JUDGMENT D.K. Seth, J.
1. The petitioners have challenged the cessation of their employment by means of the present writ petition and had made the following prayer:
(i) to issue a writ of mandamus directing the respondents to declare that the petitioners should continue in service and that the petitioners' removal/termination is in violation of Regulation 29 of the U. P. Cooperative Societies Employees Services Regulations, 1975 and is void ;
(ii) to issue a writ of mandamus directing the respondents to continue to pay salary to the petitioners month by month onward with arrears on that account of the post of Guard-cum-Peon ;
(iii) to issue any other suitable writ, order or direction in the nature of writ as may be considered fit and proper in the circumstances of the case and to award costs of this petition, so that Justice be done.
2. Mr. A. P. Sahi, learned counsel for the petitioners, contends that petitioners were given appointment only for 89 days and after short breaks were re-employed for similar period successively and thereby the petitioners have completed more than 240 days' continuous service. Therefore, their services could not be ceased as has been sought to be done in the present case. On the other hand, the petitioners are entitled to continue in service and be paid their salaries and that the removal or termination of petitioners are in violation of Regulation 29 of the U. P. Co-operative Societies Employees Service Regulation, 1975. In support of his contention, he has cited several decisions which shall be referred to shortly hereinafter.
3. The contention of Mr. A. P. Sahi is opposed by Mr. V. K. Singh, learned counsel for the respondents. According to Mr. Singh, the petitioners were casual workers and not in whole time service according to the definition of 'employee1 and were appointed pending selection for the post through direct recruitment by way of stopgap arrangement in terms of Regulation 5 (iii). The appointment of the petitioners were never approved by the Board as is required under Regulation 5 (vi). Then again the appointment was given by the Secretary or the Chairman of the Society who is not the appointing authority within the meaning of definition thereof prescribed in Section 2 (iii) read with Section 5 (v). Section 29 has no manner of application in a case where a person is not an employee. Regulation 29 applies only if a person is an employee as defined in Section 2 (ii). He also relied upon the decision in the case of Director, Institute of Management Development v. Smt. Pushpa Srivastava, AIR 1992 SC 2070, in support of his contention that the appointment having been limited by time purely on ad hoc and contractual basis, the right to remain in the post comes to an end on the expiry of the period so fixed.
4. As it appears from Annexures '1', '2', '3', '4', and '5' being the respective appointment orders, the appointment was given by the Secretary or the Chairman of the Bank in Class IV posts. It was provided in the said appointment letters that appointment was subject to the condition that it would cease on the expiry of 89 days or on the receipt of list of selected candidates by the Selection Committee and approved by the Institutional Service Board automatically and the appointment is purely of temporary nature and was liable to be terminated at any time without any notice. The appointment was renewed subsequently by appointment letters issued which are Annexures '6', '7', '8', '9' and '10'. The said letters also contained the same condition of cessation of employment either on completion of 89 days or on receipt of list of selected candidates and that it was purely of temporary nature. In the counter-affidavit, a case has been made out that the appointments were given for limited period awaiting receipt of list of candidates selected by the Board and that ultimately list of such selected candidates have been received for which no further appointment has been given. It is further pointed out that the petitioners have not worked beyond 300 days.
5. Mr. Sahi, in support of hts contention, has relied on the decision in the case of Jai Kishun and others v. U. P. Co-operative Bank Limited. Lucknow and others, (1989) 2 UPLBEC 144. In the said case, the petitioners, though were appointed for a period of 3 months or 89 days, on expiry of the period of appointment, fresh appointments were being issued with short breaks, and were allowed to continue to work for 2-3 years or more. In the said case. Regulations 5 and 29 were also considered and ultimately held that by reason of such continuation beyond the period limited, namely, 300 days, the employers were responsible for taking work from the petitioner and, therefore, they cannot resort to Regulations 5 and 29 in order to deny the benefit of Section 6N of the U. P. Industrial Disputes Act accrued to those petitioners. Ultimately in the said case, it was held that the petitioner would be entitled to continue in service with all the benefits since their services were terminated in contravention of Section 6N of the U. P. Industrial Disputes Act and it would be open to the competent authority to terminate the service after complying with the requirement of Section 6N of the said Act.
6. In the facts and circumstances of the present case, the ratio decided in the case of Jai Kishun (supra), cannot be attracted inasmuch as in the present case, the petitioners were not allowed to work exceeding 300 days being the maximum limit and that no order of termination was issued but the appointment being limited by time automatically ceased on the expiry of such time and that no claim for regularisation has been sought to be made in the writ petition. After the said decision was rendered, the Apex Court in the case of Smt. Pushpa Srivastava (supra) in 1992 had held that the appointment being purely an hoc and on contractual basis for a limited period, the right to remain in the post comes to an end on the expiry of the period so limited.
7. The next decision relied on by Mr. Sahl is the case of U, P. Bank Employees Union, Fatehpur v. District Co-operative Bank Limited, Fatehpur, (1991) 2 UPLBEC 1267, which relied on the decision in the case of Jai Kishun (supra). The ratio in the said case is also not attracted in the circumstances of the case for the simple reason that in the said case, the petitioners were allowed to work for a very long time during which the 1985 Regulation as amended by the First Amendment of 1990 had come into force by reason whereof they became eligible for being considered for regularisation, in the post and while considering the said case for regularisation, the invalidity of the initial appointment cannot be questioned for want of compliance of requisite formalities. Ultimately it was held that the persons who had completed three years' service were entitled to be regularised. In the said case, the Board was inactive for a long time which was one of the reason that weighed with the Court. In the said case also, the ratio decided in the case of Smt. Pushpa Srivastava (supra) was not taken note of apart from the fact that in the present case the employment ceased on the expiry of the period limited by the appointment letter and did not continue beyond 300 days provided under the Regulation. Therefore, the said decision also does not help Mr. Sahi since the facts are altogether distinguishable. In the other case cited by Mr. Sahi being Prabhu Narain Rai and another v. Secretary-cum-General Manager, Central Co-operative Bank Ltd., Jhansi and others. (1994) 3 UPLBEC 1714, it was held following the decision in the case of Jai Kishun (supra):
"Employers could only discontinue to take work from such employee after expiry of the period of 180 days or the extended period when their appointments ceased under the Regulations."
