JUDGMENT
Pranab Kumar Chattopadhyay, J.
1. Both the appeals arise out of the same Judgment and order passed by the learned single Judge on 7th May, 2003 in W.P. No. 3010(W) of 2003 whereby and whereunder the said learned single Judge was pleased to hold that the writ petitioner (Arjun Kumar Ray) was an employee of the Damodar Valley Corporation (in short ‘DVC’) till the date of the delivery of the Judgment by the learned single Judge and the post held by the said writ petitioner should also be regarded as a sanctioned post till that day. The learned single Judge, however, also held that the writ petitioner should be deemed to be a regular employee of the PVC so long the sanction of the post is not withdrawn by the DVC in accordance with law.
2. The brief facts of the case are narrated hereinafter:
The writ petitioner joined the post of Motor Boat Driver in Damodar Valley Corporation on provisional and contractual basis for a period of one year on the basis of the letter of appointment dated 22nd September, 1993 issued by the Assistant Director of Personnel of DVC. The DVC authorities, however, retained the writ petitioner in the service even after the expiry of the aforesaid period of one year by extending the tenure from time to time upon issuing various office orders which have been disclosed by the DVC authorities in the Affidavit-in-opposition filed before the learned single Judge in connection with the writ petition.
3. From the available, records we find that the writ petitioner while serving the DVC authorities suffered brain injury on 15th February, 1998 and in April. 1999, the said writ petitioner was critically ill for his aforesaid brain injury and treated at the medical center of the DVC authorities at Tilaiya Dam. All through, the writ petitioner was treated by the specialised Doctor of the DVC authorities.
4. It is the case of the writ petitioner that on and from 1st August 1998 to, 31st December, 2000 the said writ petitioner could not perform his duties because of the aforesaid injury and thus, exhausted all available leave during the aforesaid period. The concerned-authority of the DVC by a written communication dated 9th January, 2001 asked the writ petitioner to resume his duties within seven, days and, further informed that failing which, a disciplinary action might be taken against him.
5. The writ petitioner thereafter submitted a representation on 18th January, 2001 requesting the concerned authority Of the DVC to grant leave upto February, 2001 as advised by the Doctor and the xerox Copy of the prescription of the concerned Doctor was also attached along with the said representation. The said writ petitioner ultimately resumed his-duty on 1st March, 2001. Unfortunately, price again the said writ petitioner had to undergo medical treatment on account of his aforesaid brain injury and remained absent from duty on medical leave w.e.f. 1st February, 2002 till 23rd June, 2002. On 24th June, 2002, the Writ petitioner resumed his duty.
6. The said writ petitioner thereafter did riot receive any salary from the DVC authorities and, therefore, submitted a representation before the Deputy Director of the DVC claiming release of the salary including all arrears. The said Deputy Director thereafter by the written communication dated 13th January, 2003 informed the writ petitioner that the service of the said writ petitioner on contract basis had expired on 20th February, 1998. The said communication of the Deputy Director dated 13th January, 2003 is set out hereunder:
DAMODAR VALLEY CORPORATION
SOIL CONSERVATION DEPARTMENT
FORESTRY WEST DIVISION
HAZARIBAGH
No. SCFW/PF/-557 January 13th, 2003
To
Shri A.K. Roy,
Motor Boat Driver,
DVC, Tilaiya Range
Hazaribagh
(Through : Asstt. Forest Ranger, Tiliaya)
Sub : The service of Shri A.K. Roy
M.B. Driver on contract basis.
Dear Sir,
This is to inform you that your service on contract basis, has already been expired on 28.2.98. But it is observed that you are making attendance daily at Tilaiya Range after expiry of your above contract period. Hence your attendance at Tilaiya Range, would be treated as your own risk as till date the said contract has not been further sanctioned by the Corporation.
Yours faithfully,
Sd/- J. Biswas Dy. Director, Forestry West.
7. Challenging the aforesaid decision of the DVC authorities in the month of February, 2003, writ petitioner filed the writ petition before this Court praying for a declaration as a permanent employee of DVC Upon quashing the decision as mentioned in the aforesaid communication dated January 13, 2003 and also claimed arrear wages from 24th June, 2002 onwards.
