@JUDGMENTTAG-ORDER
Satish K. Agnihotri, J.
By this petition filed under Article 226/227 of the Constitution of India, the Petitioner seeks a writ in the nature of certiorari, quashing the order dated 08.09.2001 (Annexure P/9) whereby, the promotion of the Petitioner vide order dated 22.11.1999 for a period of one year came to an end the Petitioner was directed to return back the amount what he has been paid after 22.11.2000.
The facts, as stated by the Petitioner are that the Petitioner was appointed as sub Engineer with the Respondent university on 12.10.91. Thereafter, he was confirmed w.e.f. 12.10.93. On 02.04.97 (Annexure P/2), the Petitioner was promoted on ad hoc basis to the post of Assistant Engineer for a period of one year or until regular appointment of the Assistant Engineer. On 04.09.97 (Annexure P/3), the Registrar passed an order that the promotion of the Petitioner on ad hoc basis to the post of Assistant Engineer for a period of one year or until regular appointment, is amended to the effect that the appointment of one year or till regular appointment would be replaced by until appointment by the Departmental Promotion Committee (for short ''DPC'') and the Petitioner was paid accordingly regular pay scale vide order dated 19.02.99 (Annexure P/4). On 22.11.99, the Petitioner was again appointed on the promoted post of Assistant Engineer on ad hoc basis for a period of one year. As such revision of pay and increment of the post of Assistant Engineer was also granted to him.
By the impugned order dated 08.09.01 (Annexure P/9), the Registrar, on the basis of order issued by Executive Council, directed that the appointment of the Petitioner on the post of Assistant Engineer for a period of one year on ad hoc basis came to an end on 21.11.2000. It was further directed that any payment of salary paid after 22.11.2000 was recoverable from the Petitioner under the provisions of Fundamental Rules.
Thus, the Petitioner has filed this petition impugning the order dated 8.9.2001.
Shri H.C. Shukla, with R.K. Kesarwani, learned Counsel appearing for the Petitioner would submit that the Petitioner was promoted on the post of Assistant Engineer as per recommendations of Departmental Promotion Committee (DPC) vide order dated 22.11.99 (Annexure P/5). The University sent a communication to the State Government on 14.07.95 (Annexure R 1/1) that one post of Sub Engineer/Draughtsman be upgraded to the rank of Assistant Engineer. The Government, on 19.09.96 (Annexure R 1/2) sought more information with regard to setup and sanctioned post of Draughtsman, Sub Engineer and Assistant Engineers. Vide communication dated 29.10.96 (Annexure R 1/3), the Registrar of the Respondent university was informed by the government that if a Sub Engineer having qualification of Assistant Engineer is available, he may be upgraded to the post of Assistant Engineer. Accordingly, on 22.1.97 (Annexure R 1/4) the Petitioner was promoted on ad hoc basis to the post of Assistant Engineer for a period of one year or till regular appointment of the Assistant Engineer. A Screening Committee was constituted on 16.06.99 (Annexure P/14) comprising of Professor and Head of the Department (Commerce), as Chairman, Professor and Head of the Faculty (Arts), Member and Director, Mahavidyalaya Parishad as Coordinator. Thus, the appointment of the Petitioner was made on the basis of recommendation of the Screening Committee. The Petitioner did posses qualification of Assistant Engineer i.e. B.E. (Civil Engineering).
Shri Shukla, would further submit that the impugned order is arbitrary, punitive and visits with civil consequences. The said order is in violation of Article 14,16 and 21 of the Constitution of India. Learned Counsel relies on decision of the Supreme Court, in the matter of
In regard to payment of arrears, learned Counsel relies on decision of the Supreme Court in the matter of
The impugned order is contrary to public policy. The principle of audi alteram partem would be applicable in the present case as the Petitioner has been condemned without affording an opportunity of hearing.