8. But in the said case, the employees having allowed to work beyond the period limited by Regulation, therefore, they cannot be deprived of their entitlement that may have accrued to them under the provision of the Industrial laws. Thus, it appears that the said case is also distinguishable in the facts and circumstances of the present case. On the other hand, the said decision specifically provides that the employer is within its power to cease the employment within the period limited by Regulation which is the case in the present one.
9. Regulation 5 of the U. P. Co-operative Societies Employees Service Regulations. 1975 in clause ft) provides that recruitment for all appointments in a Co-operative Society shall be made through the Board. The 'Board' has been defined in Section 2 (iv) to mean the U. P. Co-operative Institutional Service Board. In order to obviate the difficulties in the matter of selection by the Board in clause (iii), authority was given to the Board to permit stopgap arrangement to be made by the appointing authority pending selection for the post to be filled. Such stopgap arrangement can be made for a period not exceeding 180 days to be extended by a period not exceeding 120 days thereafter by reason of the second proviso to clause (iii) of Regulation 5. The appointing authority mentioned in clause (iii) means either the Committee of Management or any other authority which is empowered under the 1975 Regulation as has been defined in Regulation 2 (iii). This appointing authority in respect of Class IV employees has been provided in clause (v) of Regulation 5 notwithstanding clause (i) of Regulation 5 which requires all appointments to be made by the Board. Clause (v) provides constitution of Selection Committee comprising of Chairman/ Administrator of the Society, Secretary of the Society and the Assistant Registrar of the District. Admittedly in the present case, the appointment has not been made through the Selection Committee. Then again by reason of clause (vi) of Regulation 5, such a selection is to be made on the basis of selection and appointment shall be provisional and subject to the approval of the Board. Thus even if selection is made by the Selection Committee provided in clause (v), the approval of the Board is mandatory by reason of clause (vi). In the present case, it is alleged that permission was obtained from the Board for making appointments pending selection by the Board or the Selection Committee, as the case may be, and the period of appointment did not exceed 300 days as contemplated in clause (iii). A perusal of the appointment letter clearly indicates that the appointment shall cease on the expiry of time limited by appointment or on receipt of the list of selected candidates. The employment was allowed to be ceased on the expiry of the time limited on the ground that in the meantime, the list of selected candidates has been received. Therefore, in the present case, the Bank had acted within the ambit and scope of Regulation 5 in the matter of employment of the petitioner concerned. Then again Regulation 15 prohibits appointment except in the manner provided in the Regulation. Regulation 19 specifically provides that in a case of temporary employee, the service can be terminated on one month's notice or on payment of one month's salary in lieu of notice. This proviso makes an exception with regard to the appointment for specific periods, namely, that it shall not be necessary to give any notice or any pay in lieu thereof if the appointment is made for specific period as in the present case. Regulation 29 provides for retrenchment of an employee. An employee is defined in Section 2 (xi) to mean a person in whole time service and not a casual worker employed on dally wages or a person in part time service. It is contended by the counsel for the respondents that the petitioners do not come within the definition of 'employee' since he was not a whole time but was a casual employee, but the said contention cannot stand to reason since the appointment letter specifies appointment in the scale and not on dally wages and purely on temporary basis not as part time service. It was neither part time nor casual as contemplated in the definition of 'employee' aforesaid. But, however, the present case is not a case of retrenchment but a termination within the meaning of Regulation 19. A distinction has been made between a temporary employee and a regular employee. The termination of service of a regular employee is retrenchment within the meaning of Regulation 29. Regulation 29 governs retrenchment of a regular employee. By Regulation 19, exception has been made in respect of temporary employee for termination of service either by one months' notice or in lieu of notice thereof which is also a kind of retrenchment. Where Section 6N can also be made applicable if the said provision is not compiled with, but by reason that this proviso specifically provides that in case of appointment for specific period in respect of a temporary employee, notice would not be a necessity.
10. In the decision cited by Mr. Singh, the cases were altogether different and Section 6N was made applicable in respect of such employees because their appointments were considered not be an appointment within the meaning of clause (iii) of Regulation 5 as has been held in the said cases because the authority did not cease the appointment within the period limited In clause (iii). In the case of Pushpa Srivastava (supra), the cases of appointment for limited period has been dealt to the extent indicated therein. In the present case, the petitioners having been appointed only within the scope of clause (iii) of Regulation 5, they cannot claim any benefit beyond the scope thereof which also provides specifically in the third proviso that appointment made in clause (iii) shall cease to have effect from the date on which the original period or the extended period of appointment under clause (iii) expires. In the present case, the cessation having been effected within the period of 300 days as limited in Para 5, the petitioners cannot derive any benefit of the decision cited by Mr. A. P, Sahi.
11. For the foregoing reasons, I do not find any merit in the present writ petition. The writ petition is, therefore, dismissed, however, without any costs.