Gujarat High Court
Hansaben Bhimjibhai Ravaliya vs State Of Gujarat & 2 on 29 February, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/15237/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 15237 of 2014
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HANSABEN BHIMJIBHAI RAVALIYA....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR NM PATEL, ADVOCATE for the Petitioner(s) No. 1
MR.RAJESH B SONI, ADVOCATE for the Petitioner(s) No. 1
MR UTKARSH SHARMA, AGP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 29/02/2016
ORAL ORDER
By this writ-application under Article 226 of the Constitution of India, the petitioner, serving as a Female Health Worker on temporary basis, has prayed for the following reliefs :
"(A) Admit and allow the petition in the interest of justice.
(B)Your Lordship may be pleased to issue writ of mandamus or other appropriate writ or order or direction to respondents for regularization of the appointment of the petitioner as "Female Health Worker".
(C) During pendency and final hearing of this petition, Your Lordship may be pleased direct the respondents not to terminate her service.
(D) Grant such other and further relief as deemed fit and proper in the interest of justice."
Page 1 of 12HC-NIC Page 1 of 12 Created On Wed Mar 02 02:03:13 IST 2016 C/SCA/15237/2014 ORDER The facts of this case may be summarised as under :
The petitioner is serving past almost eleven years as a Female Health Worker on adhoc basis with the respondent no.3. It is her case that time to time appointment orders are issued fixing the term of the employment for eleven months, and on expiry of the period of eleven months, an artificial break is given and she is reemployed again on temporary basis. This is going on past eleven years.
It appears that in the past Special Civil Application No.8611 of 2009 and allied matters were filed by the petitioner and other identically situated Female Health Workers with a prayer for regularization in service. The said writ-applications were disposed of vide order dated 23rd September 2009 in the following terms :
"1. As common question of law and facts arise and Special Civil Application No.8611 of 2009 is main petition and other petitions being Special Civil Application Nos.9866 to 9930 of 2009 are one page petitions, all these petitions are disposed of by this common order.
2. In all these group of petitions, the respective petitioners, who are serving as Female Health Workers working under the concerned respondents, have prayed for an appropriate writ, order and/or direction quashing and setting aside the Government Resolution dated 01/10/2007 at Annexure G to the extent that the same provides for appointment of the respective petitioners Female Health Workers on contract basis for a period of 11 months and not giving status of regular/permanent Health Workers, though permanent sanctioned posts are available and the petitioners fulfill necessary eligibility criteria and qualification and have also undergone necessary training.
3. It is the case on behalf of the respective petitioners Page 2 of 12 HC-NIC Page 2 of 12 Created On Wed Mar 02 02:03:13 IST 2016 C/SCA/15237/2014 ORDER that though approximately 990 posts of Female Health Workers came to be sanctioned by the Commissioner of Health and Family Welfare Department, State of Gujarat as far as back on 20/02/2003, no steps are taken by the concerned respondent/ State Government to fill up the posts by regularly selected candidates and appointments are made purely on temporary basis for 11 months on fixed salary, by appointing persons like the petitioners. It is submitted that on every 11 months fresh appointments are made. It is submitted that all the respective petitioners were initially appointed after interviews, etc. It is also further submitted that all the petitioners are fulfilling necessary eligibility criteria and having requisite qualification and have also undergone necessary training and, therefore, the appointments of the respective petitioners are required to be regularized as permanent Female Health Workers more particularly when there are permanent sanctioned vacant posts.
