Allowed

State of U.P. and Others v. U.P.Public Service Tribunal Lko. and Another

Allahabad HC10 Dec 2019WRIA/20991/1996

Case brief

AI extract

What is this about?

Writ petition challenging the Public Service Tribunal's order that treated a temporary employee as being in continuous service after his fixed-term appointment expired. The Court held that tenure appointments end by efflux of time, requiring no termination order, and continuance thereafter does not create a right to salary or service benefits.

What did the court decide?

Judgment and order dated 27.03.1996 passed by the Tribunal allowing claim for salary and continuity of service is set aside.

State of U.P. and Others Vs U.P.Public… — Pension and Retirement Benefits | Allahabad HC (2019)

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Court No. - 34

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Case :- WRIT - A No. - 20991 of 1996

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Petitioner :- State Of U.P. And Others Respondent :- U.P.Public Service Tribunal Lko. And Another Counsel for Respondent :- S.C.,N.C.Tripathi,Prabhakar Dwivedi,V.B. Yadav

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Hon'ble Sudhir Agarwal,J.

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Hon'ble Rajeev Misra, J.

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Heard learned Standing Counsel for petitioner. None appeared on behalf of respondent-2 though called in revise, hence, we proceed to decide the matter after hearing learned Standing Counsel.

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This writ petition under Article 226 of Constitution of India is directed against judgment and order dated 27.03.1996 passed by Uttar Pradesh Public Service Tribunal (hereinafter referred to as “Tribunal”) allowing Claim Petition No.1512 of 1993 declaring that claimantrespondent-2 has continued on ad hoc basis as temporary government servant by appointment letter dated 21.08.1991 and treating his service to be continued, he shall be given benefit of all salary etc.

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Facts in brief giving rise to present writ petition is that claimantrespondent-2 admittedly was appointed by appointment letter dated 21.08.1991 passed by Deputy Director, Soil Conservation, Muzaffar Nagar for a period of three months on a fixed salary of Rs.950/- as 'Junior Clerk' in Land Conservation Unit, Saharanpur. However, he continued in service even after expiry of three months for which he was appointed. Ultimately, he ceased to work by impugned order dated 21.08.1991.

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Aggrieved by aforesaid termination, claimant-respondent-2 filed Claim Petition No.1512 of 1993 seeking following reliefs :

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^^1vr% ekuuh; vf/kdj.k ls izkFkZuk gS fd ;kfpdk esa izLrqr rF;ksa ,oa izLrqr lkiq"V vk/kkj ij ;g mn~?kksf"kr djus dh d`ik djsa fd ;kph vius fu;qfDr i= fnukad 21 vxLr] 91 ds vuqlkj vkt Hkh foi{Khx.k ds v/khu leLr lsok ykHkksa lfgr dk;Zjr gS rFkk leku osru ds fy, vius fu;qfDr i=

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dh frfFk ls osrueku :0 950&1500 izkIr djus gsrq vf/kdr gSA ;gh ugha ;fn foi{khx.k }kjk dksbZ fyf[kr vFkok ekSf[kd :i ls lsok lekfIr dk vkns'k ikfjr fd;k x;k gS rks mls Hkh ekuuh; U;k;ky; fujLr dj izHkko 'kwU; ?kksf"kr djrs gq, foi{khx.k dks ;g vknsf'kr djus dh dik djsa ftlesa ;kph dks leLr lsok ykHkksa lfgr lsok esa inLFkkfir djrs gq, lsok ykHk ns nsosaA

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2- ;g fd ekuuh; vf/kdj.k dh nf"V esa ;fn vU; dksbZ Rofjr o ykHkdkjh mipkj miyC/k gks rks mls Hkh ;kph ds i{k esa fuxZr djrs gq, foi{Khx.k dks vknsf'kr djus dh dik djsa fd og Hkh ;kph dks bl ;kfpdk dk leLr O;; e; vf/koDrk 'kqYd ds mls ns nsosaA**

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“1. On the basis of the facts and grounds mentioned in the instant petition, the Hon'ble Tribunal is prayed to declare that the petitioner, in terms of his appointment letter dated 21^st August, 1991, is working with the opposite parties even today getting all the service benefits, and is entitled for equal pay, that is, to draw salary in the pay scale of Rs. 950 – 1500 from the date of his appointment. Apart from this, if any written or verbal order has been issued by the opposite parties for termination of service, the Hon'ble Court may kindly also declare it null & void and direct the opposite parties to reinstate the petitioner in service along with all the service benefits.

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2. That any other relief, expeditious and beneficial, may kindly be also awarded in favour of the petitioner if in eyes of the Hon'ble Tribunal, such relief is available, and the petitioner be awarded the cost of this petition including the advocate fee.”

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(English translation by Court)

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Tribunal has recorded a finding that claimant-respondent-2 was initially appointed on a tenure of three months pursuant to appointment letter dated 21.08.1991 but since he has continued thereafter, hence, he could not have been terminated by oral order. Hence, termination is bad and he is entitled to be deemed to have been appointed in service for all benefits of service etc.

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Learned Standing Counsel submitted that as appointment of claimant-respondent-2 was made on fixed tenure it ceased after expiry of said tenure and even an order of termination was not required to be passed for termination. If claimant-respondent-2 has continued in service after expiry of said period, he could have ceased to work even by an oral order, since, his continuance was not pursuant to any written order. He further contended that even if claimant-respondent-2 has continued to work, it will not confer any right upon him, since in service matters principle of holding over is not applicable.

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We find substance in the aforesaid submission.

