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Judgment
Indermeet Kaur, J.—This second appeal has impugned the judgment and decree dated 09.2.1998 which had reserved the finding of the Trial Judge. The Trial Judge vide judgment and decree dated 31.8.1995 had dismissed the suit of the plaintiff Rashpal Singh. Vide the judgment and decree dated 09.2.1998 the appeal was allowed and the suit of the plaintiff stood decreed.
Factual matrix of the case is as follows:
i. The plaintiff had filed a suit for declaration seeking declaration that the order dated 27.1.1987 terminating his services from the Defendant Corporation is illegal and void;
he had sought reinstatement of his service in the Defendant Corporation.
ii. plaintiff had been working on daily wages in the Defendant Corporation since 28.8.1984. He worked in his capacity as an LDC. On 08.10.1996 on the recommendation of the Secretary and Chairman of the Corporation he was shifted to Bhadohi for a period of three months where he worked as an Assistant. He had worked to the best of his ability.
iii. The Office Memorandum (OM) dated 26.2.1986 of the Defendant department stated that all existing daily wage workers would be regularized as and when regular posts become available.
v. On 27.1.1987 services of the plaintiff were terminated w.e.f. 02.2.1987; Vijay Kumar Sinha was appointed and replaced the plaintiff as an Assistant at Bhadohi.
vi. This order of termination had been disputed by filing the present suit.
vii. Defendant Corporation had disputed the claim of the plaintiff. It was stated that the plaintiff was a daily wage worker on an ad hoc basis; nevertheless opportunity had been granted to him to participate in the selection process for the post of Assistant.; he did not qualify on merits; in these circumstances Mr. Vijay Kumar Sinha was appointed in his place; he has no lien over the said post.
viii. Trial Judge had framed the following four issues which inter alia read as follows:
Whether order of termination dated 21.1.87 is without jurisdiction, arbitrary and not maintainable as alleged? OPP
Whether the post of the plaintiff was temporary for a specified period? If so its effect? OPD
If issue No. 2 is not proved, whether plaintiff is entitled to relief claimed? OPP
Relief.
ix. On the basis of the oral and documentary evidence adduced before the Trial Judge, the suit of the plaintiff was dismissed. A finding was returned that the plaintiff has been appointed purely on a temporary and ad hoc basis; this position was admitted by the plaintiff himself; the daily wage workers were to be regularized subject to availability of posts; posts were not available. Post of LDC had fallen vacant and the plaintiff had been permitted to participate in the selection process but in spite of having been called for interview he failed to appear. plaintiff also did not qualify in the selection process for Assistant as a result of which Mr. Vijay Kumar Sinha who was the successful candidate replaced him. Suit of the plaintiff was dismissed.
x. The impugned judgment dated 09.2.1998 had reversed the finding of the Trial Judge. It was held that the plaintiff has worked in the Defendant organization for more than two years; he had right to be heard before a major penalty of termination is imposed upon him. Appeal was accordingly allowed.
This is a second appeal. After its admission on 12.12.2003, the following substantial question of law was formulated; it reads as follows:
Whether on the basis of evidence adduced before the trial court, the Appellate Court could have reserved the finding?
On behalf of the Appellant, it has been urged that the impugned judgment has not in any manner dealt with the contention raised by the Appellant/Defendant; it has cursorily disposed of the appeal without going into merits. The first Appellate Court was bound to have examined each and very issue which it had failed to adhere to. It was pointed out that the Appellant was admittedly only a daily wage worker. A suit for specific performance of a contract could not be filed; suit was not maintainable. For this proposition reliance has been placed upon a judgment reported in Executive Committee, U.P. Warehousing Corporation Vs. Chandra Kiran Tyagi, to substantiate this submission that a contract of personal service cannot be enforced by an order of specific performance.
