S.S. Nijjar, J.

1. An advertisement was issued on 18.8.2001, by the Director, Information and Technology-cum-Chief Executive Officer, Society for Promotion of Information and Technology, Chandigarh (SPIC). One post of Counsellor was amongst the posts advertised. The qualification prescribed was that a candidate should have good communication skills and fluency in English. The selection was to be made on the basis of interviews to be held on 25.8.2001. The petitioner appeared for the interview and was selected. Alongwith the application, the petitioner had submitted details of her academic achievements as well as the work experience, especially in the field of computers. On 28.8.2001, she was offered appointment on the post of counsellor in SPIC (respondent No. 3), on a consolidated fixed salary of Rs. 6,000/- on contract basis for a period of six months initially. Some of the conditions contained in the appointment order (Annexure P-3) were as follows :-

"1. The contract shall be terminated as and when your services are not required by the SPIC-Microsoft Centre of Excellence.

2. There shall be no increase in salary and you will not be entitled to any increment or other allowances etc.

3. The services rendered on contract basis shall not count towards the benefit of pension or gratuity etc.

4. The offer of appointment will not count as service and will not bestow upon you any claim for regular appointment against any post in SPIC- Microsoft Centre of Excellence.

5. No official accommodation shall be provided.

6. That no leave of any kind shall be admissible except Gazetted holidays. However, you may avail one day casual leave per month.

7. That you will not be eligible for membership of GPF/PPF etc.

8. That in case you will be required to take any journey in connection with official work, TA/DA shall be paid as admissible as allowed to employees of U.T. Administration."

2. Respondent No. 2 was appointed as Front Office Executive on 14.10.2002 on contract basis on a consolidated fixed salary of Rs. 3,500/- per month. Thereafter, the petitioner was given repeated appointments on contract basis for a period of six months each. The orders of appointments were usually issued after the period of contract of appointment was over. On 20.5.2004, the petitioner was not well, she telephonically informed the Officer about her illness. She was informed that she could come to Office after she recovered. When the petitioner reported for duty on 24.5.2004, she was surprised to see that respondent No. 2 was performing the duty of the petitioner. From the dispatch register, the petitioner learnt that respondent No. 2 has been issued appointment letter as Counsellor at Sr. No. 264 on 21.5.2004. The petitioner was informed that since she has resigned, therefore, respondent No. 2 has been appointed in her place. When the petitioner insisted on joining duty, she was informed that she can do so but she has to change places with respondent No. 2. She was, therefore, directed to resign from the post of Counsellor and join against the post of respondent No. 2. When the petitioner refused to submit her resignation, she was told that her services are no longer required and directed to leave the office. Respondent No. 2 had never been appointed against the post of Counsellor. On 30.9.2002, she had applied against the post of Front Office Executive against the advertisement which had been issued on that date. Appointment order issued to respondent No. 2 on 14.10.2002 (Annexure P-9) also shows that she has been appointed as Front Office Executive on a consolidated fixed salary of Rs. 3,500/- per month for a period of six months w.e.f. 14.10.2002. The other terms and conditions of the service of respondent No. 2 were similar to those that were offered to the petitioner in the appointment letter, the extract of which has been reproduced above. At the time when the petitioner was appointed, the post had been duly advertised. She has appeared for the selection alongwith other candidates. Respondent No. 2 was never selected, in open competition on the post of Counsellor. The petitioner has challenged the order of termination on the ground that the action is wholly arbitrary. No employer can be permitted to indulge in the policy of "hire and fire". The conditions contained in the contract were wholly unconscionable. The contract is against public policy, being oppressive and unconstitutional.

3. On notice of motion having been issued, the respondents have filed written statement. A preliminary objection has been taken that the respondent-Society is not amenable to writ jurisdiction. It is also stated that the policy of the Society is simple, and it is uniform for all employees starting from the senior designated Officer i.e. Central (General ) Manager right down to Software Engineer or as in this case Counsellor. All the posts are filled only for a period of six months as per the contract and after a gap of one day, a new contract is signed by the incumbent on the discretion of Chief Executive Officer of the Society. Therefore, no legal right of the petitioner has been infringed and the writ petition is not maintainable. It has also been pleaded that the petitioner was not interested in continuing on the job and she had submitted her resignation voluntarily. Therefore, after the lapse of contract on 19.5.2004, respondent No. 2 was appointed on 21.5.2004.

