Naresh Kumar vs State of Punjab

Jawahar Lal Gupta , J.—The petitioners in these three cases are employed with the Punjab Water Supply and Sewerage Board. They pray that the Respondent-Board be directed to regularise their services on the respective posts held by them. Counsel for the parties had broadly referred to the facts in Civil Writ Petition No. 10082 of 1997. These may be briefly noticed.

On January 13, 1993, the petitioner was offered appointment as a Jr. Draftsman "contract basis for 89 days..." He was to be given "fixed salary of Rs. 1700/- during the period of appointment.'' The petitioner was informed that if these conditions are acceptable to him, he may give his joining report. The petitioner joined the post. His initial appointment was periodically extended from time to time.

On January 18, 1995, the State Government issued instructions conveying its decision that "the services of all ad hoc/temporary employees appointed to Class III and IV services or posts under the Punjab government in various departments/offices shall be regularised". Various conditions were laid down. The petitioner alleges that his bio-data was asked for. The matter was ordered to be placed before the Board. An Agenda Item dated July 24, 1995 recommending that the services of the employees who had worked for 240 days as on December 31, 1994 and were in service, be regularised. A copy of this Agenda Item has been produced at Annexure P.3 on the record. The matter was considered by the Board. It decided that a Committee be constituted to go into the qualifications etc. of each individual employee. This Committee had to finalise its recommendations within one month and the matter was to be placed before the Board thereafter. The Screening Committee was constituted. It met on September 16, 1995, and recommended the cases of the candidates for regularisation to the Board of Directors. Thereafter, meeting of the Board of Directors was held on September 28, 1995. However, the meeting was deferred. Vide letter dated November 21, 1995, the State Government informed the Board that the instructions dated January 18, 1995 do not cover the case of persons appointed on contract basis. The Board considered the matter in the meeting held on November 3, 1995 and decided that "a detailed note indicating the position may be sent to the Local Govt. Department for taking up the matter with the Personnel Department for clarification..." In response to this query, the Government in the Local Department, informed the Board that vide letter dated January 8, 1996, the Department of Personnel and Administrative Reforms had advised that "the employees appointed on contract basis cannot be regularised nor they can be adjusted against the vacant posts as the instructions issued by the Government vide circular No. - dated 18.1.1995 apply only to the employees appointed on ad hoc basis.... Therefore, it is advised that the posts be filled up at your own level as per departmental rules on regular basis". This communication has been placed on record as Annexure P. with the writ petition.

The petitioner alleges that even Junior Engineers were working on contract basis. They had approached this Court by filing C.W.P. Nos. 5018 of 1996 and 4268 of 1997. Their petitions were allowed by a Division Bench (M.S. Liberhan and V.S. Aggarwal, JJ.) vide order dated May 29, 1997. Their Lordships were pleased to observe that "once the Board has decided to regularise the services of the petitioners, we find no ground to deny the relief claimed by the petitioners. In view of the conceded position, the respondent-Board is directed to implement its own decision..." In spite of this admitted position, the Board vide its order dated March 27, 1997 decided to terminate the services of the petitioner. He was conveyed the order, a copy of which has been produced as Annexure P.13 with the writ petitioners. Alongwith this order, he was paid the compensation as contemplated under the Industrial Disputes Act, 1947. The petitioner alleges that he is eligible for regular appointment. In accordance with the decision of the High Court in C.W.P. No. 4268 of 1997, he is entitled to the relief of regularisation of services. He, consequently, prays for the issue of a direction to the respondents to consider his claim for regularisation.

The respondents contest the petitioner''s claim. In the written statement filed on behalf of respondent Nos.1, 2 and 4 viz. the State Government etc., it has been averred that on the basis of the directions given by the High Court, the posts of Junior Draftsman had been advertised in the Tribune dated April 2, 1995. The petitioner had appeared in the written test hold on May 28, 1995. He was not selected. Consequently, his services were terminated on March 31, 1997 to make room for the selected candidate. It has been further pointed out that the orders passed by the Court in C.W.P. No. 4268 of 1997 are not applicable to the facts of the present case. The respondents maintain that the petitioner having not been found suitable for regular appointment has no right to claim regularisation.

A separate written statement has been filed on behalf of respondent No.3 viz. the Board. The position taken by the respondent is on the same lines as that taken on behalf of the State Government. It has also been pointed out that the instructions issued by the Government regarding regularisation of services were not applicable to the persons appointed on contractual basis.

Counsel for the parties have been heard.

On behalf of the petitioners, it has been contended that having worked for many years, they are entitled to the regularisation of the services on the respective posts held by them. This claim Was controverted by the counsel for the respondents.

It is the admitted position that the petitioners in C.W.P. No. 10082 and 4428 of 1997 had been appointed as Junior Draftsmen on contract basis and on a fixed salary. It has not even been suggested that they were granted any increment at the expiry of one year of service. Still further, it has not been disputed that the posts of Junior Draftsmen had been duly advertised in the Tribune on April 2, 1995. A written test was held on May 28, 1995. Those who had qualified the test were called for interview. The petitioners were not selected. Their services were terminated to make room for others who had been found suitable. In this situation, it is clear that the claims of the petitioners for regular appointment were duly considered. They were, however, not appointed as those with higher merit were available.

