- (1.) The writ petitioner, who is appointed on contractual basis with the 3rd respondent has a grievance that the respondent has again issued an advertisement for contractual employment. The counsel would state, relying on a decision of this Court in Ashok Kumar and others v. State of Haryana and others,1 C.W.P. No. 11978 of 2007 and a bunch of cases decided on 06.07.2010 that an employer cannot replace an employee to substitute him by similar contractual or temporary arrangements. The petitioner's grievance is that her contractual period is nearing completion and she cannot be displaced by any person again appointed on contractual basis.
(2.) As a matter of principle in law, a contractual employee does not have a right to seek for a mandamus to continue in his employment beyond the contract period. A contract of persona! service itself is not specifically enforceable under Section 15 of the Specific Relief Act, to which three exceptions are: (i) a service, which is secured under Article 311 of the Constitution; (ii) an employment between a master and a servant, whose service is regulated by the Industrial Disputes Act, where the Statute provides for a procedure for retrenchment and a scope for reinstatement, if the procedure is not followed; and (iii) where the employment is secured in a Corporation governed by specific Statutory rules and a termination, which is effected by such Corporation established by the Act of Parliament or by legislature of the State otherwise than according to the recruitment rules. Any other form of contract cannot be specifically enforced.
(3.) The respondent is an educational institute registered under the Society Registration Act and I cannot see this as an instrumentality of the State. The learned counsel appearing for the petitioner would point out that all the persons in Management are drawn from public offices and, therefore, it must be taken as an instrumentality of State. The issue is not whether the writ petition could be filed against such an institution. 1 think that the issue is whether the contract could be specifically enforced beyond the contractual period by applying three exceptional situations referred to above. I do not find the writ petitioner to bring her case within the boundary set out above. In any event, as regards the principle that a contractual employee cannot be displaced by another contractual employee, I will apply only in a situation where through the subsequent contract, the employer seeks to recruit persons with the very same educational status or eligibility standards. The petitioner has come by a recruitment after an advertisement that spells out the qualification as follows: Educational Qualification and other terms & conditions: 1 Qualifications: B.Sc. (Home Science) preferably M.Sc. (Nutrition) or M.Sc. (Home Science). In the present advertisement, which is issued on 01.01.2012, the qualifications are as follow: 2. Instructor (Female) in Child Development. One post (i) Qualification M.Sc. (Child Development) B.Sc. (Home Science Preference will be given to persons having field experience/teaching experience in the relevant field. B.Sc. (Home Science) would be considered for interview only if M.Sc. Holder are not available. It could not be immediately noticed that in the fresh advertisement, which is now released, the qualifications are not the same. The qualification in Annexure P-1 was, apart from a Graduate degree in Home Science, a Postgraduate in Nutrition and Home Science were provided. Now in the present notification, the qualification has been prescribed as M.Sc. (Child Development), which was not originally the prescribed qualification. The petitioner has filed the Postgraduate certificate issued by the Bundelkhand University, Jhansi that shows that she was a Postgraduate in Home Science. The counsel argues that Child Development was one of the subjects of the Postgraduate course. The advertisement, however, refers to Child Development as an exclusive course of study for the Postgraduate qualification. The petitioner, in such a case, cannot insist that an employer cannot modify the qualification requirements and must feel tied out to an employment that has already been given to the petitioner. The petitioner could rest the claim that she be entitled to consideration, if she fulfills the basic qualifications of B.Sc. degree in Home Science, which she certainly has and which the second advertisement also provides for. The petitioner cannot have better relief man a right of consideration to the post, if she applies in response to the advertisement, which is impugned in the writ petition. The challenge to the notification, therefore, ought to fail. The writ petition is disposed of providing for only a right for consideration in the manner referred to above, dispensing with the notices to the respondents at the stage of admission itself.;