Sant Ram Bhai vs The State of Haryana and Another

B.C. Verma, C.J.—The Petitioner, was initially appointed as Bull Attendant in the Animal Husbandry Department of the State of Haryana. On successful completion of two years training course, he was appointed Veterinary and Livestock Development Assistant,--vide order dated June 12, 1990, Annexure P. 2, "on ad hoc basis for a period of nine months as per instructions issued by the Chief Secretary to Government Haryana or recommendee of the S.S.S. Board joins whichever is earlier." According to the terms of that appointment order, his services could be terminated without any notice or assigning any reason. No selection of candidates was made by the S.S.S. Board and as the period of nine months expired, the Petitioner was reverted to his original post of Bull Attendant,--vide order dated March 14, 1991, Annexure P.3. Aggrieved by this order the Petitioner approached this Court through this writ petition. Several other writ petitions have also been filed in this Court against similar orders and a few have been disposed of. In Civil Writ Petition 7123 of 1991, a Division Bench of this Court passed following order:

After hearing the learned Counsel for the parties, we dispose of this petition with the direction (that) the Petitioner shall be permitted to continue till regular incumbent arrives.

When this writ petition came up for hearing before another Division Bench, it apparently did not appear to be agreeing with the aforesaid order dated September 19, 1991, passed by the other Division Bench and recommended the matter to be considered by a Full Bench for decision. This is how that matter has been placed before this Full Bench.

Two questions arise for consideration,--(i) Whether the appointment order, Annexure P.2, clothes the Petitioner with any right to the post of Veterinary and Livestock Development Assistant to which the Petitioner was promoted on ad hoc basis and on conditions specified there under; and (ii) whether the action of Respondent No. 2 in terminating this appointment and in reverting the Petitioner to his original post of Bull Attendant is arbitrary and unreasonable and consequently is in breach of Article 14 of the Constitution of India.

A temporary Government servant has no right to hold a post. His services can be terminated without, assigning any reason. either under the terms of the contract providing for such termination or under the relevant statutory rules regulating terms and conditions of temporary Government servants. Termination of services, simplicitar does not visit him with any evil consequences. In Parshotam Lal Dhingra Vs. Union of India (UOI), , which still holds the field, the view expressed by the Constitution Bench is that evil consequences do not include the termination of services of a temporary Government servant in accordance with the terms and conditions of service. This view has been subsequently reiterated in Jagdish Mitter Vs. The Union of India (UOI), and State of Punjab and Another Vs. Shri Sukh Raj Bahadur, . All these authorities have again been referred to, considered and applied in a recent decision by the Supreme Court in the State of Uttar Pradesh v. Kaushal Kishore Shukla 1991 (1) S.L.R. 606. The Honble Mr. Justice K.N. Singh (as his lordship then was), while delivering the judgment observed,--

Under the service jurisprudence a temporary employee has no right to hold the post and his services are liable to be terminated in accordance with the relevant service rules and the terms of contract of service. We may also refer to a decision of a Division Bench of this Court in Om Parkash Sharma v. State of Haryana 1981 (1) S.L.R. 314 . In that case also, the appointment was for a period of six months and on ad hoc basis and the services were liable to be terminated without any prior notice. After referring to a decision of a Full Bench of this Court in S.K. Verma and Others Vs. State of Punjab and Others, , the Division Bench held that an ad hoc employee has no right to hold the post till the termination of his services for a valid justification and his services are liable to be terminated even otherwise without any prior notice in terms of his employment. In our opinion, the decision of the Supreme Court in Kaushal Kishore Shukla''s case (supra) and the decision of this Court in Om Parkash Sharma''s case (supra) furnish a complete answer to the first question.

As we have seen above, the Petitioner''s appointment on promotion as Veterinary and Livestock Development Assistant,--wide Annexure P.2, was only on ad hoc basis and for a period of nine months or until such time as the recommendes of the S.S.S. Board joins, whichever is earlier. The Petitioner''s services in terms of the appointment order could be terminated without assigning any -reason or without any notice. Apparently, therefore, in terms of the order, the Petitioner had no right to the post of the Veterinary and Livestock Development Assistant and that appointment could be terminated on the expiry of nine months or on the joining of the recommendee of the S.S.S. Board and without assigning any reason. This is what exactly has been done,--vide Annexure P.3. The Petitioner in our opinion, had acquired no right to hold that post.

