme. (Annexure No.3). The relevant
clause is as hereunder:-
"11. IMCs may utilize the interest accrued for the
purpose of activities spelled out in the Institute
Development Plan (IDP) after careful planning and also
ensuring that repayment is not affected due to use of
interest. According IMCs may use the interest accrued for
the purpose of salary of contractual staff and the limit of
expenditure for manpower has been enhanced to Rs.50.00
Lakh from the present limit of Rs.25-30 Lakh."
15. The removal order has been assailed on the ground that it
has been passed under the directions of the Secretary, State of
Uttarakhand, whereas, the State, in its counter affidavit, totally denied
necessity of any approval or permission of the State Government in
case of either appointment or removal of a contract faculty.
16. It is admitted position to learned counsel for the
petitioners that the services of the petitioners have been dispensed with
after their contract period.
17. This Court posed a question to the learned counsel for the
petitioners Mr. Alok Mahra as to which legal or constitutional right of
the petitioners have been violated or infringed, which may require
judicial intervention. In response to it, the learned counsel for the
petitioners would submit that the petitioners were appointed under the
Scheme which is to continue for thirty years.
18. Mr. Shailendra Nauriyal, learned counsel appearing for
another set of petitioners adopts the arguments as advanced by
Mr. Alok Mahra, learned counsel and also submits that the petitioners
who have been deployed on contract basis through UPNL cannot be
substituted by another set of contract faculty; the Scheme is for thirty
years; the contract employees deployed by UPNL may be removed
only on the ground of misconduct; some of the petitioners have only
been relieved from their work till further orders; they are still teaching
in their respective ITIs.
19. Sri S.C. Dumka learned counsel for the Union of India
would submit that the Scheme is to be implemented and monitored by
the State Government. Central Government has no role in its
implementation.
20. Sri Vinay Kumar learned counsel appearing for IMCs
would submit that the petitioners have been appointed on contract
basis under the Scheme. The State was also enjoined to ensure that all
additional positions required by ITIs in accordance with its IDP are
sanctioned and filled up on priority. (Reference has been made to
clause 4 (h) of Section B of MOA). It is submitted that IMCs prepared
Institute Development Plan for which under manpower head Rupees
Twenty Lakh have been allocated, but the IMCs have already spent
more than allocated amount. The IMCs are short of funds. State did not
provide funds. State did not sanction posts for new trade. Had the State
created posts for new trade, the State would have been under an
obligation to bear the expenses relating to salary, etc.
21. Learned counsel for IMCs would submit that, in fact, the
Scheme is not surviving now. Initially it was contemplated that the
IMCs would be in a position to generate funds, but it could not happen.
The IMCs are under tremendous financial crisis. They have to repay
the loan now. They do not have funds. IMC is not a government
organization. It is a society registered under the Societies Act. IMCs
may not be mandated to continue under such circumstances with the
services of the petitioners. Therefore, it is submitted that the petitions
deserve to be dismissed.
Discussion:-
22. The facts are not in dispute that the Government of India
launched the Scheme for the up-gradation of 1396 Government ITIs
through public-private partnership. Guidelines were issued and MOA
was executed between the State Government, Central Government and
the Industry partner. The Scheme was to be run through IMCs, which
were to be registered under the Societies Act. Clause C salient features
of the Scheme at serial no. 2 makes provision of IMC. It is as
hereunder:-
"2. Formation of IMC and its registration as a society:
a) An Institute Management Committee (IMC) is
constituted/reconstituted for each selected ITI. The IMC is
converted by the State Government into a Society under
relevant Societies Registration Act. The IMC registered as a
society is entrusted with the responsibility of managing the
affairs of the ITI under the Scheme.
b) The IMC is led by the Industry Partner. In the
IMC, the members are as follows:
• Industry Partner or its representative as
Chairperson.
• Four members from local industry to be
nominated by the Industry Partner in such a
way that the IMC is broad based.
• Five members nominated by the State Govt.
(i) District Employment Officer, ii) One
representative of the State Directorate
dealing with it is, iii) One expert from local
academic circles, iv) One senior faculty
member, v) One representative of the
students].
