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PETITIONER: DIRECTOR, INSTITUTE OF MANAGEMENT DEVELOPMENT U.P

       Vs.

RESPONDENT: SMT. PUSHPA SRIVASTAVA

DATE OF JUDGMENT04/08/1992

BENCH: MOHAN, S. (J) BENCH: MOHAN, S. (J) SHARMA, L.M. (J) VENKATACHALA N. (J)

CITATION:  1992 AIR 2070            1992 SCR  (3) 712  1992 SCC  (4)  33        JT 1992 (4)   489  1992 SCALE  (2)155

ACT:      Civil Services :      Appointment purely on ad-hoc and on contractual  basis- person  appointed from time to time-Right to remain in  such post-Whether  comes  to an end on expiry of the  period  for which appointed.

HEADNOTE:      The Respondent was appointed in the appellant-Institute on  contract basis initially for a period of  three  months. The appointment was purely ad hoc and was extended from time to time. At one stage she submitted her resignation and  the same was accepted. Despite this, she made a further  request that  her services may be continued for some more time,  and she  was  appointed  on a contractual basis  as  a  Training Executive  on a consolidated compensation. This  appointment was also purely on ad hoc basis, terminable without notice.      However, a Committee of the appellant-institute,  which went  into  the question of abolition  of  redundant  posts, recommended the abolition of certain posts including the one held by the Respondent. The recommendation was accepted  and the  posts were abolished. The Respondent preferred  a  Writ Petition before the High Court challenging the action of the appellant-Institute.      The High Court directed the appellant-Institute to  put back  the Respondent on duty on the post held by her and  to regularise her services within three months.      The appellant-Institute preferred the present appeal by special  leave  against the High Court’s  order,  contending that  the  appointment of Respondent was purely  on  ad  hoc basis  and she had no right to continue in the  post  beyond six  months  for which period she was  appointed;  that  the appellant  had  to  abolish the post  because  of  financial constraints as                                                        713 it  was finding it difficult to disburse salary even to  its regular  employees; and that the posts abolished were  found to be redundant.      Disposing of the appeal, this Court,      HELD  : 1.1. It is clear that where the appointment  is

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contractual  and by efflux of time the appointment comes  to an  end, the respondent could have no right to  continue  in the post. [717-G]      1.2. In the instant case, the appointment was purely ad hoc  and  on  a  contractual basis  for  a  limited  period. Therefore, by expiry of the period of six months, the  right to remain in the post comes to an end. [719-D]      Jacob  M.  Puthuparambil and ors. etc. etc.  v.  Kerala Water Authority and ors. etc. etc., [1990] 1 Suppl. SCR 562, distinguished.      2. However, in the facts and circumstances of this case and taking into consideration that the Respondent is already 41  years  of age, it is directed that the services  of  the Respondent  may be continued till the end of  this  calendar year on the same terms as spelt out in the appointment order dated  1.9.90. Of course, it would be open to the  appellant to consider the regularisation of her services, should it so desire. In  that event, this judgment will not stand in  the way of such regularisation. [719G,H]

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2923 of 1992.      From  the  Judgment and Order dated 30.11.1991  of  the Allahabad High Court in W.P. No. 1041 of 1991.      S. Muralidhar for the Appellant.      R.F.   Nariman  and  Ms.  Meenakshi  Arora,   for   the Respondent.      The Judgment of the Court was delivered by      MOHAN, J. Special leave granted.      The  civil appeal is directed against the judgment  and order of the High Court of Allahabad, Lucknow Bench, Lucknow dated 30th November, 1991 rendered in Writ Petition No. 1041 of 1991. It was filed by the respondent in which the  prayer was for a mandamus to the appellant-in-                                                        714 stitute   to  regularise  the  service  of  the   respondent forthwith  as  Executive  in  the  Institute  of  Management Development, Uttar Pradesh.      The  appellant is an Institute established  inter  alia with   the   object  of  undertaking   applied   scientific, industrial  and management research, more  particularly,  in the filed of applied sciences with the emphasis on technical management   including  production   management,   financial management,  marketing management etc. It is  an  autonomous body. It is governed by the rules of the Association of  the Institute.      The  respondent was first appointed in  the  appellant- Institute  as a Research Executive on a  consolidated  fixed compensation  of Rs. 1,250 per month on contract  basis  for aperiod  of three months. It was specifically stated in  the order  that  it  was  purely on ad  hoc  basis,  liable  for termination without any notice on either side.      By an order dated 18th of July, 1988 the appointment of respondent was exended for a further period of three  months with  effect  from 2nd August, 1988 on the  same  terms  and conditions.  Here  again, it requires to be noted  that  the appointment was purely on ad hoc basis. On 28th of  January, 1989 a fresh Office Order was made appointing the respondent as  Training Executive on a contract basis for a  period  of three months. The consolidated pay was fixed at Rs.1,500 per month. Here also, the appointment was purely on ad hoc basis and terminable without notice by either side. On 20th  June,