Per contra, Shri Manindra Shrivastava, Senior Advocate with Shri Devendra Patel, appearing for the Respondent No. 1/university would contend that the promotion of the Petitioner vide order dated 22.11.99 was clear to the extent that the promotion of the Petitioner was on ad hoc basis for a period of one year which came to an end on 21.11.2000 whatever payment was received after 21.11.2000, the same liable to be recovered from the Petitioner since the promotion of the Petitioner was for limited period for one year. The same was never extended beyond the period of one year, the Petitioner illegally continued thereafter. Thus, the Petitioner is not entitled to any benefit including salary of the post beyond the period of one year. He would further contend that the Executive Council of the University in its meeting dated 11.09.1994, resolved to upgrade one post of Draughtsman as the post of Assistant Engineer and the proposal was sent for approval to the State Government vide letter dated 14.07.1995 (Annexure R 1/1). The State Government vide its letter dated 19.09.1996 (Annexure R 1/2) raised certain queries to which answering Respondent vide its letter dated 28.09.1996 clarified the factual position that there is no post of Assistant Engineer. The State Government vide its letter dated 29.10.96 granted approval to upgrade one post of draughtsman as Assistant Engineer with stipulated that if the existing Sub Engineer possesses necessary qualification then the said post of Assistant Engineer may be filled up (Annexure R 1/3). However, Government did not grant any financial aid to the post, therefore, the Executive Council in its meeting dated 05.02.97 upgraded one post of Draughtsman as Assistant Engineer and the Petitioner was given purely ad hoc order of appointment vide order dated 02.04.97 (Annexure R 1/4). This order was only for a period of one year or till regular appointment of Assistant Engineer. Thereafter as per resolution of the Executive Council dated 31.05.97 (Annexure R 1/5) Petitioner''s ad hoc promotion was continued until Departmental promotion.
The contention of the Petitioner that he was duly selected by DPC is not correct. The Search Committee (Screening Committee) was constituted to examine the case and the same was not a duly constituted DPC as required under Statute 31. This was neither a committee as prescribed u/s 49 of Chhattisgarh Vishwa Vidhayalaya Adhiniyam, 1973 nor was constituted under specific orders of the Executive Council. The Executive Council in its meeting dated 20.06.99 resolved to give ad hoc/temporary promotion to the Petitioner only for a period of one year subject to the approval of the Government on the basis of the report of the Screening Committee pursuant to which the promotion order dated 22.11.99 was passed. The ad hoc promotion to the post of Assistant Engineer in temporary capacity does not confer any right on the Petitioner to hold the post of Assistant Engineer. The Petitioner was paid salary of Assistant Engineer and increments would not make the appointment as regular appointment. The Executive Council in its meeting dated 05.09.01 resolved that the appointment of the Petitioner was temporary on the post of Assistant Engineer only for a period of one year which came to an end on 22.11.2000. It was further resolved that if the Government grants sanction for the post of Assistant Engineer with full aid then the post may be filled up accordingly to rules (Annexure R 1/7). Learned Counsel relies on decision of the Supreme Court in the matter of
I have heard rival contentions of the parties, perused the pleadings and documents appended thereto. It is evident that the promotion of the Petitioner by initial order dated 2.4.1997 (Annexure P/2) and thereafter by order dated 22.11.1999 (Annexure P/5), on temporary basis, was for a period of one year. It was clearly stated in the order dated 22.11.1999 that the Petitioner would be entitled to all allowances of the post. Sanction of the post by order dated 29.10.1996 (Annexure R-1/3) by the State Government was not creation of post of Assistant Engineer but up-gradation of one post from two vacant posts of Drafts Man. It provides that the Sub-Engineer working in the University may be promoted on the post of Assistant Engineer, subject to having the requisite qualification for the post of Assistant Engineer. On perusal of the minutes of the meeting dated 20.6.1999 (Annexure P/12) of the Executive Council it is apparent that the Petitioner was promoted on the post of Assistant Engineer for a period of one year on temporary basis. In the minutes it was written that the promotion of the Petitioner was on the basis of the recommendation of DPC. On reading of the notification dated 16.6.1999 (Annexure P/14) it appears that the Petitioner was promoted on the basis of the recommendation made by the Screening Committee, comprising of the Professor and Head of the Department (Commerce), as Chairman, Professor and Head of the Faculty (Arts faculty) as Member and Director, Mahavidyalaya Parishad as Coordinator (Samanvayak). The order dated 19.2.1999 (Annexure R-1/6), wherein it is provided that the Petitioner would not be entitled to arrears and