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2000 Supreme(Cal) 584
HIGH COURT OF CALCUTTA
D.K. Seth, J.
Raj Kumar Dhali
Versus
State of W. B. & Ors.
Writ Application W.P. No. 21318 (W) of 1999
Decided On : November 28, 2000
Advocate Appeared:
Sadananda Ganguly, Manik Bhaumik for the petitioner;
L.C. Bihani, Nayan Chand Bihani for the respondents.
A contractual appointment for a 'situation vacant' does not confer any right to regularisation or absorption, even after working for a period of 3 years.
Headnote:
APPOINTMENT - TEMPORARY STATUS - CONTRACTUAL APPOINTMENT - NO ACQUISITION OF TEMPORARY STATUS - [RULE 3, 5]
Fact of the Case:
Petitioner was appointed as Sub-Assistant Engineer in Digha Development Authority (DDA) pursuant to an advertisement for a 'situation vacant'. He worked for 3 years and claimed to have acquired temporary status and sought regularisation. The authority terminated his services and advertised for fresh recruitment.
Finding of the Court:
The court found that the petitioner's appointment was contractual and not against a regular post. The advertisement clearly stated that it was for a 'situation vacant' and the petitioner had signed an agreement acknowledging the terms and conditions of the contractual employment.
Issues: 1. Whether the petitioner acquired temporary status by working for 3 years after the expiry of the initial 6-month contract? 2. Whether the petitioner is entitled to regularisation or absorption?
Ratio Decidendi: 1. The court held that the petitioner did not acquire temporary status since his appointment was contractual and not against a regular post. The agreement clearly stated that the employment was for a limited period and could be terminated with one month's notice or pay in lieu of notice. 2. The court held that the petitioner is not entitled to regularisation or absorption since his appointment was not against a regular post and he did not meet the criteria for acquisition of temporary status.
Final Decision: The court dismissed the writ petition filed by the petitioner challenging the termination of his services and the fresh recruitment.
D.K. Seth, J.
In this writ petition, the petitioner has challenged the purported order of termination as well as the purported recruitment sought to be made through an advertisement contained in Annexure 'G' to this writ petition. Mr. Ganguly, learned Counsel for the petitioner, contends that the petitioner having been appointed in the post of Sub-Assistant Engineer and having worked there for long 3 years, has acquired a temporary statues and is entitled to regularisation and cannot be eased out by means of an order of termination and at the same time the respondents cannot fill up the vacancy by fresh recruitment. In support of his contention, he has relied upon the decision in the case of Central Inland Water Transport Corporation Limited vs. Brojo Nath Ganguli, reported in AIR 1986 SC 1571, in order to contend that after the expiry of 120 days, the petitioner having acquired temporary status and having continued for almost 3 years, his appointment cannot be deemed to be fortutious appointment. He has also relied upon the decision in the case of Union of India vs. K. G. Radhakrishna Panickar and Ors., reported in 1998(8) SCC 111, wherein the acquisition of temporary status after expiry of 120 days was recognised by the Apex Court. He has also relied upon the case of Dr. A. K. Jain and Ors. vs. Union of India and Ors., reported in 1987 (Supp.) SCC 497, to support the same contention. He had also relied upon the decision in the case of Rudra Kumar Sain & Ors. vs. Union of India & Ors., reported in 2000(4) SLR 787, and relied on paragraphs 14, 15, 16, 19 and 20 to contend that if any person having requisite qualification for being appointed to a particular post and he is so appointed with the approval and selection of appropriate authority and continues in the post for a fairly long period, than such appointment cannot be held to be stop-gap or fortutious or purely ad hoc. He has also relied upon the case of Keshar Chand vs. State of Punjab & Ors., by a Full Bench of the Punjab and Haryana High Court reported in 1988 (5) S.L.R. 27, where a similar view was taken.
2. Mr. L. C. Bihani, learned Counsel for the respondents, on the other hand, contends that the petitioner had applied pursuant to the advertisement that was published specifically mentioning 'situation vacant' and had pointed out that it was for the purpose of execution of the scheme in that field. Therefore the petitioner having applied along with some other persons was asked to intimate as to whether he is interested in joining the post and if so, he may visit the office. The petitioner having agreed was given appointment pursuant to an agreement executed by him for a period of 6 months at a consolidated pay of Rs. 2000/- per month on the conditions mentioned in the said agreement. Though the petitioner was allowed to continue and his pay was enhanced but in effect the petitioner was not working against any post inasmuch as according to him the posts are to be created by the State Government. There was no such post against which the petitioner would be engaged. In order to execute certain scheme persons were being engaged on contractual basis. Therefore the petitioner could not continue in the absence of any post.
3. In reply, the learned Counsel Mr. Ganguly pointed out that the petitioner was initially given appointment for a period of 6 months, but the said agreement was not renewed whereas the petitioner was allowed to continue there-after ,6 months having expired some times in 1998, the petitioner having worked for more than 120 days after the expiry of the period of the agreement, the petitioner having acquired temporary status, he is entitled to continue in view of the decisions cited by him.
4. I have heard the learned Counsel at length.
It appears that the recruitment was made pursuant to an advertisement which specifically advertised recruitment against a 'situation vacant'. The word 'situation vacant' has a different connotation which means that it was
