Satish Chandra Patairiya Vs State of U.P. and Prabhari Chikitsadhikari Rajkiya Ayurvedic Evam Unani Chikitsalaya

R.B. Misra, J.

Heard Sri S. Sandilya and V. Sandilya, learned Counsels for the petitioner and Sri S.P. Singh and Sri Mohan Yadav, learned Standing Counsels for the State respondents.

1. In this petition prayer has been made to quash the orders dated 18.06.1992, 20.07.1992 and 23.07.1992 passed by the respondent Nos. 1, 2 and 3 respectively,

2. By order dated 18.06.1992 (Annexure-8 to the writ petition) the Director, Ayurvedic and Unani Services, U.P., Lucknow had issued a circular, whereby in view of Uttar Pradesh Ayurvedic and Unani (Clerical Cadre) Services Rules, 1991 the post of Junior Clerk was brought under the purview of U.P. Subordinate Services Selection Commission and thereby restrictions have been imposed in respect of adhoc appointment, as there is no provisions under the service rules for making adhoc appointment, therefore, in consonance to the provisions of Rules the appointment of the persons deployed on daily wages or on adhoc basis were to be dispensed with immediate effect. Such directions issued by the circular dated 18.06.1992 were followed with immediate effect. Consequently, by an order of the Regional Ayurvedic and Unani Adhikari, Allahabad dated 20^th July, 1992 (Annexure-6 to the writ petition) services of the petitioner along with some other persons appointed temporarily on adhoc basis were dispensed with. In sequence to this another order dated 23.07.1992 (Annexure-7 to the writ petition) was issued by the Incharge Medical Officer, Government Ayurvedic Hospital, Allahabad Nagar, whereby the temporary/adhoc service of the petitioner was dispensed with effect from 23.07.1992 forenoon by an order simplicitor.

3. According to the petitioner, in the year 1989 an advertisement was published for making appointment to the post of Pharmacist in Government Ayurvedic Hospitals and the advertisement did not mention appointment to be made on adhoc basis, however, the petitioner along with others participated in the selection and was appointed as Pharmacist on adhoc basis on 20^th March, 1991 by an order of the Director, Ayurvedic and Unani Services, U.P. The appointment of the petitioner was made on adhoc basis absolutely temporarily for one year or till arrival of duly selected candidate. Certain other conditions were given in the appointment order dated 20" March, 1991 (Annexure-3 to the writ petition). Consequent upon, the petitioner joined duty on 07.0:5.1991 and was discharging his duties till 23,07.1992, however, by the impugned termination order dated 23.07,1992 without any rhyme or reasons, without any show cause or notice and without affording opportunity of hearing to the petitioner and in derogation to the provisions of Article 311(2) of the Constitution service of the petitioner was dispensed with.

4. Against the above termination order the petitioner has come to this Court by way of present writ petition, and when this petition was filed, this Court was pleased to pass an interim order dated 19.08.1992 staying operation of the order dated 23.07.1992. The interim order dated 19.08.1992 reads as follows:-

"Issue notice.

Until ordered otherwise, the operation of the impugned order dated 23.7.92 shall remain stayed. The petitioner shall be entitled to the payment of the salary and other benefits. However, it is made clear that this order will be effective only if no substantive appointment has been made on the post held by the petitioner and the said post has not been abolished."

5. Learned Counsel for the petitioner has indicated that in similar circumstances, this Court on 11.02.1998 has passed an order in Writ Petition No. 24415 of 1992 (Sri Sri Ram Tewari v. State of U.P. and Ors.), which reads as under-

"The interim order dated 9.7.92 is hereby confirmed in view of the order passed in Writ Petition No. 24413 92. The matter is finally disposed of. There will be no order as to costs."

