Sat Narayan v. State of Haryana & Ors.

CORAM: HON’BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present : Dr. Balram Gupta, Senior Advocate with Mr. R.D.Gupta, Advocate, for the petitioners. Mr. Sunil Nehra, Sr. D.A.G., Haryana, for the respondents. AUGUSTINE GEORGE MASIH, J. By this order, I propose to dispose of C.W.P. No.18578 of 2009 titled as ‘Sat Narayan Vs. State of Haryana and others’, C.W.P. No.19645 of 2009 titled as ‘Archana Sharma and others Vs. State of Haryana and others’, C.W.P. No.20211 of 2009 titled as ‘Rajinder Singh and another Vs. State of Haryana and others’, C.W.P. No.20316 of 2009 titled as ‘Achala Malhotra and others Vs. State of Haryana and others’, C.W.P. NO.18578 OF 2009 -3- C.W.P. No.1696 of 2010 titled as ‘Ashok Kumar and others Vs. State of Haryana and others’, C.W.P. No.1711 of 2010 titled as ‘Rajni Vs. State of Haryana and others’, C.W.P. No.3746 of 2010 titled as ‘Rajesh Kumar and others Vs. State of Haryana and others’, C.W.P. No.4005 of 2010 titled as ‘Suman Lata and others Vs. State of Haryana and others’, C.W.P. No.8269 of 2010 titled as ‘Subhash Vs. State of Haryana and others’ and C.W.P. No.8300 of 2010 titled as ‘Rajwati Vs. State of Haryana and others’, as common questions of facts and law are involved in these writ petitions. For convenience, facts are being taken from C.W.P. No.18578 of 2009. Petitioner has approached this Court praying for issuance of writ of certiorari quashing the decision dated 23.07.2009 (Annexure P-18) taken by the Committee headed by the Chief Secretary to Government of Haryana vide which the claim of the petitioner for taking him back in service as Sanskrit teacher, who were appointed for 89 days in the year 1997, stand rejected and the order dated 31.07.2009 (Annexure P-18/1) vide which the decision was conveyed to the petitioner being violative of Article 14 of the Constitution of India. Prayer has already been made for writ of mandamus directing the respondents to reinstate the petitioner to the post of Sanskrit Teacher with all consequential benefits. Counsel for the petitioner contends that the services of the petitioner were terminated in total violation of the settled principles of law. He contends that the petitioner had a right to continue in service on a post till regularly selected candidates came to replace him as per the terms of contract. Although, the post on which the petitioner was appointed on contractual basis stood filled by the regularly selected candidates but as the other posts of Sanskrit Teachers were lying vacant, petitioner should have been continued in service. His further contention C.W.P. NO.18578 OF 2009 -4- is that the petitioner was entitled to be considered for adjustment against the vacant post which has not been done by the respondents thus, violating of the principle of equality enshrined under Article 14 of the Constitution of India. Contention has also been raised that the decision of the Committee headed by the Chief Secretary to Government of Haryana dated 23.07.2009 (Annexure P-18) is a non-speaking order, where no reasons have been given for rejecting the claim of the petitioner and therefore, cannot sustain. Accordingly, prayer has been made by the counsel for allowing the present writ petition with directions to the respondents to allow the petitioner to continue in service till the vacant posts are available by adjustment and he be appointed on the ground that vacancies are still available on which the petitioner can be adjusted. On the other hand, counsel for the respondents has argued that the petitioner was appointed on purely contractual basis for 89 days. There were specific mention in the appointment letter that his services can be terminated at any time and he will stand relieved on the appointment of regular teachers. Petitioner was relieved from service on

