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RAJESH GROVER versus PUNJAB STATE COUNCIL FOR SCIENCE & TECHN

High Court of Punjab and Haryana, Chandigarh

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Rajesh Grover v. Punjab State Council for Science & Techn - CWP-16724-2006 [2006] RD-P&H 9067 (23 October 2006)

In the High Court of Punjab and Haryana at Chandigarh

......

C.W.P. No.16724 of 2006

.....

Date of decision: 30.10.2006

Rajesh Grover

.....Petitioner

v.

Punjab State Council for Science & Technology, Chandigarh and another .....Respondents

....

Coram: Hon'ble the Acting Chief Justice

Hon'ble Mr. Justice S.S. Saron

Present: Mr. Rajiv Atma Ram, Senior Advocate with Mr. H.R. Mittal and Mr. Sunil K. Nehra, Advocates for the petitioner.

.....

In terms of the impugned resolution dated 25.9.2006 (Annexure- P.8) vide item No.5 a decision has been taken by the Punjab State Council for Science & Technology (respondent No.1) (`Council' for short) not to extend the contract period of service of the petitioner expiring on 10.11.2006.

The petitioner has approached this Court seeking quashing of the same.

An advertisement dated 16.4.1997 (Annexure-P.2) was issued by the Council for the post of Senior Scientific Officer (Biotechnology). The petitioner applied for the same and was selected. He was appointed on the terms and conditions as contained in the appointment letter dated 7.11.1997 (Annexure-P.3). The petitioner was to be on probation for a period of one year. It was inter alia stipulated that on completion of the probation of one year, the petitioner would be given appointment for a period of four years on C.W.P. No.16724/2006

[2]

contractual basis. The petitioner successfully completed his probation and vide order dated 17.2.1999 (Annexure-P.4) he was appointed on contract basis for four years. This period was extended vide order dated 10.10.2002 (Annexure-P.5) for a further period of two years till 10.11.2004. Thereafter, vide order dated 2.9.2004 (Annexure-P.6) he was given another extension for a period of two years till 10.11.2006. In terms of the impugned resolution dated 25.9.2006 (Annexure-P.8) vide item No.5 it has been resolved that in view of the lackadaisical performance of the petitioner over the years the committee did not approve his extension. He be, therefore, put on notice that his services would not be required on the expiry of the present tenure.

Besides, he would be relieved as soon as suitable replacement was arranged.

Mr. Rajiv Atma Ram, learned Senior Advocate appearing with Mr. H.R. Mittal and Mr. Sunil K. Nehra, Advocates for the petitioner submits that the use of the term, `contractual' by the Council is a complete misnomer.

In fact, an advertisement was issued and due selection process was followed in pursuance of which the petitioner was selected and appointed. Even though his appointment is termed as, contract appointment yet the petitioner was appointed in a running pay scale and regular increments had been granted to him. As such it is contended that for all intents and purposes the appointment of the petitioner is a regular appointment in the regular pay scale. Therefore, the use of the word, `contractual' is out of context and can not be taken into consideration. Learned senior counsel has also referred to the fact that the services of various employees who were appointed on different posts including posts of Senior Scientific Officer and Principal Scientific Officer on contract basis from time to time have been regularized.

C.W.P. No.16724/2006

[3]

He has made a reference to the order dated 13.5.1998 (Annexure-P.7).

We have given our thoughtful consideration to the matter. The petitioner was appointed as Senior Scientific Officer vide letter of appointment dated 7.11.1997 (Annexure-P.3). It was inter alia provided that the appointment would be on probation for a period of one year which may be extended or curtailed at the discretion of the Council. Besides, on satisfactory completion of the probation period, the petitioner would be eligible for appointment on contract for further period of four years. It is after the successful completion of the probation period, the petitioner vide order dated 17.2.1999 (Annexure-P.4) was appointed on contract for a period of four years w.e.f. 11.11.1998 till 10.10.2002. This period was extended vide order dated 10.10.2002 (Annexure-P.5) for another period of two years w.e.f. 11.11.2002 to 10.11.2004 and was still further extended vide order dated 2.9.2004 (Annexure-P.6) for a further period of two years upto 10.11.2006. It is thereafter that in pursuance of the impugned decision it has been resolved not to extend the further period of the petitioner in view of his lackadaisical performance over the years. In the circumstances, it is not in dispute that the appointment of the petitioner after completion of his probation period has been on contractual basis with periodical extensions.