4. Mr.Pranav Dave, learned Assistant Government Pleader has appeared on behalf of respondent Nos.1 to 3. Mr.Pranav Dave, learned Assistant Government Pleader, under the instructions from one Shri C.H.Rajpal, Deputy Secretary, Panchayat Rural Housing and Rural Development Department, State of Gujarat, has produced on record the noting made by him and submitted that the State Government more particularly the Panchayat Department of the State Government and the concerned District Panchayats shall fill up the posts of Female Health Workers as per the time bound programme mentioned in Note dated 27/09/2009 and all the posts on regular basis shall be filled in on or before August,2010. It is further submitted by Mr.Pranav Dave, learned Assistant Government Pleader that by communication dated 22/09/2009, Under Secretary, Health and Family Welfare Department, State of Gujarat has already sent necessary communication to all the District Development Officers and the District Health Officers in the State of Gujarat to send necessary requisition to fill up the posts of Female Health Workers to the Panchayat Services Selection Board by 01/10/2009. It is submitted that necessary procedure to fill up 990 posts of Female Health Workers has already begun. Mr.Pranav Dave, learned Assistant Government Pleader appearing on behalf of respondent Nos.1 to 3 and the concerned Department, has produced on record Page 3 of 12 HC-NIC Page 3 of 12 Created On Wed Mar 02 02:03:13 IST 2016 C/SCA/15237/2014 ORDER communication dated 22/09/2009 as well as noting of Mr.C.H.Rajpal, Deputy Secretary, Panchayat Rural Housing and Rural Development Department, State of Gujarat showing time bound programme for filling up 990 posts of Female Health Workers on regular/permanent basis, which are directed to be taken on record.
5. Mr.N.K.Majmudar, learned advocate appearing on behalf of the respective petitioners has submitted that even as per communication dated 02/09/2009 addressed by the Commissioner of Health and Medical Services and Medical Education, Gandhinagar, the decision to regularise the services of the petitioners is to be taken by the Panchayat Rural Housing and Rural Development Department and, therefore, it is sought to be submitted that the State Government is considering to regularize the services of the petitioners. Therefore, it is requested to consider the communication dated 02/09/2009 addressed by the Commissioner of Health and Medical Services and Medical Education, Gandhinagar to the Principal Secretary, Health and Family Welfare Department, Gandhinagar while disposing of these Special Civil Applications.
6. Heard the learned advocates appearing on behalf of the respective parties. It is not in dispute that all the respective petitioners are appointed purely on temporary basis for 11 months on fixed salary. Nothing is on record to show that at the relevant time when the respective petitioners were appointed on temporary basis for 11 months on fixed salary, an advertisement was given inviting the applications from the eligible candidates. It appears that all the respective petitioners are appointed purely on temporary basis for 11 months on fixed salary till posts of Female Health Workers are filled in on permanent basis. Under the circumstances, merely because the petitioners are continued on temporary basis for 11 months since long and merely because the petitioners are having requisite qualification and have also undergone necessary training and merely because there are permanent sanctioned vacant posts, the services of the petitioners are not required to be regularised on permanent basis on the posts of Female Health Workers. To regularize the services of the petitioners would be taking away the rights of other eligible candidates. The petitioners have to compete with Page 4 of 12 HC-NIC Page 4 of 12 Created On Wed Mar 02 02:03:13 IST 2016 C/SCA/15237/2014 ORDER other eligible candidates. Under the circumstances, the prayer of the petitioners to regularise their services cannot be granted. If such relief is granted, it will be violative of Article 14 of the Constitution of India. At the same time though 990 posts of Female Health Workers are sanctioned by the Commissioner of Health and Family Welfare Department, State of Gujarat as far as back on 20/02/2003, there is no justification on the part of the concerned respondent in not filling up the sanctioned vacant posts on regular basis. It is very unfortunate that though 6 years have been passed after sanctioning approximately 990 posts of Female Health Workers, the said posts are not filled in on permanent/regular basis. It is not in dispute that there is a requirement of the posts of Female Health Workers. It is also required to be noted that 990 posts of Female Health Workers have been sanctioned under the scheme of the Central Government and the necessary finance will be provided by the Central Government. Therefore though there are permanent sanctioned vacant posts of Female Health Workers, the action of the concerned respondent to fill up the said posts on temporary basis for 11 months on fixed salary, cannot be permitted. As stated hereinabove, now the State Government has come out with time bound programme by which 990 posts of Female Health Workers to be filled in by the State Government and by the concerned Department on regular and permanent basis. As per the time bound programme produced by Mr.Pranav Dave, learned Assistant Government Pleader under signature of Deputy Secretary, Panchayat Rural Housing and Rural Development Department, it is suggested that all the 990 posts of Female Health Workers shall be filled in on or before August,2010. Under the circumstance, the concerned respondents are directed to fill up 990 posts of Female Health Workers within stipulated time i.e. on or before August,2010.
