Shreenidhi Kumar & Others Vs. Union of India and Others
Email[Arising out of SLP (C) No. 11878 of 2010]
[From the Judgement and Order dated 23.03.2010 of the High Court of Judicature at Patna in LPA No. 1310 of 2009]
[Arising out of SLP (C) No. 11878 of 2010]
[From the Judgement and Order dated 23.03.2010 of the High Court of Judicature at Patna in LPA No. 1310 of 2009]
Mr. Nagendra Rai, Senior Advocate, Mr. Shantanu Sagar, Mr. Smarhar Singh, Mr. Abhishek Singh, Mr. Gopi Raman, Ms. Priti Roshani (for Mr. T. Mahipal), Advocates, with him for the Appellant(s).
Mr. Ardhendumauli Kumar Prasad (for Mr. Gopal Singh), Advocate, for the Respondent(s).
Constitution of India, 1950
Articles 14, 16, 226 – Appointments – Subject Matter Experts in Agricultural Department – Resolution of DoPT of State Government for employing persons on contract basis – Maximum age limit of 65 and duration of one year – Advertisement in 2009, prescribing age as 37 years for unreserved, 40 years for backward and extremely backward and 42 years for ST/SC – High Court directed to reconsider the age factor and to decide in tune with resolution – No alteration made – Orders quashed and matter again sent back – Meanwhile some of the applications of incumbent processed but no employment given due to quashing – Appeal to Division Bench, dismissed – Meanwhile due to quashing of orders, Government altered age limit to 65 years and employment given for 2 years. On appeal, held that employment for more than 2 years is not covered by the scheme and so is age limit of 65 years. Orders set aside. Appointments already made, not to be disturbed. Directions for appointment beyond 2 years as per law given.
The Director was right when he observed in his order that the Resolution providing for upper age limit of 65 years was not applicable for employment on contract basis under the advertisement as the SMEs are not being employed against the approved posts and their employment was being done temporarily for two years. (Para 14)
We are, therefore, unable to uphold the order of the Single Judge dated August 13, 2009 and the order dated March 23, 2010 passed by the Division Bench. We set-aside these orders. In case the posts of SME under the Yojna are required beyond two years from February 24, 2010, we direct that the concerned authorities shall make fresh appointments in accordance with law. (Para 15)
1. Leave granted.
2. On July 18, 2007, a Resolution (for short ‘Resolution’) was issued by the Personnel and Administrative Reforms Department, Government of Bihar providing for procedure and guidelines for employment on contract basis. Inter alia, it provided that employment on the contract basis will be done only against the sanctioned posts and on the basis of the advertisement. It further provided that employment on contract basis may be considered under any scheme for special proposal for short period only. In case of delay in regular employment against the permanent posts, the employment on contract basis can be made for short time and for maximum period of one year. It also provided that maximum age limit for employment on contract basis would be 65 years.
3. On June 13, 2009, an advertisement (hereinafter referred to as ‘advertisement’) was issued in the newspaper ‘Hindustan’ by the Department of Agriculture, Government of Bihar inviting applications for employment on contract basis for 4062 posts of Subject Matter Expert (for short ‘SME’) under ‘Krishi Prasar Sudharikaran Yojna (for short ‘Yojna’). The advertisement provided for minimum qualification and also the age limit – on 1.1.2008: 37 years for unreserved; 40 years for extremely Backward and Backward Castes; 40 years for women (unreserved, extremely Back and Backward) and 42 years for SC/ST (Male and Female). The other details like reservation, basis of selection, period of employment etc. were also given in the advertisement along with the format of the application.
4. The above advertisement was challenged by 13 persons in a Writ Petition (being CWJC NO. 7366 of 2009) before the High Court of Patna. The Challenge was to clause (2) relating to age limit. The petitioners therein alleged that the age limit prescribed in the advertisement was inconsistent with the Resolution as the maximum age limit prescribed therein for employment on contract basis was 65 years.
5. The Single Judge of the High Court, by his order dated July 13, 2009, while dealing with the challenge to the age limit prescribed in the advertisement directed the petitioners therein to approach the State Government (Agriculture Department) with a representation to reconsider clause (2) of the advertisement and make it in tune with the Resolution. The Single Judge also observed that while considering the representation, the authorities would bear in mind that the appointment on similar posts in agriculture department had not been made for over 15 years and the petitioners therein had become over-age during those years and considering these aspects, the authorities should fix the maximum age in clause (2) of the advertisement.
6. Consequent upon the order dated July 13, 2009 and the representation made by the persons who were petitioners in the Writ Petition before the High Court, the Director, Department of Agriculture, Government of Bihar (for short ‘Director’) reconsidered the whole issue and held that there was no question of alteration of age limit mentioned in the advertisement. The Director, in his order, observed as follows:
‘The afore stated application and record of the office have been perused. In resolution memo No. – 2401 dated 18.7.07 of Personnel and Administrative Reforms Department, the upper age limit of 65 years for the approved posts pertaining to employment on contract basis is against. At present expert in subject matter are not being employed against the approved post. This employment is being done temporarily for two years. By this employment of 4062 specialist in subject matter has to be done as per the scheme Krishi Prasar Sudharikaran Scheme, and this scheme is totally temporarily. In this scheme age limit for unreserved is 37 years for most backward and 40 years for backward females (unreserved, most backward and backward) 40 years and for SC & ST (male and female) 42 years has bee fixed by personnel and Administrative Reforms Department and the consent of the group of ministers has been granted. It has been issued vide departmental official order No. 75 dated 6.1.1990. As per the scheme the specialist of subject matter have been planned to be assigned numerous duties such as, scheme sponsored by the centre, preparation of list of macromode, isopomode/atma scheme, scheme to prepare the list of beneficiaries in seed expansion scheme, organising training at village level, technical assistance to the villagers, conduction and supervision of the work of seed production in agricultural areas, constitution of agricultural welfare group at village level and make arrangement for their training to collect specimen from the agriculturist for checking the soil quality and send the same to the laboratory and simultaneously send the examination report to the villagers, for selection of venues for farm field school, to arrange training during the period of travelling of F.F.S. and to collect the data of accounts and also to conduct other works assigned by the department of agriculture. Therefore, there is no question of alteration of age limit mentioned in Memo No. PR-13448 (Agri)9-10 Para 12′.’
