Smt. Rekha Arora Vs. Chairman, National Commission for Scheduled Castes.Scheduled Tribes - Court Judgment

Excerpt:
the case dealt with delay and laches in challenge to termination of the petitioner appointed on ad hoc basis in service of one and half year - the termination was observed to be valid as there was sudden failure in reporting to the duty and failed to indicate that she intended to avail 'maternity leave' - thereon the respondent filed up the vacancy in her place and writ in challenge of the termination was filed after one year - hence the writ was found to be barred by laches as the respondent did not act in biased manner or contrary to law - before the third party interest was created, the petitioner should have approached the court, hence it was improper in taking the question whether her ad hoc appointment was to be made permanent as it ousted the valid person and properly employed in her place - it was ruled under article 226 of the constitution of india, that the writ was to be dismissed - - in fact, taking work, from daily wage worker or ad hoc appointee is always viewed to be only for a short period or as a stop gap arrangement, but we find new culture is growing to either for financial gain or for effectively with sword of damocles handing over their heads or to continue with favored one in the cases of ad hoc employee with staling competent and legitimate claimants. it is their submission that on the petitioner's failure to report for duty after the expiry of her leave, they had informed the employment exchange and have filled up their requirement for a stenographer. 5. i am unable to accept the writ petition firstly for the reason that the petitioner had failed to indicate that she intended to avail of 'maternity leave'.perhaps she had not so applied for the reason that she apprehended that the leave would not be sanctioned as she was an ad-hoc appointee only. even if this was not the reason for her to making a clean declaration as to the requirement of maternity leave, the respondents have not acted unfairly or in a biased manner or contrary to any law or rules in filling up the vacancy created by her sudden failure to report for duty. having failed to do so the petition is barred by laches.ordervikramajit sen, j.1. in the present writ petition the petitioner's alleged termination of services by the respondent is under challenge. the facts of the case are that by order dated 4.9.1995 the petitioner was appointed as a hindi stenographer 'on purely as-hoc basis in the scale of pay rs. 1200-30-1560-eb-40-2040 for a period of 89 days with effect from 23.8.1995 to 19.11.1995 or until further orders, whichever is earlier'. in the order it is further clarified that this appointment shall not confer any claim for regular appointment. it is not in dispute that the petitioner continued in service till 17.2.1997, that is, one and a half years from her initial period of engagement. learned counsel for the respondent has submitted that no rights exist in favor of the petitioner for claiming regularisation of service or even continuance of service. i am unable to accept this argument as carrying any weight for the dismissal of the petition. attention must be drawn to the decision of the hon'ble supreme court in gujarat agricultural university v. rathod labhu bechar & ors, 2001 1 a.d. (s.c.) 327, the hon'ble supreme court observed as follows:'in fact, taking work, from daily wage worker or ad hoc appointee is always viewed to be only for a short period or as a stop gap arrangement, but we find new culture is growing to either for financial gain or for effectively with sword of damocles handing over their heads or to continue with favored one in the cases of ad hoc employee with staling competent and legitimate claimants. thus we have no hesitation to denounce this practice. if the work is of such a nature, which has to be taken continuously and in any case when this pattern become apparent, when they continue to work for year after year, only option to the employer is to regularise them. financial viability no doubt is one of the considerations but then such enterprise or institution should not spread its arms longer than its means. the consequent corollary is, where work is taken not for a short period or limited for a season or where work is not of part time nature and if pattern shows work is to be taken continuously year after year, there is no justification to keep such persons hanging as daily rate workers. in such situation a legal obligation is cast on an employer if there be vacant post to fill it up with such workers in accordance with rules if any and where necessary by relaxing the qualification,s where long experience could be equitable with such qualifications, if no post exists then duty is cast to assess the quantum of such work and create such equivalent post for their absorption.'2. if the petitioner had still been in service, some relief may have been moulded in her favor. the prayers as they exist in the writ petition, however are difficult to grant at this stage. be that as it may what has further transpired is that on 17.2.1997 the petitioner had proceeded on leave. in the writ petition it has been stated that this was on maternity leave, but on a perusal of her application this statement does not appear to be entirely correct. all that has been stated by her is that the reason for leave is 'for health check up and test'. it does not even vaguely indicate that the petitioner was pregnant. it has been conveniently alleged that this fact was orally conveyed to her senior officer. even in her subsequent letter dated 24.2.1997 the petitioner did not indicate that she intended to avail to maternity leave and what was stated was that the doctor has advised her rest for a few more days.3. the petitioner appears to have reported back for duty on 7.5.1997 on which date she had filed certificate of given jyoti clinic & nursing home. strangely this certificate mentions that she ' was on maternity leave and now is fit to resume duties from 7.5.1997'. her senior officer had forwarded her case to the administration branch, on her reporting back.4. the respondents have declined to reengage the services of the petitioner. it is their submission that on the petitioner's failure to report for duty after the expiry of her leave, they had informed the employment exchange and have filled up their requirement for a stenographer. it is further stated that at the present moment all further appointments in the respondent have been frozen. it is submitted that if the petition is allowed the direct consequence would be the removal from service of the person employed after the petitioner stopped reporting for duty. it is further submitted that even though the petitioner was aware that she was not being reemployed, as early as in may 1997, the writ petition was filed one year later. these contentions have significant force.5. i am unable to accept the writ petition firstly for the reason that the petitioner had failed to indicate that she intended to avail of 'maternity leave'. perhaps she had not so applied for the reason that she apprehended that the leave would not be sanctioned as she was an ad-hoc appointee only. even if this was not the reason for her to making a clean declaration as to the requirement of maternity leave, the respondents have not acted unfairly or in a biased manner or contrary to any law or rules in filling up the vacancy created by her sudden failure to report for duty. secondly, the petitioner ought to have approached this court with expedition and before any third party interest had been created. having failed to do so the petition is barred by laches. it would not be proper for this court to go into the question of whether her ad-hoc appointment should be granted a permanency and thereby oust another person who has been validly and properly employed in her stead.6. the petition is without merit.