Per contra arguments have been countered. It is pointed out that the duty of the first Appellate Court as has been laid down by a Bench of this Court in a judgment reported in Har Bhaj and Another Vs. Barfi and Others, ; is to apply its judicial mind to the appreciation of the evidence particularly when reversing conclusions of fact; no general rule can be laid down that in all cases courts of first appeal must mention every piece of evidence and reproduce the testimony of every witness with elaborate comment; there is no fault in the finding of the impugned judgment; it had clearly appreciated the fact that the Appellant had worked with the Defendant Corporation for more than 240 days; his services could not have been terminated without giving him an opportunity of hearing.
Perusal of the record shows that admittedly even as per the averments contained in the plaint; the plaintiff was working with the Defendant Corporation as a daily wager. He worked there between 28.8.1994 to 31.8.1986. It is also not disputed that in the meeting of the Defendant Corporation on 26.2.1986 it was noted that existing daily wage workers would be regularized as when regular posts become available (page 237 of the paper book). Vide Ex.PW-1/1 dated 12.8.1986, the plaintiff was appointed as an Assistant in the Regional Office of Bhadohi in the Defendant Corporation. This was on an ad hoc basis for three months. However, since the next incumbent Mr. Vijay Kumar Sinha could not replace him due to administrative exigencies, services of the plaintiff continued up to 02.2.1987; he was terminated on 02.2.1987 vide Ex.PW-1/2. His subsequent representations to the Development Commissioner i.e. the Appellate Body vide Ex.PW-1/3 and Ex.PW-1/4 were considered but rejected.
Trial judge had examined the oral testimony of the witnesses including the version of the plaintiff examined as PW-1. PW-1 in his cross-examination had admitted that his appointment as Assistant at Bhadohi was for three months; he, however, worked for five months and after Vijay Kumar Sinha was appointed his services were no longer required. He had admitted that the post of Assistant was advertised but he could not recollect whether he had participated in the interview which was conducted at Bhadohi. In the written statement, categorical version of the department was that selection for the post of Assistant was conducted as Bhadohi for which interview was held and the plaintiff had also participated but he failed to qualify on merits. In the replication there was no denial to this averment in the written statement. Even in the cross-examination, the answers of the plaintiff were ambiguous and he did not categorically deny that he did not participate in the selection process of Assistant. These facts have been noted by the Trial Court.
It is also an admitted position that the daily wage workers were to be regularized by the Department subject to availability of posts. The evidence had established that for the post of Assistant, the plaintiff had participated in the selection process but he had fallen short on merits; as a result Vijay Kumar Sinha was appointed. Trial Judge had also noted that the post of LDC had fallen vacant and the plaintiff was also called for interview to participate but in spite of opportunity he had failed to appear. This is also admitted by the plaintiff in his evidence. Trial Judge had returned a positive finding in this regard and had appreciated all these submissions but finding no merits in them had rejected the same. Relevant extract reads as follows:
We may appoint Shri Rash Pal Singh as assistant on adhoc basis for a period of three months or till he is regularized by CON at the time of selection of other candidates w.e.f. 1.9.86..." It is admitted case of the plaintiff that he was working as a clerk on daily wages. Vide Ex.PW1/D1 the plaintiff has accepted the offer of appointment on the terms and conditions stipulated at the memorandum No. CEPC/SEC/R.O. 162/86/1492, dated 12.8.86. Ex.PW1/D2 is the joining report of the plaintiff for the post of assistant dated 1.9.86, and Ex.PW1/D3 is the letter dated 6.10.87 vide which the plaintiff was communicated with the decision of the Development Commissioner Handicraft which was issued with the approval of Minister for Textile. Ex.DW1/P1 vide page 6 referred that "the existing daily wages workers will be regularized as and when the regular posts become available." Ex.PW1/1 is the letter dated 12.8.86 vide which the plaintiff was offered for post of assistant on purely, temporary and adhoc basis initially for the period of three months w.e.f. 1.9.86 with the condition that if during this period his work is not satisfactory, his services are liable to be terminated at any time without any reasons being assigned. Ex.PW1/2 is the letter dated 27.1.87 vide which the services of the plaintiff were terminated w.e.f. 2.2.87 (after noon). It is an admitted case of the plaintiff also who has even deposed during the course of cross examination and even admitted the documents as discussed above, that his services as assistant was on adhoc basis temporary and on adhoc basis initially for the three months. It is not disputed that he had worked there for more than three months but even when he was asked whether he appeared in the interview, his reply was not satisfactory to the fact that which he stated that he do not recollect whether he participated in the interview for the post of assistant or not but he has stated that he was present in Bhadohi at that time. He also admitted regarding the advertisement in the newspaper for recruitment for recruiting person on the post of assistant. The plaintiff has also deposed that he does not have any proof to show that he was appointed on regular basis as assistant with the Defendant No. 3. As regards the decision of the M.D.A. meeting dated 26.2.86 is concerned it is not a disputing fact, it was decided to regularize the daily wages workers as and when the regular posts become available. The plaintiff was mere daily wager and it has also been proved on record that no test/selection process was conducted in his appointment as assistant on purely temporary and on adhoc basis initially for the period of three months.