01.05.1998 on appointment and joining of regularly selected Sanskrit Teacher. Since the termination of the services of the petitioner is in accordance with the terms and conditions of appointment, the claim of the petitioner cannot be accepted. His further contention is that petitioner after he was relieved from service in the year 1998, for the first time approached this Court by filing CWP No.13937 of 2003, which was after a period of more than four years. The same was barred, however, a direction was issued by this Court on 04.09.2003 to decide the representation made by the petitioner within a period of four months. In compliance with the said direction, representation of the petitioner was rejected on 23.01.2004 by the District Education Officer. Appeal C.W.P. NO.18578 OF 2009 -5- preferred by the petitioner was rejected by the Director Secondary Education, Haryana vide order dated 18.08.2004 which had attained finality as the same had not been challenged by the petitioner. A representation was filed by the petitioner to the Commissioner and Director General of Schools, Haryana which was forwarded by the District Education Officer, Kurukshetra with the comment that vacancies were available on which the petitioner could be adjusted, which was decided by the Committee headed by the Chief Secretary to Government of Haryana in its meeting held on 23.07.2009 rejecting the claim of the petitioner which was conveyed vide letter dated 31.07.2009 which is in accordance with law as none of the persons junior to the petitioner was retained in service. None except one Ravinder Kumar was taken back in service, who was second in the merit list and that too in compliance with the order passed by this Court in C.W.P. No.4121 of 2004 dated 18.05.2004. Ravinder Kumar being highest in the merit was adjusted on a vacant post whereas the petitioner, who was placed at 20th in the merit list did not have a claim over and above him. No junior contractual Sanskrit Teacher was retained in service on joining of regular Sanskrit Teacher in April/May, 1998 and there was no post left vacant in the District Kurukshetra after joining of the regular teacher in April/May, 1998, on this basis counsel for the respondents submits that the petitioner is not entitled to the claim made by him in the present writ petition. Reliance has also been placed on the judgment of the Supreme Court in the case of Secretary, State of Karnataka and others Vs. Uma Devi and others 2006(4) SCC 1. Accordingly, he prays for dismissal of the writ petition. I have heard counsel for the parties and gone through the records of the case. C.W.P. NO.18578 OF 2009 -6- Briefly the facts of the case are that petitioner, in pursuance to an advertisement published in the news papers inviting applications for recruitment of adhoc/contractual positions of teachers in District Kurukshetra applied. As per the advertisement, teachers were to be paid a fixed consolidated salary of Rs.3,500/- per month. For appointment of teachers, Committee at the district level was constituted, which was headed by the District Education Officer. The selections of the teachers were made after interviewing meritorious candidates, who fulfilled the educational and other eligibility criterion. Petitioner was one of the selected candidates and he was issued an appointment letter by the District Education Officer, Kurukshetra on 20.01.1997 (Annexure P-1) which was for 89 days on the post of Sanskrit teacher at a fixed consolidated salary of Rs.3,500/- per month. Petitioner joined at Government Middle School, Jharoli Kalan, District Kurukshetra on

27.11.1997. He continued to work at the same post even after the lapse of the period of 89 days as his work and conduct was found to be good. Before going any further, terms and conditions of the appointment which were accepted by the petitioner need to be referred to, which reads as follows:- “This appointment is on contractual basis on the following terms and conditions:-

1. This offer of appointment is purely contractual for a limited period of 89 days and the same will stand automatically terminated on A.N. of 89th day or on joining a regular hand whichever is earlier.

2. That the contract can also be terminated at any time/stage during the tenure without notice and without assigning any reason.

3. That you will not have any claim for continuation of service after the expiry of the contractual period.

4. No TA/DA will be paid to you for joining this post. C.W.P. NO.18578 OF 2009 -7-

5. You will have to stay at the place of posting. If you are willing to accept this offer on terms and conditions mentioned above you should report for duty to the Principal/ Headmaster/ Headmistress of the Government Middle School JHAROLI KALAN within seven days from the date of issue of this communication failing which the offer of appointment shall be treated as cancelled” One of the conditions in the offer of appointment was that the purely contractual appointment would automatically come to an end on joining of a regular hand. Regular selection was made by the respondents and duly selected candidates were recommended for appointment, which recommendation was accepted by the Government and those selected candidates joined their respective posts. One of the selected candidates joined the post held by the petitioner on 01.05.1998 and accordingly, as per terms and conditions of the appointment letter, petitioner was relieved on 01.05.1998. Petitioner was aware that his appointment has come to an end as per terms and conditions of his contract and therefore, accepted the fate. However, after a period of more than four years, petitioner filed C.W.P. No.13979 of 2003 praying therein that he had filed representation dated 14.06.2003 which has not been decided by the respondents. This writ petition was disposed of by this Court by directing respondents vide order dated 04.09.2003 to pass a speaking order on his representation within a period of four months. The District Education Officer, Kurukshetra considered the representation and rejected the claim of the petitioner vide order dated 23.01.2004 by passing a speaking order. As per the said order, a list of 21 selected candidates of General Category, who were selected by the Subordinate Service Selection Board, Haryana was received in the office of the District Education Officer on C.W.P. NO.18578 OF 2009 -8-

