Romesh Kumar Zutshi vs J & K State Forest Corporation

B.A. Khan, J.—This petition represents petitioner's long drawn battle and a last ditch effort to stay in service. He was initially engaged as casual labourer on 4.6.1988 in the J&K State Forest Corporation and was later "temporarily appointed as a substitute field assistant against the suspension vacancy of one Abdul Rehman working in the Rajouri Forest Division and was posted to Mahan Division" by Corporation's order No. 24 of 1990 dated 11.1.1990. This order specifically provided that his appointment would be for six months in the first instance or till the suspendee was reinstated which he was on 13.11.1990. It appears that the aforesaid order of appointment was cancelled and subsequent order dated 1.2.1990 passed by the Managing Director. Petitioner challenged this in the court of Sub Judge (CJM), Jammu and obtained a stay order on 12.2.1990 and continued in service on its strength. The stay order was, however, vacated on contest by order dated 18.2.1991. The petitioner took an appeal against this order and again obtained a stay order. His appeal was eventually dismissed on 28.1.1993 and his services were thereafter terminated by order dated 28.3.1994 which is under challenge in this petition.

During this period, petitioner was suspended by order dated 13.2.1992 and was paid subsistence allowance under Article 108A of the J&K Civil Services Regulations vide order dated 15.5.1992. He was reinstated on 14.12.1992 and his period of suspension was treated as on duty. He is also said to have contributed to C.P. Fund meanwhile.

Petitioner's case in nutshell is that since he was allowed to continue in service after 13.11.1990 when Abdul Rashid, Field Asstt. was reinstated in service and as his appointment was temporary, he should be deemed to have assumed quasipermanent status under rule 3 of the J&K Civil Services (Temporary Services) Rules, 1961 and could have been sent out of service only on meeting the requirement of Rule 6 of these Rules. This is sought to be buttressed by the submission that the corporation management had all along treated him as a permanent employee which was evident from the way he was dealt with all along till the impugned order was passed. The very fact that he was suspended and paid subsistence allowance under the J&K Civil Service Regulations (CSR) and reinstated, goes to show that the management was conscious of his status as a temporary employee and as he had been allowed to complete more than three years on the post, he acquired the quasipermanent status and consequently, could not be ousted without recourse to the requirements of Article 311 of the Constitution. Learned counsel for the petitioner, Mr. Goja, has relied upon AIR 1987 S.C. 110 and AIR 1985 SC 941, in support.

In their objections the respondents have taken the stand that the petitioner's appointment was contingent and valid only for six months or till the suspended employee, Abdul Rehman, would be reinstated, whichever was earlier. Since, he was reinstated on 13.11.1990, petitioner had automatically lost any right to hold the post and was thereafter allowed to continue only in compliance to the stay orders of the civil court. It is submitted that his suspension, reinstatement or his contribution to C.P. Fund was a natural corollary to his continuation under the stay orders of the civil court and from this it could not be read or implied that the management wanted to treat him as a quasipermanent or permanent employee. It is denied that the J&K Civil Services (Classification, Control & Appeal), Rules or for that matter J&K Civil Service (Temporary Services) Rules, 1961, apply to employees of the corporation whose services are regulated by the Corporation Regulations of 1993. It is also pointed out that the petitioner is guilty of suppressing material facts as he had not provided any clue about the litigation launched by him in the civil court to perpetuate his stay in service.

Mr. Bhardwaj, learned counsel for the respondents has invited my attention to the relevant Rule 8(XII), (XXXV) and Rule 17 of the Corporation Rules to show that petitioner's service were terminated in conformity with these rules. He argued that it was not the petitioner's case that the order impugned terminating his service was violative of any Corporation Regulation or that any such regulation was ultra vires the Constitution or any law or that the order emanated from any mala fide and extraneous considerations. There was no question of pressing in service the J&K Civil Services (Temporary Service) Rules, 1961, which are applicable to the Government employees only. He submitted that no other set of rules could be held to be automatically applicable to the corporation unless it was shown that such rules had been adopted by it. He sought support from a Division Bench judgment of this Court in Nazir Ahmed v. J&K SRTC and also 1977 JKLR 357.

