Dinesh Chandra Sharma vs The State of Rajasthan and Another

Rajesh Balia, J.—This petition was filed on 23.5.1990 for treating the petitioner regular appointee on the post of Computer Operator and with a further prayer that even if the petitioner''s appointment is not regularised, the respondents may be directed to continue the petitioner on the post till a regularly selected person become available. The case of the petitioner is that he was appointed on daily wages as Computer Operator on 12th April, 1989 in the District Rural Development Agency (for Short, ''D.R.D.A.'') and since then he was continuing on the post as daily-rated workman and was being paid wages at the rate of Rs. 18.52 per day. Vide order dated 18/19th May, 1990, the petitioner was offered six months'' further appointment on contract basis, for fix remuneration of Rs. 2700/- while he was still continuing in the services of the respondents. It was alleged by the petitioner that though the aforesaid order has not been formally served on him yet in view of the aforesaid order since his status as Government employee was sought to be affected by converting his appointment as a Government servant to a service on contract basis, he moved to this Court under Article 226 of the Constitution of India for the afforesaid reliefs.

A show-cause notice was issued by this Court on 24.5.1990 and an interim order was passed in the following terms:

In the meanwhile, the petitioner''s services will be allowed to continue till further orders or till the regularly selected candidate is made available, whichever is earlier.

The notices of the petition were served on the respondents on 3rd July, 1990. The appearance was made before the Court on 6.7.1990 and 4 weeks'' time was sought to file a reply to the writ petition. On 7th July, 1990, an order terminating the petitioner''s services was passed. It is stated that this order is being passed in accordance with the terms of the interim order passed by this Court on 24.5.1990. It is the common ground between the parties that no new appointment was made on the post of Computer Operator after passing of the aforesaid interim order by this Court but the post at Chittorgarh was filled by transfer of a candidate who was already working at Bhilwara. No appointment to fill in the vacancy at Bhilwara was made under that order and the appointment of transferee at Chittorgarh was shown to be against a vacant post. In these circumstances, the petitioner moved an Amendment Application of the Writ Petition and challenged the order dated 7th July, 1990 terminating the petitioner''s services and the order dated 7th July, 1990 has been placed on record as Annx. 3. A reply to the show-cause notice of the Amendment Application was filed on 1 9.12.1990 and a rejoinder has also been filed to the reply after furnishing a copy to the respondents on 9.1.1991. No further reply to the rejoinder has been filed.

In the first instance, the petitioner has contended that the Annx. 3 dated 7.7.1990 has been issued in total dis-regard of the orders of this Court . This Court has directed to continue the petitioner''s services until regularly selected candidate is made available or the Court were to pass further orders on the Stay Application. It is common ground that no fresh appointment has taken place after filing of the writ petition or, even after passing of the interim order and the vacancy at Chittorgarh has been filled by transfer; suggesting thereby that the posts are transferable and it is not a case of fresh appointment. In para 10[ii) of the return it has also been stated by the respondents that a post of Computer Operator is still existing, however, while the termination order speaks that the reason for not continuing the services of the petitioner is in terms of the orders of the High Court and no regularly selected candidate is available to fill in the vacancy, curiously new grounds have been stated for terminating the services of the petitioner. In the face of Annx. 3, which clearly speaks of the facts that the petitioner''s services were terminated, the respondents makes bold to say in para 10(iv) of the return that the petitioner was never removed from work but he himself remained absent from work without informing the employer meaning thereby that the petitioner has not been removed from service but he voluntarily ceased to be working on the post. Suffice it to say, that the petitioner was working on the post from 12.4.1 989 and was continuing under the orders of the Court on 7.7.1990 and he could not have been treated to have been treated ceased to be an employee of the State on the ground of continued absence from duty. If that were so, his services could have been terminated only in the manner known to law, that is to say, after holding an inquiry and passing an appropriate order of removal from the services in accordance with the provisions of Article 311(2) of the Constitution of India and following the procedure under the Rules concerning disciplinary action.

