Om Parkash Sharma (Petitioner) v. State Of Haryana And Others (S).

J.M Tandon, J.:— On the recommendation of the Employment Exchange, Om Parkash Sharma Petitioner was offered a temporary appointment as a Clerk In the Haryana Civil Secretariat on ad hoc basis vide letter dated October 6, 1978, which contains the terms of appointment, some of which read:

“(1)???

(2) Please note that your appointment in this Secretariat is for the present for a maximum period to six months from the date you report for duty in this secretariat as clerk;

(3) It should be clearly understood that this offer of appointment” is purely temporary on ad hoc basis and carries no promise of subsequent permanent appointment. Your services would be liable to be terminated at any time without any prior notice.

(4) ……………

(5) ……………

(6) ……………

(7) ……………

(8) If you are willing to accept this offer on the conditions mentioned above, you should report yourself for duty to the Superintendent, Establishment-II Branch (Room No. 38) 5th Floor, Haryana Civil Secretariat at Chandigarh immediately but in no case later than October 20, 1978. If you fail to join by that date, your name will be removed from the list of approved candidates unless you are able to furnish satisfactory explanation for not having joined in time.”

2. The petitioner accepted, the offer and joined as a Clerk in the Haryana Civil Secretariat, Chandigarh, on. October 13, 1978 In September, 1980, the Subordinate Services Selection Board (hereinafter the Board) recommended the names of candidates for appointment as Clerks in the various departments of the Government on regular basis. The appointments on regular basis are likely to disturb the ad hoc appointees who are otherwise not eligible to be regularised in terms of the policy decision taken by the Government. The petitioner being admittedly ineligible for such regularisation rightly apprehends to loss the job consequent upon the appointment on regular basis being made against the post held by him. He has filed the present writ petition alleging that the constitution of the Board is unconstitutional and illegal and further the recommendations made by it apart from being irregular also suffer from the same infirmity. He has prayed that the constitution of the Board be quashed and the Government be directed not to appoint its recommended against the post held by him resulting in his replacement. The learned counsel for the State has argued that the relief prayed for by the petitioner cannot be given to him for the reasons that he holds an ad hoc appointment and his services can be terminated with maximum of case and without assigning any reason. Reliance has been placed on Gian Chand v. Director, Hydel Designs, Punjab, Chandigarh (Division Bench), 1976 Lab. I.C, 1177, S.K Verma v. State of Punjab (Full Bench), A.I.R 1979 Punjab and Haryana 149 and Calcutta Gas Company (Proprietary) Ltd. v. State of West Bengal, A.I.R 1962 S.C 1044.

3. The learned counsel for the petitioner has contended that irrespective of the terms of appointment of the petitioner which have been detailed above, the services of the petitioner can be terminated only for a valid justification and not in an arbitrary manner. The services of the petitioner are being terminated to appoint a recommended of the Board, the constitution of which is illegal and unconstitutional and further its recommendations irregular. As the object and the manner of termination of the services of the petitioner smacks of arbitrariness, he is entitled to the relief prayed for. Reliance has been placed on some authorities including Ramana Dayatam Shetty v. Internatiinal Airport Authority of India, (1979) 3 SCC 489 and The Manager, Govt. Branch Press v. D.B Belliappa, (1979) 1 SCC 477 : A.I.R 1979 S.C 429

4. The petitioner is a purely temporary Clerk on ad hoc basis. The significant point for consideration is whether his services can be terminated for a valid justification only and not otherwise. An ad hoc appointment is normally made for a specified period. The services of an ad hoc employee shall thus stand terminated automatically by efflux of time after the expiration of the tenure of his employment. The matter of termination of services of an ad hoc employee during the tenure of his employment shall be governed by the terms of his employment. In the instant case, one of the terms of employment of the petitioner is that his services can be terminated at any time without any prior notice. The terms of his appointment do not envisage explicity or implicity that his services will be liable to be terminated for a valid justification only. In Gian Chand's case (supra), the characteristics of an ad hoc appointment were examined. It was held that ad hoc appointment is a make shift arrangement which is made keeping in view the exigencies of the services and cannot take the place of a regular appointment. The protection of Article 16 of the Constitution of India, has to be made available to all the qualified candidates who are entitled to compete for a post. But in the case of ad hoc appointments, the regular method of recruitment is deviated from and the posts are manned by ad hoc appointees so as to carry on the work of the posts for a limited period In S.K Verma's case (supra), the Full Bench again examined the right of an ad hoc appointee to hold the post. It was held that the term ‘ad hoc employee’ is conveniently used for a wholly temporary employee engaged either for a particular period or for a particular purpose and one whose services can be terminated with the maximum of case. Therefore, having regard to the ordinary meaning of the term, no distinction can reasonably be drawn betwixt a temporary employee whose services are terminable without notice or otherwise and an employee characterised as ad hoc and employed on similar terms. As against the permanent, quasi-permanent and temporary employee, the ad hoc one appears at the lowest level implying that he had been engaged casually, or for a stop-gap arrangement for a short duration or fleeting purposes. The issue of the termination of the services of an ad hoc employee is strictly confined betwixt him and the State. Neither the academic qualifications of a proposed incumbent to fill the vacancy nor the nature of the tenure offered to him should have any legal consequences on the power or otherwise of the employer State to dispense or not with the services of an ad hoc employee. This authority fully supports, the contention of the learned counsel for the State that the services of the petitioner who is an ad hoc employee can be terminated in accordance with the terms of his employment without any prior notice and not necessarily for a valid justification only.