We are aware of the Supreme Court decision in Rattan Lal and Others Vs. State of Haryana and Others, , wherein the policy of the State Government of ad hocism in public employment has been strongly deprecated. Nevertheless, circumstances may arise necessitating the appointment on ad hoc basis. It may be on account of the absence of necessary rules or non-availability of incumbents through due process of selection involving time; and exigencies of service may not allow the posts to remain unmanned meanwhile. All the same, such appointments do not confer any right on the appointees for regular appointment to such posts. Such appointments, as observed by the Division Bench of the Delhi High Court in Kuldeep Chand Sharma v. Delhi Administration 1978 (2) S.L.R. 379, (a decision relied upon by the learned Counsel for the Petitioner), are in the nature of stop-gap arrangements. That decision itself is an authority for the proposition that an ad hoc appointee has no right to hold that post to which he is so appointed and may be reverted to the original position for valid reasons. As we have shown above, this stop-gap arrangement by ad hoc appointment can well be terminated in terms of the contract. The learned Counsel for the Petitioner relied on yet another decision in Mrs. Anita v. State of Rajasthan 1991 (4) S.L.R. 145. This decision renders little assistance to the Petitioner. In that case, the Petitioner was appointed as a Lecturer in English and her appointment was terminated at the end of every academic session. She used to be reappointed at the beginning of the next academic session. Such process continued for long seven years. The Rajasthan Public Service Commission did not advertise the posts for regular appointment of Lecturers in English It was under these circumstances that a division Bench of the Rajasthan High Court in that case directed that the Petitioner be allowed to continue in service till the regularly recruited candidates became available by due process of selection by the Rajasthan Public Service Commission. The appointment in the present case is under entirely different circumstances. It is the terms of that appointment which govern the present case.

This takes us now to the consideration of the second question.

Learned Counsel for the Petitioner was at pains to argue that the Respondent''s action in terminating the Petitioner''s services as the Veterinary and Livestock Development Assistant, was wholly arbitrary and unreasonable and consequently infringed the rule enshrined in Article 14 of the Constitution of India. It was rightly pointed out that the judicial review of action involving public element is permissible on the ground of arbitrariness or unreasonableness or irrationality, and may be invalidated. The considerations based on Article 14 of the Constitution may not be excluded in contractual matters, as was pointed out by the Supreme Court in. Kumari Shrilekha Vidyarthi v. State of U.P. 1990 (6) S.L.R. 1. It was observed in that case that this may be more so when the modern trend is also to examine the unreasonableness of a term in such a contract where the bargaining power is unequal so that these are not negotiated contracts, but standard form contracts between unequals. Nevertheless, the Supreme Court observed,--

The scope and permissible grounds of judicial review in such matters and the relief which may be. available are different matters....

In paragraph 35 of the judgment in the above said case, the well settled view on the scope of Article 14 of the Constitution is stated in these terms:

It is now too well-settled that every State action, in order to survive, must not be susceptible to the view of arbitrariness which is the crux of Article 14 of the Constitution and basic to the rule of law, the system which governs us. Arbitrariness is the very negation of the rule of law. Satisfaction of this basic test in every State action is sine qua non to its validity and in this respect, the State cannot claim comparison with a private individual even in the field of contract. This distinction between the State and a private individual in the field of contract has to be borne in mind. At the same time, the Supreme Court also held in that case that it was for the persons alleging arbitrariness to prove it and that whether the impugned action is arbitrary or not. is ultimately to be answered on the facts and circumstances of a given case. The true import of arbitrariness is more easily visualized than precisely stated or defined. In that case, the Government terminated the assignments of. all Government Advocates in the State of Uttar Pradesh irrespective of the fact whether their terms of appointment had expired or not. Under the relevant rules, a District Government Counsel could be. appointed for a period of one after due selection by the Government. His term could be renewed for a period not exceeding three years. The appointments of all such incumbents were terminated irrespective of the. fact whether, their tenures had expired or not, Considering the provisions of the relevant; rules, it was. held that the appointment and engagement of District Government Counsel is not the same as that by a private litigant of his counsel and there is obviously an element of, continuity of the appointment unless the appointee is found to be unsuitable either by his own work, conduct or, age or in comparison to apply more suitable candidate available at the place of appointment. So interpreting the rules the, Supreme Court found in that case a total non-application of mind to individual cases before issuing a general circular terminating all such appointments and this fact itself appeared to the Court to be. eloquent of arbitrariness writ large on the fact of the circular. On these premises, that circular was quashed and the action of the State in terminating the appointment of the District Government pleaders by one general, order was held to be arbitrary and unreasonable offending Article 14 of the, Constitution. The learned Counsel for the Petitioner very strongly relied upon this decision. In the, present case, we have demonstrated that the Petitioner, in terms of the appointment order, had not acquired any right to continue on that post., His tenure was specified to be nine months or even earlier if the persons duly selected, and, recommended by the S.S.S. Board were available. There, was no question of extension of such a term as was under the rules which governed Kumari Srilekha Vidyarihi''s case (supra). The action in terminating such appointment and, reverting the Petitioner to his original post also cannot be said, to be, suffering from the. vice of non-applicability of mind and, therefore, arbitrary, as was found in, Kumari Srilekha Vidyarthi''s case, (supra). Here,, the impugned order, Annexure P.3, indicates the natural, consequences flowing from the terms of the ad hoc appointment for a fixed tenure under Annexure P.2. We are, therefore, of the opinion that the impugned order, Annexure P.3, does withstand all the tests laid down in Kumari Srilekha Vidyarthi''s case (supra) and the action of the Respondent cannot be said, to be arbitrary or unreasonable.