• Principal of the ITI, as ex-officio member
secretary of the IMC Society."
23. Clause 3 of the Scheme provides for signing of MOA.
According to the Scheme, the Institute Development Plan is to be
prepared by IMC and the Scheme also provides for conditions for use
of the funds of IMC. It is quite in detail.
24. Various provisions of the MOA have been referred to by
the learned counsel for the parties, which are with regard to the
delegation to IMC. The administrative and financial powers which as
quoted hereinabove, authorises the IMCs to appoint contract faculty as
per need; ensure filling up the vacancy and also to ensure that all
additional positions as required, are filled up on priority.
25. Learned counsel for the parties have referred to the
expenditure statements submitted in WPSS No. 1694 of 2019 to get
support for their arguments. These factual aspects are not in dispute.
What is in dispute is that, on the one hand, according to the petitioners,
the Scheme cannot be stopped midway; the IMCs are not short of
funds, therefore, the services of the petitioners cannot be dispensed
with, whereas, on the other hand, according to the IMCs, they are
facing financial crisis; IMC is a society registered under the Societies
Act; the services of the petitioners are on contract basis and after
expiry of contract, they have no right to require the IMCs to continue
with their services.
26. These petitions have been filed under Article 226 of the
Constitution of India. Writ of mandamus is the command of the Court
which requires performance of duties. In order to substantiate a case
for issuance of writ of mandamus, first and foremost, the petitioners
have to show that any of their legal right has been infringed, unless
there is infringement, violation or defiance of any legal right, there
may not be any corresponding duties or obligations that may be
required to be enforced.
27. In the case of The Praga Tools Corporation vs. Shri C.A.
Imanual and others, 1969 (1) SCC 585, the Hon'ble Supreme Court
observed that a mandamus lies to secure the performance of a public or
statutory duty in the performance of which the one who applies for it
has a sufficient legal interest. The Hon'ble Court further observed as
hereunder:-
"Thus, an application for mandamus will not lie for
an order of restatement to an office which is essentially of a
private character nor can such an application be maintained
to secure performance of obligations owed by a company
towards its workmen or to resolve any private dispute.
(See Sohan Lal v. Union of India)1. In Regina v. Industrial
Court & Ors.2 mandamus was refused against the Industrial
Court though set up under the Industrial Courts Act, 1919
on the ground that the reference for arbitration made to it by
a minister was not one under the Act but a private reference.
"This Court has never exercised a general power" said
Bruce, J. in R. v. Lawisham Union3 "to enforce the
performance of their statutory duties by public bodies on the
application of anybody who chooses to apply for a
mandamus. It has always required that the applicant for a
mandamus should have a legal and a specific right to
enforce the performance of those duties".
(emphasis supplied)
28. In the case of State of Uttar Pradesh and another vs. Uttar
Pradesh Rajya Khanij Vikas Nigam Sangharsh Samiti and others,
(2008) 12 SCC 675, the Hon'ble Supreme Court observed that "the
petitioners had prayed for a writ of mandamus which presupposes
a legal right in favour of the applicant. Such right must be a
subsisting right and enforceable in a court of law. There must be
corresponding legal duty on the part of the respondent
Corporation or the Government which required the Corporation
or the Government "to do that which a statute required it to do".
