Yogesh Bansal vs M.D.S.D. Girls College and Others

Tejinder Singh Dhindsa, J.—The petitioner has filed the instant writ petition seeking the issuance of a writ in the nature of mandamus for directing the respondents to consider him as a permanent employee in continuous service on the post of Steno-typist in M.D.S.D. Girls College, Ambala City. Further prayer is for the grant of arrears of salary from the month of December, 1993 till date. As per pleaded case of the petitioner, he was appointed on 1.5.1991 against a regular/permanent post of Steno-typist in the respondent-College. However, no appointment letter was issued to him. The respondent-College receives grant-in-aid from the State of Haryana and it is affiliated to the Kurukshetra University, Kurukshetra. Initially, the petitioner was paid a salary of Rs. 600/- per month w.e.f. 1.5.1991 and thereafter, he was given two increments of Rs. 100/- each w.e.f. 1.1.1993 and 1.7.1993 respectively. On 16.11.1993, the petitioner was sent to the Post Office, Old Anaj Mandi, Ambala City by the Principal of the College for sending some letter vide registered post to Kurukshetra University. Unfortunately, on such date i.e. 16.11.1993, the petitioner met with an accident which resulted in multiple fractures in his right leg/foot. It has further been pleaded that having undergone medical attention/treatment, the petitioner has been repeatedly representing to the respondent-College to permit him to join back on duty, but he has neither received any communication, notice or order of termination of service from the post of Steno-typist nor has been permitted to join back. It is against such brief factual backdrop that the writ petition was instituted in the year 1994.

Mr. P.N. Aggarwal, learned counsel appearing for the petitioner would vehemently argue that the petitioner was deemed to have been confirmed on the post of Steno-typist w.e.f. 1.5.1993 i.e. after the expiry of maximum period of two years from the date of his initial appointment. In this regard, learned counsel would refer to Section 4 of the Haryana Affiliated Colleges (Security of Service) Act, 1979 and Regulation 4 of Chapter II of Ordinance XVI of the Kurukshetra Calendar, Vol. 1. It has been strenuously argued that under such statutory provisions, an employee appointed against permanent/regular post may be kept on one years'' probation after which period he will normally be confirmed if his work and conduct is found satisfactory. The probationary period, under no circumstances, is to be extended beyond two years from the date of appointment. Learned counsel would further argue that the action of the respondent-authorities in not treating the petitioner as a permanent employee on the post of Steno-typist, not having paid his salary since the month of December 1993 and having not permitted him to join back on duty since December 1993 is against all canons of justice, equity and fair play.

Mr. Satya Pal Jain, learned Senior counsel appearing for the respondents has resisted the claim of the petitioner by adverting to the categoric averments made in the written statement. Learned Senior counsel would state that the petitioner had worked in the College on daily wage basis from May 1991 to December 1992 @ Rs. 600/- per month, from 1.12.1993 to 30.6.1993 @ Rs. 700/- per month and from 1.7.1993 to 30.11.1993 @ Rs. 800/- per month. It has further been stated that the petitioner was never appointed against any sanctioned post, no applications were invited and no Selection Committee was constituted. Further categoric averment is that no grand-in-aid had been received from the State Government against the salary that had been paid to the petitioner. Learned Senior counsel would further argue that the provisions of 1979 Act as also those contained in the Kurukshetra calendar would not apply to the petitioner as he was never appointed against any regular/permanent post.

Learned counsel for the parties have been heard at length and pleadings on record have been perused.

Even though a replication had been filed to the written statement of the respondents and a bald plea of denial to almost each and every averment contained in the written statement had been taken, yet no document/material has been placed on record to substantiate that the petitioner had been appointed after following a due selection process and against a regular aided post.

Article 16 of the Constitution of India mandates that every appointment to a public post or office under the State/Instrumentality thereof should be made by open advertisement so as to enable all eligible persons to compete for selection on merit. Any appointment made on a post without issuing advertisement inviting applications from eligible candidates and without holding a proper selection, where all eligible candidates get a fair chance to compete, would violate the guarantee enshrined under Article 16 of the Constitution of India. A Constitutional Bench of Hon''ble Supreme Court in Secretary, State of Karnataka and Others Vs. Umadevi and Others, considered the question as to whether in exercise of power under Article 226 of the Constitution of India, the High Court could entertain the claim for regularization and/or continuance in service made by those appointed without following due procedure in the light of the Scheme envisaged under Articles 14 and 16 of the Constitution of India and held in the following terms:

Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. 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. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme.

Such view has been re-iterated by the Hon''ble Supreme Court in State of Bihar Vs. Upendra Narayan Singh and Others,

Following the dictum of law laid down by the Hon''ble Supreme Court, I am of the considered view that the petitioner having not been appointed in pursuance to any regular/proper selection process, the prayer raised in the instant writ petition cannot be accepted. The writ petition, accordingly, is dismissed.