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Judgment
In terms of the instant petition, petitioner seeks regularization of her services against the post of Tutor Demonstrator held by her, by issuance of a writ of mandamus against the respondents. It is also prayed that the petitioner may be given same treatment as has been given to the other similarly situated persons and the employees of the respondent Department. Furthermore, the petitioner seeks a direction in the name of the respondents to release arrears of the salary from the year 1999 along-with the interest at the rate of 24%.
The case as projected by the petitioner in the instant petition is that earlier she had filed a writ petition bearing SWP No. 615/2006 for continuation and regularisation of her services but later on the said writ petition was withdrawn by her, after she was extended assurance by the respondents in writing for her regularization in the other wing of the respondent department. It is further stated that the petitioner had faced regular process of selection and was appointed in the department of Anatomy as Tutor Demonstrator, SKIMS, Bemina, Srinagar vide order dated 03.07.1999, wherein she figured at S.No.04. It is admitted by the petitioner that her appointment was initially for a period of two years but was continued till 2005. Thereafter, in the same year i.e., 2005, as pleaded in the petition, the respondents have issued another advertisement notice for the same posts, which constrained the petitioner to file the writ petition seeking her continuation and regularization against the post held by her. The order dated 13.11.2006 came to be passed in SWP No.615/2006 filed by the petitioner, which reads as under:-
"....In the meanwhile, respondent-department may also examine/explore the possibility of adjusting the petitioner against any available vacancy in any limb of the department without adversely affecting the rights of other persons who are not party before this Court."
Despite the aforesaid direction, the petitioner was not appointed subsequently on any position but only extension orders were issued by the respondents in her favour. On 23.01.2013, the respondents are stated to have issued the communication in the name of the petitioner directing her to withdraw all cases whatsoever against the respondents and was told that she would be engaged on same terms and conditions in any limb of the Organisation. Petitioner accordingly, withdrew the said writ petition (SWP No.615/2006). It is also projected by the petitioner that she had filed a civil suit before the civil court challenging the re-advertisement of posts vide notification dated 21.04.2005 seeking therein the declaration of re-advertisement notice of the posts as null and void, which too was withdrawn by the petitioner. Respondents are stated to have issued the order dated 09.03.2013, wherein sanction was accorded for engagement of the petitioner as Tutor Demonstrator. It is also pleaded that the petitioner is continuing in the respondent department since 1999 in terms of the orders issued by the respondents from time to time and is eligible to seek appointment, but the respondents have to take into account the age bar of the petitioner also. It is further stated by the petitioner in the instant petition that in the year 2011, when the respondents had issued the advertisement notice, she too had applied under protest in order to be on the safer side however, reserving the right of prosecuting her case in the court of law for her regularization and permanent absorption in the respondent department against the post which she held since 1999 after facing the regular selection process conducted by the respondents. The petitioner is aggrieved of the arbitrary and unfair approach of the respondents hence the instant petition.
Petitioner has annexed the following documents with the petition:
a) copy of the order No.SKIMS-MC -09 of 1999 dated 03.07.1999, which reflects the particulars of the selectees including the petitioner herein. The petitioner in terms of the same has been recommended to be appointed as Tutor Demonstrator in the Department of Anatomy for a period of two years;
b) copy of the interim order dated 13.11.2006 passed in SWP No.615, which is already quoted hereinabove;
c) copy of the order dated 23.01.2013, whereby the petitioner was directed to withdraw the court cases whatsoever against the SKIMS-MC and was assured to be engaged on some terms and conditions in any limb of the SKIMS-MC;
d) copy of the order No.SKIMS/MC 90 of 2013 dated 09.03.2013, in terms whereof sanction was accorded to the engagement of the petitioner on tenure basis as Tutor Demonstrator, the relevant portion of which reads as under:-
"Sanction is hereby accorded to the engagement of Dr.Rafat Tabasum(MBBS, MSc Physiology) on tenure as tutor demonstrator in the department of physiology in the pay scale of Rs.17000 plus usual allowances.
The tenure engagement of the said doctor as tutor demonstrator shall be governed among other terms & conditions by the following.
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2.That the tenure shall be for a period of one year. However in case of unsatisfactory performance of the engage, he/she will be liable to be terminated even before completion of sanctioned term.
That the tenure engagement here in this order shall not confer any right on him/her to claim continuance of further extension unless otherwise the same considered by the competent authority.