6. It has been argued on behalf" of learned Counsel for the State Government that by not mentioning the nature of appointment in the advertisement the true appointment of the petitioner dated 20.03.1991 (Annexure-3 to the writ petition) shall not be affected which itself speaks of that the appointment was absolutely temporarily on adhoc basis for one year only with other conditions indicated in the appointment order and the petitioner at that time without any objection at his sweet will had accepted and joined the post. The person appointed on adhoc basis has no right to the post beyond stipulated period in terms of the appointment. The petitioner was not even temporary employee appointed against the substantive vacancy as his nature of appointment was of temporary-adhoc. Even the temporary employee could be terminated in terms and conditions of the appointment by an order simplicitor and while terminating the services of every temporary employee no notice or show cause or opportunity of hearing is necessary to be given and the provisions of Article 311(2) could not be said to be infringed.

7. The petitioner on the strength of the interim order had continued for long time and the continuance on the strength of the interim shall not entitle him to be treated to continue in service.

8. In Ram Asray Vs. District Judge, it was held that temporary employee has no right to hold the post and his service is 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 servants.

9. The issue involved herein is no more res-integra. In State of Uttar Pradesh and Another Vs. Kaushal Kishore Shukla, , the Supreme 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."

10. In the instant case 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 " 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 Supreme Court has also taken the same view.

11. A temporary employee has no right to hold the post and his service is 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 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. JT 1994(2) 84; Madhya Pradesh Hasta Shilpa Vikas Nigam Ltd. Vs. Devendra Kumar Jain and Others, ; and Kaushal Kishore Shukla (supra), the Supreme 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 for any opportunity of hearing before his service is dispensed with as his termination does not amount to forfeiture of any legal right

12. In Ravi S. Naik and Sanjay Bandekar Vs. Union of India and others, , the Supreme Court has placed reliance on the observations made in Malloch v. Aberdden Corporation 1971 (2) All ER 1278, wherein it was 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."

13. In Life Insurance Corporation of India v. Raguuvendra Sheshgiri Rao Kulkarni (1997) 8 SCC 160, the Supreme Court has elaborated the difference of a permanent employee and an employee holding the post on probation and held that the service of a probationer cannot be equated with that of a permanent employee who, on account of his status, is entitled to be retained in service and his service cannot be terminated abruptly without any notice or plausible cause. " This is based on the principle that a substantive appointment to a permanent post in a public service confers substantive right to the post and the person appointed on that post becomes entitled to hold a lien on that post" However, interpreting/'' enforcing the terms of appointment, which provided for discharge of the said probationer from service at any time during the period of probation or extended period of probation, without any notice or without assigning any cause, the Court has held that as his termination was in consonance with the terms and conditions of his appointment letter, he cannot be heard to raise the grievances.

14. In State of Punjab and others Vs. Surinder Kumar and others, , the Supreme Court has held that the court must seek the adherence to the terms and conditions of the appointment and there is no reason why terms and conditions of appointments cannot be enforced in a contract of service.

15. In Hindustan Education Society and another Vs. Sk. Kaleem Sk. Gulam Nabi and others, , the Supreme Court has held that where the rules specifically provide for permanent appointment on probation for a specific period and an employee is appointed without stipulating any condition regarding probation, the inference is to be drawn that he was not appointed in substantive capacity. In Avinash Nagra Vs. Navodaya Vidyalaya Samiti and Others, , the Supreme Court has held that a society can terminate the service not only of a temporary employee but also of a permanent employee by giving him one month''s notice or three months'' pay and allowances in lieu thereof if the terms of appointment and rules so permit and such termination may be valid in a given cases even if the principles of natural justice have not been complied with.

16. In Union of India and others Vs. Shri Bihari Lal Sidhana, , the termination of the services of the temporary employee as provided under the Rules was upheld by Supreme Court in spite of the fact that he had been put under suspension for a mis-conduct and this factum had also been mentioned in termination order.

17. In Chandra Deo Gautam Vs. State of U.P. and Others, , the Supreme Court has held that the termination of service of temporary employee does not require interference on being removed on any ground as it does not cast any stigma or aspersion on him. In Nazira Begum Laskar and Ors. v. State of Assam AIR 2001 SC 102, the Supreme Court held that where appointment neither confers any right nor any equity in favour of the employee, as the appointment was purely temporary and could be terminated without notice, no grievance can be entertained by such employee. More so, cannot claim any equitable relief from any Court.