The Constitution undoubtedly guarantees the right to equality of opportunity to every citizen. The primary implication of this guarantee is that all eligible candidates shall be considered. It is, however, implicit that those who are found unsuitable shall have no right to continue in service. In any case, they can''t be preferred to those who are found to be more suitable. This is precisely the situation in the present case. The petitioners having not been selected were eased out of service so as to make room for those who were found to be more meritorious. The action was in strict conformity with the provisions of Articles 14 and 16 of the Constitution.

There is another aspect of the matter. Admittedly, the petitioners had been appointed on contractual basis. The appointment was for a specific term and on a fixed salary. It has not been suggested that the services have been terminated in violation of the terms of appointment. Once the services are terminated in accordance with the terms of appointment, the petitioners can have no legitimate grievance. Still further, the persons for whom the petitioners were called upon to make room have not been even impleaded as parties. The grant of any relief to the petitioners would prejudicially affect the rights of the persons who are not before this Court. This cannot be done.

It was submitted on behalf of the petitioners that having completed the prescribed period of service, they had a right to be regularised on the posts held by them.

This contention cannot be accepted. Firstly, the instructions do not apply to the persons appointed on fixed salary and contractual basis. Even if this distinction were to be over-looked, the fact remains that in spite of the decision of the Government to consider claims for regularisation, the posts had been duly advertised by the Board. The eligible persons including the petitioners were given a chance to compete. They had actually competed without any reservation. The petitioners had not raised the plea that in view of the instructions, the Board was not entitled to fill up the posts by regular solution. The petitioners had in fact taken their chance. Having not been selected, the petitioners cannot now be permitted to take a somersault and claim that their services be regularised. If allowed, it would result in great hardship to persons who had competed, were selected and have already joined on the posts in question. The petitioners having taken their chance should now be estopped from claiming the benefit of regularisation.

In C.W.P. No. 4646 of 1997, the petitioner had been appointed as a Sub Divisional Engineer. The appointment had been made "on contract basis". The petitioner was to be paid a total salary of Rs.3200/- per month. It was undoubtedly extended periodically. The last extension was granted to the petitioner vide letter dated March 22, 1997. It was for the period from February 14, 1997 to March 31, 1997. At the expiry of the prescribed period, the Respondent-Board did not grant any extension. It has been averred on behalf of the Respondent-Board that the petitioner''s services were terminated on account of "non availability of work load". It has been averred that "the petitioner was given notice for termination of his services besides due compensation" as there is no work load. The petitioner has undoubtedly filed a replication to assert that the posts are available. In fact, it has been mentioned that in the Budget for the year 1997-98, provision for 92 posts of Sub Divisional Engineers had been made. Only 65 posts were filed up and 27 posts are still lying vacant.

Even if it is assumed that in the Budget, a provision for 92 posts had been made and that 27 posts are still vacant, it cannot be said that the petitioner has an indefeasible right to be appointed on regular basis. It is the admitted position that the petitioner had been granted the last extension which was to expire on March 31, 1997. In the letter dated March 22, 1997 by which the extension was granted, it was specifically provided that he will have no claim for continuity of appointment and that it could be "terminated at any time without any notice". Thus, the termination is in strict conformity with the terms of appointment.

It also deserves mention that the employer, be it the Government or the Board, is under no legal duty to fill up all the available posts even when no work is available. The appointment of persons to the service in case of non-availability of work would be a totally avoidable burden on the tax payers'' money. Neither in law nor otherwise can the employer be held bound to fill up the posts. The discretion and the decision are those of the competent authority. If it chooses not to fill up the posts, it cannot be said to have acted illegally or unfairly, This is precisely the situation in the present case.

Mr. A.C. Sharma, Advocate sought to contend that the petitioner shall be deemed to have been confirmed as he had completed the prescribed period of probation.

The contention is misconceived. The petitioner was never placed on probation. His appointment was for a fixed term and on a fixed salary. He never earned even an increment. There is no order certifying that he has successfully completed the period of probation. He was never confirmed. Thus, he has no right to the post. The period of appointment having expired, the termination was automatic. It violated no rule or law.

Mr. Sharma referred to the decision of their Lordships of the Supreme Court in Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress and Others, . In this case, it was held that the order of regular appointment which provided for the termination of the services of a permanent employee was arbitrary and unfair. Such is not the position in the present case. He also referred to the decision in Karnataka State Pvt. College Stop-gap Lecturers Association v. State of Karnataka and Ors. 1992 SCC 394. In this case, the petitioners had worked for eight to 10 years. Their claim for regularisation was rejected on the ground that the initial appointment was contrary to the reservation policy. Finding that the action of thea respondents was illegal, directions for consideration of the claim for regularisation were issued. Such is not the situation in the present-case.

No other point was raised in any of the cases.

In view of the above, there is no merit in these petitions, which are, consequently, dismissed. However, the parties are left to bear their own costs.