Uttarakhand High Court
SPA/300/2019 on 5 January, 2023
1
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
AND
HON'BLE SRI JUSTICE MANOJ KUMAR TIWARI
5TH JANUARY, 2023
SPECIAL APPEAL NO. 300 OF 2019
Between:
Babita Badola ...Appellant
and
Garhwal Mandal Vikas Nigam Ltd. & Others.
...Respondents
For the Petitioner : Ms. Babita Badola, Petitioner-in-person
Counsel for the respondent nos. 1 to 3 : Mr. Sandeep Kothari, learned Counsel
Counsel for the respondent no. 4 : Mr. K.N. Joshi, learned Deputy Advocate
General for the State of
Uttarakhand
JUDGMENT : (per Sri Vipin Sanghi, C.J.)
The present special appeal is directed against the
judgment dated 3.12.2018, rendered by a learned Single
Judge in Writ Petition (WPSS) No. 64 of 2015. The said writ
petition had been preferred by the appellant. The appellant
had challenged her termination by the respondent- GMVN on
25.9.2014. The learned Single Judge found that the
termination was undertaken on the basis of a report,
prepared by a 2-Member Committee with regard to the
assessment of the work of the petitioner, and the said
assessment, according to learned Single Judge, was vague.
Consequently, the learned Single Judge allowed the writ
petition preferred by the appellant and directed the
respondent to conduct a fresh assessment (typed as
'inquiry'), while also giving an opportunity to the appellant to
be heard in the matter. The assessment was directed to be
undertaken by a 2-Member Committee. The respondent-
GMVN has accepted the judgment and not assailed the same.
2. The submission of the appellant is that there was
no question of making any further assessment of her
performance as, according to the appellant, she stood
confirmed on the post of Regional Manager. Consequently,
she could not be terminated by the respondent- GMVN.
3. The background facts may be noted. The appellant
responded to a public advertisement issued by the respondent
for making appointment to several posts, one of which was
the post of Chief Manager/Regional Manager. The
advertisement advertised the said post in the following
manner:
5. Chief On contractual basis for 03 Graduate
Manager/ one year at consolidated General Degree/
Regional pay of Rs. 34,500/- p.m. (including Diploma in
Manager (inclusive of Employer's one Travel Trade/
contribution towards EPF). woman) Tourism
The contract period can 01 S.C. Trade and 5
be further extended on years
satisfactory experience in
performance at the pay Tourism
of Rs. 15,600- Field.
39100+Grade Pay Rs.
5,400/- on the sole
discretion of the appointing
authority
(emphasis supplied)
4. The petitioner participated in the selection process,
and was appointed as Regional Manager vide appointment
order dated 26.7.2010. The said appointment letter, inter
alia, stated as follows:-
**2- Jherh cchrk cMksyk }kjk lafonkxr lsok;kstu dh vof/k ds
nkSjku ;fn larks'ktud ,oa fu'BkiwoZd dk;Z fd;k tkrk gS rks bUgssa
osrueku 15600&39100 + 5400-00 ij fuq;fDr izkf/kdkjh }kjk fu;fer
fu;qfDr iznku dh tk ldrh gSA**
5. Even before expiry of one year of her contractual
service, which started on 26.7.2010, on 28.4.2011, the
petitioner's services were sought to be terminated. The
petitioner was aggrieved by the said termination, and
preferred a writ petition before this Court being the Writ
Petition (WPSS) No. 443 of 2011. That writ petition was partly
allowed by the learned Single Judge. The appellant then
preferred Special Appeal No. 356 of 2012. The same was
disposed of on 2.4.2013. The operative portion of the said
order, which has been reproduced in the impugned order as
well, reads as under:
"4. We, accordingly, interfere and, while set aside
the judgment and order under appeal, allow the
writ petition and quash the termination order
dated 28th April, 2011. Appellant shall be
taken back in the employment as was granted
to her by the appointment letter dated 26th
July, 2010 and shall be permitted to continue
for one year therefrom, excluding the period
from 28th April, 2011 until seven days hence,
within which period, she shall be permitted to
join her duties for the purpose of enabling the
respondent / employer to assess whether she
is suitable for being appointed permanently in
terms of the offer made through the
advertisement and repeated by the
th
appointment letter dated 26 July, 2010. One
month's salary, already paid to the appellant along
with the termination order dated 28 April, 2011, as
well as the salary paid pursuant to the order under
appeal, shall be adjusted with the claim of the
appellant. It is made clear that, in the event,
for any shortcoming on the part of the
appellant, she cannot be permitted to continue
for the period of one year, it shall be open for
the respondent / employer to take recourse to
the offer of appointment dated 26th July, 2010.