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8.The engagement order shall be implemented on withdrawal of court cases whatsoever by the applicant against the institution (SKIMS-MC, Bemina)"
e) copy of the order dated 20.03.2014, whereby post-facto sanction was accorded to the extension of the petitioner in her tenure engagement for a period of three months or till interviews for the post are held, whichever is earlier with effect from 11.03.2014 on same terms and conditions applicable as per the initial engagement order.
f) copy of the court order dated 11.03.2004 passed in Review No.18/2003 titled Ruhul Ahmad Vs. State of J&K & anr., in terms of which the court has allowed the petition on the same directions contained in SWP No.323/1996 decided on 17.05.2001 passed by the Co-ordinate Bench of this Court. However, there is no mention of the post on which he had been appointed and the nature of the post i.e. whether it is substantive or tenure in nature.
Respondents have filed their objections wherein it is stated that the petitioner has no indefeasible right to claim permanent absorption/continuation on a tenure post, which is not permissible under law. It is submitted that in terms of the order dated 03.07.1999, the petitioner was engaged on a tenure post of Tutor Demonstrator for a specific period and was never appointed on permanent basis as wrongly projected in the petition. It is further submitted that the claim of the petitioner that her initial engagement of two years was extended upto 2005 is not disputed because the extensions were granted to her on her own request which does not confer any entitlement for absorption on permanent basis on the tenure post. The continuation of a person beyond the prescribed period affects the rights of other person who figure in the selection panel. Furthermore, it is stated by the respondents that the petitioner was engaged as Tutor Demonstrator on tenure post for one year in the Department of Physiology in the year 2013 on certain terms and conditions which she accepted and submitted an affidavit in this regard. It is further submitted by the respondents that no promise was ever made to the petitioner for her permanent absorption which otherwise is not possible against a tenure post in law and rules governing the subject.
Petitioner has filed supplementary affidavit to rebut the objections raised by the respondents wherein it is stated that in pursuance to the decision of the Cabinet, Forty Three (43) posts of Demonstrators were created by the Government of Jammu and Kashmir vide its order no.24-IMS of 1999 dated 20th July, 1999, copy of which is annexed with the supplementary affidavit. It is nowhere indicated in the said Government order that the posts of Demonstrators are either temporary or tenure in nature. It is further stated that petitioner was continuing on the post of Tutor Demonstrator till 16th December 2005 and thereafter was relieved on the same date. The said relieving order was challenged by the petitioner through the medium of IA no.479/2005, wherein the court had directed the maintenance of status quo vide its order dated 17.12.2005, copy annexed. Petitioner has annexed some of the copies of the recommendatory communications of the then Chief Minister's Secretariat and the then Minister for Medical Education with the supplementary affidavit. She has also placed on record copy of the relieving order dated 16.12.2005.
Heard learned counsel for the parties.
Mr. Thakur, appearing on behalf of the petitioner has placed reliance on certain judgments. In one of the judgments reported in 2001 KLJ 477, Neena Gupta Vs. State & ors., decided on 17.05.2001, the learned Single Judge has observed as, "that the practice of appointing a person for a limited tenure would not be in consonance with the public policy. It was also held that the tenure of an employee for a limited period, when need is permanent, would be violative of Articles 14 and 16 of the Constitution. The mere fact that the petitioner opted and joined the service in terms of the conditions would not stand in her way. It was further held and directed that the petitioner therein would be deemed to a permanent appointee."
While noticing the facts of the above referred case, the Court has observed that there was a permanent need for the post of demonstrator and the petitioner therein had continued to work against that post and had gained experience which experience would be useful to those for whom the petitioner had been engaged. It has also been observed that engaging a fresh recruit for the same purpose and dispensing with the services of the petitioner therein, who was a trained person, would not serve any public interest. After the tenure of five years of the petitioner therein came to an end, she was permitted to continue for another two years, which indicates that the need was permanent and if the need was permanent, then the person who was supposed to look after that job should also have a permanent status. It is a different matter that after completing the tenure the petitioner therein can be given some other assignment but bringing an end to her service tenure would not be apt.
In the Neena Gupta(supra) judgment relied on by the learned counsel for the petitioner, the learned Single Bench has taken reliance on the judgments rendered by the Hon'ble Apex Court in case Central Inland Water Transport Corporation Ltd. and another Vs. Brojo Nath Ganguly & another, AIR 1986 SC 1571 and West Bengal State Electricity Board Vs. Desh Bandhu Ghosh, AIR 1985 SC 722.
Learned counsel has also taken reliance on the various judgments of this Court and the Hon'ble Apex Court and contended that the Court has to make strict observance of the principle laid down in one of the cases Bir Bajrang Kumar Vs. State of Bihar & Ors., AIR 1987 SC 134 that cases involving an identical point of law should be decided in the same manner.
