Case BriefsHigh Courts

Rajasthan High Court: Sanjeev Prakash Sharma, J., dismissed a petition which was filed assailing the action of respondents who had terminated his services on the ground that the Administration was not satisfied with his work and the competent authority had approved the termination order.

The counsel for the petitioner, R.K.Mathur with Aditya Kiran Mathur submitted that petitioner’s services were extended after a one-year contractual period, however; in between by giving him one month’s notice, his services were terminated wrongfully. The counsel submitted that if there were any allegations either enquiry should have been conducted or a show cause notice should at least have been served upon him. By means of second stay application the counsel pointed out that after terminating his services, the respondents had issued an advertisement to fill up the post of Consultant (Legal) and prayed that the post should not be filled up.

The counsel for the respondent, P.C. Sharma submitted that petition would not be maintainable as against the respondent 1-Railways since it was a service matter and the matter should be taken up before Central Administrative Tribunal. He further submitted that respondent 2- Dedicated Freight Corridor Corporation of India Limited (DFCCIL) was a public sector undertaking having its own separate administration set up and there was no relevance of Ministry of Railways which is why same would not fall within the meaning of Article 12 of the Constitution of India and writ petition, therefore, would not lie against the DFCCIL. He further contended that the engagement was for a Post of Consultant (Legal), which was a contractual post and the term was extended up to 30th June, 2020. However, as per terms of conditions of service, the petitioner’s services could be terminated in between by giving one month notice by either side.

The Court relying on the judgment of Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111 found that Union of India, Ministry of Railways had been impleaded as a party only with the purpose to show that the DFCCIL was under the Union of India, Ministry of Railways and Ministry of Railways was controlling body for DFCCIL. It would thus come within the ambit of State within the meaning of Article 12 of the Constitution of India and writ petition would therefore lie. The Court further held that Central Administrative Tribunal did not have jurisdiction to hear such matters as DFCCIL had not been notified under the Central Administrative Tribunals Act, 1985 so as to come within CATs jurisdiction.

The Court while dismissing the petition held that the termination order had been passed strictly in terms of conditions of service of contract. It further explained that engagement of a Consultant (Legal) was purely on contractual basis and subject to satisfaction of the Administration for the services being provided are legal consultancy thus, there should not be any objection, if the concerned employer was not satisfied with the services, to the action of termination it can also be issued during the period of the contract as it is provided under the terms of the contract. [Rajesh Kumar Tiwari v. Union of India, 2020 SCC OnLine Raj 1841, decided on 01-12-2020]

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Case BriefsHigh Courts

Chhattisgarh High Court: A Division Bench of P.R. Ramachandra Menon and Parth Prateem Sahu JJ., rejected the appeal finding no tenable ground to interdict the impugned verdict.

The factual matrix reveals that a post of Librarian was sought to be filled up on contract basis. The Appellant, who is a Graduate in Library Science and a Post Graduate in Commerce, besides having the qualification of Post Graduate Diploma in Computer Applications, participated and was declared as ‘not eligible’ for the post on the ground that she has secured only less marks in the Graduation. Consequently, she filed objection asserting that no minimum percentage of marks for Graduation is stipulated in Chhattisgarh School Education Services (Educational and Administrative Cadre) Recruitment and Promotion Rules, 2019 for appointment to the post of Librarian. Further, the grievance not being redressed the Petitioner approached the Court by filing the writ petition contending that, since Rules do not stipulate any minimum marks for Graduation even for regular appointment, it cannot be insisted for appointment to the post on a contract basis. The prayer sought for is to quash/set aside the condition of minimum qualification of 50% marks in Graduation for the post of Librarian.

Counsel for the appellants submitted that there is no dispute with regard to ‘Rules’ which governs the appointment to the post in question. But the stipulation of qualification in Advertisement is stated as not in conformity with the said ‘Rules’.

Counsel for the respondents relied on judgment Maharashtra Public Service Commission v. Sandeep Shriram Warade (2019) 6 SCC 362 submitted that the merit was never sought to be compromised or diluted and it is very much within the purview of the power and prerogative of the Respondents to stipulate minimum 50% marks for Graduation, which was never against the Rules; as the Rules only prescribed the ‘minimum’ qualification. It was also contended by reliying on judgment Madras Institute of Development Studies v.. K. Sivasubramaniyan (2016) 1 SCC 454 that the writ petitioner having participated in the process of selection cannot take a ‘u-turn’ and challenge the process after coming to know that she has not been selected.

Rule 6 of ‘Rules’ dealing with ‘method of recruitment’ reads as follow:

“6. Method of recruitment. – (1) Recruitment to the service, after the commencement of these rules, shall be made by the following methods, namely:-

(a) By direct recruitment through selection (competitive examination/interview) and Limited Departmental Examination;

(b) By promotion of members of the service;

(c) By transfer/deputation of persons who hold in a substantive capacity such posts in such services as may be specified in this behalf;

(d) By absorption of person / persons who hold in such services an serve on any equivalent salary/post in any Government service.”

 The Court observed that “the appointment could be made by Direct Recruitment through selection (Competitive examination / Interview) and when such selection is made to the limited number of post notified, it may not be necessary or possible to call all persons who are having the minimum qualifications stipulated in the Rules, that too, for appointment on ‘contract basis’. Even in the case of a selection process having both the written test and interview, it is settled law that all the persons who get qualified in the written test need not be called for the interview and that the number can be limited to appropriate extent, based on the number of vacancies available.”

