Shiv Kumar Sharma, J. - (1.) The prayer of the petitioner in the instant writ petition is as under : (i) To quash and set aside para 3(III) of the terms of service and the order dated September 23, 2002 and direct the respondents to reinstate the petitioner on the post of Under Secretary with all consequential benefits. (ii) To modify the appointment order dated April 11, 2002 and allow the petitioner to continue on the post of Under Secretary on the terms and conditions on which the appointment has been offered to similarly situated person Shri G.C. Rout.
(2.) As per the averments made in the writ petition the petitioner came to be initially appointed as Lecturer in Electronics Engineering Department in Bapu Saheb Shivaji Rao Deore College of Engineering Dhule, Maharashtra on February 7, 1992. The petitioner submitted application pursuant to advertisement published by All India Council for Technical Educational (A.I.C.T.E.) for the post of Assistant Director to be filled on deputation/contract basis. The petitioner was appointed as Assistant Director in A.I.C.T.E. vide order dated Feb.6, 2001. No objection certificate was granted from the College of Engineering Dhule and the petitioner was relieved on February 22, 2001. Lien of the petitioner was kept for one year and the petitioner joined as Assistant Director A.I.C.T.E. on Feb.27, 2001. While the petitioner was working as Assistant Director A.I.C.T.E., an advertisement was published by the National Council of Teacher Education, New Delhi for the post of Under Secretary. Pursuant to which the petitioner submitted application and the petitioner was adjudged suitable and appointed as Under Secretary in N.C.T.E. vide order dated April 11, 2002 in the pay scale of 10,000-15,200. The petitioner further averred that two candidates were selected as Under Secretary by the committee constituted to hold the selections. The petitioner was selected for Northern Regional Committee and one Shri G.C. Rout was selected under Secretary for N.C.T.E. headquarter New Delhi. The petitioner was at No.1 whereas Shri G.C. Rout was at No.2 in the panel, but the respondents adopted two different yardsticks. The petitioner was appointed on contract for a period of one year whereas Shri G.C. Rout was appointed for a period of three years. The petitioner joined at Northern Regional Committee, N.C.T.E. Jaipur on April 22, 2002. The petitioner made an attempt to seek appointment on the post of Assistant Director A.I.C.T.E. and requested the respondent N.C.T.E. to forward the application but the N.C.T.E., instead of forwarding it, informed the petitioner after expiry of date of submitting application, to apply directly and then prevented the petitioner from seeking the appointment on the post of assistant Director A.I.C.T.E. On the contrary the services of the petitioner were terminated vide order dated September 23, 2002. Contention of the petitioner in the instant writ petition is that the impugned order of termination is against the principles of nature justice and the petitioner was discriminated by the N.C.T.E. in making appointment only for one year.
(3.) The respondents filed return to the writ petitions and averred that the petitioner was appointed on the post of Under Secretary on short term contract in pursuance to the notice inviting application. After the process of selection order of appointment was issued and in the said appointment order it was in unmistakable words stated that the appointment was purely temporary and liable to be terminated without assigning any reason and notice. Along with the appointment order a proforma contract was also sent to the petitioner. The petitioner challenged the condition No.3 of the terms of contract of appointment. Maintainability of writ petition was also questioned on the ground that direction for cancelling the contract agreement and enforcing the contract to continue the petitioner in service cannot be sought. As per the condition of appointment, it was not necessary for the respondents to provide any opportunity of hearing to the petitioner before terminating his services. It was also averred that an explanation was sought from him vide communication dated August 12, 2002 of his unsatisfactory service. The petitioner submitted reply to the said explanation and after considering the reply and the entire record the matter was referred to the Regional Director, Northern Regional Committee of N.C.T.E. at Jaipur, who after consideration of record submitted his comments on each instance of unsatisfactory work to the member Secretary of N.C.T.E. The petitioner deliberately concealed these material facts from this Court and pleaded his services were terminated without hearing him. Concealment of those facts disentitles the petitioner from invoking the equitable jurisdiction of this Court under Article 226 of the Constitution. The petitioner having accepted the terms and conditions of appointment cannot be permitted to be challenged as the petitioner cannot be permitted to approbate and reprobate as the principle of estoppel comes in his way. Shri G.C. Rout, before his appointment on deputation, was serving in Ministry of Human Resource Development, Department of Education of Government of India and therefore he was appointed on deputation whereas the petitioner was appointed on contract basis. The petitioner who resigned from the Engineering College without waiting for order of appointment cannot bind the respondents to alter the terms and conditions of appointment. The petitioner was never compelled to join N.C.T.E. on the terms and conditions stated in the offer of appointment. The application of the petitioner for appointment on the post of Assistant Director in A.I.C.T.E. could not be forwarded due to the reason that the petitioner was on contract employment in N.C.T.E. Complete service credentials of an employee are kept by a substantive employer and not by the employer under whom a person is working temporarily on contract basis. The petitioner could have submitted application to AICTE directly. If the petitioner has any grievance against A.I.C.T.E. he may raise his grievance before the appropriate forum. The respondents had nothing to do with the defeated chance of the petitioner for the appointment on the post of Assistant Director in AICTE. Under Article 311 of the constitution of India it is necessary to extent a change of hearing to a substantive employee and in case of the contract employment these principles cannot be applied. For the irregularities committed by the petitioner a chance of hearing was given to him and he submitted reply to the memorandum. The appointing authority consider the entire material and thereafter arrived at a conclusion that services of the petitioner could be terminated before the period of one year. The terms of appointment on contract basis cannot be equated with the terms and conditions of a substantive employee. Challenge to the condition No.3 (Ill) of the Contract cannot bring writ petition within the purview of Article 226 for the reason that terms and conditions as stipulated on contract can be challenged by way of a civil suit only.;