This being the position it does not confer any right on the petitioner to continue in service in violation of the contract of his appointment. In Secretary, State of Karnataka and others v. Umadevi (3) and others, (2006) 4 SCC 1, it was observed as follows:-

"While directing that appointments, temporary or casual, be regularised or made permanent, the courts are swayed by the fact C.W.P. No.16724/2006

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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."

The petitioner admittedly accepted the terms of employment with open eyes and his periodic contractual period of appointment was extended from C.W.P. No.16724/2006

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time to time. Each extension was accepted by him without any demur. He never claimed any right to continue in service on regular basis. Even though the petitioner has been appointed after issuance of an advertisement, that by itself would not confer any right on him to continue in service. It has also to be seen whether the petitioner has any legally enforceable statutory right to continue in service in terms of which a mandamus can be issued by this Court directing the Council to allow the petitioner to continue in service. The petitioner is working with the Council which is a society registered under the Registration of Societies Act, 1860. Learned senior counsel has not referred to or adverted to any statutory rules on the basis of which the petitioner can claim any legally enforceable statutory right to continue in service despite having been appointed on contract basis. The advertisement issued on 16.4.1997 (Annexure-P.2) specifically provides that appointment on the posts as advertised shall be on contract basis for a period of five years including one year's probation. The petitioner was appointed on probation for a period of one year on 7.11.1997 (Annexure-P.3). The appointment provided that on satisfactory completion of the probation period the petitioner would be eligible for appointment on contract for a further period of four years.

Besides, the appointment was purely on contractual basis and after completion of the contractual period, he may or may not be granted any further extension. Therefore, the petitioner is governed by the terms and conditions of his appointment and he has no legally enforceable statutory right to continue in service.

Learned senior counsel has also made a pointed reference to para 22 of the judgment passed in State of Haryana and others v. Charanjit Singh C.W.P. No.16724/2006

[6]

and others, JT 2005 (12) SC 475 and contended that similar matters are pending in this Court. It was observed by the Hon'ble Supreme Court in the said case that persons employed on contract cannot claim equal pay for equal work. It was submitted by the employees therein that they were in fact claiming that their respective appointments were regular appointments by the regular process of appointment but that instead of giving regular appointments they were appointed on contract with the intention of not paying them regular salary. It was admitted by the employees that the petitions therein may be badly drafted and such a contention not put forth specifically. The High Court had disposed of the petitions also on the footing that the principle of equal pay for equal work applied. The impugned orders were set aside by the Supreme Court in the said cases and the matters remitted to the High Court for disposal with the observations that the petitioners therein shall be permitted to amend their petitions to make necessary averments. On the strength of the same it is contended that the question whether the respective appointments were regular appointments by regular process of appointment but instead of giving regular appointments the employees therein were appointed on contract with the intention of not paying them regular salary is still pending.

Having given our thoughtful consideration we are of the view that when the Court is approached by an employee for seeking regular appointment it has to be seen whether he has a legally enforceable statutory right. The petitioner has failed to establish any legal right to continue in appointment in the face of the decision taken by the Council not to extend the period of contract. Accordingly, even though the petitioner has been C.W.P. No.16724/2006

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appointed as Senior Scientific Officer (Biotechnology) after issuance of an advertisement, in the absence of any rules or any other enforceable right to continue after the resolution passed for not extending his contract, he has no right to continue.

For the foregoing reasons, there is no merit in this petition and the same is accordingly dismissed.

(S.S. Nijjar)

Acting Chief Justice

October 30, 2006. (S.S. Saron)

Judge

*hsp*


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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