Stipulation For Termination In Appointment Order Loses Its Significance When Not Resorted To In Initial Years Of Contract: J&K&L High Court

The Jammu and Kashmir and Ladakh High Court recently ruled that an order of appointment with a stipulation that the services are terminable by one month's notice of either side loses its significance when it was not resorted to during the initial period of contract. The observation was made by Justice Sanjeev Kumar while hearing a plea in terms of which the petitioners invoked the extraordinary jurisdiction of the Court to seek a direction to the respondents to regularize their services against the posts they have been appointed with effect from the date of completion of their two years successful contractual service. The facts of the instant matter were that pursuant to various advertisement notifications issued by the Jammu & Kashmir Entrepreneurship Development Institute (respondent no. 1) in the years 2017 and 2018, the petitioners came to be appointed as Assistant Faculty, Associate Project Managers, Office Associates, Stenographers, Plumbers, Electricians and Drivers on contractual basis for a period of one year on consolidated salary. The appointment was initially for a period of one year and terminable with a notice period of one month from either side. The term of contractual appointment of the petitioners was extended from time to time by the respondent No.1 by issuing formal orders of extension. The petitioners claimed having rendered more than two years service as their term of contractual appointment was extended from time to time by the respondent No.1 by issuing formal orders of extension and hence they become entitled to regularization in view of the decision taken by the Governing Body of respondent No.1 in its meeting held on 18-12-2007. The petitioners in their plea also invited the attention of the court to the Clause IV if the instructions adopted by the Governing Body of respondent No.1 in its second meeting held on 18-12-2007 in terms of which all fresh recruitments, whether faculty or ministerial, are to be made on contract basis for a period of two years. The petitioners further contended that those of the employees, who were appointed prior to the petitioners, were regularized on successful completion of their contractual period of 2 years. Adjudicating the matter Justice Kumar observed that the petitioners had legitimate expectation that like their colleagues, who had earlier been regularized in terms of the decision of the Governing Body, the petitioners too would be accorded the same treatment and their services would be regularized after successful completion of their contract period. There was thus, unequivocal representation to the petitioners that their contractual services shall also be regularized after successful completion of the contract period, the bench noted. Underscoring the applicability of Doctrine of legitimate expectations in such matters the bench observed that allowing the respondents to deviate from the stated practice would be manifestly unfair and arbitrary as the doctrine of substantive legitimate expectation is one of the ways to ensure fairness and non-arbitrariness guaranteed under Article 14 of Constitution of India. In order to better explain the relationship between Article 14 of the Constitution and the doctrine of legitimate expectation the bench found it worthwhile to record the observations of Supreme Court in Food Corporation of India v. Kamdhenu Cattle Feed Industries, (1993), "In contractual sphere as in all other State actions, the State and all its instrumentalities have to conform to Article 14 of the Constitution of which non-arbitrariness is a significant facet. There is no unfettered discretion in public law : A public authority possesses powers only to use them for public good. This imposes the duty to act fairly and to adopt a procedure which is „fairplay in action‟. Due observance of this obligation as a part of good administration raises a reasonable or legitimate expectation in every citizen to be treated fairly". Applying the said preposition of Law to the case at hand the bench observed that the petitioners have been selected pursuant to a valid selection process initiated by issuance of public advertisements/notifications and have completed their period of contractual service successfully and, therefore, they have a legitimate expectation that they shall also be given the benefit of 2007 decision of the Governing Body of the respondent No.1. "They are also correct in contending that by treating them a class apart from those who were similarly situated with them except that they were engaged earlier, the respondents are visiting the petitioners with invidious discrimination", the bench added. Deliberating further on the status of the employees the Court maintained that the petitioners are not backdoor entrants to service and, therefore, cannot be treated unfairly by the State, adding "They participated in the selection...

Stipulation For Termination In Appointment Order Loses Its Significance When Not Resorted To In Initial Years Of Contract: J&K&L High Court

Basit Amin Makhdoomi

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