w w w . L a w y e r S e r v i c e s . i n



Awdesh Kumar v/s Indian Railway Construction Co. Ltd.

    C.M.W.R No. 33698 of 1990

    Decided On, 11 August 1998

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE MR. JUSTICE D.K. SETH

    For the Appearing Parties: R.G. Padia, R.N. Singh, Lalji Sinha, Advocates.



Judgment Text

(1) BY an order dated 22nd January, 1987, the petitioner was ap pointed on daily wage basis w.e.f. 1st January, 87 for a period of six months by the Railway Construction Company, respondent No.1. Subsequently, he was ac commodated in a scale of Rs. 750-1000 on contract basis for a period limited till 30th June, 1988. The said period was extended till 31st December, 89. The appointment was thus extended from time to time till 31st August, 90 as is appearing from Annexure VI to this writ petition. All these orders are annexed as Annexures 1 to V respectively. Subsequently some of the ap pointees in the post of Civil Engineer, in which the petitioner was working, had ap proached the Apex Court for regularization of their services. The Apex Court in writ petition (Civil) No. 1339 of 1989, by an order dated 7th March, 90, had formu lated a scheme by consent of the parties for absorption and regularization of such ad hoc Civil Engineers. In terms of the said scheme, the petitioner appeared in the test for regularization as provided in the said order but was unsuccessful in the written test. The petitioner's service, therefore, was terminated by an order dated 14th August, 90, w.e.f. 31st August, 90 con tained in Annexure VIII. The said order has since been challenged in this present writ petition. 2. Mr. R.N. Singh, learned Counsel for the petitioner contends that since the petitioner had worked almost for three years, namely, more than 240 days without any break, he is entitled to be absorbed and regularized in service. His service cannot be terminated in view of the order con tained in Annexure VII, which does not contemplate termination of services in its terms through it only contemplates regularization of such service. He next contends that the said order having been passed by consent, is an effect and agree ment, in which the petitioner was not a party and, therefore, he is not bound by it. He then contends that many of his juniors as specified in paragraph 16 of the writ petition, have been retained, while the petitioner's service has been terminated. Therefore, respondents had discriminated in his case. He also contends that the petitioner had appeared in a subsequent test in 1991, in which he had succeeded in the written test, but had failed in the inter view. According to him, this failure in the interview was an outcome of mala fide on the part of the respondents, who were an noyed by reason of the filing of this writ petition as well as filing of the contempt petition against them arising out of the interim order passed in this writ petition. He also contends that the respondents had allowed him to continue in service and in the meantime, he had crossed maximum age for Government service. Therefore, the respondents could not terminate his service on this ground. He had relied upon several decisions in support of his conten tion, which I shall be dealing at ap propriate stage. 3. Mr. Lalji Sinha, learned Counsel for the respondents on the other hand contends that the petitioner's appoint ment having been limited by time and the same having not been extended though the order of termination has been passed in effect it was non-extension of the limited period of service, therefore the petitioner cannot claim any benefit for continuation of his service. He further contends that in terms of the order passed by the Apex Court all ad hoc appointments on the post of Civil Engineers were to be regularized and it was not an agreement between the parties to the writ petition. By virtue of specific provision contained in the said order, the same is applicable to all Civil Engineers appointed by the respondent on ad hoc throughout India. He next con tends that the petitioner having appeared in the written test persuant to the said order, cannot now turn round and question the same on the principle of waiver, acquiescence and estoppel. He contends further that all other persons, who were junior to the petitioner, were retained be cause they had succeeded in the scrutiny either in the first test or in the subsequent test held in 1991. He also contends that the petitioner was given appointment in a dif ferent project on compassionate ground at a consolidated pay of Rs. 2, 300/-, where he joined on 10th November, 90 and had left the job some times on 28th January, 1991. The writ petition was moved on 21st December, 90 when the interim order was obtained. At that point of time, the petitioner had already accepted appointment on a different project and, therefore, he is again estopped from challenging the order of termination. On these grounds, according to him, the writ petition should be dismissed. 4. I have heard both the counsel at length. 5. Admittedly, the appointment that was given, was limited by time. The petitioner's appointment was limited till 31st August, 90. The order of termination dated 14th August, 90 indicates that his service will stand terminated w.e.f. 31st August 1990 on account of his being un successful in the scrutiny in terms of the Apex Court's order. From the facts revealed, it is apparent that though the word "termination" has been used in the order dated 14th August, 90, it was in ef fect 'non-extension' of the petitioner's service limited by time. Even if the order of termination was not used in that event in absence of non- extension, the service of the petitioner would come to, an end. In the case of State of U.P. v. Kaushal Kishore Shukla, 1991(1) SCC 691 and Director, In stitute of Management and Development, U.P. v. Pushpa Srivastava, AIR 1992 SC 2070, it has been held that where the appo intment is for limited time, on the expiry of such limited period, no right accrues which such person can enforce legally. 6. Then again the petitioner himself had appeared in the test in terms of the order passed by the Apex Court, which pre-supposes that he had acted pursuant to the said order and had accepted the same. Once having accepted the said order, he is estopped from challenging the same on the ground that the said order is not binding on him. After having appeared in the test, he cannot turn round and chal lenge the selection or claim any other relief in view of the ratio decided in the case of Arun Kumar Shukla v. The Chancel lor Allahabad University, 1989 (1) UPLBEC 477 and in the case of Om Prakash Shukla v. Akhilesh Kumar Shukla, 1986 Labour and Industrial Cases 790. 