- (1.) The writ petition seeks for a mandamus to allow the petitioners to continue as Teachers Associates (Guest Faculty Lecturers) till regular appointments are made. They have also sought for quashing of the notification issued on 30.06.2010 calling for applications from persons for appointments as Teaching Associates for the session 2010-11. The ground of attack principally is that the petitioners were already fully qualified to hold the posts as Teaching Associates and although they were recruited under a contract for a particular period, the petitioners' services cannot be dispensed with only for the purpose of enabling the University to appoint a fresh batch of persons again on contract basis. According to the petitioners, they are entitled to continue till they were replaced by regular appointments made by the University. The contentions of the petitioners are resisted by the University on the ground that a writ of mandamus cannot lie for the benefit of persons, who did not have their tenure of service guaranteed otherwise than under the contractual terms and the persons, who had secured appointments for a particular period, cannot demand for their continuation beyond that period. It is also contended that a fresh notification imposed new qualifications and consequently, the petitioners cannot allow the previous appointments to continue and deny to the University its right to determine the qualifications for the prospective employees.
(2.) As regards the contention that a contractual employee cannot obtain any right to continue in appointment beyond the contract period and that a writ cannot lie, the learned senior counsel appearing on behalf of the respondents refers me to several decisions of the Hon'ble Supreme Court and of this Court, which I shall only reproduce only for the purpose of fully addressing the arguments advanced before me. They are: Ravinder Singh and others v. State of Haryana and others, 2008 3 RSJ 1; Vidyavardhaka Sangha and another v. Y.D. Deshpande and others, 2006 12 SCC 482; and India Literacy Board and others v. Veena Chaturvedi and others,2005 2 RSJ 384.
(3.) All these decisions have come about in the context of persons seeking to challenge the order of terminations and seeking for continuation of their duties. In situations where it is not secured as a civil service guaranteed under Article 311 of the Constitution or by any specific rules or enactments guaranteeing a tenure of employment, the Courts have held that the mandamus cannot lie to secure a relief larger than what a contract actually stipulates. The situation in this case addresses a new dimension which is anchored on a fairness principle that a public authority shall not adopt practices which are arbitrary or unfair. It is in a way an attempt at balancing the interest of an employee and the autonomy a public authority to obtain a fairness quotient in its recruitment policies. It is in another sense an extension of an understanding in the labour jurisprudence that insulates against unfair labour practice. Service Law is guided by its own principles which are at all times not congruent to labour jurisprudence but still the Hon'ble Supreme Court itself expressed how the post WTO regime has made even the services of an employee vulnerable through hire and fire policy. The Hon'ble Supreme Court has expressed in Harjinder Singh v. Punjab State Warehousing Corporation, 2010 3 SCC 192. The Hon'ble Supreme Court has expressed the present situation in these words:- 30. Of late, there has been a visible shift in the Courts' approach in dealing with the cases involving the interpretation of social welfare legislations. The attractive mantras of globalisation and liberalisation are fast becoming the raison d'etre of the judicial process and an impression has been created that the constitutional Courts are no longer sympathetic towards the plight of industrial and unorganised workers. In large number of cases like the present one, relief has been denied to the employees falling in the category of workmen, who are illegally retrenched from service by creating by-lanes and side-lanes in the jurisprudence developed by this Court in three decades. The stock plea raised by the public employer in such cases is that the initial employment/engagement of the workman/employee was contrary to some or the other statute or that reinstatement of the workman will put unbearable burden on the financial health of the establishment. The Courts have readily accepted such plea unmindful of the accountability of the wrong doer and indirectly punished the tiny beneficiary of the wrong ignoring the fact that he may have continued in the employment for years together and that micro wages earned by him may be the only source of his livelihood.;