Hon'ble Mahendra Dayal,J.
The present Special Appeal has been filed against the judgment and order dated 28.7.2004 passed by the learned Single Judge dismissing the Writ Petition being Civil Misc. Writ Petition No.28789 of 2004 filed by the petitioner-appellant.
It appears that by the order dated 7.3.2003, the petitioner-appellant was engaged on contractual basis by the Chief Executive Officer, U.P. Khadi and Gramodyog Board, Lucknow for performing the work of Class-IV category on payment of Rs. 2,500/- per month. Copy of the said order dated 7.3.2003 is annexed as Annexure-1 to the affidavit accompanying the Stay Application filed with the Special Appeal and appears at Page 20 of the Paper Book of the Special Appeal. Pursuant to the said order dated 7.3.2003, the petitioner-appellant submitted his joining in the Office of the District Gramodyog Officer, Banda on 1.4.2003. The joining letter is annexed as Annexure-2 to the affidavit accompanying the Stay Application filed with the Special Appeal, and appears at page 21 of the Paper Book of the Special Appeal.
It further appears that by the order dated 26.6.2004, issued by the Chief Executive Officer, U.P. Khadi and Gramodyog Board, Lucknow, the engagement of the petitioner-appellant, on contractual basis, was terminated with effect from the afternoon of 5.7.2004 on the ground that the contractual services of the petitioner-appellant were no more required for the work of the U.P. Khadi and Gramodyog Board, Lucknow. Copy of the said order dated 26.6.2004 is annexed as Annexure-9 to the affidavit accompanying the Stay Application filed with the Special Appeal, and appears at page 31 of the Paper Book of the Special Appeal.
The petitioner-appellant thereupon filed the aforesaid Civil Misc. Writ Petition No. 28789 of 2004 before this Court. As noted above, the learned Single Judge by the judgment and order dated 28.7.2004 dismissed the said Writ Petition. Relevant portion of the said judgment and order dated 28.7.2004 passed by the learned Single Judge is as under:
".................The appointment of the petitioner was on contract basis which has not been renewed on the ground that there is no work available for the petitioner. Engagement on contract does not vest the petitioner with any legal right to regular appointment. No writ for enforcement of contract of personal service can be issued. The writ petition is not maintainable and is liable to be dismissed........"
The petitioner has thereafter filed the present Special Appeal.
In the Special Appeal, various affidavits have been filed on behalf of the petitioner-appellant from time to time, and the respondents have filed their replies to such affidavits. The petitioner-appellant has filed rejoinder affidavits in reply to such replies. Various documents, which were not filed in the Writ Petition before the learned Single Judge, have been filed in the present Special Appeal, and submissions are sought to be made on the basis of such documents.
We have heard Shri Kunal Ravi Singh, learned counsel for the petitioner-appellant and Shri Rajiv Sharma, learned counsel for the respondents at length, and perused the record.
As regards the engagement of the petitioner-appellant by the order dated 7.3.2003 for performing the work of Class-IV category, it has not been disputed on behalf of the petitioner-appellant that the said engagement was purely contractual in nature, and the same was to continue until further orders.
By the order dated 26.6.2004 the engagement of the petitioner-appellant, on contractual basis, was terminated on the ground that his contractual services were no longer required by the U.P. Khadi and Gramodyog Board. In our opinion, as the engagement of the petitioner-appellant was purely contractual in nature, the termination of such engagement by the order dated 26.6.2004 cannot be said to suffer from any illegality. No stigma has been cast on the petitioner-appellant while terminating his engagement. Termination of engagement has been done, as the contractual services of the petitioner-appellant were no more required for the execution of the work of U.P. Khadi and Gramodyog Board. In our view, therefore, the judgment and order passed by the learned Single Judge dismissing the Writ Petition does not suffer from any error.
Shri Kunal Ravi Singh, learned counsel for the petitioner-appellant has, however, made various submissions on the basis of the affidavits and documents filed in the present Special Appeal.