Judgment:
ORDER

Vikramajit Sen, J.

1. In the present writ petition the Petitioner's alleged termination of services by the Respondent is under challenge. The facts of the case are that by order dated 4.9.1995 the Petitioner was appointed as a Hindi Stenographer 'on purely as-hoc basis in the scale of pay Rs. 1200-30-1560-EB-40-2040 for a period of 89 days with effect from 23.8.1995 to 19.11.1995 or until further orders, whichever is earlier'. In the Order it is further clarified that this appointment shall not confer any claim for regular appointment. It is not in dispute that the Petitioner continued in service till 17.2.1997, that is, one and a half years from her initial period of engagement. Learned counsel for the Respondent has submitted that no rights exist in favor of the Petitioner for claiming regularisation of service or even continuance of service. I am unable to accept this argument as carrying any weight for the dismissal of the Petition. Attention must be drawn to the decision of the Hon'ble Supreme Court In Gujarat Agricultural University v. Rathod Labhu Bechar & Ors, 2001 1 A.D. (S.C.) 327, the Hon'ble Supreme Court observed as follows:

'In fact, taking work, from daily wage worker or ad hoc appointee is always viewed to be only for a short period or as a stop gap arrangement, but we find new culture is growing to either for financial gain or for effectively with sword of damocles handing over their heads or to continue with favored one in the cases of ad hoc employee with staling competent and legitimate claimants. Thus we have no hesitation to denounce this practice. If the work is of such a nature, which has to be taken continuously and in any case when this pattern become apparent, when they continue to work for year after year, only option to the employer is to regularise them.

Financial viability no doubt is one of the considerations but then such enterprise or institution should not spread its arms longer than its means. The consequent corollary is, where work is taken not for a short period or limited for a season or where work is not of part time nature and if pattern shows work is to be taken continuously year after year, there is no justification to keep such persons hanging as daily rate workers. In such situation a legal obligation is cast on an employer if there be vacant post to fill it up with such workers in accordance with rules if any and where necessary by relaxing the qualification,s where long experience could be equitable with such qualifications, If no post exists then duty is cast to assess the quantum of such work and create such equivalent post for their absorption.'

2. If the Petitioner had still been in service, some relief may have been moulded in her favor. The prayers as they exist in the writ petition, however are difficult to grant at this stage. Be that as it may what has further transpired is that on 17.2.1997 the Petitioner had proceeded on leave. In the writ petition it has been stated that this was on maternity leave, but on a perusal of her application this statement does not appear to be entirely correct. All that has been stated by her is that the reason for leave is 'for health check up and test'. It does not even vaguely indicate that the Petitioner was pregnant. It has been conveniently alleged that this fact was orally conveyed to her senior officer. Even in her subsequent letter dated 24.2.1997 the Petitioner did not indicate that she intended to avail to maternity leave and what was stated was that the doctor has advised her rest for a few more days.

3. The Petitioner appears to have reported back for duty on 7.5.1997 on which date she had filed Certificate of Given Jyoti Clinic & Nursing Home. Strangely this Certificate mentions that she ' was on maternity leave and now is fit to resume duties from 7.5.1997'. Her senior officer had forwarded her case to the Administration Branch, on her reporting back.

4. The Respondents have declined to reengage the services of the Petitioner. It is their submission that on the Petitioner's failure to report for duty after the expiry of her leave, they had informed the Employment Exchange and have filled up their requirement for a stenographer. It is further stated that at the present moment all further appointments in the Respondent have been frozen. It is submitted that if the petition is allowed the direct consequence would be the removal from service of the person employed after the petitioner stopped reporting for duty. It is further submitted that even though the Petitioner was aware that she was not being reemployed, as early as in May 1997, the writ petition was filed one year later. These contentions have significant force.

5. I am unable to accept the writ petition firstly for the reason that the Petitioner had failed to indicate that she intended to avail of 'maternity leave'. Perhaps she had not so applied for the reason that she apprehended that the leave would not be sanctioned as she was an ad-hoc appointee only. Even if this was not the reason for her to making a clean declaration as to the requirement of maternity leave, the Respondents have not acted unfairly or in a biased manner or contrary to any law or rules in filling up the vacancy created by her sudden failure to report for duty. Secondly, the Petitioner ought to have approached this Court with expedition and before any third party interest had been created. Having failed to do so the petition is barred by laches. It would not be proper for this Court to go into the question of whether her ad-hoc appointment should be granted a permanency and thereby oust another person who has been validly and properly employed in her stead.

6. The petition is without merit.