10.04.1998 from the office of the Director Secondary Education, Haryana who had to be appointed on the vacant posts/ posts occupied by teachers working on contractual basis. One of the selected candidates was issued an appointment letter on the post which was held by the petitioner and when the regularly selected candidate joined on the post held by the petitioner, the petitioner was relieved from service on 01.05.1998. Principle of “First Come Last Go” was strictly complied with. No junior teacher to the petitioner was retained in service. Petitioner was at serial number 20 of the seniority list of Sanskrit teachers appointed on contractual basis in District Kurukshetra. Petitioner preferred an appeal against this order to the Director, Senior Secondary Education Department, Haryana which was considered and decided vide order dated 18.08.2004 after giving personal hearing to the petitioner on 17.08.2004. In the appeal, petitioner had pleaded that one Shri Ravinder Kumar, who was also selected along with the petitioner and had been relieved as in the case of the petitioner on

01.05.1998, had been taken back in service and the petitioner had claimed the same relief. This aspect was dealt with by the Director, Secondary Education, Haryana by stating that Shri Ravinder Kumar was at serial number 02 whereas petitioner’s name existed at serial number 20 of the merit-cum-seniority list in Sanskrit teachers appointed on contractual basis. Further, Ravinder Kumar was taken back in service in compliance of the order dated 18.05.2004 passed by this Court. Since, the petitioner was at serial number 20 on the seniority list, there were 18 other senior Sanskrit teachers over and above the petitioner, who were to be given preference over the petitioner and therefore, the petitioner had no right. This order dated 18.08.2004 has not been challenged by the petitioner till date and the same attained finality. C.W.P. NO.18578 OF 2009 -9- Another representation was preferred by the petitioner on

19.12.2005 which was forwarded to the Commissioner and Director General of Schools, Haryana by the District Education Officer, Kurukshetra but no decision was taken thereon. Thereafter, petitioner along with other petitioners in the connected writ petitions, preferred a joint representation to the Education Minister of Haryana on 25.04.2007 wherein they prayed that they should be allowed to rejoin on contract basis. This representation was forwarded and the matter was referred to the Chief Secretary to Government of Haryana for advice. The matter was finally considered and decided by the Rules Committee constituted for disposal of advice cases in General Services Branch. This Committee was headed by the Chief Secretary to Government of Haryana which considered the matter with regard to claim of the petitioners and after discussion on the matter in detail, no justification was found in the proposal made by the Administrative Department and accordingly, a decision was taken to drop the said item, which was listed at number 07 of the meeting. Decision taken by the Rules Committee was forwarded to the Financial Commissioner and Principal Secretary to Government of Haryana, Education Department on 31.07.2009. These are under challenge in the present writ petition. Respondents have taken a clear stand that the services of the petitioner were terminated as per the terms and conditions of contract of appointment. He was relieved from duty on joining of the regularly selected candidate from the Subordinate Service Selection Board, Haryana, which was in accordance with the terms of contract on which the petitioner was appointed. If the appointment of the petitioner was in accordance with terms and conditions of the contract, the petitioner could not make any grouse in this regard. Further, the allegation made by the C.W.P. NO.18578 OF 2009 -10- petitioner that similarly placed employee has been taken back in service, the same has been explained by the respondents by stating that no person lower in merit/seniority has been retained in service, who was appointed on contractual basis and has been relieved on reporting of the regularly selected candidate. None has been, thereafter, taken back in service, who was similarly placed as the petitioner except Ravinder Kumar, who was placed at serial number 02 of the merit/seniority list of Sanskrit teachers of Kurukshetra District. He was also taken back, in pursuance to the order dated 18.05.2004 passed by this Court in a writ petition preferred by him. Further, petitioner was placed at serial number 20 of the merit/seniority list and none below him had been taken back in service. In fact, except for Ravinder Kumar, none of the contractual Sanskrit teachers in District Kurukshetra had been taken back in service. The appointment of the petitioner being purely contractual in nature and his services having been terminated in accordance with the terms and conditions of the contractual appointment, the claim of the petitioner cannot be accepted. Further, the claim of the petitioner through this writ petition which he had made in pursuance to the direction issued by this Court in CWP No.13937 of 2003 preferred by him was considered and decided by the District Education Officer, Kurukshetra as per the directions issued by this Court on 04.09.2003 and no merit in the representation was found. A speaking order dated 23.01.2004 (Annexure P-4) was passed, which is a well reasoned and justified order explaining the total position based on the facts as existing in District Kurukshetra. It would not be out of way to mention here that the selection and appointment of the petitioner was made by the Committee which was constituted district-wise and was headed by the District Education Officer. The appointment letter was also C.W.P. NO.18578 OF 2009 -11- issued by the District Education Officer as per the advertisement in pursuance of which the petitioner had applied for the contractual appointment. This order was challenged by the petitioner through an appeal to the Director, Senior Secondary Education Department which was also duly considered and decided on 18.08.2004 where again no merit was found in the claim made by the petitioner. This order attained finality as the same was not challenged by the petitioner. Thereafter, petitioner has preferred a representation along with other petitioners in other writ petitions on 25.04.2007 requesting therein that they be permitted to rejoin on contract basis. The matter was considered and referred by the Administrative Department to the Rules Committee, which was headed by the Chief Secretary to Government of Haryana wherein no merit was found therein and the item was dropped as on detailed discussion no justification in the proposal made by the Administrative Department for rejoining the contractual employees, who have been relieved from service on appointment of regular employees in the year

