GYANENDRA VEER SINGH Vs. STATE OF U P

JUDGEMENT

(1.) -The petitioners seeking a writ of mandamus directing respondent No. 2 not to proceed with selection of part time Assistant Teacher in pursuance of advertisement dated 11.6.2008 and further mandamus directing respondents not to interfere in working of petitioners as Part Time Assistant Teachers till regular selection is made and pay their salary regularly, have approached this Court by invoking extraordinary jurisdiction of this Court under Article 226 of Constitution of India.

(2.) THE case of the petitioners is that in the institution known as Sunasir Nath Inter College, Banda, Shahjahanpur (hereinafter referred to as "the institution") petitioners No. 1 and 2 were appointed as Part Time Assistant Teacher on 31.7.1995 whereas petitioner No. 3 was appointed as Assistant Teacher on part time basis on 25.7.2000. THE institution is aided only upto Junior High School though recognised upto Intermediate level by the Board of U. P. but it is not aided by the Government and recognition after Junior High School upto Intermediate level is without any financial assistance. For appointment on the post of Assistant Teacher in the institution the procedure required to be followed is prescribed in Intermediate Education Act, 1921 (for short "1921 Act") and Regulations framed thereunder read with U. P. Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as "1982 Act") and the Rules framed thereunder. It is not in dispute that no recruitment in accordance with aforesaid statutes have been made so far. Even for ad hoc appointment provision has been made under Section 18 of 1982 Act and Rules framed thereunder read with Removal of Difficulty Orders issued thereunder. It is not the case of the petitioners that the aforesaid procedure has been followed in their appointments. THE petitioners were engaged as Part Time Assistant Teachers by the management of the institution itself initially for a particular session, for example, petitioners No. 1 and 2 were engaged for the Sessions 1995-96 and thereafter their engagement was extended in subsequent sessions. Similarly petitioner No. 3 was engaged for the Sessions 2000-01 and the same was extended from time to time and the last extension was for the session 2007-08. It is said that now the management has published an advertisement for making fresh selection as Part Time Assistant Teacher in the institution and the petitioners are not being given extension. It is contended that the said action of the respondents are arbitrary and illegal. He placed reliance on some interim orders passed in similar cases.

(3.) LEARNED counsel for the petitioner further submits that on account of unemployment and lack of bargaining position, the petitioner cannot negotiate with the respondents on equal terms and therefore, the condition of engagement on contractual basis for one session is exploitative and is arbitrary. We are afraid that even this submission cannot be accepted. Rejecting similar argument in Umadevi (supra), the Apex Court in para 36 of the judgment has observed as under : "It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with eyes open. It may be true that he is not in a position to bargain-not at arms length-since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the Court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the Court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succour to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term."