Full Judgment
Rajesh Balia, J.
1. The petition comes in the following circumstances:
The petitioner was, in the first instance, appointed on the post of Junior Instructor at the fixed pay of Rs. 1200/- per month vide order Ex. 1 dated 1 5.6.1989 at Mini Industrial Training Institute at village Gogunda, district-Udaipur. Before the expiry of 3 months from 15.6.1 986, another appointment order was issued in favour of the petitioner for a period of 3 months, as Junior Instructor (House Wiring) at Mini Industrial Training Institute, centre Dhariyawad in district Udaipur by the very same appointing Authority vide order Ex. 2 dated 22.9.89. Vide order Ex. 3 dated 18.11.1989, the period of appointment under Ex. 2 dated 22.8.1989 was extended upto21.2.1990. Thereafter, while the order was under operation and petitioner was followed to continue; by order dated 23.1.1990 [Ex.4), the order Ex. 3 was cancelled, yet by the very same authority, vide order dated 30.1.1990 [Ex.5), the petitioner was purporsed to be appointed afresh for a period of 3 months on the very same post. The perported new appointment vide Ex.5 was extended successively for periods of 3 month vide order dated 5.4.1990 [Ex.6) and vide order dated 12.6.1990 [Ex.7). In this manner, the petitioner continuously worked as Junior Instructor, appointed by the very same authority, namely, the Deputy Director [Technical Training) Government of Rajasthan, Jaipur, from 15.6.1989 to 6.10.1990, with a perported break of service from 23.1.1990 to 31.1.1 990. Meanwhile, an office-order was issued by the Director (Technical Training), on 30th June, 1990 by which the Deputy Director (Technical Training), Udaipur was authorised to appoint Instructors at Mini I.T.I. centres in the tribal area for a period of six months. This order is produced as Ex. 8. In the instructions appended to the order, the following clause was inserted:mijksDrkuqlkj N% ekg dh vof/k gsrq fu;qfDr ds i'pkr nwljk l= izkjEHk djus ds yxHkx ,d ekg ds xsi vof/k vo'; nh tk;sxh ,oa iwoZ fu;qfDr vuqns'kd dks iqu% fu;qDr ugh fd;k tk;sxk A
2. On the aforesaid material, the petitioner has contended that one order Annx. 8 dated 30.6.1990 is ultravires Articles 14 and 16 of the Constitution of India, as it de-bars the petitioner from consideration for appointment under the State services. When there are vacancies and State is desirous of filling the same, by prohibiting appointment to those persons who have already serving as Junior Instructors on temporary or ad-hoc basis, is patent denial of equal opportunity in the matter of employment. The petitioner had filed this writ petition on 4.10.1990 before the expiry of the last extended term, apprehending the termination of his services. He also moved an application for interim order for restraining the respondents from terminating his services and this Court vide order dated 8.10.1990, has directed that-meanwhile, the petitioner's services shall not be terminated, if not already terminated.
3. The respondents have filed a return and it has been contended that in view of the prevailing circumstances in the area, the respondents are compelled to change the Instructor or a particular trade according to local demand of the area, availability of tribal youth to undertake training and response to undertake job under the self employment scheme. In view of that, no permanent staff of instructor be appointed. The Instructors who have to be appointed, of a particular trade, have to be idle and keeping in view the aforesaid position, Instructors are appointed on temporary and ad-hoc basis for a specified period of 3 months and for a course period that is of 6 months. If local need exist, they were continued on the same terms.
4. It was also pleaded by the respondents that the services of the petitioner came to an end vide order dated 1.10.1990, which has been filed on record as Annx. R/1. According to the respondents, services of the petitioner who was appointed on 5.4.1990, has come to an end on completion of fixed-term appointment, as extended vide Ex. 7 and, therefore, there arises no legal cause for the petitioner to invoke the extraordinary jurisdiction under Article 226 of the Constitution of India.
5. The petitioner had filed a Second Stay thereafter, stating that he has, in fact, worked as Junior Instructor upto 22.10.1990 and he was stopped from taking classes from 23rd October, 1990 by passing the order Ex. R/1 in back-date.
6. The impugned clause of the order dated 30th June, 1990, as quoted hereinabove, is unequivocal in its terms that there shall be a gap of one month between two sessions of training after six months and a person who has been earlier appointed Instructor will not be reappointed. Thus, while it envisages that the post may continue and persons may be required to be appointed on the same post for the same course, yet a person who has already been appointed earlier will not be re-considered for appointment in the successive sessions. This clearly excludes the consideration of those persons for the purpose of granting them appointment on the post which in continuing and which is required to be filled, notwithstanding the fact that the applicant may be otherwise fully eligible and suitable and may have been more meritorious than the fresh recruits simply on the ground that he had earlier been offered a short-term employment. No needs, much less a reasonable nexus to one object sought to be achieved by such exclusion has been pointed out. It defies all reasons why an earlier temporary appointment for short-period, renders a persons ineligible for consideration for appointment for the new session. This is clearly violative of the guarantees provides under Articles 14 and 16 of the Constitution of India wherein the State is enjoined with an obligation to offer equal opportunities of employment to all.
