2002 Supreme(Guj) 184

Gujarat High Court
Judgename :K.A.Puj
BALUBHAI G.MAKWANA - Appellant
Versus
STATE - Respondent
S.C.A. 1238 of 1991
Decided On : 03/08/2002

Headnote:Constitution of India, 1950 — Art. 226 — Petition seeking directions to the respondents to regularise the services of petitioner right from initial entry of petitioner in service of respondents — Admissibility of relief — Court considering the views taken by this Court in Vithalbhai Babaldas Patel vs. Chairman, O.N.G.C., reported in 28 (2) GLR 1308 and Nilesh Bhatt vs. Administrative Officer, Nagar Pradhamik Shikshan Samiti, reported in 1996 (1) GLH 108 that where the appointment was itself ad hoc, temporary and for a fixed period, with stipulation of termination without notice, principles of natural justice do not survive for consideration while terminating the services of such employee — Similarly as held by Apex Court in the case of M. Venugopal vs. Divl. Manager, LIC of India, 1994 (2) SCC 323 and in State of Rajasthan & Ors. vs. Rameshwarlal Gehlot, 1996 (1) SCC 595, where appointment is for a fixed period, Sec. 25-F does not apply as it is covered by Clause (bb) of Sec. 2(oo) of the ID Act — From the documents furnished along with the petition it is clear that order of termination of petitioner was neither mala fide nor passed in colourable exercise of powers by authorities — The petitioner was appointed for a fixed period of 29 days every time — More-over, the intention of the respondent authorities was to employ the petitioner for a fixed period and the petitioner accepted the appointment on such terms and conditions as contained in order of appointment — Under the circumstances, if petitioner is not allowed to continue after last appointment for 29 days, it cannot be termed as retrenchment to entitle petitioner to claim benefit under Sec. 25-F of ID Act — However, since the petitioner has put up total service of more than 22 years, it is open for him to make representation to respondent to consider the whole matter sympathetically.

       This Court has also taken the view in the case of Vithalbhai Babaldas Patel vs. Chairman, Oil & Natural Gas Commission, reported in 28 (2) GLR Page 1308, that workcharge employees appointed for short periods according to contingencies could not claim that their appointments should be made permanent. It was held in that case that regular appointments under such authorities were required to be made in accordance with settled law or rules or regulations governing such appointment and the prescribed procedure. It was further held that if employment or appointment on temporary or ad hoc appointee is regularised, guarantee of equality and equality of opportunity in matters of public employment enshrined in Arts. 14 and 16 of the Constitution would be infringed and such regularisation would encourage back door appointments denying equality of opportunity to those who are eligible for the post.

       [Para 12]

       This Court has also taken the view in the case of Nilesh Bhatt vs. Administrative Officer, Nagar Pradhamik Shikshan Samiti, reported in 1996 (1) GLH 108, that where the appointment was itself ad hoc, temporary and for a fixed term and subject to further stipulation that it was liable to be brought to an end earlier without notice, the principles of natural justice did not have to be followed while terminating the services of such employees. It was also held that a person who was appointed on temporary basis did not acquire any substantive right to the post and that mere prolonged continuous ad hoc service did not ripen into a regular service to claim permanent or substantive status.

       [Para 13]

       With regard to the petitioners contention regarding violation of the provisions contained in Sec. 25-F of the Industrial Disputes Act, it is relevant to refer to two decisions of the Honble Supreme Court in the case of M. Venugopal vs. Divisional Manager, Life Insurance Corporation of India, 1994 (2) SCC 323, and State of Rajasthan & Ors. vs. Rameshwarlal Gehlot, 1996 (1) SCC 595, wherein it has been laid down that once the appointment is for a fixed period, Sec. 25-F does not apply as it is covered by Clause (bb) of Sec. 2(oo) of the Act. It is further laid down that in cases of such appointment for a fixed period if the order of termination is passed, the provisions of Sec. 25-F are not attracted. Hence, neither relief of fresh appointment nor that of reinstatement could be granted. Of course, if according to the Apex Court it is found that the order of termination was a mala fide or passed in colourable exercise of powers, such order of termination can be struck down. In the present case, there is nothing on record to show that the order of termination was mala fide or it was passed in colourable exercise of powers conferred on the respondent authorities. From the documents furnished along with the petition, it is clear that the petitioner was appointed for a fixed period. Moreover, the intention of the respondent authorities was to employ the petitioner for a fixed period and the petitioner accepted the appointment on such terms and conditions, as contained in the initial letter of appointment. Extension thereafter was also made on the said terms and conditions. The nature of work being purely temporary and for a fixed period, the appointment of the petitioner automatically came to an end after the expiry of the period of appointment and the extended period of appointment which was also for a fixed period. In these circumstances, if the petitioner was not continued after the expiry of the period of 29 days as stated in the last appointment order, it cannot be termed as `retrenchment nor the provisions of Sec. 25-F of the Act can be made applicable. Hence, the petitioner is not entitled to claim any compensation on the ground of alleged retrenchment, by invoking the provisions contained in Sec. 25-F of the Industrial Disputes Act.

       [Para 14]

       Under the circumstances and for the reasons discussed hereinabove. Court is of the view that there is no substance in the contentions raised and the claims made by the petitioner in this petition. Court, however, hold that since the petitioner has put up total service of more than 22 years either under the appointment orders with artificial break or under the order of this Court, it is open for the petitioner to make a representation to the respondents No. 2 and 3 and it is also open for the respondents No. 2 and 3 to consider the representations sympathetically and forward its proposal to the respondent No. 1, i.e. State of Gujarat.

       [Para 15]