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In Director, Institute of Management Development U.P. Vs. Pushpa Srivastava (Smt.), 1992(4) SCC 33 , Court has said that tenure appointment comes to an end by efflux of time and it does not require even an order of termination after expiry of the period. The incumbent ceased to have right to work on the expiry of the period for which he is appointed. In the present case, petitioner has continued after the aforesaid period but not on the basis of any written order of appointment. If that be so, he could have been terminated in the same manner having no right on the said post or even by principle of 'holding over'.

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This Court in Vivek Kumar Misra & Anr. Vs. State of U.P. & Others, 2008 (4) ESC 2811 , he said :

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"From the nature of appointment of the petitioners, it is thus evident that it was a contract appointment for a fixed tenure with condition therein that the same may be renewed subject to good performance and mutual agreement. The existing contract being time bound, came to an end by efflux of time on expiry of the period for which the same was executed. Thereafter, continuance of the petitioners, if any, would not be pursuant to any letter of appointment or agreement. The right of the petitioners to continue in service in the absence of any letter of appointment is

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neither vested in them nor they can claim as an existing right moreso in the absence of an appointment letter issued by the employer. This Court cannot provide an appointment letter to the petitioners though the employer has chosen not to appoint them after the period of appointment is over. The appointment made for a limited period came to an end by efflux of time needs no order of termination. This is what has been held by the Apex Court in Director, Institute of Management Development, U.P. v. Pushpa Srivastava (Smt.) 1992(4) SCC 33 where dealing with a similar kind of contractual appointment, the Court held that it would end automatically by efflux of time."

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(emphasis added)

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In Secretary, State of Karnataka and Ors. v. Uma Devi and Ors., JT 2006(4) SC 420 , in para 34 of judgment, a Constitution Bench has observed :

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"If it is a contractual appointment, the appointment comes to an end at the end of the contract , if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued."

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(emphasis added)

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A Division Bench of this Court in Alok Kumar Singh (Dr.) and 15 Ors. v. State of U.P. and Ors., 2002 (2) ESC 427 (All), considering similar kind of tenure appointment on contract basis, has held that petitioners cannot claim right to continue in service beyond the period of appointment provided in the letter of appointment. This has been followed by subsequent Division Benches in Sarvesh Kumar Singh v. State of U.P. and Ors. writ petition No. 25849 decided on 11.5.2006; and Amar Nath Tiwari v. State of U.P. and Ors. 2006(6) ADJ 678 :2006(3) ESC 2015 (DB) .

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In State of Orissa and Anr Vs. Mamata Mohanty, 2011 (3) SCC

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436 , Court said:

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"....some appropriate method consistent with the requirements of Article 16 should be followed. In other words there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly. Even if the names of candidates are requisitioned from Employment Exchange, in addition thereto it is mandatory on the part of the employer to invite applications from all eligible candidates from the open market by advertising the vacancies in newspapers having wide circulation or by announcement in Radio and Television ...."

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Court further said that no person can be appointed even on temporary or ad hoc basis without inviting applications from all eligible candidates. In that case, appointments were made after notifying vacancies to Employment Exchange and putting a note on the notice board. Court condemned it and said:

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"If any appointment is made by merely inviting names from the Employment Exchange or putting a note on the Notice Board etc. that will not meet the requirement of Articles 14 and 16 of the Constitution. Such a course violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered."

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Court went on to observe that a person appointed illegally or not employed after following procedure consistent with Articles 14 and 16, he shall not be entitled for salary. Court said:

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"A person employed in violation of these provisions is not entitled to any relief including salary. For a valid and legal appointment mandatory compliance of the said Constitutional requirement is to be fulfilled. The equality

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clause enshrined in Article 16 requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit."

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It is interesting to notice that in State of Orissa and Anr Vs. Mamata Mohanty (supra) , Court also observed that if a person has continued to work, that by itself will not confer any right upon him since principle of holding over or concept of adverse possession is not applicable in service jurisprudence. Relying on its earlier decision in Dr. M.S. Patil Vs. Gulbarga University and Ors., AIR 2010 SC 3783 , Court said:

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"The concept of adverse possession of lien on post or holding over are not applicable in service jurisprudence. Therefore, continuation of a person wrongly appointed on post does not create any right in his favour."

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(emphasis added)

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The above observations are attracted with full force in the case in hand where respondent-2 has not been appointed by respondents and there is no compliance of Articles 14 and 16 of Constitution but since respondent-2 was simply continuing to discharge duties under a contract, on that basis, he cannot claim any right, legally or constitutionally, else it would be directly infringing constitutional mandates of Articles 14 and 16 of Constitution. Such an interpretation and such a consequence cannot be conceived by Court and therefore, this Court cannot take a view, which would confer an illegal and unconstitutional benefit upon appellant.

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In the present case, claimant-respondent-2 infact after expiry of aforesaid period of appointment continued in service, hence, he has no right to hold the post and his appointment having already exhausted after expiry of period, he could have been ceased to work at any point of time.

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In view of submissions advanced on behalf of parties as well as aforesaid expositions of law, we are of the view that Tribunal has erred in law by holding that respondent-2 be treated to be in continuous service

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and should be given benefit of salary etc. Therefore, impugned judgment and order of Tribunal, cannot be sustained.

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In the result, writ petition is allowed and judgment and order dated 27.03.1996 passed by Tribunal in Claim Petition No.1512 of 1993 is hereby set aside.

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Order Date : 10.12.2019 Manish Himwan

State of U.P. and Others v. U.P.Public Service Tribunal Lko. and Another

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State of U.P. and Others v. U.P.Public Service Tribunal Lko. and Another

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