7. It brings to the fore the next contention raised by learned Counsel for the petitioner that his services cannot be deemed to be automatically terminated on the expiry of extended period of service vide order dated 12.6.1990 [Ex.7]. From the very tone of successive appointments, it is apparent that the post was existing throughout since the appointment of the petitioner on 1 5.6.1989, it was intended to employ the petitioner indefinitely, but for reasons best known to the respondents, they chose to issue others for appointment for a period of 3 months or extension of previous appointment by 3 months at a time. Even a crude attempt has been made to bring an artificial gap in the continuity of service by first cancelling the order Ex.3 dated 18.11.1989 which spoke of extending the petitioner's services upto 21.2.1990 vide order Ex. 4 dated 23.1.1990 and, soon thereafter, clear purporting to be a fresh appointment was made on 31.1.1 990 by the very same authority and on the very same post and that appointment has again been extended vide Ex. 6 and Ex. 7, and then when the petitioner approached this Court ; the respondents have came out with a plea of automatic termination of services of fixed-term appointment., by treating the petitioner to have been an appointee by order dated 5.4.1990 only, ignoring all previous orders including the order dated 31.1.1 990, of which the order dated 5.4.1 990 was only an extension.
8. To say the least, it hardly behoves the image of the State as a model employer which it professes to be. Camouflaging the State's action in a manner only to keep its activities outside the precincts of beneficial legislation made for weaker section in order to defeat the same, when, in fact, conditions for keeping such action free from the rigours of such law does not exist; is clear abuse of the process of law and per se arbitrary and unreasonable. There is no magic in the use of words for naming any employment as 'fixed term employment' merely for the purpose of keeping it out of the purview of definition of 'retrenchment' whereas, in fact, the post exists, work exist and requirement to continue the incumbent on the post exists but still the orders are pretended to be issued for fixed-term employment from time to time. In such Case it is appropriate to lift the veil to look to the real intent and soul of the order.
9. I am fortified in my aforesaid conclusion by a Division Bench decision of Allahabad High Court, reported in 1987 D.T.C. 1687, wherein the Court observed:. The nature of employment must be judged by the nature of duties performed and not on the letter issued by the employer. If contractual employment is resorted to as a mechanism to frustrate the claim of the employee to become regular or permanent against a job which continues or the nature of duties is such that colour of contractual agreement is given to take it out from Section 2(00), than such agreement cannot be regarded as fair or bona fide. Section 2(OO)(bb) cannot be extended to such cases where the job continues and the employee's work is also satisfactory but periodical renewals are made to avoid regular status to employees. That would be unfair practice...
10. The facts of the case speak for themselves. Petitioner's services cannot be termed be a fixed term appointment which will come to an automatic halt on the expiry of extended period of service. The termination of his services amounts to retrenchment as the Mini Industrial Training centres where the petitioner was employed comes within the purview of industry' as defined under Section 2(j) of the Industrial Disputes Act, 1947 and the petitioner is a 'workman' employed therein; within the meaning of Section 2(c) of the Act of 1947. Since the petitioner was continuously for a period of one year in service with effect from 15.6.1989. even on 5.10.1990, artificial break brought about vide Ex. 4 has to be ignored, the services of the petitioner could not have been terminated without fulfilling the conditions of notice and retrenchment compensation, as required by Sep. 25F of the Act of 1947, which un-doubtedly and un-disputedly not complied with in the present case. Hence, treating petitioner's services to have come to an automatic end on 5.10.1990, is invalid and cannot be sustained. Ever otherwise, as has been held above, the actions of respondents being clearly arbitrary and unreasonable, is un- sustainable, being violative of Articles 14 and 16 of the Constitution of India.
11. Petition is, therefore, allowed. The order' Ex. 8 to the extent it excludes consideration of persons once employed from being appointed afresh, as per the impugned portion quoted hereinabove, is quashed. The order Ex. R/1 dated 1.10.1990 by which services of the petitioner are terminated, is also quashed and the respondents are directed to treat the petitioner continuing in service, without any break, with all consequential benefits. This order will not preclude the respondents from terminating petitioner's services in future in accordance with law.
12. The petitioner will also set his costs of this petition from the respondents which I quantify at Rs 1000/-.