5. The learned counsel for the petitioner has vehemently argued that the Government cannot terminate the services of an ad hoc employee without a valid justification irrespective of the terms of his employment to the contrary and further in the case of an ad hoc appointment for a specified period the Government shall extend the appointment after the expiry thereof unless the Government has a valid justification not to do so. Reliance has been placed on the following observations of the Supreme Court in Ramana Dayaram Shetty's case (supra):—

“Today the Government in a welfare State, is the regulator and dispenser of special services and provider of a large number of benefits, including jobs, contracts, licenses, quotas, mineral rights, etc. The Government pours forth wealth, money, benefits, services, contracts, quotas and licenses. The valuables dispensed by Government take many forms, but they all share one characteristic. They are steadily taking the place of traditional forms of wealth. These valuables which derive from relationships to Government are of many kinds. They comprise social security benefits, cash grants for political sufferers and the whole scheme of State and local welfare. Then again, thousands of people are employed in the State and the Central Governments and local authorities. Licenses are required before one can engage in many kinds of businesses or work. The power of giving licenses means power to withhold them and this gives control to the Government or to the agents of Government on the lives of many people. Many individuals and many more businesses enjoy largesse in the form of Government contracts. These contracts often resemble subsidies. It is virtually impossible to lose money on them and many enterprises are set up primarily to do business with Government. Government owns and controls hundreds of acres of public land valuable for mining and other purposes. These resources are available for utilisation by private corporations and individuals by way of lease or license. All these means growth in the Government largesse and with the increasing magnitude and range of Governmental functions as we move closer to a welfare State, more and more of our wealth consists of these new forms. Some of these forms of wealth may be in the nature of legal rights but the large majority of them are in the nature of privileges. But on that account, can it be said that they do not enjoy any legal protection? Can they be regarded as gratuity furnished by the State so that the State may withhold, grant or revoke it at its pleasure? Is the position of the Government in this respect the same as that of a private giver? We do not think so. The law has not been slow to recognize the importance of this new kind of wealth and the need to protect individual interest in it and with that end in view, it has developed new forms of protection. Some interests in Government largesse, formerly regarded as privileges, have been recognized as rights while others have been given legal protection not only by forging procedural safeguards but also by confining/structuring and checking Government discretion in the matter of grant of such largesse. The discretion of the Government has been held to be not unlimited in that the Government cannot give or withhold largesse in its arbitrary discretion or its sweet will. It is insisted, as pointed out by Prof. Reich in an especially stimulating article on “The New Property” in 73 Yale Law Journal 733, ‘that Government action be based on standards that are not arbitrary or unauthorized’. The Government cannot be permitted to say that it will give jobs or enter into contracts or issue quotas or licenses only in favor of those having grey hair or belonging to a particular political party or professing a particular religious faith. The Government is still the Government when it acts in the matter of granting largesse and it cannot act arbitrarily. It does not stand in the same position as a private individual.”

6. We are unable to hold that the observations of their Lordships reproduced above support the proposition canvassed by the learned counsel for the petitioner. Another authority heavily relied upon by the learned counsel for the petitioner is D.B Belliappa's case (supra). In this case, the services of a temporary Government servant were terminated without giving any reason while some other employees junior to him were retained in service. The employee had been earlier served with a show-cause notice questioning his integrity and fidelity but the Government ultimately adhered to the stand that there was no nexus between the show-cause notice and termination of service. It was held that the termination of service was made arbitrarily and not on ground of unsuitability or other reason. The ratio of this authority is surely not applicable to the facts of the case under consideration. In D.B Belliappa's case (supra), the services of a temporary Government servant were terminated while some employees junior to him had been retained. It is not so in the present case. This apart, the temporary Government servant whose services were terminated in D.B Belliappa's case (supra) was not holding an ad hoc appointment. In C.B Dubey v. Union of India, 1975 (1) S.L.R 580, it was held that an officiating or ad hoc or a temporary appointee who does not have a right to hold a post can be reverted only for a valid reason and not without any rhyme or reason. In this case, affected employees were not ad hoc employees like the petitioner. They were holding officiating promotion posts which were termed as ad hoc. The observations referred to above which tend to cover ad hoc appointees run counter to the finding of the Full Bench of this Court in S.K Verma's case (supra). C.B Dubey's case (supra), therefore, cannot be pressed to the advantage of the petitioner. The other authorities cited are Mrs. Devinder Brar Nee Sandhu v. State of Punjab, through Secretary to Government, Punjab Education Department, 1969 S.L.R 613. Mis. Holinass Kesavananda Bharati Sripadagalvaru v. State of Kerala, (1973) 4 SCC 225 : A.I.R 1973 S.C 1461 and E.P Royappa v. State of Tamil Nadu, (1974) 4 SCC 3 : A.I.R 1974 S.C 555. The ratio of none of these authorities is applicable to the facts of the case under consideration.