annual increment, as the appointment of the Petitioner was on ad hoc basis for a period of one year, till he is regularly promoted on the post of Assistant Engineer. In the minutes of the Executive Council dated 5.9.2001 (Annexure R-1/7), it was resolved that the post of Assistant Engineer, if not approved with full aid, the promotion should be made in accordance with Rules and appointment of the Petitioner for a period of one year had already come to an end on 21.11.2000. It is thus, well established that promotion of the Petitioner was on temporary basis. It is further found that though the Executive Council has mentioned that the promotion of the Petitioner for a period of one year was on the basis of the recommendation of DPC but on perusal of order dated 16.6.1999 (Annexure P/14) it is clear that the Screening Committee had made the recommendation, not DPC. Thus, it is established that the appointment of the Petitioner on the basis of the recommendation made by the Screening Committee was for a period of one year on temporary basis from 22.11.1999 to 22.11.2000. It reads as under:
The impugned order dated 8.9.2001 was passed as the tenure of promotion of the Petitioner came to an end on 22.11.2000 (Annexure P/9, which reads as under:
It is further clear that the approval of the post of Assistant Engineer was not with the full financial aid by the State Government, therefore the Executive Council decided to fill up post, in accordance with the Rules and the promotion of the Petitioner came to an end after completion of one year of tenure as per appointment order.
A constitution Bench of the Hon''ble Supreme Court in the matter of E.P. Royappa (supra) held as under:
86. It is also necessary to point out that the ambit and reach of Article 14 and 16 are not limited to cases where the public servant affected has a right to a post. Even if a public servant is in an officiating position, he can complaint of violation of Arts. 14 and 16 if he has been arbitrarily or unfairly treated or subjected to mala fide exercise of power by the State machine. It is, therefore, no answer to the charge of infringement of Article 14 and 16 to say that the Petitioner had no right to the post of Chief Secretary but was merely officiating to Article 14 and 16........
The Hon''ble Supreme Court in the matter of Punjab State Electricity Board (supra), cited by learned Counsel for the Respondent held as under:
4. Having heard the learned Counsel for the parties and examining the materials on record we have no hesitation to hold that in the facts and circumstances of the case the question of giving an opportunity of hearing to the Plaintiff before passing the order dated 8-1-1981 does not arise. Since the Plaintiffs appointment/ promotion to the post of Assistant Lineman was purely on ad hoc basis and the higher authorities directed to discontinue such ad hoc appointment, the competent authority passed the impugned order posting the Plaintiff against his substantive post of Charge I Mate. The Plaintiff had not acquired any right to the post of Assistant Lineman and further, the impugned order dated 8-1-1981 cannot be held to be penal in nature.
Subsequently, a constitution Bench of the Supreme Court in Secretary, State of Karnataka (supra) held, as under:
........... Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified person, the same would not confer any right on the appointee. 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. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules..............
When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.
It was further held that "in the guise of upholding rights under Article 21 of the Constitution of India, a set of persons cannot be preferred over a waste majority of people waiting for an opportunity to complete for State employment."
The other cases cited by the Petitioners are not applicable to the facts of the present case, as it is not a case of demotion or reversion but continuation of services on promotion, on temporary basis, to the post.
Applying the well settled principles of law, as above stated, to the facts of the present case, the Petitioner has no right to the post, as his promotion was on temporary basis, for a period of one year, may be held as contract appointment. Even if there was a vacancy, the Respondent/authority was not under an obligation to extend the period further. The appointment on promotional basis, even on the basis of the recommendation of DPC/ Screening Committee, was only for a period of one year. Thus, no right has accrued (sic) of the Petitioner to continue further.
With regard to the recovery of alary after a period of 22.11.2000 till 8.9.2001 since the Petitioner has worked on the post of Assistant Engineer, without any obstruction, the Petitioner is not liable to pay excess amount paid to him for working on the post of Assistant Engineer.
In view of the foregoing, the petition is allowed partly to the extent of recovery of the excess amount. The impugned order dated 8.9.2001 to the extent of non-continuation of service of the Petitioner, as Assistant Engineer, is unexceptionable, just and proper, which warrants no interference. No order as to costs.
