Alok Singh - (1.) PETITIONER has filed the present petition seeking writ of mandamus commanding the respondents to fill up the post of Assistant Professor in the Department of Surgery so that petitioner, who was appointed as Senior Resident, may be absorbed on the post of Assistant Professor. Petitioner has also challenged Advertisement dated 07.06.2012, saying post of Assistant Professor was not advertised with ulterior motive to deprive the petitioner to be absorbed on the post of Assistant Professor. During the pendency of the present petition, vide order dated 28.10.2012, extension of tenure of the petitioner and other doctors was revoked, therefore, petitioner has moved I.A. No. 3247 of 2012, seeking permission to challenge the order dated 28.10.2012 as well. Undisputedly, petitioner was appointed initially on contract basis only for three years. Admittedly, contract tenure was extended till further orders, vide order, dated 20.01.2010.
(2.) LEARNED counsel for the petitioner has vehemently argued that petitioner and other doctors working under the contract were given assurance that they would be absorbed in the Rajendra Institute of Medical Sciences (RIMS) as and when vacancy arises and No Objection Certificate was refused to the petitioner to join other states while making aforesaid assurance for the absorption of the petitioner. Learned counsel for the petitioner has further submitted that since promises were made to the petitioner and other contractual doctors to absorb them as such now it is not open to the respondents to terminate the services of the contractual doctors by revoking the extension. He has further argued that since petitioner is already working in the Rajendra Institute of Medical Sciences (RIMS), therefore, he has reasonable expectation for the absorption. He has further argued that in the past also, contractual doctors were absorbed permanently, therefore, petitioner has legal right to be absorbed. Hon'ble Apex Court, in the case of Secretary, State of Karnataka & Ors. Vs. Uma Devi & Ors., reported in : (2006) 4 SCC 1 in paragraph Nos. 43 and 47, has observed as under: - 43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment the appointment comes to an end at the end of the contract if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment........ It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of adhoc employees who by the very nature of their appointment do not acquire any right The High Court acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. 47. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post
(3.) AS per the dictum of the Constitutional Bench of the Apex Court in the case of Uma Devi (supra), contractual appointment comes to an end at the end of the contract. It is not open to the Court to prevent regular appointment at the instance, of an employee whose period of employment has come to an end. This Court (High Court) should not ordinarily issue directions for absorption or regularisation. The theory of reasonable expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise. The State cannot constitutionally make such promise.;