Yet another allegation which has been made in the return is that the petitioner has wilfully absented himself from duty from 5.5.1990 to 6.7.1990 and, therefore, he is not entitled to relief under Article 226 of the Constitution of India. A detailed reply to this allegation has been given in the rejoinder stating that during the alleged period of absence, the petitioner was not only on duty but he was asked to undergo a journey on official work for which he has been paid Travelling Allowance and the Daily Allowance and he has also been paid wages for the period in question. The petitioner has even alleged that he was deliberately marked absent, notwithstanding the fact that he was discharging his duty and report to that effect has also been made by him to the District Collector vide Ex. 9. Even if the inquiry into the question whether the petitioner was deliberately absent or not?, for the entire period, may not be gone into, but the fact remains that if during this period T.A. and D.A. is paid to him for the journey undertaken by the petitioner officially and he is also has been paid wages for number of days and further that this assertion have gone un-rebutted, clearly goes to show that a reply has been filed in callous disregard of the record and merely to support an wholly un-tenable order on the ground which does not eminate from the order. It hardly needs to be stated that an order which affects the rights of the persons speaks for itself and no reasons can be added to suppliment the order. Reference in this connection may be made to a decision delivered by their Lordships of Supreme Court in Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, wherein their Lordships have observed as under:

... when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplimented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out....

Thus, the order which purported to have come into existence as a result of the orders passed by this Court is not sustainable for the reasons mentioned hereinabove inasmuch on the facts emerging from the record the conditions of dis-continuing the petitioner''s services as spelled out in the interim order dated 24.5.1990 does not exist. Since the only reason for which the impugned order Annx. 3 purported to have been passed failed, the order Annx. 3 cannot be sustained and is quashed.

It is further contended by the learned Counsel for the petitioner that even otherwise petitioner''s services could not have been terminated on 7.7.1990 as on that day he was in continuous services of the respondents for a period of more than one year. The '' D.R.D.A.'' establishment is an ''industry'' within the meaning of Section 2 of the Industrial Disputes Act, 1947 and petitioner is being a ''workman'', he could not have been retrenched without fulfilling the conditions provided u/s 25F of the Act of 1947.

While in the return, it is not disputed that the conditions mandatory for a valid retrenchment have not been complied with, they have contended that petitioner''s services have not been terminated but he has voluntarily left the services. As I have already held above, in the face of Annx. 3 it cannot be held that petitioner has voluntarily left services. The services have been brought to an end vide order Annx. 3. The order is, therefore, not sustainable also on the anvil of provisions of the Act of 1947.

It has also been brought to my notice that an order was passed on 4.4.1990 in S.B. Civil Writ Petition No. 650 of 1989, in which in the like circumstances, the Court held that transfer is not an appointment and therefore the filling up of vacancies by transfer where the Court has directed to continue in service until regularly selected candidates are appointed, results in violation of the Court''s order. This Court directed the petitioner in that case, to be treated to be continuous in the services with effect from the date his termination was made effective and was given all subsequential benefits. Thus, viewed from any angle, the termination order Annx. 3 is not sustainable and the same is hereby quashed.

It has further been contended by the learned Counsel for the respondents that the petitioner has not been qualified to hold the post. No rules have been produced laying down the qualifications for appointment on the post of Computer Operator, while it is not disputed that the petitioner is holding a Diploma in Computer Operator and Computer Programmer from the Indian Institute of Computer Training, Udaipur and has passed First Year B.A.. in the year 1 990, the respondents contended that the required qualification for appointment on the post of Computer Operator is Graduate. The stand taken by the respondents in this connection also does not appear to be very straight-forward. It is undisputed that the petitioner was appointed as Computer Operator with effect from 12.4.1989 and since then he has been discharging this duties. While the respondents contend that he was not eligible to hold the post yet vide Annx. 1 he was offered service on contract basis for 6 months for the same job. No explanation worth the name has been furnished that if the petitioner has not been eligible according to any prescribed rules and criteria, how and on what conditions, the job has been offered on contract basis. Be that as it may, unless the qualification for regular appointment are laid down by the respondents in a proper manner, petitioner cannot be treated to be not qualified to hold the post or not entitled to be continued on the post.

However, in these circumstances, the petitioner is not entitled to relief for regularisation on the post.

While the termination order Annx. 3 is quashed and the petitioner is reinstated with all consequential benefits and he will be allowed to continue on the post unless the regularly selected candidate is appointed against the post in accordance with the regular criteria laid down for such regular recruitments to the post or, until the petitioner''s services are terminated in accordance with law. It is also made clear that while making regular selections to the post, petitioner''s case will also be considered by taking into consideration his present qualification and keeping in view the provisions of Section 25H of the Industrial Disputes Act, 1947. The petitioner will also be entitled to be paid minimum of the pay scale applicable to Computer Operator with effect from 12.4.1989, that is with effect from the date of filing of writ petition.

The petition is accordingly disposed off as aforesaid.