4. We have heard the learned counsel for the parties at length and perused the paper-book.

5. Mr. R.S. Bains, learned counsel appearing for the petitioner submits that the controversy raised in the present writ petition is no longer res integra. Contract appointment such as the appointment offered to the petitioner has been struck down as being violative of Articles 14 and 16 of the Constitution of India, by a Division Bench of this Court in the case of Gordhan Singh Gulia v. State of Haryana, 1996(3) SCT 412. In the aforesaid case, examining a similar situation, it has been observed that the employer cannot use his prerogative to lay down the terms and conditions of employment by incorporating the condition that the services of an employee shall stand terminated even though the post continues to remain available and the employer requires the manpower for doing the work in relation to that post. In paragraphs 6 and 7 of the aforesaid judgment, the observations made by a Division Bench of this Court in the case of Mrs. Rajni Bala v. State of Haryana, 1993(1) SCT 711, have been noticed and quoted. They are as follows :-

"6. We have perused the various decisions on which reliance has been placed by the learned counsel for the petitioner. After considering the judgments of the Supreme Court as well as Full Benches and Division Benches of this Court, in Ms. Rajni Bala v. State of Haryana (supra), it has been held :-

"In view of the principles laid down by the Supreme Court, we are of the opinion that where an ad hoc or temporary appointment is made after consideration of the candidature of all eligible persons in accordance with the equality clause, the action of the employer in limiting the appointment upto a particular date with a stipulation of automatic termination of service, even though the post is not abolished and a regularly selected person is not available, will have to be treated as wholly unconscionable and the same is liable to be struck down being contrary to Articles 14 and 16 of the Constitution. It may be a different situation where an appointment is given for a specified work and the post is created only for that work and the service of the employee is terminated due to concession of work or where a condition is incorporated in the contract of employment that the service of the employee will stand terminated on the availability of the selected candidate. However, there cannot be any justification to limit the appointment to a particular date merely because the employer chooses to describe the employment as ad hoc. In our opinion, the employer cannot use his prerogative to lay down the terms and conditions of employment by incorporating a condition that the service of the employee will stand terminated on a particular date even though the post continues to remain available and the employer requires manpower for doing the work in relation to that post. Such condition in the order/letter of appointment in case of the teachers cannot but be termed as unreasonable and contrary to public interests. The student community as a whole is the worst sufferer on account of non-availability of teachers and the executive authorities cannot be permitted to act arbitrarily by incorporating wholly unreasonable conditions of employment in the order of appointment of the teachers."

7. In the same very judgment, the Division Bench has rejected the plea of estoppel. After making reference to the judgment of the Supreme Court in reference to the judgment of the Supreme Court in Manager, Government Branch Press and another v. D.B. Belliappa, AIR 1979 SC 429 [LQ/SC/1978/367] ; Central Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguly, AIR 1986 SC 1571 [LQ/SC/1986/114] ; D.T.C. v. D.T.C. Mazdoor Congress, 1990(1) Supp. SCC 600 and LIC of India v. Consumer Education and Research Centre, JT 1995(4) S.C. 366, it has been held :-

"We find no reason to accept the contention of Shri Raina that the petitioner should be estopped from questioning the terms and conditions incorporated in Annexure P-1. Placed in the position of the petitioner, no reasonable man could have possibly protested against the arbitrary and oppressive conditions of appointment. If despite her merit and the seniority with the Employment Exchange, the petitioner had dared to protest against the condition limiting her appointment to 30.6.1995, she would have done so to her own peril. In our view, she was not in any position to challenge the right of the respondents to give a limited appointment to her even though the post of Language Teacher was available and even though there was no possibility of selected hands being available by the Subordinate Services Selection Board. Thus, her failure to object to the conditions incorporated in Annexure P-1 cannot be made a ground for denying relief to her."

The aforesaid judgment referred in the case of Ms Rajni Bala v. State of Haryana and others, 1996(1) SCT 390 (P&H) (DB) (supra) has also been followed by a subsequent Division Bench of this Court in the case of Polu Ram and another v. State of Haryana and another, 1998(4) RSJ 152. The aforesaid observations are fully applicable to the case of the petitioner. We may also notice here that respondent No. 2, inspite of service, has not cared to file a separate written statement. However, the counsel has appeared for all the respondents and filed a written statement on behalf of respondent Nos. 1 to 3 jointly. Relying on the law laid down by the Division Bench in the case of Gordhan Singh Gulia (supra), we hold that the conditions incorporated in the contract of appointment limiting the period of employment and leading to automatic termination of services at the end of the fixed term are arbitrary, oppressive, unconscionable and unconstitutional. Consequently, we hold that the termination of the services of the petitioner is wholly illegal.

6. In view of the above, the writ petition is allowed. The appointment of respondent No. 2 in place of the petitioner on the post of Counsellor is hereby quashed. The petitioner is directed to be reinstated in service on the post of Counsellor forthwith, with all consequential benefits. The continuance of the petitioner in service is, of course, subject to the unavailability of a regularly selected counsellor. In case the post of Counsellor is subsequently advertised for recruitment by open competition, the petitioner shall be at liberty to compete in the selection process. In case of non-selection of the petitioner, she will have to make way for the regularly selected employee. The respondent-Society are also at liberty to take any disciplinary action against the petitioner, including termination of service, in accordance with the applicable rules and regulations. No costs.