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1989 she was appointed on a newly created post of  Executive carrying  a pay scale of Rs. 770-1600. This appointment  was also  on ad hoc basis for a period of six months and it  was terminable  by  one month’s notice on either  side.  on  5th January,  1990  another ad hoc appointment was  made  for  a period  of  three  months.  Though by  efflux  of  time  the appointment  came to an end on 21st of March, 1990  yet  she was continued beyond the prescribed period.      On 13th July, 1990 she submitted a resignation  letter. This letter of resignation was forwarded to the Director  of the  Institute who accepted the same by an order dated  31st July, 1990.      Notwithstanding the acceptance of resignation, on  25th of August, 1990, the respondent made a further request  that her  services might be continued for some more time  in  the appellant-institute.  On  this request, the  respondent  was appointed on a contractual basis as a Training Execu-                                                        715 tive  on a consolidated compensation of Rs.2,400 per  month. On  this occasion also, the appointment was purely on  a  ad hoc basis terminable without notice.      On  3rd of January, 1991 a Committee of  the  Institute went into the question of abolition of redundant posts.  The report  was  submitted by the Committee to the  effect  that several  posts including the posts of  Training  Supervisors and Research Executive had become redundant. Therefore,  the committee recommended their abolition. Accepting the  report of  the  committee  on 14th January, 1991  five  posts  were abolished  including  the post of Training  Supervisors  and Research  Executive  with  effect  from  the  last  training programme of the current financial year.      Since  the appointment of the respondent was coming  to an  end at the end of February 1991 she preferred W.P.  1041 of 1991.      Inter alia it was urged that there was no justification for not giving a regular or a permanent appointment to  her. She  was compelled to submit her resignation and  thereafter was given a permanent consolidated salary. Thus, the  action of   the   Institute   was   arbitrary,   unreasonable   and discriminatory.  It was further urged that there  was  every need for continuing the post.      The   learned  Judge  accepted  this   contention   and ultimately;  making the rule absolute, directed that she  be put back on duty on the post hitherto held by her. A further direction was issued to regularise her services within three months.  It  is  under  these  circumstances  special  leave petition was preferred by the Institute.      The argument on behalf of the appellant and the counter argument on behalf of the respondent, centered mainly  round the question whether the Director of the appellant-Institute was  competent to abolish the post. While the contention  on behalf of the appellant was that Rule 16(viii) of the  Rules of  the Association of the appellant-Institute would  enable the  Director  to create technical post. Per contra  it  was urged  on behalf of the respondent the Rule  11,  conferring powers on the Board for creating research post, would apply.      However, without elaborating the arguments on the scope of  the Rules it was urged on behalf of the  appellant  that the order dated 1.9.90                                                        716 was specific in its terms limiting the period of appointment for six months from the date of joining. This was purely  on a  contractual  basis. The consolidated pay was  Rs.  2,400. Therefore,   the  respondent  had  no  right   to   continue whatsoever  in  the  post beyond the period  of  six  months

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irrespective of the fact as to who had the right to  abolish the post.      The  appellant-Institute  came  to  abolish  the   post because  of  the financial constraints. The  report  of  the committee makes it very clear that the Institute was finding it  difficult  to  disburse pay etc.  even  to  its  regular employees.  Hence, the posts which were redundant  including the one occupied by the respondent came to be abolished.  If that  be so, the High Court was incorrect in directing  that the respondent be put back in  service and further directing that her services be regularised.      In  meeting  these submissions,  Mr.  Nariman,  learned counsel for the respondent would urge that the case did  not proceed  on  this line before the High Court  yet  he  would endeavour to establish that the respondent has a right to be regularised.  The respondent’s service had  continued  right from  20th  June, 1989 at any rate for more than  one  year. Though it was on ad hoc basis this Court has taken the  view that  having regard to the length of service the  respondent has a right to be regularised. In support of this submission reliance  is placed on Jacob M. Puthuparambil and Ors.  etc. etc. v. Kerala Water Authority and Ors. etc. etc., [1990]  1 Suppl.   SCR  page  562.  Thus  it  is  submitted  that   no interference is called for with the impugned judgment.      In  any event, should the Court be inclined  to  accept the contention of the appellant, the case of the  respondent may  be viewed with sympathy as she is 41 years of  age.  If she  is  thrown  out of job she will  be  literally  on  the streets.  Therefore,  the  Institute  may  be  directed   to consider her regularisation.      For our part, we do not think it is necessary to decide the question as to who has the power to abolish the post  of Training   Executive;  whether  under  Rule  16(viii),   the Director  or  under Rule 11, the Board since we  propose  to limit the controversy to the terms of appointment.      The order dated 1.9.90 reads as follow :                                                        717          "1-168D/1132                        1.9.90                             OFFICE ORDER          With  effect from the date of joining  Smt.  Pushpa          Rani  Srivastava is appointed a consolidated  fixed          pay  of Rs. 2400 per month on contract basis for  a          period of six months in the Institute.          The appointment of Smt. Srivastava is purely on  ad          hoc basis and is terminable without any notice.                                                        sd/-                                              (K.K.N. SINGH)                                                   DIRECTOR"      The following are clear from the above order :          (i)  The respondent was appointed on a  contractual          basis.          (ii)  The  post was to carry a consolidated pay  of          Rs.2400 per month.          (iii)  The duration of appointment was  six  months          from the date of the respondent joining charge.          (iv) It is purely on ad hoc basis.          (v) It is terminable without any notice.      Because the six months’ period was coming to an end  on 28th  February, 1991, she preferred the Writ petition a  few days before and prayed for mandamus which was granted by the learned  Judge under the impugned judgment. The question  is whether the directions are valid in law. To our mind, it  is clear  that  where  the appointment is  contractual  and  by efflux  of  time,  the  appointment comes  to  an  end,  the respondent could have no right to continue in the post. Once