7. In the present case, the petitioner had appeared in the written test, where he has unsuccessful in 1990. Then again he appeared for the second time in another test in 1991, where he had succeeded in the written test, but could not succeed in the interview. Thus, the petitioner having ac cepted the position and having appeared in the interview, cannot now turn round and question that he was not selected with ulterior motive as has been sought to be contended by him, neither he can chal lenge the question of selection and ab sorption as has been held in the case of Arun Kumar Shukla v. The Chancellor Al lahabad University, 1984 (1) UPLBEC 477 and Om Prakash Shukla v. Akhilesh Kumar Shukla, 1986 Lab 1C 790. That apart, it appears that the petitioner was offered employment in a different project, which he joined on 10th of November, '90 and continued till 28th January, 91. On ac count of his acceptance of an alternative job provided by the respondent, it appears that the petitioner had given up his claim and did not challenge the order of ter mination. After having accepted appoint ment in an alternative project, the petitioner cannot turn round and claim any other benefit arising out of his service, which was not extended and he was ter minated and where he was unsuccessful in the test, as it appears from the facts dis closed. By reason of his conduct, the petitioner is estopped from maintaining this writ petition on the ground that he should have been regularised or absorbed. 8. The order dated 7th March, 90 passed in writ petition (Civil) No. 1339 of 1989 by the Apex Court provides in para graph 3 that the screening test will the conducted only among the persons, who have been employed on ad hoc basis like the petitioners in the said petition and the said test will not be open to outsiders. This very expression includes the petitioner as well. Though the order was passed by con sent between the petitioners in the said petition yet by reason of para 3 of the said order, the said order is equally binding on the petitioner since the Apex Court had taken the view that all such ad hoc ap pointments alike petitioner, should be in cluded within the ambit of the said order. 9. Article 142 in clause (i) prescribes that the "Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it and any decree so passed or order so made shall be enforce able throughout the territory of India." The cause of Engineers appointed on ad hoc basis by the respondent was definitely a cause involved in the writ petition (Civil) No. 1339 of 1989. It has been specifically provided in the said order that cause of all such ad hoc Engineers throughout India would be dealt with in the manner provided therein. The petitioner cannot plead exception on the ground of his not being a party to the said order, since the said order by reason of Article 142 (1), is enforceable through out India. In the case of Manganese Ore (India) Ltd. v. Chandi Lal Saha, AIR 1991 SC 520 and Mrs. Roshan Sam Joyce v. 5. R. Cotton Mills Ltd., AIR 1990 SC 1881, it was held that in exercise of the provision contained in Ar ticle 142 (1), the Supreme Court can ex tend the benefit of its judgment even to a case not in appeal before it. Therefore, on the same analogy the benefit of a judgment can very well be extended to a class of similarly situated persons with those of the petitioners involved in the same cause, even though such persons may not be par ties to the proceedings, for the purpose of doing complete justice to the cause. Here paragraph 3 of the said order is surely a justice complete for the cause of Engine ers appointed on ad hoc basis by the res pondent throughout India. This Article gives very wide and unlimited power to the Supreme Court. It was so held in the case of A.M. Nanavati v. State of Bombay, AIR 1961 SC 112, that it contains no words of limitation and empowers the Supreme Court to make orders ancillary to its pow er to make decisions under Arts. 131-136. 10. Thus, the said provision con tained in the said order dated 7th March, 90 cannot be ignored. The said condition is fortified by the expression used in paragraph 6 of the said order, which provides that there are writ petitions pending in various High Courts. The directions given in the said order would govern regularization of ad hoc appointments made by the respondent company to the posts of En gineers (Civil) all over India. Thus, it has been specifically mentioned in the said order that even those persons, who were not parties to the writ petition before the apex Court but had filed writ petition in different High Courts would also be bound by the said order. It was also pointed out in paragraph 5 of the said order that such persons, who would qualify in the test provided in the said order, would be regularised as Engineers (Civil) and their ad hoc service would be calculated for the purposes other than seniority. Thus, the said order was an order which had application in general to all Engineers (Civil) appointed ad hoc by the said company throughout India. The petitioner, therefore, cannot claim any ex emption or exclusion from the application of the said order. Though the order was passed on the basis of an agreement, yet the said order had the effect of laying down a scheme for absorption or regularization of all the Engineers (Civil) appointed ad hoc throughout India by the respondent Company. 11. Mr. Singh has relied upon a decision in the case of Om Prakash Gupta Swodhin v. Union of India and others, AIR 1975 SC 1265, in order to contend that the petitioner's service were terminated by a person who is superior than the appoint ing authority and, therefore, termination of the service of the petitioner cannot be sustained because of the reason that the order of termination was not passed by the appointing authority. 