One month's salary, already paid to the appellant
along with the termination order dated 28th April,
2011, as well as the salary paid pursuant to the
order under appeal, shall be adjusted with the claim
of the appellant."
(emphasis supplied)
6. Consequently, the termination order dated
28.4.2011 stood quashed, and the appellant stood reinstated
in service in the above terms for the remained period of one
year. The respondent then constituted a 2-Member
Committee to appraise the performance of the appellant. On
the basis of appraisal made by the said committee, the
services of the appellant were again terminated on
25.9.2014.
7. The said termination was again put to challenge by
the appellant by preferring the aforesaid writ petition i.e.
WPSS No. 64 of 2015. As aforesaid, the learned Single Judge
was of the view that the termination order dated 25.9.2014
was vague. The learned Single Judge held that the order of
termination had civil consequences for the appellant, and the
appellant ought to have been provided an opportunity before
taking a decision. Consequently, the writ petition was partially
allowed and the termination order dated 25.9.2014 was
quashed. The respondent was directed to undertake a fresh
assessment process; call for an explanation of the appellant,
and, provide an opportunity of hearing to her, and then to
take decision whether the services of the appellant deserve to
be extended, in terms of the contractual appointment.
8. The grievance of the appellant in relation to the
impugned judgment is that the learned Single Judge could not
have permitted the respondent- GMVN to reassess her
performance for the purpose of deciding, whether or not, to
continue the services of the appellant. According to her, after
expiry of one year from the date of her initial appointment,
i.e. 26.07.2010, she automatically stood confirmed in the
post of Regional Manager in the GMVN.
9. Her further grievance is that her assessment could
be made only by the Managing Director, who was her
appointing authority. She submits that the Managing Director,
under whom she had served, is no longer a part of the GMVN
and, therefore, the assessment of her performance cannot be
undertaken at this stage by any other person(s).
10. We have heard the appellant-in-person, as well as
learned counsels for the respondents, and perused the record.
11. So far as the appellant's submission that she stood
confirmed in the post of Regional Manager on the expiry of
one year of service from the date of her initial appointment,
i.e. 26.07.2010, is concerned, we find no merit in the same.
The post which was advertised, and against which the
appellant was appointed clearly stated that the appointment
for the said post would be "on contractual basis for one year
at a consolidated salary". It further stated that "the
contractual period can be further extended on satisfactory
performance", on a pay-scale. Therefore, the advertisement
nowhere whispered that the appointment would be in any
other capacity, other than contractual.
12. According to the appellant, the fact that the
extension beyond one year- upon satisfactory performance,
had to be on a regular pay-scale with grade pay, shows that
the contractual appointee was entitled to appointment as a
regular/ permanent employee, if the condition of satisfactory
performance was met. She relies on Clause 2 of her
appointment letter dated 26.07.2010, which we have quoted
hereinabove, to submit that even the appointment letter
stated that her services could be regularized.
