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2023 Supreme(Chh) 644
IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
NARENDRA KUMAR VYAS, J.
Colonel Kuldip Saigal (Veteran) S/o Lt Flight Leutenant Jagmohan Lal Saigal –Appellant
Versus
State of Chhattisgarh through Secretary, Department Of Home - Respondent
WPS No. 8817 of 2022
Decided on : 28-11-2023
Advocate Appeared:
For the Appellant :Mr. Abhishek Sinha, Sr. Advocate with Mr. Shalvik Tiwari, Advocate
For the Respondent:Mr. Amrito Das, Additional Advocate General with Mr. Sandeep Dubey, Dy. Ms. Sunita Jain
For Union of India : Mr. Ramakant Mishra, Dy.S.G.
A contractual employee cannot claim continuation of employment after the completion of the contractual period. The doctrine of estoppel applies when a party knowingly accepts the benefits of a contract and then challenges it.
Headnote:
Contractual Appointment - District Sainik Welfare Officer - Chhattisgarh Sainik Welfare (Gazetted) Recruitment Rules, 1983, Contractual Employees Rules, 2012 - The court discussed the Rules of 1983 and the guidelines issued by the Ministry of Defense, Government of India, and their applicability to the appointment of District Sainik Welfare Officers. The court also considered the petitioner's challenge to the terms and conditions of the appointment order and the respondent's defense based on the contractual nature of the appointment.
Fact of the Case:
The petitioner, a retired Colonel from the Army Ordinance Corps of the Indian Army, re-employed as District Sainik Welfare Officer, challenged the non-extension of his contractual period and the terms of his appointment. The State filed an application for modification of the order due to adverse effects on 1919 persons. The petitioner contended that the appointment order was against the Rules of 1983 and the guidelines issued by the Ministry of Defense. The State argued that the petitioner was aware of the contractual nature of the appointment and cannot challenge it after joining the service.
Finding of the Court:
The court found that the petitioner's appointment was made on a contractual basis, and he was estopped from challenging the terms and conditions after joining the service. The court also rejected the petitioner's plea to set aside the orders on the grounds of incompetence of the authority. The writ petition was dismissed, and the interim relief granted earlier was vacated.
Issues: The issues involved the applicability of the Rules of 1983 and the Ministry of Defense guidelines to the appointment, the challenge to the contractual nature of the appointment, and the petitioner's estoppel from challenging the terms and conditions after joining the service.
Ratio Decidendi: The court held that the petitioner, having joined the service without objection, was estopped from challenging the contractual nature of the appointment. The court also rejected the petitioner's plea to set aside the orders on the grounds of incompetence of the authority.
Final Decision: The writ petition was dismissed, and the interim relief granted earlier was vacated. The petitioner was granted liberty to make a representation before the respondent within 6 weeks from the date of receipt of the order, which would be considered by the respondent in accordance with the law.
ORDER :
1. By filing this writ petition under Article 226 of the Constitution of India, the petitioner who is retired Colonel from Army Ordinance Corps of Indian Army re-employed on the post of District Sainik Welfare Officer has assailed the memo dated 23-11-2022 (Annexure P/2) issued by respondent No.1 by which the contractual period of the petitioner has not been extended, memo dated 28-11-2022 (Annexure P/3) relieving him with effect from 9-12-2022. He has also challenged his contractual appointment dated 26-11-2021 (Annexure P/3) issued by respondent No.2.
2. The State has filed an application for issuance of a specific direction to modify the order and also filed an application for vacating the interim order passed by this Court as 1919 persons are being adversely affected on account of non-availability of District Welfare Sainik Officer at Bilaspur. Therefore, considering this aspect of the mater this court heard the matter finally with consent of the parties.
3. The brief facts as reflected from the record are that the State of Chhattisgarh to look after the welfare of the Ex-Army personnel from Indian Army and their family members has constituted the Sainik Welfare Board. The petitioner applied for appointment on the post of District Sainik Welfare Officer (DSWO) and also appeared in the interview conducted. He was selected and accordingly, appointment order dated 26-11-2021 (Annexure P/ 1) was issued in favour of the petitioner and in pursuance of the said order, he assumed the office of District Sainik Welfare Officer, Bilaspur on 10-12-2021 on the terms and conditions mentioned in the appointment order. The relevant clause of the appointment order is reproduced below.
^^2- lafonk fu;qfDr dh vof/k dk;ZHkkj xzg.k djus ds fnukad ls 01 o"kZ vFkok lafonk fu;qDr mEehnokj ds 60 o"kZ iw.kZ gksus dh vof/k rd tks Hkh igys gks] ds fy, ÁHkkoh gksxhA lafonk fu;qDr O;fDr dh mi;qDrrk dh vof/k dh lekfIr ij lafonk fu;qfDr Loeso lekIr ekuh tkosxhA**
4. The petitioner was not satisfied with the terms and conditions, therefore, he has raised objection and submitted his representation on 16-02-2022 (Annexure P/2) contending that appointment order is on contractual which is against the Chhattisgarh Sainik Welfare (Gazetted) Recruitment Rules, 1983 (hereinafter to be referred to as” Rules of 1983”) as well as the Contractual Employees Rules, 2012. His representation was duly forwarded to the authorities, but no action has been taken, therefore, again he sent a representation on 13-4-2022. The said representation was forwarded to the authorities but no final decision has been taken. Without considering the said representation, the impugned order dated 23-11-2022 (Annexure P/2) has been issued by which it has been directed that the contractual period of the petitioner will not be extended.
5. Mr. Abhishek Sinha, learned Sr. Advocate assisted by Mr. Shalvik Tiwari, counsel for the petitioner would submit that as per the Rules of 1983, Rule 6 provides method of recruitment. As per Rule 6 (v), if exigency so arises, the Government may with prior concurrence of the Public Service Commission (PSC) adopt such methods of recruitment to the service other than those specified in the said sub rule as it may be by order issued in this behalf. But without seeking prior concurrence of the PSC the department has departed from the recruitment process and appointed him on contractual basis. As such, the appointment order is against the Rule 19 of the Rules of 1983.
6. It has also been contended that Government of India, Ministry of Defense, Department of Ex-Servicemen Welfare, New Delhi has stipulated the scheme of appointment of District Sainik Welfare Officers in the States and Union Territories of India vide Letter F-22(5)/20q13-D (Res.II) dated 26-12-2013 called as Kendriya Sainik Board (KSB) guidelines dated 26-12-2013 issued by Ministry of Defense, Government of India, the broad guidelines have been laid down to formulate a standard policy across the count
