Service Jurisprudence - Temporary Employee Cannot Make Claim To Be Made Permanent On Expiry Of Tenure – Bombay HC
The Bombay High Court while adjudicating in two Writ Petitions has held that the Petitioners cannot be directed to be regularized as their posts were purely temporary and their employment automatically terminated on the efflux of time, once the period of appointment was over.
The Division Bench of Justice Ravindra V. Ghuge and Justice Arun R. Pednekar placed reliance on the judgment of the Apex Court in the case of Secretary, State of Karnataka and others Vs. Umadevi and others reported in (2006) 4 SCC where it was held that a temporary employee would not claim to be made permanent on the expiry of his term of appointment.
In this case, Writ Petitions were filed before the High Court by the Petitioners who were employed on a temporary basis in the Zila Parishads under the MNREGA Scheme to the posts of Special Technical Officer and Agriculture Officer. After the end of their tenure of five years, the Petitioners sought regularization of their services and approached the State Government which refused the same.
Thus, the Petitioners approached the High Court.
Counsel P. S. Talekar appeared for the Petitioners, while AGP S. G. Sangle appeared for the State of Maharashtra and Counsel S. S. Tope appeared for Respondent No. 2 before the High Court.
The Court noted that the Petitioners were selected on a temporary basis initially for a period of two years which was further extended for a period of 5 years. On completion of their tenure, no further extension was granted by the State and thus appointments were automatically terminated on the final day.
The Court thus observed, "Thus, in view of the law laid down in the case of Umadevi (supra), the Petitioners cannot be directed to be regularised as their posts were purely temporary and their employment automatically got terminated on efflux of time, once the period of appointment was over. The Petitioners cannot also be directed to be regularised on the permanent post, even if available with the State, as they have been originally selected on temporary posts."
On the ground of parity as sought, the Petitioners had referred to the case of two employees of Zila Parishad who were appointed on a temporary basis, and later their services were regularized. In one of the cases, Zila Parishad had only filed a Review Petition against the order of regularization of service of the employee, and the fate of the review was not known to the High Court.
In the other case referred to by the Petitioner, the High Court had ordered reinstatement with a condition that he would not seek regularisation in employment except being subject to any decision taken by the State Government.
The Court in this context held –
"The Petitioners contention that they are similarly situated as that of Mr. Vishal Dattatray Kadam and Gajanan Hanmantrao Deshmukh cannot be accepted, as there is no policy decision of the State to regularise the services of the Petitioners on permanent posts. Erroneous regularisation of Mr. Kadam and reinstatement of Mr. Deshmukh cannot be the basis of parity, as Mr. Kadam's appointment is by virtue of an erroneous order of the Additional Divisional Commissioner which the Zilla Parishad failed to Appeal against while Mr. Deshmukh's continuance is subject to an undertaking given by him not to seek regularisation, exception being any Government decision in that regard."
The Court also placed reliance on the judgment of the Apex Court in the case of State of Rajasthan and others Vs. Jagdish Narain Chaturvedi reported in (2009) 12 SCC 49 where the Court had observed, "Wrong decision does not create a right. There is no question of negative equality".
The Bench added that the above case was clearly applicable to the facts of this case, thus the benefit of parity cannot be granted to the Petitioners.
Accordingly, the Court dismissed the Writ Petitions.
Cause Title - Sharad & Ors. v. State of Maharashtra & Ors.