12. As observed above, the facts of this case are distinguished from the facts of the said case inasmuch as in the present case the order was not an order of termina tion. But in fact it was non-extension of the time limited by the contract of appoint ment. Admittedly, the petitioner was ap pointed through contract, which is not statutory in nature. Then again the order was passed pursuant to the direction con tained in the order by the Apex Court, which had provided for the screening test. Since the petitioner had been unsuccessful in the scrutiny, he could not question the said order. The petitioner after having ac cepted the appointment at a different project, which fact operates as an estop pel, the ratio decided in the decision in the case of Om Prakash (supra), cannot be attracted. For the same reason, the decision in the case of Krishna Kumar v. Divisional Asstt. Electrical Engineers and others, AIR 1979 SC 1912 : 1979 (4) SCC 289, which also had laid down the same proposition as in the case of Om Prakash (supra), also cannot be of any help to the contention of the petitioner in view of the facts and circumstances of the case. The decision in the case of Sheo Ram Singh v. State of UP and another, 1985 UPLBEC 239, also does not held the petitioner in view of the facts and circumstances of this case, though the order of termination ap pears to have been passed by an officer superior than the appointing authority on the same analogy as referred to above. 13. Relying on the decision of Jarnail Singh and others v. State of Punjab and others, 1986 Labour and Industrial Cases 1086, the petitioner contends on the basis of the case made out in the writ petition that there has been discrimination and, therefore, the order cannot stand the scrutiny of this court having regard to the proposition of equity provided under Ar ticles 14 and 16 of the Constitution of India. He relied on paragraphs 33 and 35 of the said judgment. In the said case, it was pointed out that there were some juniors, who were retained, while that of, the petitioner was dispensed with on the ground that the posts were no longer re quired and, therefore, it was held that the termination was arbitrary since many of his juniors were retained and it was dis criminatory as well and thus hit by Articles 14 and 16 of the Constitution of India. 14. In the present case the service of the petitioner has not been dispensed with on the ground that the post was no longer required but his service was not extended because he could not succeed in test in terms of the order passed by the Apex Court. These very facts distinguishes the present case with the facts of the case in Jarnail Singh (supra). That apart, the other persons, who were alleged to have been retained in service, has been alleged in the counter-affidavit to have been succeeded in the test either in 1990 or in 1991. Though a case is made out that one Sri Dixit, who could not succeed in 1990 test, was retained, but there is no specific aver ments in the pleadings that Sri Dixit was not succeeded in 1991 test. On the other hand with regard to said Sri Dixit, in the counter-affidavit, it has been pointed out that Sri Dixit was in a different project, therefore, it was not possible for 'lie deponent to enlighten the court or the question as to how Sri Dixit was retained or whether Sri Dixit was retained at all or not. In absence of specific fact, it is not possible to decide the said question on the basis of such a situation. Then again the petitioner having appeared in the test and having been unsuccessful in 1990 and as well as in 1991 and having accepted the assignment and appointment in a different project, it is now not open to him to raise this question once again. This fact is also one of the distinguished feature, which repells the application of the decision in the case of Jarnail Singh (supra). 15. The decision in the case of Singara Singh and others v. State of Punjab and others, AIR 1984 SC 1499, which was on the same principle of discrimination, also does not help the petitioner in the facts and circumstances of the case inasmuch as in the said case, same members of the police personnel in the State of Punjab had participated in an agitation and were dismissed from service. A large number of such police personnel were allegedly reinstated. The petitioner therein though was similarly situated, was not reinstated. The very facts of the said case, appears to be a distinguishing feature, which are not present in the present case as discussed above. Therefore, the ratio decidendi in the said case, cannot be attracted in the facts and circumstances of the present case. 16. The decision in the case of State of Punjab and others v. Piara Singh and others, AIR 1992 SC 2130, has also been relied upon by Mr. Singh in support of the same contention as has been sought to be sup ported by the decision in the case of Jarnail Singh (supra) and Singara Singh (supra) together with the added point that a per son, who had worked for more than 3 years, is entitled to be regularized. So far as the question of discrimination if, at all, been dealt with in the said decision, the same can be repelled by the same analogy as has been discussed above, whereas, the question of regularization can be taken into account on the basis of the said decision, which also prescribes that condi tions of regularisation must be fulfilled and in order to be regularised, the employee must possess the prescribed qualification at the time of appointment and that there should not be any dis crimination in the matter of regulariza tion. Therefore, a scheme was directed to be formulated for regularisation in the said decision. But there is one distinguish ing feature, which is present in this case, which bars application of the ratio decidendi in the case of Piara Singh (supra) inas much as in the present case the regularisa tion was made persuant to the order passed by the Apex Court in terms of a scheme formulated in the said case, which is specifically applicable in the case of the petitioner. The scheme in the present case had provided for a test and only those who would be succeeding in the test, would be entitled to be regularised. Since the regularisation was subject to the order of the Apex Court, therefore, the same has to be dealt with in the manner as provided in the said order passed by the Apex Court in the said writ petition. The ratio and decision in the case of Piara Singh (supra) cannot be applied for the purpose of giving effect to the said order dated 7th March, 90. Thus, on account of such a situation, the question of regularization is also dis tinguished from the case of Piara Singh (supra). That apart, the question of estop pel as discussed hereinbefore also stands in the way of the petitioner in seeking refuge in the ratio decidendi in the case of Piara Singh (supra). 17. In the peculiar facts and cir cumstances of the case, the decision in the case of Lal Mohd. and others v. Indian Railway Construction Company Ltd., 1998 (1) UPLBEC 357, does not apply. In the said case, it was held that the fact like availability of work is also the requisite consideration for considering the ques tion of regularisation. In the said case, it was also held that aft

