1. Challenge to termination of services of contract employee — Dispute over existence of post and compliance with staffing pattern under financial assistance scheme. (Para 1 , 2 , 8 , 19 , 20 )
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2026 Supreme(Online)(HP) 3350
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
HON'BLE MR. JUSTICE BIPIN CHANDER NEGI
PRADEEP KUMAR ATTRI – Appellant
Versus
UNION OF INDIA AND OTHERS – Respondent
CWP/72/2018
Petitioner Advocates:Surinder Kumar Saklani ,Respondent Advocate: ASGI ASGI H.K. Paul
Termination of an employee on ground of non-availability of work for a post not sanctioned under a staffing scheme is unsustainable if a sanctioned vacant post exists in which the employee can be accommodated.
Headnote:(A) Service Law - Termination - Reinstatement - Scheme for Financial Assistance to Institutions Recognized as Adarsh Sanskrit Mahavidyalayas/Adarsh Shodha Sangathans, notification dated 23.07.2012 - Clause 35.4 - Staffing pattern - Existence of vacant post - Where a scheme prescribes specific non-teaching posts (Peon, Chowkidar) and no post of Mali, termination of an employee on ground of no work for Mali is unsustainable if a sanctioned vacant post of Chowkidar exists - Principle that appointment requires a post (State of U.P. & Ors. vs. Ajay Kumar (1997) 4 SCC 88) - However, if a vacant sanctioned post exists, the employee can be accommodated - Central Sanskrit Universities Act, 2020.
(B) Execution of court orders - Reinstatement shown in compliance but subsequently terminated again - Conduct amounts to abuse of process - Court can direct reinstatement with full back wages and consequential benefits.
Facts of the case:
The petitioner was initially appointed as Mali-cum-Chowkidar on part-time basis, later as Peon on outsourced basis. Services were terminated due to non-release of grant-in-aid. In a previous writ (CWP No.4676 of 2014-H), the court directed release of grant and reinstatement. The petitioner was reinstated as Mali (a post not sanctioned under the scheme). Subsequently, services were terminated vide letter dated 31.03.2016 on ground of no work for Mali. The court found that under the scheme (notification dated 23.07.2012), respondent No.3 Institute is entitled to two posts of Peon and two posts of Chowkidar, but no Mali. One post of Chowkidar was lying vacant at the time of termination and remained vacant.
Findings of Court:
The termination was unjustified because a sanctioned vacant post of Chowkidar existed wherein the petitioner could be accommodated. The respondents cannot selectively rely on the scheme to deny the post of Mali while ignoring the vacant post. The conduct of respondents in reinstating the petitioner only to terminate again was mala fide and an abuse of process. The judgment in Ajay Kumar (need for a post) supports the petitioner as a vacant post exists.
Issues: (i) Whether termination on ground of non-availability of work for a post not sanctioned under the scheme is valid when a sanctioned vacant post exists? (ii) Whether the respondents' conduct in reinstating only to terminate again is mala fide?
Ratio Decidendi: The existence of a sanctioned vacant post under the applicable staffing pattern entitles an employee who was previously working in a related capacity to be considered for that post. Termination on the ground of no work for a non-existent post is unsustainable when a vacant post exists.
Result: Petition allowed. Impugned termination letter dated 31.03.2016 quashed. Respondents No.3 and 4 directed to reinstate the petitioner forthwith with all consequential benefits including arrears of salary, to be paid within two months; if not paid within that period, then with simple interest at 6% per annum till payment. Pending applications disposed of.
Legal Category Hierarchy
- administrative law
- practice and procedure
Table of Contents
2. Petitioner claims termination illegal; respondents contend no sanctioned post of Mali and services must be through outsourcing as per scheme. (Para 8 , 9 , 11 , 12 , 16 , 18 )
3. Quashed termination letter; directed reinstatement with consequential benefits, arrears, and interest at 6% if not paid within two months. (Para 33 , 34 )
4. Does the absence of a sanctioned post for a specific designation justify termination of an employee when a vacant sanctioned post in a different designation exists within the approved staffing pattern?