Shri Rajiv Sharma, learned counsel for the respondents submits that as the documents sought to be filed in the present Special Appeal were not filed before the learned Single Judge in the Writ Petition, it is not open to the petitioner-appellant to file such documents in the Special Appeal, and make submissions on the basis of such documents.
It is true that the documents are being filed on behalf of the petitioner-appellant for the first time in the Special Appeal, and such documents were not part of the record of the Writ Petition, and, therefore, the correctness of the judgment and order dated 28.7.2004 passed by the learned Single Judge in the Writ Petition cannot be considered on the basis of such documents. However, as elaborate submissions have been made by the learned counsel for the parties on the basis of the affidavits and documents filed in the Special Appeal, we are proceedings to consider such submissions also.
Shri Kunal Ravi Singh, learned counsel for the petitioner-appellant refers to the order dated 20.2.2004 (Annexure-1 to the affidavit accompanying the Stay Application filed with the Special Appeal, and appearing at page 33 of the Paper Book of the Special Appeal) and submits that the engagement of the petitioner-appellant has been terminated on the basis of the said order dated 20.2.2004, and as the case of the petitioner-appellant was not covered under the said order dated 20.2.2004, the termination of the petitioner-appellant was illegal. It is submitted by Shri Kunal Ravi Singh that the order dated 20.2.2004 was applicable to such contractual engagements, which were made directly at the District/ Regional level, and the same would not apply to the engagement made at the level of Head Office. The engagement of the petitioner-appellant was made at the level of Head Office, and, therefore, the case of the petitioner-appellant was not covered under the said order dated 20.2.2004.
In reply, Shri Rajiv Sharma, learned counsel for the respondents submits that the termination of the engagement of the petitioner-appellant was not done pursuant to the said order dated 20.2.2004. It is pointed out that under the said order dated 20.2.2004, the termination of the engagements were to be made with effect from 1.3.2004, while the termination of the engagement of the petitioner-appellant was done by the order dated 26.6.2004 with effect from 5.7.2004.
We have considered the submissions made by the learned counsel for the parties.
A perusal of the order dated 20.2.2004 shows that the same provided for termination of the engagements made directly at the District/ Regional level, and the same was not intended to cover the engagement made at the level of the Head Office. The engagements made directly at the District/ Regional level were liable to be terminated with effect from 1.3.2004. In the present case, the engagement of the petitioner-appellant continued even after 1.3.2004, and in fact, the same was terminated by the order dated 26.6.2004 with effect from 5.7.2004. Thus, the termination of the petitioner-appellant was not done pursuant to the order dated 20.2.2004. In the circumstances, the submissions made by Shri Kunal Ravi Singh, learned counsel for the petitioner-appellant, in this regard, cannot be accepted.
Shri Kunal Ravi Singh, learned counsel for the petitioner-appellant then submits that in the meeting of U.P. Khadi and Gramodyog Board, Lucknow, held on 20.2.2003, a proposal was made at Agenda No.6 that as various posts in the reserved category were lying vacant, the said backlog vacancies be filled-up by adjusting the persons working on daily wages/ consolidated wages/ contractual basis, and the said proposal was approved in the said meeting. It is submitted that pursuant to the said decision, following four persons were appointed in Class-IV category against backlog vacancies :
1. Jitendra Kumar
2. Devendra Kumar
3. Sri Ram Pasi
4. Rahul Maurya It is submitted that the aforesaid persons are still continuing on Class-IV posts in U.P. Khadi and Gramodyog Board, and in the circumstances, the termination of the engagement of the petitioner-appellant was discriminatory and arbitrary.
