& Others Vs. Union of India and Others
J U D G M E N T
R.M. LODHA, J.
July 18, 2007, a Resolution (for short "Resolution") was issued by the
Personnel and Administrative Reforms Department, Government of Bihar providing
for procedure and guidelines for employment on contract basis. Inter alia, it provided
that employment on the contract basis will be done only against the sanctioned posts
and on the basis of the advertisement.
It further provided that
employment on contract basis may be considered under any scheme for special
proposal for short period only.
In case of delay in regular
employment against the permanent posts, the employment on contract basis can be
made for short time and for maximum period of one year. It also provided that maximum
age limit for employment on contract basis would be 265 years.
June 13, 2009, an advertisement (hereinafter referred to as "advertisement")
was issued in the newspaper "Hindustan" by the Department of
Agriculture, Government of Bihar inviting applications for employment on
contract basis for 4062 posts of Subject Matter Expert (for short "SME")
under "Krishi Prasar Sudridhikaran Yojna (for short "Yojna").
The advertisement provided
for minimum qualification and also the age limit - on 1.1.2008: 37 years for unreserved;
40 years for extremely Backward and Backward Castes; 40 years for women (unreserved,
extremely Back and Backward) and 42 years for SC/ST (Male and Female). The other
details like reservation, basis of selection, period of employment etc. were also
given in the advertisement along with the format of the application.
above advertisement was challenged by 13 persons in a Writ Petition (being CWJC
NO. 7366 of 2009) before the High Court of Patna. The Challenge was to clause
(2) relating to age limit. The petitioners therein alleged that the age limit prescribed
in the advertisement was inconsistent with the Resolution as the maximum age limit
prescribed therein for employment on contract basis was 65 years.
Single Judge of the High Court, by his order dated July 13, 2009, while dealing
with the challenge to the age limit prescribed in the advertisement directed the
petitioners therein to approach the State Government (Agriculture Department)
with a representation to reconsider clause (2) of the advertisement and make it
in tune with the Resolution.
The Single Judge also
observed that while considering the representation, the authorities would bear
in mind that the appointment on similar posts in agriculture department had not
been made for over 15 years and the petitioners therein had become over-age during
those years and considering these aspects, the authorities should fix the maximum
age in clause (2) of the advertisement.
upon the order dated July 13, 2009 and the representation made by the persons
who were petitioners in the Writ Petition before the High Court, the Director,
Department of Agriculture, Government of Bihar (for short "Director")
reconsidered the whole issue and held that there was no question of alteration
of age limit mentioned in the advertisement. The Director, in his order,
observed as follows:
"The afore stated
application and record of the office have been perused. In resolution memo No.
- 2401 dated 18.7.07 of Personnel and Administrative Reforms Department, the
upper age limit of 65 years for the approved posts pertaining to employment on contract
basis is against. At present expert in subject matter are not being employed against
the approved post.
This employment is being
done temporarily for two years. By this employment of 4062 specialist in
subject matter has to be done as per the scheme Krishi Prasar Sudharikaran Scheme,
and this scheme is totally temporarily.
In this scheme age
limit for unreserved is 37 years for most backward and 40 years for backward females
(unreserved, most backward and backward) 40 years and for SC & ST (male and
female) 42 years has bee fixed by personnel and Administrative Reforms Department
and the consent of the group of ministers has been granted.
It has been issued vide
departmental official order No. 75 dated 6.1.1990. As per the scheme the
specialist of subject matter have been planned to be assigned numerous duties such
as, scheme sponsored by the centre, preparation of list of macromode,
isopomode/atma scheme, scheme to prepare the list of beneficiaries in seed expansion
scheme, organising training at village level, technical assistance to the villagers,
conduction and supervision
of the work of seed production in agricultural areas, constitution of agricultural
welfare group at village level and make arrangement for their training to collect
specimen from the agriculturist for checking the soil quality and send the same
to the laboratory and simultaneously send the examination report to the villagers,
for selection of venues
for farm field school, to arrange training during the period of travelling of F.F.S.
and to collect the data of accounts and also to conduct other works assigned by
the department of agriculture.