13. The advertisement in clear terms states that the
post of Chief Manager/ Regional Manager in the GMVN was
offered on contractual basis. The initial contract period was
stipulated as one year on a consolidated salary. It went to
state that "the contract period can be further extended on
satisfactory performance." Therefore, it is absolutely clear
that the extension beyond one year on satisfactory
performance was also to be on contractual basis only. Merely
because during the extended period of contract, the
appointee was to be paid, not a consolidated salary, but pay
in a pay-scale with grade pay, it does not follow that the
nature of appointment was to be converted from contractual
to regular/ permanent. In fact, Clause 2 of the appointment
letter goes beyond the advertisement, and if the respondent
were to make the contractual appointee permanent (even
though, the advertisement was to make contractual
appointment only), that would not have given cause to other
eligible candidates, who may not have participated in
response to the advertisement in question, to raise a
grievance that the appointment on permanent/ regular basis
could not be made when the post advertised was for
appointment on contractual basis.
14. In any event, the appointment letter does not
guarantee that the appointee would be confirmed at any
stage. It merely states that the regular status could be
granted to the appointee. Thus, we reject the first submission
of the appellant that under the advertisement, or her
appointment letter, it was represented to her that after one
year of satisfactory performance, the appointment will be
made permanent.
15. In the case of the appellant, even before the expiry
of one year of her services, her services were sought to be
terminated. As noticed above, the Division Bench, which dealt
with the said termination in Special Appeal No.356 of 2012.
While quashing the appellant's termination vide order dated
02.04.2013, she was reinstated till the expiry of one year of
her services, after excluding the period from 28.04.2011 till
she rejoins her duty within a week. The Division Bench also
permitted the respondent- GMVN to assess whether the
appellant is suitable for being appointed permanently in terms
of the offer made in the appointment letter dated 26.07.2010.
It was made clear that it was open to the respondent/
employer to take recourse to the terms of the offer of
appointment dated 26.07.2010, in case the appellant cannot
be permitted to continue for the period of one year. The said
judgment of the Division Bench has attained finality.
16. That being the position, the submission of the
appellant that the respondent- GMVN did not have the right to
make an assessment of her performance to take a decision,
whether, or not, to continue her services, is completely
misplaced. If she was aggrieved by that liberty granted by the
Division Bench to the respondent- GMVN, she should have
assailed that part of the order before the Supreme Court.
Even otherwise, we find no merit in her submission that she
stood confirmed automatically, upon expiry of one year from
the date of her initial appointment.
17. Her submission that her assessment could be made
only by the same Managing Director, who appointed her, and
since he is no longer a part of the GMVN, no other officer or
officers can make an assessment of her performance, is also
completely misplaced.
18. It is not uncommon that assessment of
performance is done by an authority, under whom, the
subordinate officer may not have served directly, as such
assessment is founded upon the performance which may be
recorded, and on the inputs that the competent authority may
receive from relevant sources.
19. We, therefore, reject her submission that
assessment of her performance could no longer be made, as
it was not made within one year of her appointment, on
26.07.2010. The appellant has not placed on record any
document to show that her performance had been assessed
as suitable and acceptable for her confirmation, even
assuming that she could be confirmed in terms of the letter of
appointment.
20. The last grievance of the appellant that the
assessment of her performance could not be done by her
contemporaries, or authorities junior in rank to her appointing
authority, however, has merit.
21. Learned counsel for the respondent- GMVN also
does not dispute the fact that the assessment of her
performance should be undertaken by her appointing
authority, i.e. the Managing Director of GMVN.
22. We, accordingly, dispose of this appeal by
modifying the impugned order to the extent that the
assessment of the performance of the appellant to consider
whether her services should be continued as Regional
Manager in the GMVN, should be undertaken by the Managing
Director of GMVN himself, based on the record and inputs
received from relevant sources. Let the Managing Director of
GMVN make an assessment in the next three months. He
shall also grant an audience to the appellant before he arrives
at his assessment.
23. The appeal stands disposed of in the aforesaid
terms.
24. Pending application, if any, also stands disposed of.
(VIPIN SANGHI, C.J.)
(MANOJ KUMAR TIWARI, J.)
Dated: 05th January, 2023
NISHANT
