Judgment:
B.N. Mahapatra, J.
1. Challenge, in this Writ Petition, is made to the Order Dated 03.01.2006 passed in O.A. No. 1135 of 1996 under Annexure-1 by Orissa Administrative Tribunal, Bhubaneswar Bench, Bhubaneswar (hereinafter referred to as 'the Tribunal') by which the termination of service of the Opposite Party has been struck down being not in accordance with the rules.
2. The factual background in a nut shell is that the Opposite Party Sri Siba Prasad Swain was appointed as Junior Clerk on ad hoc basis for 89 days under Office Order Dated 10.09.1991 (Annexure-2) issued by the Chief Engineer, Designs, Irrigation, Orissa, Bhubaneswar (Petitioner No. 2). Sri Swain joined the said post on 25.09.1991. While working as such on ad hoc basis, the Opposite Party made a representation to Petitioner No. 2 for his appointment as Assistant Embankment Inspector. As there was vacancy in the said post, the Opposite Party was given appointment as Assistant Embankment Inspector under Order Dated 25.10.1991 (Annexure-3). The Opposite Party joined the said post on 28.10.1991. Subsequently, the Government in Water Resources Department issued Order No. 29508 dated 04.11.1991 (Annexure-4) for termination of service of the Opposite Party. Pursuant to the said order, the service of the Opposite Party was terminated vide Memo No. 7577 dated 07.11.1991 (Annexure-5). Challenging the said order of termination, the Opposite Party approached the Tribunal in O.A. No. 1135 of 1996. The Tribunal vide its Order Dated 03.01.2006 allowed the O.A. on the ground that the service of the Opposite Party was terminated without assigning any reason and affording opportunity of personal hearing. While doing so, the Tribunal relied on its earlier order passed in O.A.No.1944 of 1993. It is the said order which has been challenged in this Writ Petition.
3. Mr.Trilochan Rath, Learned Addl. Standing Counsel appearing on behalf of the Petitioners, submitted that the appointment of the Opposite Party was not made following the regular process of selection. Hence, his initial appointment as Junior Clerk as well as the appointment against the post of Assistant Embankment Inspector being not regular are ab initio void. The appointment orders issued to the Opposite Party clearly indicate that the said two appointments were made purely on temporary basis. The Tribunal without applying its mind has illegally quashed the order of termination. While doing so, the Tribunal relied on its earlier order passed in O.A. No. 1944 of 1993 even though the facts of that case are completely different from the case of the Opposite Party. Even if for the sake of argument it is admitted that the applicants in O.A. No. 1944 of 1993 were similarly situated with that of the Opposite Party and they were taken back to service by virtue of the order of the Tribunal, the Opposite Party cannot claim the said benefit as Article 14 of the Constitution does not envisage for negative equality.
Mr. Rath, in support of his arguments, has placed reliance on the following Judgments of the Hon'ble Supreme Court rendered in Oriental Insurance Co. Ltd. v. T.Mohammed Raisuli Hassan : (1993) 1 SCC 553 and Madhya Pradesh Hasta Shilpa Vikas Nigam Ltd. v. Devendra Kumar Jain and Ors. : (1995) 1 SCC 638 and Kastha Niwarak G.S.S. Maryadit, Indore v. President, Indore Development Authority (2006) 2 SCC 604.
4. Mr. S.D. Das, Learned Senior Advocate appearing for the Opposite Party contended that the Opposite Party was appointed in the post of Assistant Embankment Inspector in Quality Control and Research Division, Bhawanipatna under Petitioner No. 2 through regular process of recruitment. Before such appointment was given, the Opposite Party was called for an interview and was required to submit necessary documents. Therefore, there is no violation of any statutory rule and the Opposite Party was duly selected for the said post. The service of the Opposite Party was terminated without assigning any reason and affording him opportunity of being heard. No notice was served on the Opposite Party prior to passing of the order of termination. Therefore, the Opposite Party, who was appointed in a substantive post, should not have been terminated without following the principles of natural justice. The Opposite Party stands on the similar footing to that of the applicants in O.A. No. 1944 of 1993. It was further argued that services of 12 persons were terminated on the ground, of illegal appointment. One of them, namely, Asish Dutta and two others moved the Tribunal challenging the said order of termination and the Tribunal by its Order Dated 13.03.1996 struck down the said order of termination holding the same to be illegal. By virtue of the said order, those three persons along with one S.N. Das were taken back to the said posts and were allowed to continue in service. The case of present Opposite Party, who stood in the similar footing and asked for identical relief, having not been considered by the Petitioners, it amounts to gross discrimination and violative of Article 14 of the Constitution of India. The Tribunal after considering all these aspects allowed the O.A. filed by the Opposite Party. Therefore, the Writ Petition is liable to be dismissed.
