Ugam Singh vs State and Others

B.S. Chauhan, J.—The instant writ petition has been filed challenging the order dated 22.4.1988 contained in Annexure 8 to the petition by which the services of the petitioner had been terminated. The factual gamut of the case as revealed by the record is that petitioner was appointed as Gram Sewak (V.L.W.) on 18.1.1985 on purely temporary basis for a period of 29 days or till the regularly selected candidates are made available by the District Establishment Committee (hereinafter called D.E.C.). The services of the petitioner were extended several times for a period of 29 days and it came to an end in July 1986. As the regular selected candidates were not made available by D.E.C., petitioner was given appointment vide order dated 6.10.1986 contained in Annexure 2 to the petition for a period of six months purely on temporary basis and there has been no further extension of his services. However, petitioner claims that he continued to work without any extension of his services, and he has been removed from service vide impugned order dated 22.4.1988.

Being aggrieved and dissatisfied, petitioner has challenged the impugned order dated 22.4.1988 mainly on the ground that there was a government order dated 20.1.1988 contained in Annex. 4 to the petition to the effect that all temporary V.L.Ws appointed subsequent to December 31, 1985 be removed and as the petitioner had been appointed prior to the said date, his termination is illegal and contrary to the Government order.

Heard Shri A.K. Singh learned Counsel for the petitioner and Shri R.L. Jangid, learned Counsel for the respondents.

It has been contended by the petitioner''s counsel that the termination order is contrary to Government order dated 20.1.1988 and thus the termination is illegal. There is no force in this contention as the petitioner had not worked continuously from the date prior to 31.12.1985 and there has been a gap in his service. Infact he has worked regularly from 13th December, 1986 as is revealed by order dated 15.4.1988 contained in Annexure 6 to the writ petition. The impugned termination order itself makes it. clear that before passing it respondent No. 3 had sought a report from respondent No. 2 and it was reported therein, that the petitioner had not been in continuous service from the date prior to 31st December, 1985. On the contrary, petitioner himself has stated in paragraph 3 of the petition that he worked up to July, 1986 and then was subsequently appointed vide order dated 6.10.1986. There is no evidence or material on record which may justify the claim of the petitioner and thus the submission made is not tenable. It is next urged that once petitioner has been allowed to work for a long period, he could not have been removed from service. Petitioner was holding a post temporarily, thus he cannot claim that he was having any right to the post, and his termination is contrary to law. In State of Uttar Pradesh and Another Vs. Kaushal Kishore Shukla, the Apex Court has categorically held as under:

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.

In a case like the instant the Court has to be satisfied as what is the legally justiciable right of the petitioner which has been infringed and for which the petitioner can resort to the discretionary relief under Article 226 of the Constitution of India. The Supreme Court in Parshotam Lal Dhingra Vs. Union of India (UOI), has held that that "A person can be said to acquire a lien on a post only when he has been confirmed and made permanent on that post and not earlier" and further held that a Government servant holding a post temporarily does not. have any right to hold the said post". In Ravindra Kumar Misra Vs. U.P. State Handloom Corpn. Ltd. and Another, the Apex Court has observed as under:

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....

A temporary Government servant has no right to hold the post and his services are liable to be terminated without assigning any reason either under the terms of the contract providing for such termination or under the relevant statutory rules regulating the terms and conditions of temporary Government servants. Similarly in Triveni Shankar Saxena Vs. State of U.P. and others, ; Commissioner, Food and Civil Supplies, Lucknow, U.P. and Another Vs. Prakash Chandra Saxena and Another, ; Ram Chandra Tripathi v. U.P. Public Service Tribunal and Ors. 1994 (2) JT 84 Madhya Pradesh Hasta Shilpa Vikas Nigam Ltd. Vs. Devendra Kumar Jain and Others, and Kaushal Kishore Shukla (supra) the Apex Court has categorically held that incumbent to a post who has been given appointment on temporary basis, terminable without notice has no right to hold the post and he is, not entitled of any opportunity of hearing before his services is dispensed with as his termination does not amount to forfeiture of any legal right.

