- (1.) D. K. Seth, J. By an order dated 22nd January, 1987, the petitioner was ap pointed on daily wage basis w. e. f. 1st January, 87 for a period of six months by the Railway Construction Company, respondent No. 1. Subsequently, he was ac commodated in a scale of Rs. 750-1000 on contract basis for a period limited till 30th June, 1988. The said period was extended till 31st December, 89. The appointment was thus extended from time to time till 31st August, 90 as is appearing from Annexure VI to this writ petition. All these orders are annexed as Annexures 1 to V respectively. Subsequently some of the ap pointees in the post of Civil Engineer, in which the petitioner was working, had ap proached the Apex Court for regularization of their services. The Apex Court in writ petition (Civil) No. 1339 of 1989, by an order dated 7th March, 90, had formu lated a scheme by consent of the parties for absorption and regularization of such ad hoc Civil Engineers. In terms of the said scheme, the petitioner appeared in the test for regularization as provided in the said order but was unsuccessful in the written test. The petitioner's service, therefore, was terminated by an order dated 14th August, 90, w. e. f. 31st August, 90 con tained in Annexure VIII. The said order has since been challenged in this present writ petition.
(2.) MR. R. N. Singh, learned Counsel for the petitioner contends that since the petitioner had worked almost for three years, namely, more than 240 days without any break, he is entitled to be absorbed and regularized in service. His service cannot be terminated in view of the order con tained in Annexure VII, which does not contemplate termination of services in its terms through it only contemplates regularization of such service. He next contends that the said order having been passed by consent, is an effect and agree ment, in which the petitioner was not a party and, therefore, he is not bound by it. He then contends that many of his juniors as specified in paragraph 16 of the writ petition, have been retained, while the petitioner's service has been terminated. Therefore, respondents had discriminated in his case. He also contends that the petitioner had appeared in a subsequent test in 1991, in which he had succeeded in the written test, but had failed in the inter view. According to him, this failure in the interview was an outcome of mala fide on the part of the respondents, who were an noyed by reason of the filing of this writ petition as well as filing of the contempt petition against them arising out of the interim order passed in this writ petition. He also contends that the respondents had allowed him to continue in service and in the meantime, he had crossed maximum age for Government service. Therefore, the respondents could not terminate his service on this ground. He had relied upon several decisions in support of his conten tion, which I shall be dealing at ap propriate stage. Mr. Lalji Sinha, learned Counsel for the respondents on the other hand contends that the petitioner's appoint ment having been limited by time and the same having not been extended though the order of termination has been passed in effect it was non-extension of the limited period of service, therefore the petitioner cannot claim any benefit for continuation of his service. He further contends that in terms of the order passed by the Apex Court all ad hoc appointments on the post of Civil Engineers were to be regularized and it was not an agreement between the parties to the writ petition. By virtue of specific provision contained in the said order, the same is applicable to all Civil Engineers appointed by the respondent on ad hoc throughout India. He next con tends that the petitioner having appeared in the written test persuant to the said order, cannot now turn round and question the same on the principle of waiver, acquiescence and estoppel. He contends further that all other persons, who were junior to the petitioner, were retained be cause they had succeeded in the scrutiny either in the first test or in the subsequent test held in 1991. He also contends that the petitioner was given appointment in a dif ferent project on compassionate ground at a consolidated pay of Rs. 2, 300/-, where he joined on 10th November, 90 and had left the job some times on 28th January, 1991. The writ petition was moved on 21st December, 90 when the interim order was obtained. At that point of time, the petitioner had already accepted appointment on a different project and, therefore, he is again estopped from challenging the order of termination. On these grounds, according to him, the writ petition should be dismissed. I have heard both the counsel at length.
(3.) ADMITTEDLY, the appointment that was given, was limited by time. The petitioner's appointment was limited till 31st August, 90. The order of termination dated 14th August, 90 indicates that his service will stand terminated w. e. f. 31st August 1990 on account of his being un successful in the scrutiny in terms of the Apex Court's order. From the facts revealed, it is apparent that though the word "termination" has been used in the order dated 14th August, 90, it was in ef fect 'non-extension' of the petitioner's service limited by time. Even if the order of termination was not used in that event in absence of non- extension, the service of the petitioner would come to, an end. In the case of State of U. P. v. Kaushal Kishore Shukla, 1991 (1) SCC 691 and Director, In stitute of Management and Development, U. P. v. Pushpa Srivastava, AIR 1992 SC 2070, it has been held that where the appo intment is for limited time, on the expiry of such limited period, no right accrues which such person can enforce legally. Then again the petitioner himself had appeared in the test in terms of the order passed by the Apex Court, which pre-supposes that he had acted pursuant to the said order and had accepted the same. Once having accepted the said order, he is estopped from challenging the same on the ground that the said order is not binding on him. After having appeared in the test, he cannot turn round and chal lenge the selection or claim any other relief in view of the ratio decided in the case of Arun Kumar Shukla v. The Chancel lor Allahabad University, 1989 (1) UPLBEC 477 and in the case of Om Prakash Shukla v. Akhilesh Kumar Shukla, 1986 Labour and Industrial Cases 790.;