8. In the affidavit-in-opposition filed before the learned single Judge DVC authorities took the following stand:
a) the post of Motor Boat Driver where the writ petitioner had been, appointed was a temporary post.
b) the temporary period of service of the writ petitioner was, extended from time to time upto February, 200S and each extension order was for specific period.
c) the writ petitioner did not perform regular duties from 01.08.1999 to 01(03.2001….
d) last extension was sanctioned upto 31.03.2002 and the sanction of the post was available upto 02/03.
e) contractual period of the writ petitioner was not sanctioned.
9. It has been submitted on behalf of the DVC authorities that in terms of the Judgment and order under appeal, an Account Payee Cheque for a sum of Rs. 43,077/- dated 3rd July, 2003 drawn on State Bank of India, Hazaribagh Branch vide Cheque No. 404572 had been handed over to the writ petitioner toward the. {Salary and wages of the said writ petitioner which according to the DVC authorities was duly received by the said writ petitioner on 14th July 2003. It has also been submitted on behalf of the DVC authorities that the aforesaid payment had been made to the writ petitioner towards his full and final settlement of the outstanding dues.
10. It has been specifically urged on behalf of the D.V.C authorities that the contractual appointment of the writ petitioner for specific period of time and extension thereof on different occasions against the temporary post cannot create any right in favour of the said writ petitioner for permanent absorption specially when the said temporary post was abolished w.e.f. 1st March, 2003. The learned Counsel of the DVC authorities also submits that the writ petitioner had accepted his appointment against the temporary post of Motor Boat Driver for specified contractual period which was extended from time to time. The said learned Counsel of the DVC authorities further submits that the sanction for creation of temporary, post of Motor Boat Driver was obtained by surrendering one of the temporary posts of Forest Guard which has been specifically mentioned in the office order dated 3rd June, 1997 issued by the Joint Director of Personnel, Damodar valley Corporation.’
11. The writ petitioner, however, claimed himself as a permanent employee of the DVC and prayed for a declaration before this Court to that effect, According to the said writ petitioner the post in question was permanent and no intimation was ever given to the said writ petitioner that his appointment was contractual in nature. The said writ petitioner further claimed that his service was automatically confirmed.
12. We are unable to accept the aforesaid claim of the writ petitioner in the facts of the present case.
13. Scrutinising the appointment letter of the writ petitioner dated 22nd September, 1993 we find that the nature of appointment of the writ petitioner was provisional and contractual in future for a specified period of one year. The relevant portion from the appointment letter is quoted hereunder:
You are offered the post of Motor Boat Drivers
in the Corporations.
2. The terms of your appointment On provisional and contract
will be: for a period of 1 (one) year
a) Nature of appointment: Temporary, likely to continue
subject to termination by
giving three months' notice/
one months' notice or three
months pay one months pay
on either side in lieu
thereof....
14. Although the said appointment was initially made for a period of one year but undisputedly, from time to time the said period was extended by the DVC authorities. From the records we find that the post of Motor Boat Driver held by the writ petitioner was sanctioned and available upto February, 2003 vide Sanction Order No. EV/S-16/68(Pt)-92-4048 dated 17th September, 2001, which was also mentioned in the written communication of the Director of Soil Conservation Damodar Valley Corporation dated 17th December 2001.
15. It is true that a temporary post of Motor Boat Driver was created by surrendering one of the temporary posts of Forest Guard for a period upto 28th February,’ 1998 pursuant to the Sanction Order No EV/S 16/68(Pt)-92/4390 dated 21st April, 1995 and the writ petitioner was appointed in the said temporary post of Motor Boat Driver initially for a period of one year pursuant to the appointment letter dated 22nd September 1993. The writ petitioner was also very much aware that the post in question was temporary in nature and in his representation dated 18th November, 2002 also specifically mentioned as hereunder:
…In this connection, I want to inform connection I want to inform you that I was appointed as a Temporary Motor Boat Driver in 23rd September 1993….
