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Persons Engaged In Statutory Corporation Under Special Contract Do Not Hold 'Civil Post' Under Article 311: JKL High Court

Basit Amin Makhdoomi
13 Dec 2022 5:53 AM GMT
Persons Engaged In Statutory Corporation Under Special Contract Do Not Hold Civil Post Under Article 311: JKL High Court

The Jammu and Kashmir and Ladakh High Court has reiterated that where a person is engaged in a statutory corporation on the basis of a special contract, Article 311 has no application. The provision relates to dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State.

While hearing the plea where the services of a Media Assistant engaged in the Srinagar Municipal Corporation on consolidated wages for a fixed period were terminated, Justice Javed Iqbal Wani observed,

"The fact that a statutory Corporation, exercising statutory powers may be a "State" within the purview of Article 12 of the Constitution, however, would not necessarily lead to the conclusion that its employees hold a civil post under the State as the questions under the two provisions i.e. Article 311 and Article 12 being different. The Apex Court in case titled as "Satish Chandra vs. Union of India, reported in AIR 1953 SC 250" has held that where a person is engaged in a statutory corporation on the basis of a special contract upon certain terms and conditions, Article 311 has no application as the engagement of the person would be an ordinary case of a contract terminated under its stipulated terms and conditions."

The initial engagement of the petitioner came to be extended by the Corporation with periodical enhancement in the monthly remuneration by issuance of various office orders from time to time up till the year 2012. Because of the recurring nature of her services, continuously utilised by the Corporation, the petitioner claimed regularization. However, instead, the Corporation issued a termination order.

Petitioner contended that she is entitled to protection under Article 311 and that she has a right to hold the post which could not have been abridged arbitrarily and in contravention of due course of law.

At the outset, Justice Wani observed that term "post" used in Article 311 denotes an "office" and a post under the State has been held to be an office or position to which duties in connection with the affairs of the State are attached, an office or a position to which a person is appointed and which exists apart from and independent of the holder of the post. Thus, unless there is a post (civil post) against which a person is appointed, provisions of Article 311 cannot said to be attracted, the bench underscored.

In this case, the Court observed that petitioner came to be hired as an awareness campaign expert on consolidated and temporary basis "terminable at any time". Thus, the Court was of the view that her engagement cannot per-se be said to be against a 'post', particularly in absence of any material produced in this regard and the specific stand taken by the respondents that the engagement was never ever against any post.

"The engagement of the petitioner seemingly is an ordinary case of a service contract terminable at any time under the terms provided therein the engagement order. Thus, the case setup by the petitioner and the contention of the counsel for the petitioner urged in this regard in general and the applicability of the provisions of Article 311 of the Constitution in particular therefore, is not entertainable in law", Justice Wani held.

Accordingly the bench found the claim of the petitioner for regularization as legally not tenable and hence dismissed the petition.

Case Title : Masrat Yousuf Vs UT of J&K & Ors.

Citation : 2022 LiveLaw (JKL) 244

Coram : Justice Javed Iqbal wani

Counsel For Petitioner : Mr Salih Pirzada.

Counsel For Respondent : Mr Mohsin Qadri Sr AAG. Mr Faheem Shah GA

Click Here To Read/Download Judgment

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