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er having continued for 5 years, the issue of fresh appointment letter had the effect of the retrenchment of the 5 years' service of the petitioner and on such fact, the petitioner was directed to be absorbed. The facts of the said case is completely different from the facts of this case as discussed above. Then again the said judgment was set aside by the appeal court by an order dated 24th February, 98 passed in Special Appeal No. 34/94. 18. Mr. R.N. Singh, however con tends that the Special Leave Petition before the Apex Court, is still pending. So long the decision in the appeal is not reversed, the ratio decidendi in the said case cannot form the basis of any legal proposition as has been sought to be relied upon by Mr. Singh. 19. Mr. Singh relied upon the decision in the case of Inspector General of Registration, U.P. and another v. Awdhesh Kumar and others, 1996 (3) UPLBEC 1744, in order to support his contention that the petitioner having been overaged, his services could not be dispended with. In the said case, persons appointed on daily wages having continued for a long time, could not be refused regular selec tion on the ground that they had become overaged. Therefore, their case should be considered, after having given relaxation in their age. The said proposition does not help the petitioner in view of the present facts and circumstances of the case. In the present case, the petitioner was not prevented from appearing in the test on account of having been over aged. On the other hand, he had appeared on two suc cessive tests. Then he also was given an appointment in a different project, which he had accepted but he himself had left the same on his own volition. Therefore, the said proposition cannot be attracted in view of the present facts and circumstan ces of the case. 20. In view of the observations made above, it is not necessary to go into the other questions raised by Mr. Singh and Mr. Lalji Sinha respectively surrounding the facts of the present case in support of their respective contentions. 21. In the result, the writ petition fails and is accordingly dismissed. There will, however, be no order as to costs. W.P. dismissed.
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