29. In the case of Director of Settlements, A.P. and others vs.
M.R. Apparao and another, (2002) 4 SCC 638, the scope of
jurisdiction under Article 226 of the Constitution of India has been
1. 1957 SCR 738
2. (1965) 1 QB 377
3. (1897) 1 QB 498, 501
discussed by the Hon'ble Supreme Court, particularly the scope of a
writ of mandamus. The Hon'ble Court observed as hereunder:-
"17. Coming to the third question, which is more important
from the point of consideration of the High Court's power for
issuance of mandamus, it appears that the Constitution empowers
the High Court to issue writs, directions or orders in the nature of
habeas corpus, mandamus, prohibition, quo warranto and certiorari
for the enforcement of any of the rights conferred by Part III and for
any other purpose under Article 226 of the Constitution of India. It
is, therefore essentially, a power upon the High Court for issuance
of high prerogative writs for enforcement of fundamental rights as
well as non-fundamental or ordinary legal rights, which may come
within the expression "for any other purpose". The powers of the
High Courts under Article 226 though are discretionary and no
limits can be placed upon their discretion, they must be exercised
along the recognised lines and subject to certain self-imposed
limitations. The expression "for any other purpose" in Article 226,
makes the jurisdiction of the High Courts more extensive but yet
the Courts must exercise the same with certain restraints and within
some parameters. One of the conditions for exercising power
under Article 226 for issuance of a mandamus is that the Court
must come to the conclusion that the aggrieved person has a legal
right, which entitles him to any of the rights and that such right has
been infringed. In other words, existence of a legal right of a citizen
and performance of any corresponding legal duty by the State or
any public authority, could be enforced by issuance of a writ of
mandamus. "Mandamus" means a command. It differs from the
writs of prohibition or certiorari in its demand for some activity on
the part of the body or person to whom it is addressed. Mandamus
is a command issued to direct any person, corporation, inferior
courts or Government, requiring him or them to do some particular
thing therein specified which appertains to his or their office and is
in the nature of a public duty. A mandamus is available against any
public authority including administrative and local bodies, and it
would lie to any person who is under a duty imposed by a statute or
by the common law to do a particular act. In order to obtain a writ
or order in the nature of mandamus, the applicant has to satisfy that
he has a legal right to the performance of a legal duty by the party
against whom the mandamus is sought and such right must be
subsisting on the date of the petition (Kalyan Singh v. State of
U.P.4). The duty that may be enjoined by mandamus may be one
imposed by the Constitution, a statute, common law or by rules or
orders having the force of law..........."
(emphasis supplied)
30. This Court categorically posed a question to the learned
counsel for the petitioners about their legal right, and in response to it,
it was told that the Scheme is to continue for thirty years.
31. Now there are two separate things. Firstly, the
continuance of the Scheme and secondly, violation of legal or
constitutional rights of the petitioners.
4. AIR 1962 SC 1183
32. A Scheme is the policy matter of the State. It was
announced with certain mechanism inbuilt in it. This Court is not
required to make any observation about the Scheme as such, but there
is no doubt about it that it was a step taken for betterment of the
society; it is a policy matter.
33. On behalf of the IMCs, it is being stated that the Scheme
did not work; the IMCs could not generate funds and the IMCs are not
even in a position to repay the loan.
34. On behalf of the State of Uttarakhand, learned counsel
would submit that the State Government has nothing to do in the
matter. The Scheme was to be run by the IMCs and the funds were to
be provided by the Central Government.
35. Now this Court cannot run the policy matters. This Court
cannot device any method by which IMCs may run the Scheme; the
IMCs may generate the funds or the IMCs may repay the loan. The
monitoring, review and course correction has also been provided under
the Scheme. There is no statutory obligation upon the respondents to
run the Scheme. A policy launched, moved but it is being stated on
behalf of the IMCs that it is gasping now. Merely because initially the
Scheme was to continue for thirty years, do not give any right to the
petitioners to continue as contract faculty for thirty years against the
agreed terms of their contractual engagements. Therefore, on this
ground alone, a writ of mandamus cannot be issued.
36. Another question is can the petitioners claim for
continuance of their service; violation of their rights. The petitioners
are contract employees. Their term of contract has already expired. In
such a situation, the employer has every right to discontinue with their
services. (See Rajasthan State Roadways Transport Corporation vs.
Paramjeet Singh, (2019) 6 SCC 250 and Vidyavardhaka Sangha and
another vs. Y.D. Deshpande and others, (2006) 12 SCC 482).
37. In fact, in the case of Vidyavardhaka Sangha (supra), the
Hon'ble Supreme Court observed that "it is now well-settled
principle of law that the appointment made on probation/ad hoc
basis 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".