5. We have considered the rival submissions made by the Learned Counsel for the parties and perused the record.
6. Now the questions that fall for consideration by this Court are as follows:
(i) Whether appointments of the Opposite Party, in the post of Junior Clerk as well as Assistant Embankment Inspector were made through a valid recruitment process?
(ii) Whether an appointment made on temporary basis can be terminated without notice and assigning reason?
(iii) Whether a temporary employee does not have any right to the post to which he/she has been appointed and his/her service can be terminated in terms of contract of service?
(iv) Whether Article 14 of the Constitution of India envisages for negative equality?
7. The first question is as to whether appointment of the Opposite Party in the post of Junior Clerk as well as Assistant Embankment Inspector was through a valid selection process. The Petitioners claim that appointment of the Opposite Party was irregular and made on the basis of his representation without following due process of selection and, therefore it is void ab initio. Mr. Das, Learned Senior Advocate for the Opposite Party strongly contended that the Opposite Party had been given appointment in accordance with the rules prescribed for the post. The Opposite Party was called for an interview and after producing certain documents, he was duly selected. However, Mr. Das has not brought to our notice any document in support of his contention that the Opposite Party was called for any interview and after following due recruitment procedure such as advertisement of vacancy, calling for names from Employment Exchange, etc., the Opposite Party had been selected for the post. It is the settled legal proposition that a party has to plead his case and produce/adduce sufficient evidence to substantiate his submission made in the petition. In case, the pleadings are not complete, the Court is under no obligation to entertain the pleas.
In Bharat Singh and Ors. v. State of Haryana and Ors. : AIR 1988 SC 2181, the Apex Court observed as under:
In our opinion, when a point, which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the Writ Petitioner, must plead and prove such facts by evidence which must appear from the Writ Petition and if he is the Respondent, from the counter affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the Writ Petition or to the counter-affidavit, as the case may be, the Court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a Writ Petition or a counter-affidavit. While in a pleading, i.e. a plaint or written statement, the facts and not evidence are required to be pleaded. In a Writ Petition or in the counter affidavit, not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it.
In State of Punjab and Ors. v. Surindra Kumar and Ors. : AIR 1992 SC 1593, the Apex Court held that the Court must seek the adherence to the said terms and conditions of the appointment and there is no reason why terms and conditions incorporated in the appointment letter cannot be enforced in a contract of service.
At this juncture, it is necessary to examine the terms and conditions mentioned in appointment orders. The orders of appointments issued to the Opposite Party initially for the post of Junior Clerk & subsequently for the post of Assistant Embankment Inspector under Annexures-2 & 3 read as follows:
Annexure-2
Office of the Chief Engineer, Designs Irrigation, Orissa.
Office order No. 6321
Dated Bhubaneswar the 10th Sept. 1991.
Sri Shibaprasad Swain,.whose particulars are given below is appointed as Jr. Clerk on adhoc basis for a period of 89 days with effect from the date of his joining the said post against one vacancy under Dam Safety & Hydraulic Research Circle, Burla on pay of Rs.950 P.M. in the scale of pay of Rs.950-20-1150-EB-25-1500 with usual D.A. and other allowances as sanctioned by Govt, from time to time.
On appointment he is posted in Dam Safety & Hydraulic Research Circle, Burla.
The appointment is purely temporary and may be terminated at any time without notice.
xx xx xxSd/- B.C. Nayak
Chief Engineer, Designs
Memo No. 6322 dated 10.9.91
Copy forwarded to Sri Shibaprasad Swain, C/o Sri RK.Patnaik, Asst. Collector, Customs & Central Excise, Bhubaneswar for information & necessary action.
He shall join the appointment within 10 days.
Chief Engineer, Designs
Annexure-3
Office of the Chief Engineer, Designs Irrigation, Orissa.
Office order No. FE-APT-10/90
Dated Bhubaneswar the 25th October, 1991
Sri Shibaprasad Swain, now working as Jr. Clerk in Dam Safety & Hydraulic Research Circle is appointed as Asst. Embankment Inspector in the scale of pay of Rs. 1200-3-1560-EB-40-2040 with usual D.A. and other allowances as sanctioned by Governmentfrom time to time and posted in Quality Control & Research Division, Bhawanipatna against vacant post.