Since, according to the learned counsel for the petitioner, in the case of Neena Gupta, a Co-ordinate Bench has passed the directions with observations as:-
"...I am of the opinion that the argument put across the petitioner deserves to be accepted. Her appointment is apparently under the rules of 1979. Her claims that she is within the limits prescribed in the rules above i.e. being a non-medical Demonstrator, she should have been appointed permanently, is an argument which deserves to be accepted. The need is permanent. The practice of appointing a person for a limited tenure would not be in consonance with the public policy. Independently of what has been urged by the petitioner, it is held that the condition limiting the tenure of an employee for a limited period when need is permanent would not only be violative of Articles 14 and 16 of the constitution. The mere fact that the petitioner opted and joined the service in terms of the conditions would not stand in her way. In view of position of law noticed above, this petition is allowed.
The petitioner would be deemed to a permanent appointee. The condition limiting her tenure for a period of five years shall be given effect to.
Disposed of accordingly."
Thus, this court is required to issue a similar direction in the instant case. It has also been contended that the respondents could not resort to curtailment of the term of two years as has been done in terms of the earlier appointment of the petitioner and also of late when her appointment was extended from time to time. The policy so adopted, according to the learned counsel for the petitioner, would militated against democratic civil society governed by the rule of law as the policy so resorted is void ab-initio and unconstitutional. The bargaining power of which reference is found in the judgment of Neena Gupta for entering into the contract is to be given proper consideration in the facts and circumstances, as otherwise the petitioner would be subjected to injustice, according to him.
On the other hand, Mr. Asif, learned AAG submitted that right from the inception, the petitioner had been alive regarding the nature of the contract of her engagement. Since the pleadings are vividly clear that the petitioner has no concluded right to continue on the post, the respondents cannot be thrust with the obligation to regularize her services, as it would be a source of appointment on the positions referred above outside the limits indicated by Rules.
Considered the rival arguments made by the learned counsel for the parties.
On a summary examination of the Neena Gupta judgment referred by the learned counsel for the petitioner, it is evident that the petitioner had been appointed on adhoc basis for the period of five years. The vacancy against which she has been appointed was permanent in nature and she had been permitted to continue on the post for another two years on the analogy drawn from the ratio of Brojo Nath's case. The learned Single Judge had opined that the petitioner therein was having no power of bargaining at the time she joined the services. Limiting the duration of appointment for five years was the public policy so could not be acted upon. The Court also took notice of the relief claimed by the petitioner that she has felt aggrieved of the inclusion of the condition limiting the duration of her appointment.
While parting with the judgment, learned Single Judge had concluded that the appointment of the petitioner therein was made in terms of Rules of 1979, so the condition limiting her tenure for a period of five years was directed not to be given effect to. It has already been referred to hereinabove that the petitioner while filing the instant petition in 2014 pleaded therein that she has a right to continue on the post till she attains the age of superannuation as she has been continuing the employment of the respondent Institute for more than 15 years. She claims regularization and does not pray for striking down any condition in her engagement order limiting her tenure for a specific period. The respondents, if having absorbed any selectee in terms of the order dated 03.07.1999 or thereafter on permanent basis or the services of whom have been regularized, is not specifically spelled out in the averments by the petitioner herein. It requires a mention herein that the constitutional Bench of the Hon'ble Apex Court in case State of Karntaka Vs. Umadevi & others, reported in (2006) 4 SCC 1, re-visited the subject regarding public employment, absorption, regularization or permanent continuance of temporary, contractual, casual, daily wager or adhoc employees, who have continued for long in public employment, dehors the constitutional scheme of public employment. Their Lordships' have directed that the High courts should not issue any such direction unless the recruitment itself was made regularly and in terms of the constitutional scheme. It was further observed by the Co-ordinate Bench that the powers conferred under Article 226 of the Constitution of India were not intended to be used for issuance of such directions. It would be erroneous to consider the aspect of equity only for a handful of people who have approached the court with a claim whether ignoring the equity of others seeking employment and a fair opportunity to seek employment. It was merely because an employee had continued under the cover of an order of the court or had been continued beyond the term of his appointment by the State or its instrumentalities, he would not be entitled to any right to be absorbed or made permanent in service 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 such employees on the basis of long continuance in irregular or illegal public employment, has also been observed. The employees, who had been irregularly appointed, had to be considered for regularization on merits as one time measure within six months of the date of the judgment. The Court cannot shut its eyes to the constitutional scheme and the directive principles of State policy, has also been remarked. In Para 13, 45 and 49, their Lordships observed as under:-