No. The employer must consider the employee for the vacant sanctioned post; termination on ground of non-availability of work in a non-existent post is invalid. (Para 20 , 26 , 29 , 30 , 31 , 32 , 33 )
5. Can a party mislead the court by representing reinstatement in a non-existent post to close contempt proceedings?
No. Such misrepresentation is impermissible; the court noted that respondents reinstated petitioner as Mali despite no such post and did not disclose subsequent termination. (Para 26 , 27 , 28 )
6. What is the effect of a notification prescribing staffing pattern on the engagement of staff in aided institutions?
The notification determines the approved posts and mandates outsourcing. Institutions must adhere to the pattern and cannot engage staff in posts not approved. (Para 12 , 19 , 20 , 29 )
Bipin Chander Negi, Judge
(Oral)
The present petition has been filed seeking the following reliefs:-
(i) That a writ in the nature of certiorari may kindly be issued and impugned letter dated 31.03.2016 as contained in Annexure P--7 be quashed and set aside.
(ii) That a writ in the nature of mandamus may kindly be issued and the respondent No.4 may very kindly be directly to immediately reengage the services of the petitioner as Peon/Class-IV with immediate effect with all consequential benefit of pay, seniority and continuity and further respondent No.4 be directed to consider the case of the petitioner for regularization.
2. The petitioner vide letter dated 10.07.2009 (Annexure P-1) was called for an interview to be held on 21.07.2009 for being considered for an appointm.ent on the post of Mali-cum-Chowkidar on a part-time basis in respondent No.3-Institute. Subsequent to his appointment, the petitioner continued to work as such. Thereafter, on 26.06.2013 (Annexure P-2), the petitioner was called for an interview to be held on 12.07.2013 for the post of Peon (Class-IV) in respondent No.3-Institute.
3. Post being appointed as a Peon, vide Annexure P-3 dated 30.11.2013, the petitioner for the Session 2013-14 was appointed on an outsourced basis on a contract in respondent No.3-Institute, against the post of Paricharak (Peon). Thereafter, the services of the petitioner were terminated. On account of the aforesaid termination, the petitioner had filed a civil writ petition bearing CWP No. 4676 of 2014-H. The same was decided vide judgment dated 30.10.2014. Copy of the judgment has been placed on record as Annexure P-4 (page 13 of the paper book).
4. From a perusal of the same, it is evident that the services of the petitioner had been terminated on account of non-release of grant-in-aid by present respondent No.2. In terms of the judgment dated 30.10.2014 respondent No.2 was directed to release the grant-in-aid immediately.The services of the petitioner were to be reinstated f.orthwith on receipt of grant-in-aid.
5. For the purpose of implementation of the aforesaid judgment passed in CWP No.4676 of 2014-H, decided on 30.10.2014, an execution petition bearing No.1 of 2015 was filed by the petitioner. The same was disposed of in terms of order dated 08.01.2015 (Annexure P-6).
6. Since despite passing order dated 08.01.2015 in Execution Petition No.1 of 2015, nothing was done by the respondents, therefore the petitioner was forced to file CMP bearing No.7358 of 2015 in Execution Petition No.1 of 2015. The same was disposed of vide order dated 7th December, 2015 (placed at page 23 of the paper book).
7. From a perusal of the same, it is evident that the principal of respondent No.3-Institute had categorically stated in his reply/compliance report that the services of the petitioner had been reinstated despite the fact that the grant-in-aid had not been received. Thereafter, a contempt petition bearing No.241 of 2017 was filed by the present petitioner. The same was disposed of vide judgment dated 30th October, 2017 (page 15 of the paper book). The closure of the contempt proceedings was on account of recording of compliance of directions in order dated 7th December, 2015 passed in CMP No. 7358 of 2015 in Execution Petition No.1 of 2015 (pages 23-24 of the paper book).
8. In the aforesaid facts and attending circumstances, the grievance of the petitioner in the present petition is with respect to the termination of the services of the petitioner in terms of letter dated 31.03.2016 (Annexure P-7). Perusal of the said letter categorically reflects that the services of the petitioner as a Mali were being terminated on the ground that there was no work available for Mali in respondent No.3-Institute.
9. Respondent Nos. 1 and 2 have filed a joint reply. Respondent No.2 has categorically submitted therein that it has been promulgated under the Central Sanskrit Universities Act, 2020 and was previously kno
