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temporary employee cannot be replaced by temporary or adhoc employee

Isaac Gabriel ,
  13 September 2011       Share Bookmark

Court :
Jhartkand High Court
Brief :
Held that the temporay employees cannot be replaced by temporary employees or adhoc employees
Citation :
WP(S) No.861 of 2011 in IA 1704 of 2011 Ritesh Ranjan and others Vs.State of Jharkand

 

IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (S) No. 861 of 2011

With

I.A. No. 1704 of 2011

Ritesh Ranjan & another …… Petitioners

Versus

The State of Jharkhand & ors. …… Respondents

CORAM: HON’BLE MR. JUSTICE D.N. PATEL For the Petitioners : Mr. Indrajit Sinha, Advocate

For the RespondentState

: J.C. to Sr. S.C.I

For Respondent Nos. 3, 4 & 5 : None

04/Dated: 1 st August, 2011

1. Learned counsel for the petitioners submitted that the petitioners are

working as Lecturers on contractual basis since December 2006. They are

working honestly, sincerely, diligently and to the satisfaction of the

respondents. Never any notice has been given to the petitioners for their

unsatisfactory work. Moreover, learned counsel for the petitioners has relied

upon the decision rendered by the Hon'ble Supreme Court in the case of State

of Haryana and others v. Piara Singh and others, reported in AIR 1992 SC

2130 and submitted that one adhoc employee cannot be replaced by another

adhoc employee. The petitioners are appointed on contractual basis and now

the respondents are terminating the services of the petitioners and the

petitioners are replacing by appointing other lot of similarly situated

contractual employee/Lecturer. Experienced hand teacher will go away and the

fresh lot of Lecturers will be appointed. This will also cause loss to the students

for whom the University has been established.

2. It is further submitted by learned counsel for the petitioners that out of the

total contractual basis Lecturers, the petitioners' services are going to be

terminated, whereas, 27 similarly situated contractual basis Lecturers are going

to be appointed by the respondents. This fact has been highlighted in

paragraph 20 of the memo of the petition. Thus, there is discrimination of the

petitioners from the similarly situated other candidates.

3. Learned counsel for the respondentState has nothing much to submit

because contesting respondents are respondent nos. 3, 4 and 5.

4. Learned counsel for respondent nos. 3, 4 and 5 is absent.

5. There is, prima facie, a case in favour of the present petitioners as they are

working on contractual basis as Lecturers since December 2006. Moreover,

2similarly situated other contractual basis Lecturers, who are 27 in number, are

going to be retained by the respondentUniversity. Moreover, looking to the

advertisement annexed at Annexure to the interlocutory application, it appears

that the respondentUniversity has given advertisement for appointment of 29

Lecturers on contractual basis for B. Ed. Course. Thus, it appears that the

petitioners are also Lecturers on contractual basis. They are going to be

replaced by other Lecturers on contractual basis. Thus, lot of experienced hand

Lecturers will have to go out and another fresh lot of Lecturers will be

appointed again on contractual basis. Thus, the students will be deprived of the

experienced hand Lecturer for whom the University has been constituted. Thus,

there is, prima facie, a case in favour of the present petitioners. Moreover,

balance of convenience is also in favour of the present petitioners and

irreparable loss will be caused to the petitioners if the stay, as prayed for in the

interlocutory application, is not granted. Moreover, paragraph 25 of the

decision rendered by the Hon'ble Supreme Court in the case of State of

Haryana and others v. Piara Singh and others, reported in AIR 1992 SC

2130, reads as under:

“25. ................. Secondly, an ad hoc or temporary employee should not be

replaced by another ad hoc or temporary employee; he must be replaced only

by a regularly selected employee. This is necessary to avoid arbitrary action on

the part of the appointing authority.

Thirdly, even where an ad hoc or temporary employment is necessitated on

account of the exigencies of administration, he should ordinarily be drawn

from the employment exchange unless it cannot brook delay in which case the

pressing cause must be stated on the file. If no candidate is available or is not

sponsored by the employment exchange, some appropriate method consistent

with the requirements of Article 16 should be followed. In other words there

must be a notice published in the appropriate manner calling for applications

and all those who apply in response thereto should be considered fairly.

An unqualified person ought to be appointed only when qualified persons are

not available through the above processes.

If for any reason, an ad hoc or temporary employee is continued for a fairly

long spell, the authorities must consider his case for regularisation provided he

is eligible and qualified according to rules and his service record is satisfactory

and his appointment does not run counter to the reservation policy of the State.

The proper course would be that each State prepares a scheme, if one is not

already in vogue, for regularisation of such employees consistent with its

reservation policy and if a scheme is already framed, the same may be made

consistent with our observations herein so as to reduce avoidable litigation in

this behalf. If and when such person is regularised he should be placed

immediately below the last regularly appointed employee in that category, class

or service, as the case may be.

So far as the workcharged employees and casual labour are concerned, the

effort must be to regularise them as far as possible and as early as possible

subject to their fulfilling the qualifications, if any, prescribed for the post and

subject also to availability of work. If a causal labourer is continued for a fairly

long spellsay two or three yearsa presumption may arise that there is regular

3need for his services. In such a situation, it becomes obligatory for the

concerned authority to examine the feasibility of his regularisation. While

doing so, the authorities ought to adopt a positive approach coupled with an

empathy for the person. As has been repeatedly stressed by this court, security

of tenure is necessary for an employee to give his best to the job. In this behalf,

we do commend the orders of the Government of Haryana (contained in its

letter dated 6490 referred to hereinbefore) both in relation to workcharged

employees as well as casual labour.

We must also say that the orders issued by the Governments of Punjab and

Haryana providing for regularisation of ad hoc/temporary employees who have

put in two years/one year of service are quite generous and leave no room for

any legitimate grievance by any one.

These are but a few observations which we thought it necessary to make,

impelled by the facts of this case, and the spate of litigation by such employees.

They are not exhaustive nor can they be understood as immutable. Each

Government or authority has to devise its own criteria or principles for

regularisation having regard to all the relevant circumstances, but while doing

so, it should bear in mind the observations made herein.”

In view of the aforesaid decision also, there is, prima facie, a case in favour

of the present petitioners.

6. In similarly situated another writ petition being W.P. (S) No. 695 of 2009

dated 29th April, 2009 (Annexure 5 to the memo of the petition), this Court

while admitting the writ petition passed the following order in paragraph 7:

“7. I hereby, direct the respondents and their officers to retain the services of

the present petitioners. If any new ground is emerging, like the misconduct etc.,

then, the respondents are permitted to hold an enquiry and take a legal action,

permissible under the law, but, the termination will be done by the permission

of this Court. If the respondents find any difficulty, they are at liberty to move

an Interlocutory Application in the pending writ petition.”

7. In view of the aforesaid facts and the decisions and also looking to the

contentious issues raised in this writ petition, Rule.

8. Rule is made returnable on 17th October, 2012.

9. Meanwhile, I hereby direct the respondents and their servants and officers

to retain the services of the present petitioners. If any new ground is found like

misconduct etc., the respondents are permitted to hold inquiry and take legal

action, but, the termination will be done with prior permission of this Court. If

the respondents find any difficulty, they are at liberty to move before this Court

by filing a fresh interlocutory application in this pending writ petition.

10. Registry is directed to enlist this matter under the heading “For Hearing”

on 17th October, 2012.

11. I.A. No. 1704 of 2011 is, accordingly, disposed of.

(D.N. Patel, J.)

Ajay

 
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Published in Labour & Service Law
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