Arif Khan v. State Of U.P. And 2 Others

Court No. - 6 Case :- WRIT - A No. - 26044 of 2018

Petitioner :- Arif Khan

Respondent :- State Of U.P. And 2 Others

Counsel for Petitioner :- Intekhab Alam Khan,Rakesh Kumar Mathur

Counsel for Respondent :- C.S.C.

Hon'ble Yashwant Varma,J.

Heard learned counsel for the petitioner and the learned Standing Counsel.

On the last occasion this matter was adjourned to enable the learned counsel for the petitioner to address the Court on the maintainability of the instant writ petition. The issue itself arose since undisputedly the petitioner assails an order terminating a contractual engagement.The Court had also apprised the learned counsel of the decision rendered by a Division Bench of the Court in Writ-A No. 54840 of 2013 (Rajesh Bhardwaj Vs. Union of India and Others) decided on 20 November 2018 where the following observations were made:-

"31. As we have already said that CUPGL even if taken to be a 'State' within the meaning of Article 12 of Constitution, this by itself would not mean that petitioner can claim status of a Government Servant or holding a post governed by 'status'. Nature of engagement/ appointment of petitioner is not to be governed by 'status' but by a 'contract of service' entered into between master and servant. A distinction between an appointment under a contract and status was noticed and explained by Supreme Court in Roshan Lal Tandon Vs. Union of India AIR 1967 SC 1889. Court held that when a matter is governed by status, the employee has no vested contractual rights in regard to the terms of service but where employment is purely in the realm of a simple contract of employment, it is strictly governed by terms and conditions of employment settled between the parties. To remind the difference between 'status' and 'contractual appointment', we may take up case of a Government Servant. Origin of employment in a Government department is contractual. There is an offer and acceptance in every case but once appointed to the post or office, the person appointed, i.e., Government Servant, acquires a status and his rights and obligations are no longer determined by consent of both the parties but same are governed by Statute or statutory rules which may be framed and altered unilaterally by employer, i.e., the Government. Legal position of a Government Servant, thus, is more one of 'status' than of a 'contract'. The hallmark of 'status' is that attachment to a legal relationship of rights and duties must be by public law and not by mere agreement of parties. Relationship between Government (employer) and Neutral Citation No. - 2019:AHC:4635

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Government Servant (employee) is not like an ordinary contract of service between a master and servant. The legal relationship is something entirely different, something in the nature of status. In the language of jurisprudence, 'status' is a condition of membership of a group, whereof powers and duties are exclusively determined by law and not by agreement between the parties concerned. Thus, where appointment and conditions of service are governed by Statute, relationship of 'employer' and 'employee' is that of 'status' and not a mere contract. However, in other cases, it is purely a contract of service resulting in a relationship of ordinary master and servant.

32. In the present case also, relationship of employment between petitioner and CUPGL is purely and simply an ordinary contract of service which is not governed by any statute or statutory provision. In such cases, a contract of service cannot be sought to be enforced by Court of law by giving relief of reinstatement or continuance in employment as this relief is barred under Act, 1963."

After noticing the above principles, the Division Bench thereafter proceeded to hold as under:-

"36. The matter was again considered by a Constitution Bench in Sirsi Municipality Vs. Cecelia Kom Francis Tellis (1973) 1 SCC 409 and therein Court held that cases of dismissal of a servant fall under three broad heads. The first head relates to relationship of master and servant governed purely by contract of employment. Any breach of contract in such a case is enforced by a suit against wrongful dismissal and for claiming damages. Just as a contract of employment is not capable of specific performance similarly breach of contract of employment is not capable of finding a declaratory judgment of subsistence of employment. A declaration of unlawful termination and restoration to service in such a case of contract of employment would be indirectly an instance of specific performance of contract for personal services. Such a declaration is not permissible under the Law of Specific Relief.

37. Second category noticed by Court is where master and servant's relationship is governed by Industrial Law. In such cases, a servant, who is wrongfully dismissed, may be reinstated since Industrial Law contains special provisions and this is a departure from the reliefs available under Indian Contract Act and Specific Relief Act which do not provide for reinstatement of a servant.

38. The third category is where employment is in State or other public or local authorities or bodies created under statute. In such cases, if termination is contrary to Rules, Court can declare such termination illegal and grant relief of reinstatement for the reason that in such case, Court keeps employer within the limits of its statutory powers. The above view has been reiterated in Executive Committee of Vaish Degree College, Shamli and others Vs. Lakshmi Narain and others AIR 1976 SC 888 (paras 9, 10, 13 and 17); Smt. J. Tiwari Vs. Smt. Jawala Devi Vidya Mandir and others, AIR 1981 SC 122 (paras 4 and 5); and Life Insurance Corporation of India Vs. Escorts Ltd., and others AIR 1986 SC 1370 (paras 101, 102). Similar view has been taken by this Court also in A.K. Home Chaudhary Vs. National Textile Corporation U.P. Ltd., Kanpur 1984 UPLBEC 81; B.M. Varma Vs. State of U.P. and others 2004 (4) AWC 2866; and Vivek Kumar Mishra and others Vs. State of U.P. and others,

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2008(4) ESC 2811.

39. Recently also, in Kailash Singh Vs. The Managing Committee, Mayo College, Ajmer and others. (2018) 10 SCALE 638, where dispute related to termination of an employee of Mayo College, Court held that employment was governed by simple contract of employment and, hence, no relief of reinstatement can be granted, but employee, if wrongfully terminated, may claim damages.

40. Following the above authorities, same view has been expressed and reiterated by this Court subsequently also in State of U.P. & Others Vs. Anil Kumar Singh Yadav & Others (2013) 2 UPLBEC 1588 and Writ Petition (Writ-A) No. 36854 of 2001 (Rajesh Kumar Srivastava Vs. State of U.P. and others) decided on 09.05.2016.

41. In view of discussions made hereinabove, no relief, as sought for, can be granted to petitioners. Both the writ petitions lack merits and are, accordingly, dismissed. "

Learned counsel is unable to distinguish his case from the principles which have been enunciated by the Division Bench. Consequently the writ petition is dismissed.

Order Date :- 9.1.2019 faraz

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