On behalf of the Petitioner, it was submitted that after the Petitioner was appointed as Veterinary and Livestock Development Assistant, a number of other persons have been similarly appointed. They, however, are continuing in service. The action of the Respondent in terminating the Petitioner''s appointment and retaining his juniors is criticized as arbitrary on the principle of "last come first go." In our opinion, this argument is also misconceived. It could not be pointed out if any person so appointed has been retained after the expiry of the term of his appointment mentioned in the appointment order. The Petitioner, therefore, cannot be heard to make any grievance on this score. This contention is also rejected.

Squally untenable is the argument that the Petitioner has been deprived of a chance-of being regularly selected to the post of the Veterinary and Livestock Development-Assistant. No regular appointment so far has been made. If and when any such appointments are made, and if the Petitioner does not get any chance or is deprived of his alleged right of being so selected for appointment, then, and then alone, he may have a grievance to make on this account. Indeed a Division Bench of this Court in Krishan Chand Goyal v. Punjab State 1980 (2) S.L.R. 623, has held that when the services of a temporary Government servant are terminated either in accordance with the conditions of appointment or service rules, while his juniors are retained iii service, per se, it would not prove unequal treatment nor would it be violative of Articles 14 and 16 of the Constitution. No decision taking a contrary view has been cited before us. It is, therefore, futile to make any such contention).

Learned Counsel for the Petitioner however, urged that once a person was appointed, to the post the tenure expressed in the appointment order loses all significance and the person so appointed acquires a status which cannot be terminated except under the relevant law. The nature of the post and the intention to retain it should be ascertained. Learned Counsel attempted to support such contention on the authority of the decision of the Supreme Court in Union of India v. Arun Kumar Roy 1986 (1) S.L.R. 474. In our opinion the reliance on this decision by the learned Counsel, is completely misplaced. That decision is only an authority for the proposition that after an appointment, it is the rule governing the service conditions of the employee which shall prevail over the initial terms of the appointment. In the present case, as we have indicated above, the Petitioner has not Required any status as the Veterinary and Livestock Development Assistant by force of the appointment under Annexure P.2, which appointment was only for a fixed tenure and on ad hoc basis. This argument, therefore, holds no water and must be rejected.

The last argument based upon the doctrine of estoppel, has to be mentioned only and to be rejected. The learned Counsel for the Petitioner referred to a circular dated February 5, 1990, issued by the Government of Haryana stating the policy and procedure for making ad hoc appointments against the posts which are within the purview of H.P.S.C./S.S.S. Board. Clause (ii) of first paragraph thereof inter alia says that ad hoc appointments should be made only for nine months or till such time the recommendees of the H.P.S.C./S.S.S. Board join, whichever is earlier. Clause (iii) thereto requires that no ad hoc appointment should be continued beyond nine months in any case. Clause (v) postulates that ad hoc appointees will stand relieved at the expiry of the tenure or as soon as the recommendees of H.P.S.C./S.S.S. Board take their places whichever is earlier. No doubt, paragraph 2 of the circular certainly indicates that the recruiting agencies, i.e., H.P.S.C./S.S.S. Board must ensure that suitable candidates are recommended at the earliest possible so that regular appointments are made within the stipulated time as mentioned in paragraph 1 (iii). We fail to see how this circular helps the Petitioner. It cannot be spelt out from any of the clauses in the circular that so long as regular appointments are not made, the State Government was estopped from reverting such appointees as the Petitioner to their original posts, in pursuance of the said circular, either on" the expiry of their terms or on the recommendations being made by the H.P.S.C./S.S.S.B., whichever is earlier. The rule of estoppel is. not attracted by any stretch of, either on the terms of the above circular, or even otherwise. This contention is also, therefore, rejected. On the above analysis, we are of the opinion that the Petitioner''s claim for continuance of his appointment after the expiry of nine months or until such period when the recommendees by S.S.S. Board are appointed, per Annexure P.2, is baseless. His appointment has been rightly terminated by the impugned order, Annexure P.3. This writ petition is, there Tore, liable to be dismissed, and is accordingly dismissed.

Before, however, we part with this matter we express that by no means we should be understood to support the ad hocism in the matter of public appointments, which practice, as the Supreme Court has observed, must be deprecated. The State Government should take steps within reasonable time to fill up all such posts by the due process. We also record our appreciation for the valuable assistance rendered by the learned Counsel for the parties. There shall be no order as to costs.