In Ravi S. Naik and Sanjay Bandekar Vs. Union of India and others, , the Hon''ble Apex Court has placed reliance on the observations made in Malloch v. Aberddeen Corporation 1971 (2) All ER 1278 wherein it has been observed as under:

A breach of procedure, whether called a failure of natural justice or an essential administrative fault cannot give him a remedy in the Courts, unless behind it there is something of substance which has been lost by the failure. The Court does not act in vain.

Shri A.K. Singh, learned Counsel for the petitioner could not point out what is the legally justiciable right of the petitioner which has been infringed or for the enforcement of the same the writ petition has been filed. It is well settled law that writ under Article 226 of the Constitution is maintainable for enforcing the statutory right or when there is a complaint by a person that there is a breach of statutory duty on the part of the respondent. The Court can enforce the performance of a statutory duty by public bodies through its writ jurisdiction at the behest of a person, provided such person satisfies the Court that he has a legal right to insist on such performance. The existence of the said right is the condition precedent to invoke the writ jurisdiction ( State of Kerala and Others Vs. K.G. Madhavan Pillai and Others, ; State of Kerala Vs. Smt. A. Lakshmikutty and others, ; Mani Subrat Jain and Others Vs. State of Haryana and Others, and Calcutta Gas Company (Propriety)Ltd. v. State of West Bengal and Ors. AIR 1962 SC 104). Thus I find no substance in this contention also.

It has next been contended by Shri A.K. Singh, that there are large number of judgments of this Court wherein, the writ petitions have been allowed only on the ground that the employees have been permitted to work under the interim orders of the Court for a long period and as in the instant case, the petitioner had been granted interim order on 2.5.1988 and petitioner is working till today on the basis of the said interim order, petitioner cannot now be removed from the service. I am afraid the contention raised is preposterous and if accepted, would have very serious repercussions and it is beyond imagination of any person as what would happen if this principle is extended to the criminal cases. No litigant can derive any benefit from mere pendency of his case in the Court of law. Interim order always merges in the final order to be passed in the case and if the writ petition is dismissed, the interim order stands nullified automatically. Petitioner cannot take any benefit of his wrong of getting interim order and, thereafter, blame the Court. The fact that writ petition is found devoid of any merit, shows that a frivolous writ petition has been filed. The maxim "Actus Curiae Neminem Gravabit" is applicable in such a case, which means that the act of the Court shall prejudice no one. It is well settled principle of law to undo the wrong done to a party by the Act of the Court. Thus, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralised as institution of litigation cannot be permitted to confer any advantage on a suitor from delay occasioned by the act of the Court.(Vide Grindlays Bank Limited Vs. Income Tax Officer, Calcutta and Others, ; Ram Krishna Verma v. State of U.P. AIR 1992 SC 1988 Dr. A.K. Sirkar v. State of U.P. and Ors. 1993 Suppl. (2) SCC 734; Shiv Shankar and Ors. v. Board of Directors UPSRTC and Anr. 1995 Suppl. (2) SCC 726 and M/s. Kanoria Chemicals and Industries Ltd. Vs. U.P. State Electricity Board and other, .

In the instant case petitioner has been the beneficiary of interim order and respondents suffered as they could not fill up the post by regular selection because of the interim order passed in favour of the petitioner. Therefore, judgments to the effect that a petition is liable to be allowed only because petitioner has been allowed to work for a long period, under the interim order of the Courts, are liable to be ignored, being contradictory to law of the land. Rather it is the duty of the Court to rectify the mistake as in Hotel Balaji and others, Vs. State of Andhra Pradesh and others, etc. etc., , the Supreme Court observed as under:

To perpetuate an error is no heroism. To rectify it is the compulsion of the judicial conscience.