The appointment is purely temporary & may be terminated at any time without notice.
xx xx xxSd/- B.C. Nayak
Chief Engineer, Designs
Memo No. 75 dated 25.10.91
Copy forwarded to Sri Shibaprasad Swain, Jr. Clerk through the Executive Engineer, Dam Safety (Medium Project) division for information and necessary action.
Chief Engineer, Designs
The first appointment order (Annexure-2) shows that initial appointment of the Opposite Party as Junior Clerk was on ad hoc basis for a period of 89 days. The said order contains further condition that appointment of the Opposite Party was purely temporary and terminable at any time without notice. The second appointment order (Annexure-3) also shows that the appointment of the Opposite Party was purely temporary and terminable at any time without any notice.
Law is well settled that appointment to any public post is to be made by advertising the vacancy in appropriate manner by calling for the applications and any appointment made without doing so is violative of the mandates of Articles 14 and 16 of the Constitution of India as it deprives eligible candidates for being considered.
In State of Haryana and Ors. v. Piara Singh and Ors. : AIR 1992 SC 2130, the Apex Court held as under:
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 & all those who apply in response thereto should be considered fairly.
Therefore, appointments made on temporary or ad hoc basis without advertising the vacancy & inviting applications from other eligible candidates violates the mandates of Articles 14 & 16 of the Constitution.
In view of the above position of law, we have no hesitation to hold that the appointments of the Opposite Party in the post of Junior Clerk as well as Assistant Embankment Inspector were made on temporary basis without following any valid procedure of recruitment & therefore void.
8. The second question is as to whether appointment made on temporary basis can be terminated without notice and assigning any reason. Admittedly, the orders of appointments under Annexures 2 & 3 show that the appointments of the Opposite Party were purely on temporary basis and liable to be terminated without any notice.
In Hasta Shilpa Vikas Nigam Ltd.'s case (supra) the termination of an employee whose appointment was made on purely temporary basis was under consideration and the Apex Court held as follows:
A plain reading of these two orders will go to show that the appointments were made purely on temporary basis and their services were liable to be terminated at any time without notice or assigning any reason. In the case of appointment on temporary basis a servant who is so appointed does not acquire any substantive right to the post, even though the post itself may be permanent and it is an implied term of such appointment that it may be terminable at any time and without notice, A temporary government servant does not become a permanent government servant unless he acquires that capacity by force of any rule or he is declared or appointed as a permanent servant. In the present case there is no rule under which the Respondents may be deemed to have become permanent by force of such rule nor they were so declared by any subsequent order of the Appellant-Company to have acquired that status. On the contrary the Respondents all along continued to be temporary and according to the terms of the order of appointment their services could be terminated at any time without any notice or assigning any reasons. In such a case it is not necessary to follow the formalities contemplated by Article 311 of the Constitution. In these facts and circumstances the High Court was not right in holding that the Respondents were entitled for being heard before passing the said order of termination of their services and that the order of termination was bad in law on that account.
In T. Mohammed Raisuli Hassan's case (supra) the Apex Court held that since the terms and conditions of service do not indicate or suggest for service of one month's notice as a condition precedent for termination, non-service of one month's notice in writing by the Appellant on the Respondent before terminating the latter's service did not invalidate or vitiate such termination.
In R.K. Misra v. U.P. State Handloom Corporation Ltd. and Ors. : AIR 1987 SC 2408, the Apex Court held that incumbent to a post who has been given appointment on temporary basis and is terminable without notice, has no right to hold the post and is not entitled for an opportunity of hearing before his services are dispensed with as his termination does not amount to forfeiture of any legal right.
In the present case, it is not in dispute that appointment of the Opposite Party was purely temporary in nature and has never become permanent till passing of the termination order. In such situation, the Opposite Party was neither entitled for any personal hearing nor was required to be served with any notice prior to termination of his service. Therefore, the Tribunal is not right in holding that the impugned order of termination was not in accordance with rule & its decision striking down the same on the ground that no opportunity of personal hearing was afforded to the Opposite Party before termination of his service is not sustainable in the eye of law.
9. The third question is: Whether a temporary employee has any right to tne post to which he has been appointed and his service can be terminated in terms of contract of service? Law is well settled that a temporary employee has no substantive right to the post he holds even though the post may be permanent. Such an incumbent carries only a limited right and cannot make any claim to the post.