From all this it is clear that the order dated 27.1.87 is not arbitrary but it is a proper order which has been passed by the competent authority. The plaintiff has failed to prove this issue in his favour. The issue is decided against the plaintiff.
The present suit was a suit for declaration. It was not seeking specific performance of a contract as has been urged by the learned Counsel for the Appellant; what the plaintiff sought was a declaration that termination of his service were illegal. No such contention as has now been urged before this Court had also been raised by the Defendant before the Courts below; no such issue on the maintainability was also framed. This argument now urged before this Court that the suit was not maintainable in the present form is accordingly rejected.
However, on merits, the case of the Appellants carries substance. The first Appellate Court had proceeded on the assumption that the plaintiff was a regular employee of the Department having worked for more than 240 days; his services could not have been terminated without an opportunity of hearing. The impugned judgment has misappreciated the facts; both oral and documentary. Evidence had established that the plaintiff had worked in two capacities; firstly as an LDC and then as an Assistant for a period of three months enlarged to five months; plaintiff was working only on daily wages and thereafter on contract for a period of three months in the post of Assistant. His letter of appointment had clearly communicated that his appointment is on an ad hoc basis and he shall be considered for selection as and when posts arise. He had participated in the selection process for the post of Assistant which was held at Bhadohi. He has failed to qualify. Vijay Kumar Sinha replaced him. His services were thus terminated on 02.2.1987. The guidelines of the selection process were duly adhered to; his termination on 02.2.1987 is in no manner arbitrary and illegal. It is further relevant to point out that even for the post of LDC the plaintiff had been given an opportunity to participate and has been called for interview but he refused to do so.
As on date after some persuasion the Appellant Corporation was agreeable to engage the services of the Respondent in capacity of an LDC on a contract basis but the proposal having been put to the Respondent/plaintiff has rightway been rejected by him.
Be that at it may, the appeal must succeed. The plaintiff had been engaged only on daily wages and later on an ad hoc basis for a period of three months to the post of Assistant. He has no lien over the said post; he had failed to qualify in the merit test in which he had participated; he could be considered for regularization only when posts fell vacant. There was no such post after the post of Assistant had been filled up by Vijay Kumar Sinha.
In the judgment of the Apex Court reported in Indian Drugs and Pharmaceuticals Ltd. Vs. Workman, Indian Drugs and Pharmaceuticals Ltd., where the Respondents had been appointed on purely casual and daily-rate basis, it was held that they had no right to the post and were not entitled to regularization merely on completion of 240 days or more and the same did not entitle/import a right of regularization. The distinction between a temporary and a permanent employee had been drawn; a temporary employee who is in the category of a casual employee, daily-rate employee, ad hoc employee, has no right to be continued in service or to get absorption; a post has to be created before it is filled up; creation and abolition of posts and their regularization are purely executive functions. Court cannot create a post where none exists.
Case of the plaintiff must fail. Appeal is allowed and the pending application is disposed of. Suit of the plaintiff is dismissed. No order as to cost.