In reply, Shri Rajiv Sharma, learned counsel for the respondents submits that the engagement of the petitioner-appellant was made on 7.3.2003 and he joined on 1.4.2003, while the said policy decision had been taken on 22.2.2003. The said decision was intended to apply the persons, who were already working on daily wages/ consolidated wages/ contractual basis on the date of the said decision i.e. 20.2.2003. The petitioner-appellant having been engaged subsequent to the said decision, the submission proceeds, was not covered under the said decision and the petitioner- appellant could not claim the benefit of the said decision. It is further submitted by Shri Rajiv Sharma that the policy decision taken on 20.2.2003 was intended to apply only to the backlog vacancies in Class-III category, and while implementing the said decision the backlog vacancies in Class-III category were filled-up. It is further submitted that the appointment of the aforesaid four persons against backlog vacancies in Class-IV category were made illegally by the concerned Officer on 2.5.2003, and when the factum of such appointments came to the knowledge of the Chief Executive Officer of U.P. Khadi and Gramodyog Board, Lucknow, the appointments of the aforesaid persons were cancelled. However, the said persons thereafter filed Writ Petitions before the Lucknow Bench of this Court, and obtained interim orders. The aforesaid persons are continuing on the basis of such interim orders.
We have considered the submissions made by the learned counsel for the parties.
As regards the decision taken in the meeting of U.P. Khadi and Gramodyog Board, Lucknow, held on 20.2.2003, we may refer to the Agenda of the said meeting, copy whereof has been filed as Annexure-2 to the Supplementary Affidavit, sworn on 31.3.2008, filed on behalf of the petitioner-appellant, and appears at page 7 of the said Supplementary Affidavit. Agenda Item No. 6 of the said meeting reads as under:
"en la[;k&6% cksMZ esa vkjf{kr oxZ ds cSdykx dks [email protected] dk izLrko m0 iz0 [kknh rFkk xzkeks|ksx cksMZ esa orZeku le; esa vkjf{kr oxZ ds in fjDr gSa A fjDr inksa dks Hkjus ds fy, o"kZ 1997 ,oa 1998 esa in foKkfir fd;s x;s Fks ijUrq dfri; dkj.kksa ,oa ek0 U;k;ky; ds LFkxu vkns'k vkfn ds dkj.kksa ls p;u izfdz;k iw.kZ ugha gks ldh ifj.kkeLo:i vkjf{kr oxZ ds in vHkh Hkh fjDr gSa A cksMZ esa cSdykx iw.kZ u gksus ls 'kklu Lrj ij dbZ ckj cSBdsa gqbZa rFkk i= izkIr gks jgs gSa A ,slh ifjfLFkfr esa cksMZ esa [email protected]@lafonk ij dk;Zjr vuqlwfpr [email protected] ,oa vU; fiNM+h tkfr ds vH;fFkZ;ksa dks mudh ;ksX;rk dks -f"Vxr j[krs gq, fjDr inksa ds foi{k esa in dh ;ksX;rk ds vuqlkj lek;ksftr fd;s tkus dk izLrko gS A
--i;k mijksDr ij cksMZ dk vuqeksnu izkFkZuh; gS A "
The aforesaid proposal was approved in the said meeting, as is evident from Minutes of the said meeting, copy whereof has been filed as Annexure-3 to the said Supplementary Affidavit, and appears at Page 17 of the said Supplementary Affidavit. The said approval is as under:
" en la[;k&6 cksMZ esa vkjf{kr oxZ ds cSdykx dks [email protected] dk izLrko foLr`r fopkj&foe'kZ ds mijkUr loZlEefr ls izLrko ij vuqeksnu iznku fd;k x;k A "
From a perusal of the above-quoted proposal, it is evident that the same was intended to apply to the persons, who were working on the date of the said decision on daily wages/ consolidated wages / contractual basis, and such persons were proposed to be adjusted towards the backlog vacancies. The petitioner-appellant was admittedly engaged on 7.3.2003, and he joined on 1.4.2003, and thus he was evidently not working on the date of the said decision dated 20.2.2003, and, therefore, the petitioner-appellant cannot take benefit of the said decision.