38. In the case of Secretary, State of Karnataka and others vs.
Umadevi and others, (2006) 4 SCC 1, the Hon'ble Supreme Court
discussed the status of ad hoc, casually, temporarily or on daily wage
basis appointment and issued various directions. The Hon'ble Court
categorically observed that "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". The Hon'ble
Court further observed that "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
open eyes. It may be true that he is not in a position to bargain -
not at arm's 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".
39. The position of law has been further discussed by the
Hon'ble Supreme Court in the case of Official Liquidator vs.
Dayanand and others, (2008) 10 SCC 1. In the case of Official
Liquidator (supra), in fact, the Hon'ble Court discussed the law on this
point till then and observed as hereunder:-
"66. The judgments of 1980s and early 1990s - Dhirendra
Chamoli v. State of U.P.5, Surinder Singh v. CPWD6, Daily
Rated Casual Labour v. Union of India7, Dharwad Distt.
PWD Literate Daily Wage Employees Assn. v. State of
Karnataka8, Bhagwati Prasad v. Delhi State Mineral
Development Corpn9 and State of Haryana v. Piara Singh10
are representative of an era when this Court enthusiastically
endeavoured to expand the meaning of the equality clause
5. (1986) 1 SCC 637 : 1986 SCC (L&S) 187
6. (1986) 1 SCC 639 : 1986 SCC (L&S) 189
7. (1988) 1 SCC 122 : 1988 SCC (L&S) 138 : (1987) 5 ATC 228
8. (1990) 2 SCC 396 : 1990 SCC (L&S)274 : (1990) 12 ATC 902
9. (1990) 1 SCC 361 : 1990 SCC (L&S) 174
10. (1992) 4 SCC 118 : 1992 SCC (L&S) 825 : (1992) 21 ATC 403
enshrined in the Constitution and ordained that employees
appointed on temporary/ad hoc/daily-wage basis should be
treated on a par with regular employees in the matter of
payment of salaries and allowances and that their services be
regularised. In several cases, the schemes framed by the
Governments and public employer for regularisation of
temporary/ad hoc/daily-wage/casual employees irrespective of
the source and mode of their appointment/ engagement were
also approved. In some cases, the courts also directed the State
and its instrumentalities/agencies to frame schemes for
regularisation of the services of such employees.
67. In State of Haryana v. Piara Singh this Court while
reiterating that appointment to the public posts should
ordinarily be made by regular recruitment through the
prescribed agency and that even where ad hoc or temporary
employment is necessitated on account of the exigencies of
administration, the candidate should be drawn from the
employment exchange and that if no candidate is available or
sponsored with the employment exchange, some method
consistent with the requirements of Article 14 of the
Constitution should be followed by publishing notice in
appropriate manner for calling for applications and all those
who apply in response thereto should be considered fairly,
proceeded to observe that if an ad hoc or temporary employee
is continued for a fairly long spell, the authorities are duty-
bound to consider his case for regularisation subject to his
fulfilling the conditions of eligibility and the requirement of
satisfactory service. The propositions laid down in Piara Singh
case11 were followed by almost all the High Courts for
directing the State Governments and public authorities
concerned to regularise the services of ad hoc/temporary/daily-
wage employees only on the ground that they have continued
for a particular length of time. In some cases, the schemes
framed for regularisation of the services of the backdoor
entrants were also approved.