The Court further observed that the Appellant can not be heard to say that she is actually aggrieved because of considering persons having better merits (who have secured more than 50% of marks for Graduation) for the post, as appointment has to be made by identifying the most meritorious candidate. It was further observed that the Appellant was aware of the contents of the  Notification right from the beginning and it was in her open eyes that she participated in the selection process and protested her selection only after the merit list was released.

In view of the above, interference was rejected and appeal was dismissed.[Sajida Khan v. State of Chhattisgarh, 2020 SCC OnLine Chh 668, decided on 19-11-2020]

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Case BriefsHigh Courts

Rajasthan High Court: A Division Bench of P.K. Lohra and Arun Bhansali, JJ. struck down the impugned University Service Regulations, 2001 by declaring them ultra vires.

The petitioners were initially appointed to their respective posts at NLU Jodhpur on a contractual basis. The petition was filed to categorize the impugned decision to discontinue B.SC. LL.B (Hons.) as arbitrary, unreasonable and discretionary. The petitioners also challenged the validity of the impugned University Service Regulations, 2001.

Learned Senior counsel for the petitioners, Rajesh Joshi, submitted that as the petitioners were selected as per Regulation 13(iv) of the Service Regulations in adherence of Articles 14 & 16 of the Constitution, treating their appointment as contractual or on ad-hoc terms was arbitrary and unreasonable. He further contended that the successful completion of probation by the petitioners showed that for all practical purposes they were regular employees. He also submitted that just because the University claimed to be autonomous, its policy decisions didn’t become immune from judicial review. Challenging impugned Service Regulations, it was submitted by the learned Senior Counsel that Regulation 5 & 6 were arbitrary, unreasonable and discriminatory. The same was reasoned about Regulation 2(1)(D) of the Provident Fund Regulations.

The learned counsel for the respondent, Kuldeep Mathur, while referring to the provisions of NLU Act, Statutes, Ordinances and the Regulations, strenuously urged that impugned decision was infallible as the same was based on objective consideration. He further argued that acceptance of the terms of employment by all the petitioners without any protest, in clear and unequivocal terms, was sufficient to invoke the doctrine of acquiescence against them and therefore solely on that count they were liable to be non-suited. Placing heavy reliance on the amended Statute 9 of the University Statutes, he also submitted that the University was enjoying autonomy and therefore it was not obligatory for it to follow the procedure for recruitment provided under the Act of 1974. It was argued by the learned counsel that the NLU Act of 1999, being a special Act and a later Act than the Act of 1974, would have an overriding effect on the earlier Act. The impugned Service Regulations were also argued to be not in violation of Article 14, 16, & 21 of the Constitution.

The Court decided to only examine vires of the impugned Service Regulation as all the other reliefs could be claimed by the petitioners before a Single Bench. The Court relied on State of T.N. v. P. Krishnamurthy, (2006) 4 SCC 517, in which the legitimate grounds to challenge subordinate legislation were laid down by the Supreme Court. It observed that the University Service Regulations were made effective more than two years before the amendment in the Statute 9 and hence the amended Statute 9 could not be treated as a source of the Service Regulations.

The Court held that right to life with human dignity with minimum sustenance and shelter, including all those rights and aspects of life which would go to make a man’s life complete and worth living, would form part of life. Therefore, on joining government service, a person does not mortgage or barter away his basic rights as a human being, including his fundamental right in favour of the Government. The University being a statutory body was not expected to employ teachers and other officials on contract/ ad hoc basis for years together, more particularly when the duties and functions discharged by them were of perennial nature. It was held that it is necessary to do away with total contractual appointment amongst teachers.

In view of the above, the Court held the impugned Service Regulations 5, 6 and amended Regulations 37 and 38 which allowed employment of teachers on a contractual basis, to be manifestly arbitrary and unreasonable. The Court further held that the impugned Service Regulations were in clear negation of Articles 14, 16 and 21 of the Indian Constitution. Service regulations 5, 6 and amended Regulations 37 and 38 were declared as ultra vires and the same were struck down.

However, the Court did not sustain the challenge laid down to Regulation 2(1)(d) of the PF Regulations as it lacked legal foothold. It was directed that the merits of the case and other reliefs were to be heard by appropriate Single Judge Bench.[Prashant Mehta v. National Law University, Jodhpur, 2019 SCC OnLine Raj 618, decided on 28-05-2019]

Case BriefsHigh Courts

Kerala High Court: The Bench of A. Muhamed Mustaque, J. disposed of a petition by stating that maternity benefits cannot be denied to a woman employed on contractual basis.

Petitioner was working as an assistant professor in Medical Microbiology on a contract basis. It has been stated that, on expiry of the last contract of the petitioner she was re-engaged for a period of one year and the timeline of her employment shows that she had been engaged from time to time on contract basis for past one decade.

The crux of the issue in the present case is that, on claiming maternity benefits from the University, the petitioner was denied for the same. University submitted that in terms of agreement petitioner was not entitled to such benefits.

“Maternity benefit is not merely a statutory benefit or a benefit flowing out of an agreement.”

Reliance was placed on Rakhi P.V. v. State of Kerala, 2018 SCC OnLine Ker 864, in which it was held that a woman cannot be compelled to choose between motherhood and employment. Further, the Court stated that women employees who are working under contract cannot be denied the maternity benefits.

Therefore, in the present case, the bench held that University is bound to grant such benefits notwithstanding anything contained in the agreement of contract. University was further directed to pay maternity benefits due to the petitioner within a period of 2 months. [Rasitha C.H. v. State of Kerala, 2018 SCC OnLine Ker 7404, decided on 11-12-2018]