18. In Dhananjay v. Chief Executive Officer, Zila Parishad, Jalana AIR 2003 SC 739, the Supreme Court upheld the termination order passed under Central Civil Service (Temporary Service) Rules, 1965 in spite of the fact that the employee had been prosecuted in the criminal case and acquitted however the inquiry into the allegations was also directed but not held observing that order was not stigmatic and termination was within the ambit of the statutory rule.

19. It is well settled that the nature of employment has to be seen for determining as to which category a person is working and not in the wordings mentioned in the appointment letter This Court in Rama Kant Dwivedi Vs. Presiding Officer, Industrial Tribunal (I) and Another, has also taken the same view.

20. In Reptakos Brett and Co. v. The Labour Court (Vth), Kanpur and Ors., 1999 (81) ELR 222; it was held by this Court that the nature of employment is not judged by the terms of the letter issued by the employer but by the nature of duty performed.

21. In Dharangadhara Chemical Works Ltd. Vs. State of Saurashtra, ; it was held by Supreme Court that the essential condition of a person being a workman within the terms of the definition in Section 2(s) is that he should be employed to do the work in the industry that there should be, in other words, an employment of his by the employer that there should be the relationship between the employer and him as between employer and employee or master and servant. Unless a person is thus employed there can be no question of his being a workman within the definition of the term as contained in the Act. The prima facie test for the determination of relationship between master and servant is the existence of the right in the master to supervise and control the work done by the servant not only in the matter of directing what work the servant is to do but also the manner in which he shall do his work. The nature or extent of control, which is requisite to establish the relationship of employer and employee must necessarily vary from business to business and is by its very nature incapable of precise definition. The correct method of approach, therefore, would be to consider whether having regard to the nature of the work there was due control and supervision by the employer. A person can be a workman even though he is paid not per day but by the job. The fact that Rules regarding hours of work, etc., applicable to other workmen may not be conveniently applied to them and the nature as well as the manner and method of their work would be such as cannot be regulated by any directions given by the Industrial Tribunal, is no deterrent against holding the persons to be workmen within the meaning of the definition if they fulfill its requirement. The Industrial Tribunal would have to very well consider what relief, if any, may possible be granted to them having regard to all the circumstances of the case and may not be able to regulate the work to be done by the workmen and the remuneration to be paid to them by the employer in manner it is used to do in the case of other industries where the conditions of employment and the work to be done by the employments is of a different character.

22. In S.K. Maini Vs. M/s. Carona Sahu Company Limited and others, , it was held by Supreme Court that the designation of an employee is not of much importance and what is important is the nature of duties being performed by the employee The determinative factor is the main duties of the concerned employee and not some works incidentally done. In other words, what is, in substance, the work which employee does or what in substance he is employed to do. Viewed from this angle, if the employee is mainly doing supervisory work but incidentally or for a fraction of lime also docs some manual or clerical work, the employee should be held to be doing supervisory works. Conversely, if the main work is of manual, clerical or of technical nature, the mere fact that some supervisory or other work is also done by the employee incidentally or only a small fraction of working time is devoted to some supervisory works, the employee will come within the purview of workman as defined in Section 2(s) of the Industrial Dispute Act

23. I have heard learned Counsels for the parties. ''The petitioner was appointed absolutely temporarily on adhoc basis. The nature of appointment of the petitioner was adhoc and the adhoc appointee shall have no right to the post and in terms and conditions of the appointment the services of the petitioner could be dispensed with simply by an order simplicator without any notice or show cause or without opportunity of hearing. The decision of this Court/ Single Judge passed on I 1.02.1998 in Writ Petition No. 24415 of 1992 referred on behalf of petitioner has not laid down any law, but was passed in particular facts and circumstances and has only confirmed the interim order earlier granted. 1 do not treat the said order as binding precedence, therefore, 1 am hesitant to follow the said judgment as she said judgment is per incurium In view of the above observations no relief as prayed for could be given to the petitioner, therefore, the writ petition is dismissed.