7. In view of discussion above, we come to the conclusion that the petitioner being an ad hoc employee has no right to hold the post till the termination of his services for a valid justification and his services are liable to be terminated even otherwise without any prior notice in terms of his employment.

8. The petitioner is aggrieved firstly by the proposed termination of his services and secondly by the proposed appointment of recommendee of the Board. The two situations are not inextricably textured and in fact are independent of each other. The learned counsel for the state has contended that if the services of the petitioner can legally be terminated in the manner propounded by him then the fact that who is proposed to be appointed in his place is completely irrelevant and the petitioner can neither challenge the same nor can claim the relief prayed on the basis thereof. We are impressed by this contention.

9. In Calcutta Gas Company's case (supra), their Lordships examined the nature and scope of proceedings under Article 226 of the Constitution. It was held that this Article does not describe the classes of persons entitled to apply thereunder but it is implicit in the exercise of the extraordinary jurisdiction that the relief asked for must be one to to enforce a legal right. The existence of the right is the foundation of the exercise of jurisdiction of the High Court under Article 226. The legal right that can be enforced under Article 226 must ordinarily be the right of the petitioner himself who complains of infraction of such right and approaches the Court for relief. The right that can be enforced under this Article shall ordinarily be the personal or individual right of the petitioner himself, though in the case of some of the writs like habeas corpus or quo warranto this rule may have to be relaxed or modified. Applying the ratio of these observations, there hardly remains any doubt that the petitioner cannot be granted the relief prayed for in the writ petition. The petitioner has no right to continue in office till the termination of his services for a valid justification. Being an ad hoc employee, his services can be terminated even otherwise without any notice in terms of his employment. After his services are terminated, it is irrelevant qua him as to who will be appointed against the post vacated by him. Under these circumstances, we hold that the petitioner cannot justifiably claim the relief prayed for by him in the writ petition.

10. The Board advertised 1470 posts of Clerks for various Haryana Government Offices vide advertisement dated August 7, 1976. In pursuance thereof 862 ex-servicemen candidates were selected in January, 1977. On June 7, 1978, a corrigendum was issued again advertising 1470 (likey to vary) posts of Clerks for various Haryana Government Offices, A written test was held on November 19, 1978, in which about 53,000 candidates appeared. The Chairman and Members of the Board ceased during the period from June 30, 1979 to November 29, J 979. The new Chairman and Members of the Board joined in November/December, 1979. The result of the competition was compiled and declared on September 24, 1980. The Board then made recommendation to the Government on the basis of the result declared.

11. The learned counsel for the petitioner has argued that after having advertised 1470 posts in June, 1978, the Government regularised the services of a large number of ad hoc employees in pursuance of a policy decision with the result that the posts advertised stood exhausted. The posts against which the recommendations have been made in September, 1980, occurred after June, 1978. No fresh advertisement was made for such posts. The petitioner and many other similar situate ad hoc employees did not get an opportunity to apply and compete in the absence of fresh advertisement which has resulted in hostile discrimination violative of Article 16 of the Constitution. As the recommendations made by the Board in September, 1980, are bad on this ground the petitioner is entitled to the relief claimed for in the writ petition. We find no force in this contention as well. The posts against which a large number of ad hoc employees have been regularized under a policy decision taken by the Government had been taken out of the purview of the Board. The regularization of ad hoc employees on a large, scale after June, 1978, therefore, did not affect or exhaust the vacancies which were advertised by the Board in June, 1978. In this situation, the question of any hostile discrimination violative of Article 16 of the Constitution does not arise. This apart, it was not incumbent for the Government or the Board to advertise each and every post that fell vacant after June, 1978, to avoid the effect of hostile discrimination. The petitioner, therefore, cannot claim the relief prayed for in the writ petition on this ground.

12. The writ petition filed by the petitioner is not happily drafted. The petitioner has filed Civil Miscellaneous Application No. 1935 of 1980. seeking permission to file an amended petition. In view of the fact that we have come to the conclusion that the petitioner is not entitled to the relief prayed for, the proposed amendment of the writ petition which is not relevant to this point would be a sheer exercise in futility. The learned Counsel for the petitioner was, however, allowed to raise all contentions relevant to the point discussed above. The Civil Miscellaneous Application No. 1935 of 1980 is consequently dismissed. In the result, the writ petition fails and is dismissed with no order as to costs.

Prem Chand Jain, J.:— I agree.

13. Petition dismissed.