68. The abovenoted judgments and orders encouraged the
political set-up and bureaucracy to violate the soul of Articles
14 and 16 as also the provisions contained in the Employment
Exchanges (Compulsory Notification of Vacancies) Act, 1959
with impunity and the spoil system which prevailed in the
United States of America in the sixteenth and seventeenth
centuries got a firm foothold in this country. Thousands of
persons were employed/engaged throughout the length and
breadth of the country by backdoor methods. Those who could
pull strings in the power corridors at the higher and lower
levels managed to get the cake of public employment by
trampling over the rights of other eligible and more
meritorious persons registered with the employment
exchanges. A huge illegal employment market developed in
different parts of the country and rampant corruption afflicted
the whole system. This was recognized by the Court in Delhi
Development Horticulture Employees' Union v. Delhi
Admn.12 in the following words: (SCC pp. 111-12, para 23)
11. (1992) 4 SCC 118 : 1992 SCC (L&S) 825 : (1992) 21 ATC 403
12. (1992) 4 SCC 99 : 1992 SCC (L&S) 805 : (1992) 21C 386
"23. Apart from the fact that the petitioners cannot
be directed to be regularised for the reasons given above, we
may take note of the pernicious consequences to which the
direction for regularisation of workmen on the only ground
that they have put in work for 240 or more days, has been
leading. Although there is an Employment Exchange Act
which requires recruitment on the basis of registration in the
employment exchange, it has become a common practice to
ignore the employment exchange and the persons registered
in the employment exchanges, and to employ and get
employed directly those who are either not registered with
the employment exchange or who though registered are
lower in the long waiting list in the employment register.
The courts can take judicial notice of the fact that such
employment is sought and given directly for various illegal
considerations including money. The employment is given
first for temporary periods with technical breaks to
circumvent the relevant rules, and is continued for 240 or
more days with a view to give the benefit of regularisation
knowing the judicial trend that those who have completed
240 or more days are directed to be automatically
regularised. A good deal of illegal employment market has
developed resulting in a new source of corruption and
frustration of those who are waiting at the employment
exchanges for years. Not all those who gain such backdoor
entry in the employment are in need of the particular jobs.
Though already employed elsewhere, they join the jobs for
better and secured prospects. That is why most of the cases
which come to the courts are of employment in government
departments, public undertakings or agencies. Ultimately it
is the people who bear the heavy burden of the surplus
labour. The other equally injurious effect of indiscriminate
regularisation has been that many of the agencies have
stopped undertaking casual or temporary works though they
are urgent and essential for fear that if those who are
employed on such works are required to be continued for
240 or more days they have to be absorbed as regular
employees although the works are time-bound and there is
no need of the workmen beyond the completion of the
works undertaken. The public interests are thus jeopardised
on both counts."
40. In the case of Official Liquidator (supra), the Hon'ble
Supreme Court also referred to the judgment in the case of Piara Singh
(supra), in which case the Hon'ble Court observed that "an ad hoc or
temporary employee should not be replaced by another ad hoc or
temporary employee, he must be replaced only by a regularly
selected employee. This is necessary to avoid arbitrary action on
the part of the appointing authority".
41. On behalf of the petitioners, it is apprehended that they
may be replaced by another set of contract faculty, but on behalf of the
IMCs, it is categorically being argued that the IMCs have no intention
to substitute the petitioners with another set of contract faculty.
According to the learned counsel for IMCs, the IMCs are not in a
position to appoint any contract faculty due to paucity of funds.
42. Admittedly in all the cases, the contract period of the
petitioners had already expired before they were asked not to continue.
IMCs are societies registered under the Societies Act. They took the
services of the petitioners in accordance with the Scheme. Their
services were taken for a particular period. The petitioners' right qua
their employment is restricted to the terms of the contract, not beyond
that. There are no Rules which govern their service conditions; they
were not on government jobs and they were merely employed by a
Society. They had a contractual affiliation with the IMCs which had
come to an end. IMCs are not under any statutory obligation to
continue with the services of the petitioners; the petitioners have
neither shown nor established that their rights have been violated;
accordingly there is no corresponding duty upon the IMCs. Therefore,
there is no reason to further direct continuance of service of the
petitioners.
43. On behalf of the petitioners, an argument has also been
made that they were not paid the enhanced salary as provided under
the Scheme.
44. What was provided under the Scheme is one thing and
what was agreed upon by the petitioners is a separate thing. If the
petitioners are not provided the salary as stipulated under the Scheme,
they are free to make a representation before the respondent authorities
and they are still free to do so. For this purpose, at this stage, this Court
is of the view that no intervention of the Court is required.
45. In view of the foregoing discussion, this Court is of the
view that there is no merit in any of these petitions and they deserve to
be dismissed.
46. All the writ petitions are dismissed.
(Ravindra Maithani, J.)
25.03.2021
Ankit/