"13. What is sought to be pitted against this approach, is the so-called equity arising out of giving of temporary employment or engagement on daily wages and the continuance of such persons in the engaged work for a certain length of time. Such considerations can have only a limited role to play, when every qualified citizen has a right to apply for appointment, the adoption of the concept of rule of law and the scheme of the Constitution for appointment to posts. It cannot also be forgotten that it is not the role of the courts to ignore, encourage or approve appointments made or engagements given outside the constitutional scheme. In effect, orders based on such sentiments or approach would result in perpetuating illegalities and in the jettisoning of the scheme of public employment adopted by us while adopting the Constitution. The approving of such acts also results in depriving many of their opportunity to compete for public employment. We have, therefore, to consider the question objectively and based on the constitutional and statutory provisions. In this context, we have also to bear in mind the exposition of law by a Constitution Bench in State of Punjab v. Jagdip Singh. It was held therein:
"In our opinion where a government servant has no right to a post or to a particular status, though an authority under the Government acting beyond its competence had purported to give that person a status which it was not entitled to give he will not in law be deemed to have been validly appointed to the post or given the particular status.:"
45.While directing that appointments, temporary or casual, be regularised or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain -not at arm's length - since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succour to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity and enshrined in Article 14 of the Constitution.
It is contended that the State action is not regularising the employees was not fair within the framework of the rule of law. The rule of law compels the state to make appointment as envisaged by the Constitution and in the manner we have indicated earlier. In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedings in tribunals and courts initiated at the instance of the employees. Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, the people of India. It is therefore not possible to accept the argument that there must be a direction to make permanent all the persons employed on daily wages. When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of very clear constitutional scheme it cannot be said that the employees have been able to established a legal right to be made permanent even though they have never been appointed in terms of relevant rules or in adherence of Articles 14 and 16 of the Constitution."
In Para 51 of the said judgment, their lordships' emphasized the need for recognizing the public employment which can only be made by way of proper selection in the manner recognized by the relevant legislation in the context of the relevant provisions of the Constitution. In Para 52, their lordships' enumerated that a writ of mandamus cannot be issued in favour of the employees directing the Government to make them permanent since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent.
Reverting back to the instant case, it requires to be reiterated herein that the petitioner in terms of the initial engagement along-with other selectees had been allowed to continue for a period of two years. The appointment in the year 2013 vide order dated 09.03.2013 makes it abundantly clear that her continuation on the post by way of extension would not give her the right of regularization. The civil action brought against the respondents appears to have been prosecuted half-heartedly, as it is the admission of the petitioner herself that she had withdrawn the said case. Invitation to offer the candidature for engagement of Registrars/Tutor Demonstrators has been unambiguously made by the respondents while representing that the said appointment would be for a specific period. It is not the case of the petitioner that the respondents had not been making the appointments for specified period on the assignment in question for the limited period in past and it is only in her case that the appointment was being made for a specified period. It is, thus, abundantly clear that right from the inception the petitioner had a clear idea that the appointment made in terms of the orders referred in the petition had to cease by the efflux of time and the duration for which she had to man the position was intended for gaining experience and knowhow for effectual discharge of duties in future. Certainly the candidates who could apply for considering their candidatures in terms of the advertisement notice got a clear impression that the assignment to be held has to expire by the efflux of time and by making the entry in the department for a limited period, the way for permanence or regularization would not stand carved out. The policy whatever has been adhered to for appointment on these positions was to utilize the services of selectees for a limited period to achieve a goal of imparting education and sharing experience for all new entrants in profession and not to monopolise the opportunity or to scuttle the process of rotation, the principal objective behind the mechanism so devised.
In the light of the Constitutional Bench judgment of the Hon'ble Apex Court in Umadevi case, referred to above, I am of the opinion that the judgments relied on by the learned counsel for the petitioner do not furnish a reasonable base to grant relief claimed in terms of the instant petition. It has been rightly contended on behalf of the respondents that the petitioner had no indefeasible right for seeking permanence in the department. Resultantly, no ground is made out for issuance of such direction. Petition is, accordingly, held liable for dismissal, as such, is dismissed. This judgment, however, shall not come in the way of the respondents in considering the case of the petitioner in any other limb of the Organization in terms of the policy, if any in vogue or adhered to till date vis-à-vis similarly situated persons, on the merits of the case of the petitioner herein and on such consideration, the age factor may also be borne in mind.
Disposed of.