7. The above order passed by the Director came to be challenged in two Writ Petitions before the High Court of Patna. The Single Judge of the High Court, vide order dated August 13, 2009, quashed the order of the Director and sent the matter back to the Agriculture Production Commissioner, Bihar with a direction to him to pass fresh order in consultation with the Personnel and Administrative Reforms Department of the State Government about the validity of clause (2) of the advertisement to bring it in tune with the Resolution. It is not necessary to refer to other directions given in the order dated August 13, 2009.
8. Before the order was passed by the Single Judge on August 13, 2009, as noticed above, in view of the order passed by the Director on July 23, 2009, the processing of the applications received pursuant to the advertisement was completed and the Employment List of SME was finalised on August 10, 2009. The present appellants are some of those whose names appeared in that list. However, these appellants were not given employment since immediately thereafter by the order dated August 13, 2009, the High Court had quashed the order passed by the Director and sent the matter back to the Agriculture Production Commissioner, Bihar for passing fresh order as noted above. The appellants, therefore, challenged the order of the Single Judge before the Division Bench in a Letters Patent Appeal.
9. The Division Bench, after hearing the parties, dismissed the appeal on March 23,2010. The main
reason given by the Division Bench in dismissing the appeal is that by finalisation of the Employment List dated August 10, 2009, no vested right has accrued in favour of the appellants. As regards the Resolution, the Division Bench observed that the Single Judge in his order had only interpreted the Resolution and directed the State Government to act accordingly and the State Government has not challenged that order.
10. One more fact needs to be noticed here that pursuant to the order of the Single Judge passed on August 13, 2009, the State Government altered the age limit for employment on contract basis for 4062 posts of SME under the Yojna; increased the age limit to 65 years and gave the employment on that basis on February 24, 2010 for a period of two years.
11. We have heard Mr. Nagendra Rai, learned senior counsel for the appellants and Mr. A.K. Prasad for respondent Nos. 3 and 5.
12. We shall reproduce relevant portion of para 2 of the Resolution. It reads thus:
‘2. In the light of the above referred the State Government has taken the following decision for equalization of policy/guidelines for employment on the basis of contract.
(1) Employment on the basis of contract will be done only against the sanctioned posts and these kinds of employment will be done only on the basis of advertisement.
(2) These kinds of employment will be done under any scheme for some special proposal and for short period only But in case of delay in regular appointment against the permanent created posts, this kind of employment can be made for short time. But this kind of employment against the permanent post will be done for maximum one year only.
x xx xx xx xx xx xx
(8) Maximum age limit will be 65 years for employment on contact.’
13. The Resolution provides for procedure and guidelines for employment on contract basis. It basically provides for employment in the State on the contract basis in two contingencies namely; (i) in case of delay in regular employment against the sanctioned posts and (ii) in case of requirement of the employees to work for short period in temporary schemes. The Resolution, accordingly, has to be considered being applicable to above two situations. If the regular employment against sanctioned posts has been delayed for one reason or the other, the employment can be made on contract basis. But such appointment has to be for a short period and in no case, exceeding one year. Similarly, if there is requirement of the employees to work in the temporary schemes for a short period then the employment on contract basis can be made. Although, time period of such employment is not stated in the Resolution, but the use of expression ‘short period only’ is not without significance. The employment period of ‘two’ years is little long to constitute ‘short period’ contemplated in para 2(2) of the Resolution. ‘Short period’ referred to in para 2(2), in our opinion, means duration of few days or few months. It cannot be few years. The period of employment in temporary schemes exceeding 12 months, thus, will not be covered by the Resolution. As a necessary corollary, the maximum age limit of 65 years provided in para 2(8) of the Resolution is not available for employment exceeding one year in the temporary schemes. Any other view will be against all norms of public employment.
14. Insofar as the advertisement for appointment of SME to 4062 posts on contract basis under the Yojna is concerned, the employment period is for maximum two years. The Director was, thus, right when he observed in his order that the Resolution providing for upper age limit of 65 years was not applicable for employment on contract basis under the advertisement as the SMEs are not being employed against the approved posts and their employment was being done temporarily for two years.
15. We are, therefore, unable to uphold the order of the Single Judge dated August 13, 2009 and the order dated March 23, 2010 passed by the Division Bench. We set-aside these orders. Having held that, however, in our view, it would not be in the interest of justice to unsettle the appointments of SME already made on February 24, 2010 against 4062 posts under the Yojna now since less than four months’ contract period is left for those appointees as the maximum period of employment is two years. In case the posts of SME under the Yojna are required beyond two years from February 24, 2010, we direct that the concerned authorities shall make fresh appointments in accordance with law.
16. The appeal is disposed of accordingly. No order as to costs.
*************
