Gordhan Singh Gulia v. State Of Haryana

G.S Singhvi, J.:— Petitioner has prayed for quashing of the order (Annexure P-3) and also for quashing of the condition incorporated in the order (Annexure P-1) for automatice termination of his service.

2. On the basis of requisition sent to the Employment Exchange by the respondent No. 2, the petitioner, who is an ex-serviceman, was called for interview along with other eligible candidates. He was selected by the respondent No. 2 and was appointed as Machine Grinder Instructor in the pay-scale of Rs. 1400-2600 on purely ad hoc basis for a maximum period ending on 30.6.1995 with a condition that he would stand relieved on the expiry of the term specified in the order of appointment. The petitioner joined duty on 30.3.1995 but on the basis of condition incorporated in the order of appointment, the petitioner was relieved from the service by the Principal, Industrial Training Institute, Rohtak, on 29.6.1995

3. The case of the petitioner is that incorporation of the condition for termination of service w.e.f 30.3.1995 is in itself arbitrary and constitutional and the action of the respondents in bringing about to an end his employment notwithstanding the availability of the post and work and notwithstanding the fact that the candidate selected by the competent agency had not been made available, is arbitrary and unconstitutional and that he has a right to be continued in service till availability of the candidate selected by the competent agency. Reliance has been placed on the order dated 12.5.1994 passed in Civil Writ Petition No. 3037 of 1994 (Dr. Subedar Singh Arya v. State of Haryana). He has also placed reliance on the order passed in Civil Writ Petition No. 8977 of 1994 (Sunil Kumar v. State of Haryana). In both the cases, the conditions similar to the one incorporated in the order (Annexure P-1) have been declared to be unconstitutional. During the course of hearing Shri R.K Malik, learned counsel for the petitioner, invited our attention to the order dated 25.7.1995 passed in Civil Writ Petition No. 10089 of 1995 : [1996 (1) SLR 271 (Pb. & Hry.)] (Ms. Rajni Bala v. State of Haryana) and argued that in view of that pronouncement the petitioner has a right to be continued in service and that the condition incorporated in the order (Annexure P-1) should be declared as unconstitutional and be quashed.

4. Shri Raina, learned counsel for the respondents could not show anything which distinguishes the case of the petitioner from the case of Ms. Rajni Bala.

5. We have perused the various decisions on which reliance has been placed by the learned counsel for the petitioner. After considering the judgments of the Supreme Court as well as Full Benches and Division Benches of this Court, in Ms. Rajni Bala v. State of Haryana (Supra) it has been held:—

“In view of the principles laid down by the Supreme Court, we are of the opinion that where an ad hoc or temporary appointment is made after consideration of the candidature of all eligible persons in accordance with the equality clause, the action of the employer in limiting the appointment upto a particular date with a stipulation of automatic termination of service, even though the post is not abolished and a regularly selected person is not available, will have to be treated as wholly arbitrary, irrational, unjust, oppressive and unconscionable and the same is liable to be struck down being contrary to Articles 14 and 16 of the Constitution. It may be a different situation where an appointment is given for a specified work and the post is created only for that work and the service of the employee is terminated due to cessation of work or where a condition is incorporated in the contract of employment that the service of the employee will stand terminated on the availability of the selected candidate. However, there cannot be any justification to limit the appointment to a particular date merely because the employer chooses to describe the employment as ad hoc. In our opinion, the employer cannot use his prerogative to lay down the terms and conditions of employment by incorporating a condition that the service of the employee will stand terminated on a particular date even though the post continues to remain available and the employer requires manpower for doing the work in relation to that post. Such condition in the order/letter of appointment in case of the teachers cannot but be termed as unreasonable and contrary to public interest. The student community as a whole is the worst sufferer on account of non-availability of teachers and the executive authorities cannot be permitted to act arbitrarily by incorporating wholly unreasonable conditions of employment in the order of appointment of the teachers.”

6. In the same very judgment, the Division Bench has rejected the plea of estoppel. After making reference to the judgment of the Supreme. Court in Manager, Government Branch Press v. D.B Belliappa, (1979) 1 SCC 477 : A.I.R 1979 S.C 429 : [1979 (1) SLR 351 (SC)]; Central Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguly, (1986) 3 SCC 156 : A.I.R 1986 S.C 1571 : [1986 (2) SLR 345 (SC)]; D.T.C v. D.T.C Mazdoor Congress, 1991 Supp (1) SCC 600 : [1990 (5) SLR 311 (SC)], and L.I.C of India v. Consumer Education and Research Centre, 1995 (4) S.C 366, it has been held:—

“We find no reason to accept the contention of Shri Raina that the petitioner should be estopped from questioning the terms and conditions incorporated in Annexure P-1. Placed in the position of the petitioner, no reasonable man could have possibly protested against the arbitrary and oppressive conditions of appointment. If despite her merit and the seniority with the Employment Exchange, the petitioner had dared to protest against the conditions limiting her appointment to 30.6.1995, she would have done so to her own peril. In our view, she was not in any position to challenge the right of the respondents to give a limited appointment to her even though the post of Language Teacher was available and even though there was no possibility of selected hands being available by the Subordinate Services Selection Board. Thus, her failure to object to the conditions incorporated in Annexure P-1 cannot be made a ground for denying relief to her.”

7. In our opinion, the judgment rendered in Ms. Rajni Bala v. State of Haryana, 1995 (4) AIJ 394 (C.W.P No. 10089 of 1995) is fully applicable to the case of the petitioner.

8. For the reasons mentioned above, we allow the writ petition and declare that the condition contained in Annexure P-1, limiting the appointment of the petitioner upto 30.6.1995, with a condition that his service shall come to an end on that day and he would stand relieved on 30.6.1995, is arbitrary, oppressive, unconscionable and unconstitutional. As a logical consequence the termination of the service of the petitioner vide Annexure P-3 is also declared illegal and quashed with a direction that the petitioner shall be taken back in service with all consequential benefits. We, however, make it clear that he shall have no right to continue in service after the availability of regularly selected candidates and also that employer shall have right to terminate his service on account of unsatisfactory work even though the regularly selected candidate may not be available. We further direct the Government of Haryana to take immediate steps for sending requisitions to the Haryana Public Service Commission and the Subordinate Services Selection Board regarding the vacant posts for the purpose of making regular selections. Parties are left to bear their own costs.

9. Petition allowed.