It goes without saying that the petitioner was appointed as a substitute field assistant temporarily against the suspension vacancy of one Abdul Rehman for six months in the first instance or till the suspendee was reinstated, whichever was earlier. Under this order his right to hold the post extended only for six months or till the reinstatement of Abdul Rehman which admittedly took place on 13.11.1990. His continuance against the post beyond this date is undoubtedly as result of the stay order of the civil court in a litigation launched by him to seek annulment of order dated 1.2.1990 by which his temporary appointment was cancelled. Therefore, once he lost his battle against the order cancelling his temporary appointment, his continuance or otherwise was to be regulated under the terms and conditions of his basic appointment order dated 11.1.1990 under which his tenure had to enure for six months or till the reinstatement of the suspendee employee. His right or interest to the post could not travel beyond this.

Petitioner's contention that since he was treated like a permanent employee during the interregnum by reason of being placed under suspension or having contributed to C.P. Fund etc. is fallacious for the simple reason that his continuance was the result of the stay orders passed by the civil court and so long as he worked against the post, he was required to be dealt with as any temporary employee of the corporation. Therefore, much store cannot be set on the way he was dealt with during his stay in office under orders of the civil court. Nor can it be inferred from this that the management of the corporation ever intended to treat him as temporary or confirmed employee.

Petitioner's reliance on the J&K Civil Services (Temporary Service) Rules or for that matter any other set of rules applicable to the Government employees, is both misdirected and misplaced. Needless to point out that the services of the employees of a statutory corporation are regulated by the Corporation Rules and Regulations and wherever same do not exist it is for the corporation to adopt a particular set of rules from those applicable to the Government servants in accordance with the procedure laid down in the statute creating such corporation or any standing orders for that matter. It is not the petitioner's case that the respondentcorporation ever adopted the Temporary service rules or any other set of rules.

Nor is it shown how these rules could be attracted to the employees of the corporation whose services are admittedly governed and regulated by their Corporation Regulations, 1990. Therefore, any reference or reliance on such rules is wholly misconceived and once such rules are not applicable, there is no question of determining the status of the petitioner, under such rules.

It is equally fallacious to contend that the services of the petitioner were required to be terminated after giving him an opportunity of being heard under Article 311 of the Constitution. It is by now well settled that Article 311 of the Constitution is not attracted to the employees of a statutory corporation who are governed by their own service rules and regulations. Therefore, all that remains to be seen is whether the order impugned had been passed in violation of any corporation regulation or rule.

The relevant regulations define a 'temporary employee of the corporation', as "an employee who has been engaged for a limited period against a permanent or temporary post or for work which is of temporary nature". Permanent employee is defined as an employee who has been confirmed and whose name has been entered in the corporation employment register as such. Rule 17 provides for a written order to confirm an employee from the specified date after taking into consideration his record of service, confidential report, seniority and suitability. Rule 20(VII) provides for termination of a confirmed employee by a three months' notice and that of a temporary employee by a one month's notice.

A perusal of these regulations shows that the order of termination has been passed in accordance with the prescribed requirements and, therefore, cannot be faulted. On this line of reasoning it is not possible to hold that the petitioner had assumed any quasipermanent or regular status by reason of his cotnuance quasipermanent against the post after 13.11.1990 or that his ouster from service was violative of any corporation rules or regulations or for that matter any other provisions of the Constitution.

The judgments cited by Mr. Goja viz. O.P. Bhandari v. ITDC, AIR 1987 SC 110 and Surayanarayana v. Bihar Electricity Board, AIR 1985 SC 941 are not relevant on the point and are distinguishable both on facts and law. While in the first case the Apex Court was dealing with the validity of rule 31(v) of the ITDC rules which were finally declared as violative of Articles 14 and 16 of the Constitution, the second case related to regularisation of trainee engineers of the Bihar Electricity Board. Since, in this case the Electricity Board had time and again represented to the trainee engineers that they would be absorbed permanently, the Supreme Court ordered their regularisation by applying principle of equitable estoppel. In the present case no such assurance or representation was ever extended to the petitioner. Therefore, there is no question of drawing any support from the either judgment.

It also deserves to be pointed out that the petitioner has conveniently withheld the events surrounding his litigation in the civil court on the strength of which he has held on to the post beyond 13.11.1990. The suppression of material facts in this regard also disentitles him to any relief in equity.

In the result this petition fails and is dismissed. Interim direction issued shall stand vacated.