Therefore, there is no
question of alteration of age limit mentioned in Memo No. PR-13448 (Agri)9-10
above order passed by the Director came to be challenged in two Writ Petitions before
the High Court of Patna. The Single Judge of the High Court, vide order dated
August 13, 2009, quashed the order of the Director and sent the matter back to
the Agriculture Production Commissioner, Bihar with a direction to him to pass fresh
order in consultation with the Personnel and Administrative Reforms Department of
the State Government about the validity of clause (2) of the advertisement to
bring it in tune with the Resolution. It is not necessary to refer to other
directions given in the order dated August 13, 2009.
the order was passed by the Single Judge on August 13, 2009, as noticed above, in
view of the order passed by the Director on July 23, 2009, the processing of
the applications received pursuant to the advertisement was completed and the
Employment List of SME was finalised on August 10, 2009. The present appellants
are some of those whose names appeared in that list.
appellants were not given employment since immediately thereafter by the order
dated August 13, 2009, the High Court had quashed the order passed by the
Director and sent the matter back to the Agriculture Production Commissioner,
Bihar for passing fresh order as noted above. The appellants, therefore, challenged
the order of the Single Judge before the Division Bench in a Letters Patent
Division Bench, after hearing the parties, dismissed the appeal on March
23,2010. The main reason given by the Division Bench in dismissing the appeal is
that by finalisation of the Employment List dated August 10, 2009, no vested
right has accrued in favour of the appellants. As regards the Resolution, the
Division Bench observed that the Single Judge in his order had only interpreted
the Resolution and directed the State Government to act accordingly and the State
Government has not challenged 6that order.
more fact needs to be noticed here that pursuant to the order of the Single
Judge passed on August 13, 2009, the State Government altered the age limit for
employment on contract basis for 4062 posts of SME under the Yojna; increased
the age limit to 65 years and gave the employment on that basis on February 24,
2010 for a period of two years.
have heard Mr. Nagendra Rai, learned senior counsel for the appellants and Mr. A.K.
Prasad for respondent Nos. 3 and 5.
shall reproduce relevant portion of para 2 of the Resolution. It reads thus: "2.
In the light of the above referred the State Government has taken the following
decision for equalization of policy/guidelines for employment on the basis of
a. Employment on the basis
of contract will be done only against the sanctioned posts and these kinds of
employment will be done only on the basis of advertisement.
b. These kinds of employment
will be done under any scheme for some special proposal and for short period only
But in case of delay in regular appointment against the permanent created
posts, this kind of employment can be made for short time.
But this kind of employment
against the permanent post will be done for maximum one year only. x xx xx xx xx
xx xx (8) Maximum age limit will be 65 years for employment on contact."
Resolution provides for procedure and guidelines for employment on contract
basis. It basically provides for employment in the State on the contract basis
in two contingencies namely;
case of delay in regular employment against the sanctioned posts and
case of requirement of the employees to work for short period in temporary
accordingly, has to be considered being applicable to above two situations. If
the regular employment against sanctioned posts has been delayed for one reason
or the other, the employment can be made on contract basis.
But such appointment
has to be for a short period and in no case, exceeding one year. Similarly, if
there is requirement of the employees to work in the temporary schemes for a
short period then the employment on contract basis can be made. Although, time
period of such employment is not stated in the Resolution, but the use of
expression "short period only" is not without significance.
The employment period
of 'two' years is little long to constitute 'short period' contemplated in para
2(2) of the Resolution. 'Short period' referred to in para 2(2), in our
opinion, means duration of few days or few months. It cannot be few years.
The period of
employment in temporary schemes exceeding 12 months, thus, will not be covered by
the Resolution. As a necessary corollary, the maximum age limit of 65 years
provided in para 2(8) of the Resolution is not available for employment exceeding
one year in the temporary schemes. Any other view will be against all norms of
as the advertisement for appointment of SME to 4062 posts on contract basis under
the Yojna is concerned, the employment period is for maximum two years. The Director
was, thus, right when he observed in his order that the Resolution providing
for upper age limit of 65 years was not applicable for employment on contract
basis under the advertisement as the SMEs are not being employed against the
approved posts and their employment was being done temporarily for two years.
are, therefore, unable to uphold the order of the Single Judge dated August 13,
2009 and the order dated March 23, 2010 passed by the Division Bench. We
set-aside these orders. Having held that, however, in our view, it would not be
in the interest of justice to unsettle the appointments of SME already made on February
24, 2010 against 4062 posts under the Yojna now since less than four months'
contract period is left for those appointees as the maximum period of employment
is two years. In case the posts of SME under the Yojna are required beyond two
years from February 24, 2010, we direct that the concerned authorities shall
make fresh appointments in accordance with law.
appeal is disposed of accordingly. No order as to costs.