An Employee Whose Services Are Entirely Contractual Has No Right To Post: Allahabad High Court
|The Allahabad High Court ruled that an employee whose services are entirely contractual has no right to post.
The Petitioner, Mahesh Kumar who is a safai karamchari on contract basis approached the High Court with this Writ Petition assailing the order determining the contract and in consequence terminating his services.
The bench of Justice J.J. Munir observed, “He is an employee, whose services are entirely contractual. Once that is the case, even if he has been selected through some kind of a mechanism to select under a Government Order and appointed on contract, he has no right to the post. There is no lien.”
Advocate Harish Chandra appeared for the Petitioner and Additional Chief Standing Counsel Amrita Singh appeared for the Respondent.
Brief Facts-
The petitioner was hired as a Safai Karmi (Sweeper) on a contractual basis with the condition that unsatisfactory work would lead to termination. Despite being hired as a sweeper, he was assigned driver duties by the Nagar Palika but paid as per the sweeper's salary. The petitioner, who was not confirmed in his position, applied for leave to contest elections for Chairman. He was terminated for violating service conditions under the Uttar Pradesh Municipalities Act, of 1916. It was mentioned that his contract was determined on that ground. Despite requesting revocation of the termination, no action was taken, leading to this writ petition.
The Court noted one submission that was forcefully made by the petitioner that his services could not be terminated based on misconduct in contesting elections, contrary to the Rules of 1956, without affording him an opportunity of hearing.
As per the Court, the stand of the Petitioner based on the principle in State of U.P. and another v. Kaushal Kishore Shukla, (1991) 1 SCC 691 about the provision of an opportunity in case of termination of service, founded on a charge, was inconsistent with the petitioner's stand that he was not a regular employee, to whom the Rules of 1956 or the Act apply.
The Court noted that the principle in the Kaushal Kishore Shukla case was laid down in the context of an employee appointed on an ad hoc basis for a fixed period that was extended from time to time, but not a contractual employee, whose conditions of service were governed by contract.
The Court further noted that according to that case, even a temporary government servant had no right to the post and his services could be terminated by a month's notice without assigning any reason, either in terms of the contract or the relevant statutory rules.
According to the Court, it is observed there that a temporary government servant also can be dismissed from service by way of punishment. It is only if the competent Authority decides to take punitive action that a formal inquiry may be held by framing charges and giving an opportunity to the government servant under Article 311 of the Constitution. If the order is punitive, the government servant is certainly entitled to opportunity.
The Court noted that the twin tests were also suggested by the Court to determine the nature of the order, whether it is stigmatic or not, if the temporary government servant had a right to the post or rank, and, secondly, if he has been visited with 'evil consequences'. As per the Court, it was held that if either of the two conditions exists, the order of termination relating to a temporary government servant must be held penal.
The Court stated that the petitioner's rights are governed exclusively by a contract that does not have any statutory flavour. As per the Court, it was a purely contractual appointment accepted by the petitioner dehors the rules and without a lien on any post.
The Court also refused to determine the issue of whether the termination was by the contract or contrary to it in the absence of violation of any statute or statutory rules, or at least a statutory contract while exercising its writ jurisdiction under Article 226 of the Constitution.
The Court dismissed the Petition.
Cause Title: Mahesh Kumar v. State of U.P. (Neutral Citation: 2024:AHC:44464)
Appearance:
Appellant: Adv. Harish Chandra
Respondent: C.S.C. Manu Saxena