In the instant case, such judgments are liable to be ignored because of the mandate of Article 141 of the Constitution of India. While explaining the scope of Article 141, the Apex Court in the case of Nand Kishore v. State of Punjab 1995 (7) JT 69 has observed as under:

Under Article 141, the law declared by it is of a binding character and as commandful as the law made by a legislative body or an authorised delegate of such body....Their Lordship''s decisions declare the existing law but do not enact any fresh law." is not in keeping with the plenary function of the Supreme Court under Article 141 of the Constitution, for the Court is not merely the interpreter of the law as existing but much beyond that. The Court as a wing a of the State is by itself a source of law. The law is what the Court says it is.

In Smt. Harpal Kaur Chahal v. Director Punjab Industries 1995 Suppl. (4) SCC 706 the contention, that thought her appointment had been in contravention of the Rules of recruitment but as she worked for 16 years under the interim orders of the courts, her services should be regularised and it would not be justified to remove her from service after continuous working for such a long period, was rejected by the Hon''ble Apex Court holding that once an appointment is illegal it cannot gain legality at a subsequent stage and the court cannot issue a direction to allow her to continue in service only on such ground.

In view of the above, I am of the considered opinion that the services of the petitioner cannot be regularised merely on the ground that he is continuously working for last several years under the interim orders of this Court. Passing such order cannot be justified for the reason that the respondents could not fill up the post because of the interim order of this Court and eligible candidate who could have been considered for the post have been deprived of their legitimate rights to be considered for the post. Moreover, continuation of petitioner after the lapse of period of six months, after his re-appointment vide order dated 6.10.1986, is contrary to the Rules and thus cannot be taken into consideration. The services of Gram Sewaks are governed by the provisions of Rajasthan Panchayat Samiti and Jila Parishads Act, 1959 (hereinafter called the Act) and Rajasthan Panchayat Samiti and Zila Parishads Rules, 1959 (hereinafter called the Rules.) Section 31(4) provides that all temporary appointments shall be made by the Panchayat Samiti in the prescribed manner from selected candidates for the Rajasthan Panchayat Samitis and Zila Parishads services constituted u/s 86. Section 86 (6) provides that appointment by direct recruitment shall be made by a Panchayat Samiti in accordance with the rules made in this behalf by the State Government from the persons selected for the post in a grade or cadre in the district by Sub-section (1) of Section 88. Section 86 (8) further provides that the appointing authority may, so long as regular selection is not made by D.E.G. and selected candidates are not made available for appointment, make appointments in the prescribed manner on a temporary basis for a period not exceeding six months and the said period may be extended for a period of six months only after consultation with D.E.C. So far as the petitioner is concerned, he was not appointed from the selected candidates for the post in the district by the D.E.G. after following the procedure laid down for direct recruitment under Rules 15, 16, 17 and 18 of the Rules of 1959. His appointment was purely temporary and was made under Rule 23 of the Rules of 1959. Rule 23 (1) provides that no temporary appointment shall be made for a period exceeding six months. The nearest Employment Exchange shall also be asked to send a panel of names of persons possessing the requisite qualification. The period of such temporary appointment may, however, be extended beyond six months only with the previous concurrence of the Committee and the temporary appointment made under this Rule shall not be continued for period of exceeding 12 months without the prior concurrence of the Commission. In the instant case it is clear from the facts narrated above that the temporary appointment of the petitioner remained continuous beyond six months without the previous concurrence of the D.E.C. and beyond 12 months without prior concurrence of the Commission. Infact Rule 23 (6) automatically extinguishes the services of a temporary employee as it provides that temporary appointee of this nature shall be deemed to have vacated his office and shall not be entitled to any salary thereafter. Therefore, allowing the petitioner to continue after the period of six months was not only contrary to the Rules but was arbitrary.