1997. The plea which has been taken by the petitioner for challenging this order in this petition is that the said order is a non- speaking order. This contention of the petitioner cannot be accepted for the simple reason that the right of the petitioner stood crystallized finally when appeal preferred against the order dated 21.01.2004 passed by District Education Officer rejecting his representation in pursuance to the direction issued by this Court for deciding the same was considered by the Director, Secondary Education, Haryana and dismissed the appeal on

18.08.2004 which was never challenged by the petitioner. Since the order had attained finality, the petitioner could not have made a grouse with regard to his relieving on 01.05.1998 from duty, which in any case C.W.P. NO.18578 OF 2009 -12- was as per the terms and conditions of his contractual appointment. It is now well settled that repeated representations do not condone the delay in approaching the Court and every time rejection of the said representation on same cause of action and grouse would also not confer any fresh right on the petitioner to approach this Court which would condone the delay. Although the petitioners have challenged the decision taken by the Rules Committee in its meeting dated 23.07.2009 which has been conveyed on 31.07.2009 through the present writ petition but the same is merely reiteration of the earlier stand of the respondents that the petitioner had no right to continue in the post held by him which was on purely contract basis and in accordance with the terms and conditions of the contractual appointment, his services have been terminated as he had been relieved on joining of regularly selected candidate on 01.05.1998. In any case, as no vacancy was available in May 1998 when petitioner was relieved from service his claim is baseless. Further petitioner had no right or claim for continuation in service especially when no person lower in merit/seniority list was retained in service by the respondents, who was similarly placed as the petitioner. Petitioner has approached this Court after an inordinate and unexplained delay of more than five years from the date of finalization and crystallization of his claim on rejection of his appeal by the Director, Secondary Education, Haryana on 18.08.2004. This delay itself disentitles the petitioner in approaching this Court through the present writ petition. Merits apart, in the light of the judgment passed by the Supreme Court in the Secretary, State of Karnataka’s case (supra), the claim of the petitioner as made in the present writ petition does not sustain. According to the said judgment an employee appointed on C.W.P. NO.18578 OF 2009 -13- contractual basis does not have any right to continue in service beyond the period prescribed and in any case the rights of such an employee is governed by the terms and conditions of contract. If service of such employee is brought to an end, as per the terms and conditions of appointment, such employee cannot claim a right of continuity of service unless the terms and conditions of the contract had been violated or there is violation of Articles 14 or 16 of the Constitution of India. The present case is one where the services of the petitioner have been terminated as per his terms and conditions of appointment and there is no violation of Articles 14 and 16 of the Constitution of India. Therefore, the petitioner has no right to continue on the post which was held by him on contract basis for a fixed term with a stipulation that his services were dispensed with automatically on joining of regularly selected candidates which condition was given effect to while relieving the petitioner on 05.01.1998 when regularly selected candidate joined the said post which was held by the petitioner. In view of the above, finding no merit in these writ petitions, all writ petitions stand dismissed being devoid of any merit. Photocopy of this order be placed on the records of the connected cases.

29.02.2012 adhikari (AUGUSTINE GEORGE MASIH) JUDGE