As regards the cases of the aforementioned four persons, namely, Jitendra Kumar, Devendra Kumar, Sri Ram Pasi and Rahul Maurya, it appears that Jitendra Kumar was initially engaged on contractual basis by the order dated 23.9.2002 (Annexure SRA-1 to the Supplementary Rejoinder Affidavit, sworn on 10.4.2012, filed on behalf of the petitioner-appellant), and subsequently, by the order dated 2.5.2003 (Annexure SRA-2 to the Supplementary Rejoinder Affidavit, sworn on 10.4.2002, filed on behalf of the petitioner-appellant), the said Jitendra Kumar was given temporary appointment on the post of Chaprasi/ Chaukidar. Similarly, it appears that the other three persons, namely, Devendra Kumar, Sri Ram Pasi and Rahul Maurya were also given appointments on 2.5.2003 in Class-IV category. However, the selection process and the recommendation of the Selection Committee in regard to the appointments in the backlog category on the post of Chaprasi/ Chaukidar/ Lab Assistant were cancelled by the order dated 1.8.2005, and, in consequence, the services of the aforementioned four persons were terminated by the order dated 2.8.2005. This is evident from the order dated 11.11.2005 and the order 2.8.2005 issued on behalf of the Chief Executive Officer, U.P. Khadi and Gramodyog Board. Copy of the said orders dated 11.11.2005 and 2.8.2005 have been filed as Annexure Nos. 1 and 2, respectively to the affidavit, sworn on 25.4.2012, filed on behalf of the respondents, and appear at pages 6 and 8, respectively, of the said affidavit.
In paragraph 3 of the aforesaid affidavit, sworn on 25.4.2012, filed on behalf of the respondents, it is stated that the aforesaid orders dated 11.11.2005 and 2.8.2005 have been challenged in Civil Misc. Writ Petition No. 6687 (S/S) of 2005 before the Lucknow Bench of this Court, and the affidavits have been exchanged in the said Writ Petition. In the counter affidavit filed today on behalf of the petitioner-appellant in reply to the aforesaid affidavit, sworn on 25.4.2012, filed on behalf of the respondents, it has been stated in paragraph 4 that interim order dated 7.10.2005 has been passed in the aforesaid Civil Misc. Writ Petition No. 6687(S/S) of 2005.
During the course of arguments, Shri Kunal Ravi Singh, learned counsel for the petitioner-appellant has produced a FAX copy of the interim order dated 7.10.2005 passed in the aforesaid Civil Misc. Writ Petition No. 6687(S/S) of 2005. Shri Kunal Ravi Singh states that on the basis of the said interim order, the aforementioned Devendra Kumar, Sri Ram Pasi and Jitendra Kumar (petitioners in the said Writ Petition) are still continuing to work on the post of Class-IV category.
Shri Rajiv Sharma, learned counsel for the respondents has stated that the aforementioned Rahul Maurya has also got interim order in his favour, and he is also continuing on the post of Class-IV category on the basis of such interim order.
It is, thus, evident that the appointments of the aforementioned four persons, namely, Jitendra Kumar, Devendra Kumar, Sri Ram Pasi and Rahul Maurya in Class-IV category were cancelled by the concerned authority on 2.8.2005, and it is only on the basis of the interim orders passed by the Lucknow Bench of this Court, that the aforementioned four persons are continuing to work on the post of Class-IV category. In our view, therefore, it is not open to the petitioner-appellant to contend that the petitioner-appellant has been discriminated on account of the appointment of the aforementioned four persons. The appointments of the aforementioned four persons were cancelled on 2.8.2005 and they are continuing on their posts only on account of the interim orders. Therefore, the submission made by Shri Kunal Ravi Singh, learned counsel for the petitioner-appellant that the petitioner-appellant has been discriminated on account of the appointments of the aforementioned four persons, cannot be accepted.
In view of the above discussion, we are of the opinion that the Special Appeal filed by the petitioner-appellant lacks merits, and the same is liable to be dismissed.
The Special Appeal is accordingly dismissed.
However, on the facts and in the circumstances of the case, there will be no order as to costs.
Dt. 23.5.2012 safi