The Apex Court in Parshotam Lal Dhingra v. Union of India : AIR 1958 SC 36, held that a person can be said to acquire a lien on a post only when he has been confirmed and made permanent on that post and not earlier. A government servant holding a post temporarily does not have any right to hold the said post.
In Nazira Begum Lashkar and Ors. v. State of Assam and Ors. AIR 2001 SC 102, the Apex Court held that a person holding temporary/ ad hoc post is not a member of service in accordance with the statutory Rules &, therefore, cannot have any vested right in the post'.
In State of Orissa and Anr. v. Dr. Pyari Mohan Misra : AIR 1995 SC 974, the Apex Court upheld the reversion of the officer and held that reversion was justified as he was holding a higher grade post on ad hoc basis and his mere prolongation on the said post would not ripen, into a.regular service to claim substantive status.
In State of U.P. and Ors. v. Kaushal Kishore Shukla : (1991) 1 SCC 691, the Apex Court held that under the service jurisprudence temporary employee has no right to hold the post & his services are liable to be terminated in accordance with relevant service rules & the terms of contract of service.
In the present case, the orders of appointment contain the condition that the service was purely temporary in nature & terminable at any time without notice. The Opposite Party did not have any right to the posts he had been appointed. Therefore, the order of termination passed under Annexure-4 is in accordance with the terms & conditions stipulated in the orders of appointment (Annexures-2 & 3) & it is held to be valid.
10. The fourth question is as to whether Article 14 of the Constitution of India envisages for negative equality? Case of the Opposite Party is that 4 other persons similarly situated have been taken back to service & are continuing in service by virtue of order of the Tribunal whereas he has been illegally subjected to discrimination by the Petitioners. This amounts to violation of Article 14 of the Constitution. The Petitioners in paragraph-8 of the rejoinder have stated that the said 4 persons were recruited by a selection committee & the Government vide letter No. 18247 dated 01.06.1996 instructed to implement the order of the Tribunal without filing SLP. Be that as it may, a party cannot claim that if something wrong has been done in any case, similar direction should be given for doing the wrong again. No illegality should be permitted to perpetuate under Article 14 of the Constitution. Article 14 does not envisage for negative equality, & no one can be permitted to take benefit of negative equality.
In Sneh Prabha (Smt.) and Ors. v. State of U.P. and Anr. : AIR 1996 SC 540, the Apex Court held as follows:
It would thus be seen that no discrimination, much less invidious discrimination, was meted out to the Appellant. Even if a benefit is wrongly given in favour of one or two, it does not cloth with a right to perpetrate the wrong & the Court cannot give countenance to such actions though they are blameworthy & condemnable. Equality clause does not extend to perpetrate wrong nor can anyone equate a right to have the wrong repeated & benefit reaped thereunder.
The Apex Court in Kastha Niwarak G.S.S.Maryadit's case (supra) held as under:
So far as the allotment to non-eligible societies is concerned even if it is accepted, though specifically denied by the Authority, to be true that does not confer any right on the Appellant. Two wrongs do not make one right. A party cannot claim that since something wrong has been done in another case direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong.. In such matters, there is no discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs on a par. Even if hypothetically it is accepted that a wrong has been committed in some other cases by introducing a concept of negative equality the Appellant cannot strengthen its case. It has to establish strength of its case on some other basis & not by claiming negative equality. (See Union of India v. International Trading Co. : (2003) 5 SCC 437).
In Maharaj Krishan Bhatt and Anr. v. State of Jammu and Kashmir and Ors. : (2008) 9 SCC 24, the Apex Court held ,that there can be no two opinions about the legal proposition that Article 14 or Article 16 of the Constitution of India cannot be invoked and pressed into service to perpetuate illegality.
In Kerala State Electricity Board v. Saratchandran. P and Anr. : AIR 2009 SC 191, the Apex Court held that Article 14 is a positive concept. Provisions of Article 14 cannot be invoked only because some illegality has been committed by an employer as a result whereof some employee has obtained benefit. The Constitutional Scheme of equality clause would apply only in a case where the parties are similarly situated, but no equity can be claimed on the basis of an illegality.
Thus Article 14 of the Constitution does not envisage for negative equality. Merely because some similarly situated persons have got certain benefit wrongly by virtue an order of the Tribunal, it does not confer any right on the Opposite Party to claim such negative equality out of the said order.
11. In the result, the petition succeeds and is allowed accordingly. No order as to costs.
Mr. L. Mohapatra, J.
I agree.