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this conclusion is arrived at, what requires to be  examined is,  in  view  of  the  services  of  the  respondent  being continued from time to time on ‘ad hoc’ basis for more  than a year whether she is entitled to regularisation? The answer should  be in the negative. However, reliance is  placed  by learned  counsel on behalf of the respondent on the case  in Jacob v. Kerala Water Authority (supra).                                                        718      This  ruling, in our considered view, does not  advance the   case   of  the  respondent,  as  it  turned   on   the interpretation   of  Rule  9(a)(i)  of  Kerala   State   and Subordinate  Service Rules of 1958. The relevant portion  of the judgment is at page 569 which is extracted below :          "The claims made by the employees in this group  of          cases  is contested mainly of the plea  that  their          tenure  and  service conditions were  regulated  by          Rule  9(a)(i) of the Kerala State  and  Subordinate          Service   Rules,  1958  (hereinafter  called   ‘the          Rules’) which were statutory in character and were,          therefore, binding on the Authority as well as  the          employees.  It  is  contended  that  the  employees          belonging to different categories were appointed on          differed dates by the PHED prior to 1st April, 1984          under  this  rule and,  therefore,  their  services          could only be regulated thereunder."      In dealing with this, at page 577 the Court observed:          "If  any person who does not possess the  requisite          qualifications is appointed under the said  clause,          he  will  be liable to be replaced by  a  qualified          person.  Clauses  (iii)  of Rule 9  states  that  a          person appointed under clause (i) shall, as soon as          possible, be replaced by a member of the service or          an  approved candidate qualified to hold the  post.          Clause  (e)  of  Rule  9,  however,  provided   for          regularisation  of service of any person  appointed          under  clause  (i)  of  sub-rule  (a)  if  he   had          completed  continuous  service  of  two  years   on          December   22,   1973,   notwithstanding   anything          contained in the rules. This is a clear  indication          that in the past the Government also considered  it          just  and fair to regularise the service  of  those          who  had been in continuous service for  two  years          period  to the cut-off date. The spirit  underlying          this  treatment clearly shows that  the  Government          did  not  consider it just, fair or  reasonable  to          terminate  the  services  of  those  who  were   in          employment for a period of two or more years period          to  the  cut-off  date.  This  approach  is   quite          consistent  with the spirit of the rule  which  was          intended to be invoked to serve emergent situations          which could not brook delay. Such appointments were          intended  to be stop-gap temporary appointments  to          serve the stated purpose                                                        719          and  not long term ones. The rule was not  intended          to  fill large number of posts in the  service  but          only  those  which could not be  kept  vacant  till          regular  appointments were made in accordance  with          the  rules. But once the appointment continued  for          long,  the  services had to be regularised  if  the          incumbent possessed the requisite qualifications as          was  done by sub-rule (e). Such an  approach  alone          would   be  consistent  with   the   constitutional          philosophy adverted to earlier. Even otherwise, the          rule must be so interpreted, if the language of the

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        rule  permits, as will advance this  philosophy  of          the Constitution. If the rule is so interpreted  it          seems  clear  to us that employees  who  have  been          working  on the establishment since long,  and  who          possess the requisite qualifications for the job as          obtaining on the date of their employment, must  be          allowed  to  continue  on  their  jobs  and   their          services should be regularised."      In  the  instant  case,  there is  no  such  rule.  The appointment was purely ad hoc and on a contractual basis for a limited period. Therefore, by expiry of the period of  six months, the right to remain in the post comes to an end.      If the matter is viewed from this angle, that being the only  view, we find no difficulty whatever in setting  aside the impugned judgment which is accordingly set aside.      Lastly,  what  is appealed to us by the  respondent  is sympathetic consideration.      George Eliot said :          "More  helpful  than all wisdom or counsel  is  one          draught of simple human pity that will not  forsake          us."      Here  is  one  draught  from   us.  In  the  facts  and circumstances of this case, we direct that her services  may be continued till the end of this calendar year on the  same terms as spelt out in the order dated 1.9.90. Of course,  it would   be   open   to  the  appellant   to   consider   the regularisation of her services, should it so desire. In that event,  this  judgment  will not stand in the  way  of  such regularisation. However, we make it clear that it is not  to be understood that we have directed the regularisation.                                                        720      The  appeal  is disposed of in the above  terms.  There shall be no order as to costs. G.N                                      Appeal disposed of.                                                      721