16 From the records We find that ‘DVC authorities allowed the writ petitioner to discharge his duties as Motor Boat Driver even after the expiry of the specified contractual period and the competent authority granted post facto approval in this regard by granting necessary order of extension subsequently. There is no dispute that the said temporary post of Motor Boat Driver was sanctioned and available upto February, 2003 as per the available records disclosed by the DVC authorities, but from the order of termination dated 16th July, 2003 issued to the said writ petitioner by the Deputy Director, Forestry West, Damodar Valley Corporation we find that the services of the writ petitioner was terminated w.e.f. 1st March, 2003 pursuant to the decision regarding the abolition of the post as mentioned in the written communication bearing No. SCFW/PF/315 dated 03.07.2003.
17. The aforesaid order of termination dated 16th July, 2063 is set out hereunder:
DAMODAR VALLEY CORPORATION
SOIL CONSERVATION DEPARTMENT
FORESTRY WEST DIVISION
HAZARIBAGHNo. SC/FR/PF/-348 Date : 16/07/2003
To
Shri Arjun Kumar Roy,
No. 174, Mudiali, 1st Lane,
P.C. Garden Reach,
Kolkata – 700 084
West Bengal.
Sub: Termination of services of Shri Arjun Kumar Roy,
Motor Boat Driver (Contract).
Ref : This office No. SCFW/PF/315 dt. 03.07.03.
Dear Sir,
In continuation of the above referred letter I am directed to intimate you that your services is no longer required in the Forestry (West) Division, SCD, DVC, Hazaribagh and as such your services as Motor Boat Driver is hereby terminated w.e.f. 01.03.2003.
This is for your information.
Yours faithfully,
Sd/-
(J. Biswas)
Dy. Director (Forestry West)
18. In, the present case, DVC authorities by the written communication dated 3rd July, 2003 also informed the writ petitioner about the abolition of the post of Motor Boat Driver w.e.f. 1st March, 2003. Abolition of post is a matter of executive policy and the Court cannot interfere in matters relating to the abolition of posts in absence of any allegation of mala fide or arbitrariness. In our opinion, the employer cannot by a writ of mandamus be directed to, retain a post temporarily created. A simple abolition of post leading, to termination of service cannot offend any provision of the Constitution of India.
19. The decision of the DVC authorities regarding abolition of the post has not been challenged by the writ petitioner either on the ground of mala fide or arbitrariness and, therefore it has to be accepted that the post in question was duly abolished w.e.f. 1st March, 2003 by the competent authority.
20. Mr. Ghosh, learned Counsel of the DVC authorities referred to and relied on the following decisions of the Supreme Court:
1. (Surinder Prasad Tiwari v. U.P. Rajya Krishi Utpadan Mandi Partshad and Ors.) [Para 38]
2. (2006)7 SCC 488 (Accounts Officer (A&I) A.P. SRTC and Ors. v. P. Chandra Sekhara Rao and Ors.], [Para 6].
3. [Secretary, State of Karnataka and Ors. v. Umadevi (3) and Ors.) [Paras 15 & 43]
4. 2007 AIR SCW 70 (State of M.P. and Ors. v. Lalit Kumar Verma) I Paras 9& 13]
5. 2007 AIR SCW 222 (State of U.P. and Ors. v. Desh Raj) [Para 12]
6. (Punjab Water Supply & Sewerage, Board v. Ranjodh Singh and Ors.) [Paras 23 & 24]
7. (2007)2 SCC 502 (State of Punjab and Ors. v. Lakhwinder Singh and Ors.) [Para 28]
8. (Municipal Council, Samrala v. Sukhwinder Kaur) [Paras 7 & 9]
9. 2007 AIR SCW 226 [M.D., Karnataka Handloom Dev. Corporation Ltd. v. Mahadeva Laxman Raval) [Paras 16, 18 & 24]
10. (Indian Council of Medical Research and Ors. v. K. Rajyalakshmi) [Para 12]
11. (Indian Drugs & Pharmaceuticals, Ltd. v. Workmen, Indian Drugs & Pharmaceuticals Ltd.) [Paras 47 &. 48]
21. The principles laid down in the aforesaid decisions are, in our opinion not strictly applicable in the facts of the present case.