The rule of law inhibits arbitrariness and any arbitrary action is liable to be invalidated. Every action of the State or its instrumentalities should be fair, legitimate and above board. The action should be without any affection or aversion, it should not be even suggestive of discrimination. The acts of the State instrumentality should not even apparently be given the impression of bias, favouritism and nepotism. (Vide Haji T.M. Hassan Rawther Vs. Kerala Financial Corporation, ). In Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress and Others, , the Supreme Court observed as under:

In a system governed by a rule of law discretion when conferred upon the executive authorities, must be confined within definite limits. The rule of law from this point of view means that decision should be made by the application by known- principles and rules and in general, such decisions should be predictable and the citizen should know whether he is.

It is settled law that when the action of the State or its instrumentalities is not as per the rules or regulations or supported by a statute, the Court must exercise its jurisdiction to declare such an act to be nullity. In Sirsi Municipality by its President Sirsi Vs. Cecelia Kom Francis Tellis, the Supreme Court observed that the ratio is that the rules or the regulations are binding on the authorities." Similarly, the Constitution Bench of the Supreme Court in Sukhdeo Singh and Ors. v. Bhagat Ram Sardar Singh Rajvanshi and Ors. AIR 1995 SC 1331 has observed as under:

The statutory authorities cannot deviate from the conditions of service. Any deviation will be enforced by legal sanction of declaration by Courts to invalidate actions in violation of rules and regulations. The existence of rules and regulations under statute is to ensure regular conduct with a distinctive attitude to that conduct as a standard. The statutory regulations in the cases under consideration give the employees a statutory status and impose restriction on the employer and the employee with no option to vary the conditions. An ordinary individual in a case of master and servant contractual relationship enforces breach of contractual terms. The remedy in such contractual relationship of master and servant is damages because personal service is not capable enforcement. In cases of statutory bodies there is no personal element whatsoever because of the impersonal character of statutory bodies. In the case of statutory bodies it has been said that the element of public employment or service and the support of statute require observations of rules and regulations. Failure to observe requirements by statutory bodies is enforced by Courts by declaring dismissal in violation of rules and regulations to be void.

Similar view has been taken by the Supreme Court in Ambica Quarry Works v. State of Gujarat and Ors., (1987) 1 SCC 213; Commissioner of Police, Bombay Vs. Gordhandas Bhanji, and in Ram Chand and Others Vs. Union of India (UOI) and Others, and held that the exercise of the power should not be made against the spirit of the provisions of the statute, otherwise it would tend towards arbitrariness.

However, before parting with the case. I would like to point out that it is well known Rule of practice and procedure that at interlocutory stage a relief which is, asked for and is available at the final disposal of the matter cannot be granted, unless, there is any special reason which is to be indicated in clear terms in a interlocutory order. (Vide U.P. Junior Doctors Action Committee v. Sheetalnadwani 1992 Suppl (1) SCC 680 ; St. John''s Teacher Training Institute (for Women), Madurai, Vs. State of Tamil Nadu and others, etc. etc., and S.B. Dogra Vs. State of Himachal Pradesh and Others, .) In Guru Nanak Dev University Vs. Parminder Kr. Bansal and another, , the Hon''ble Supreme Court has observed as under;

We are afraid that this kind of administration of interlocutory remedies, more guided by sympathy quite often wholly misplaced, does no service to anyone...We find that loose, ill-conceived sympathy masquerades as interlocutory justice exposing judicial discretion to the criticism of degenerating into private benevolence....Decisions on matters relevant to be taken into account at the interlocutory stage cannot be deferred or decided later when serious complications might cause from the interim order itself.

Thus, in a case like this, to grant an interim injunction is not justified as it has caused great prejudice to the respondents as well to other eligible candidates, who could have applied for the post and could have been considered.

Thus, for the reasons recorded above, I am of the considered opinion that the petition is devoid of any merit and hence dismissed. However, as petitioner has worked for about a decade, the respondents may consider his candidature for the same/or similar post, whenever the appointments are made on regular basis, provided he fulfils all other eligibilities, granting him relaxtion of age, if it is so required. No costs.