22. The impugned decision of the DVC authorities as communicated by the Deputy Director, Forestry West to the writ petitioner by the written communication dated 13th January, 2003 cannot be accepted as proper and valid decision as in the said communication it was wrongly mentioned that the services of the writ petitioner on contractual basis had expired on 28th February, 1998 ignoring the fact that by the earlier written communication dated 9th January, 2001, said Deputy Director directed the writ petitioner to resume his duty with immediate effect. The said letter dated 9th January, 2001 is set out hereunder:
DAMODAR VALLEY CORPORATION
SOIL CONSERVATION DEPARTMENT
FORESTRY WEST DIVISION
HAZARIBAGHNo. SC/FW/PF/-969 Date: 9/01/2001
To
Shri Arjun Kumar Roy,
Boat Driver,
DVC, Tilaiya DamYou are directed to resume your duty with immediate, effect within 7(seven) days and you can get your proper treatment at Ranchi whereunder the consultant with the deceases of you’ have ft will be convenient to get better treatment and also availability in the office. Because you exhausted your all types of leaves-i.e. Medical/Earned leave w.e.f. 1-8-99 to 31-12-2000.
Hence you must join your duty at early at possible otherwise a disciplinary action may be taken against you.
Sd/-
(J. Singh)
Dy. Director of Soil Cons. (For) West.
23. Furthermore, in view of the Sanction Order No EV/S-16/68(Pt)-92-4048 dated 17th September, 2001, the post in question was sanctioned and available upto February, 2003 and the services of the writ petitioner was never terminated upon observing the procedures as mentioned in the letter of appointment by serving either prior notice or making payment in lieu thereof.
24. For the aforesaid reasons, we are of the opinion that the learned single Judge has rightly set aside the decision of the DVC authorities as communicated by the Deputy Director Forestry West by the written communication dated 13th January, 2003 being Annexure ‘P-10’, of the writ petition. The learned single Judge however, committed, an error upon holding that the said writ petitioner was an employee of the DVC authorities and the post held by the writ Petitioner was sanctioned post till the date of the Judgment i.e. upto 7th May 2003 without appreciating the fact that in terms of the Sanction Order dated 17th September, 2001, the post in question was sanctioned and available upto February 2003 and the said post was also abolished w.e.f. 1st March 2003.
25. Since the post in question was abolished w.e.f. 1st March 2003 the writ petitioner cannot claim for retention, in service as we find that in the present case, abolition of the post leads to, automatic termination of service of the said writ petitioner. The writ petitioner cannot remain in service after abolition of the post w.e.f. 1st March, 2003 since the temporary post held by the said writ petitioner ceased to exist on and from the said date.
26. In the aforesaid circumstances, we old that the writ petitioner was in service till 28th February, 2003 as the said temporary post of Motor Boat Driver ceased to exist due to abolition of the post w.e.f. 1st March, 2003. By abolishing the post of Motor Boat Driver w.e.f. 1st March, 2003, the DVC authorities have also accepted that the post in question was available as sanctioned post till the date of abolishing the same apart from the fact that by the Sanction Order dated 17th September, 2001, the post in question was sanctioned and available upto February, 2003 in Forestry Soil Conservation Department of the Damadar Valley Corporation.
27. The concerned authority of the DVC issued the order of termination dated 16th July, 2003 to the writ petitioner terminating his service w.e.f. 1st March; 2003 consequent upon the Abolition of the post in question pursuant to the office order as mentioned in the written communication of the Deputy Director Forestry West, Damodar Valley Corporation dated 3rd July, 2003. The writ petitioner cannot remain in service w.e.f. 1st March, 2003 on the sole ground that the post held by this said writ petitioner ceased to exist due to abolition with effect from the said date.
28. The writ petitioner, therefore, is entitled to receive salary and wages upto 28th February, 2003 at the scale enjoyed by the said writ petitioner subject to the leave rules.
29. With the aforesaid observations and directions, the Judgment and order under appeal passed by the learned single Judge stands modified to the extent as stated above and both the appeals also stand disposed of accordingly.
30. The DVC authorities are directed to take immediate appropriate steps for payment of the admissible salary and wages to the writ petitioner at the scale of pay enjoyed by the said writ petitioner w.e.f. June, 2002 till 28th February, 2003 subject to the leave rules, if not already paid.
There will, however, be no order as to costs
Let urgent xerox certified copy of this Judgment and order, if applied’ for, be given to the learned advocates of the parties on usual undertaking.
Kalidas Mukherjee, J.
31. I agree.