7. With these, all these petitions are dismissed so far as the prayer of the respective petitioners to regularize their services, however, with a direction that the State Government and the concerned Department to fill up 990 permanent sanctioned vacant posts of Female Health Workers on or before August,2010 without fail. If the aforesaid direction is not complied with and appointment on permanent basis are not made on or before Page 5 of 12 HC-NIC Page 5 of 12 Created On Wed Mar 02 02:03:13 IST 2016 C/SCA/15237/2014 ORDER August,2010 after following due procedure of selection, in that case it will be open for the respective petitioners to approach this Court. Any lapse on the part of the concerned respondents will be viewed very seriously as though the posts of Female Health Workers have been sanctioned in the year 2003, the said posts are not filled in by regularly selected candidates and are continued to be filled in on temporary basis for 11 months on fixed salary."
Thus, it appears on plain reading of the order passed by a learned Single Judge of this Court referred to above, that the writ-applications were rejected so far as the prayer of the respective petitioners to regularize their service was concerned. However, the State Government was directed to fill up 990 permanent sanctioned vacant posts of the Female Health Workers on or before August 2010 without fail. The learned Single Judge also observed in the order that if such direction was not complied with and appointment on permanent basis was not made on or before August 2010 after following due procedure of selection, then in such circumstances, it would be open for the respective petitioners to approach this Court. The learned Single Judge also observed further that any lapse on the part of the concerned respondent would be viewed very seriously.
On 6th June 2010, an advertisement was published by the respondent no.3 in the newspaper for recruitment to the posts of Female Health Worker in various districts. In all, 112 posts were to be filled up in the Junagadh district. The petitioner also applied pursuant to the said advertisement. It appears that although 112 posts were sanctioned and were to be filled up, the authorities thought fit to stop issuing appointments after serial no.76. On account of the same, the petitioner was not Page 6 of 12 HC-NIC Page 6 of 12 Created On Wed Mar 02 02:03:13 IST 2016 C/SCA/15237/2014 ORDER appointed on regular basis. Even thereafter she has continued to serve as a Female Health Worker on adhoc basis. Hence, this petition.
Although, this writ-application is of the year 2014 and the respondents have appeared, yet no affidavit-in-reply has been filed till this date. The main contesting respondent appears to be the Panchayat.
In the absence of any affidavit-in-reply on behalf of the Panchayat, the picture is not clear, whether all 990 permanent sanctioned posts of the Female Health Worker have been filled up or not, as directed by this Court.
Be that as it may, I should not overlook the fact that a lady is serving past eleven years on adhoc basis. The case is one of unfair labour practice. It is apparent that artificial breaks are being given at the end of eleven months and thereafter fresh appointment orders are issued. This practice has been deprecated by this Court in one of the recent pronouncements in the case of Gujarat Mazdoor Sabha v. State of Gujarat and others, Special Civil Application No.10829 of 2003 and allied matters, decided on 4th February 2016. This Court, after an exhaustive review of the caselaw, observed in para 120 as under:
"120 To sum up the principle deduced from the long chain of decided cases it can be said to be well settled:
(i) In the matter of Government service normal rule is regular recruitment through prescribed agency, the recruitment of ad hoc or temporary hands is an exceptional leeway permitted due to exigencies of administration. In such a fact situation the endeavour will also be to replace such temporary employee by regular selected employees.Page 7 of 12
HC-NIC Page 7 of 12 Created On Wed Mar 02 02:03:13 IST 2016 C/SCA/15237/2014 ORDER
(ii) that law does not favour ad hoc or temporary employment continuing for long spells, as it breeds unhealthy and unreasonable service environment endangering industrial peace perilously affecting dignity and quality of life of those whose security of work is under constant threat.
(iii) Article 14 of the Constitution is embodiment of rule against arbitrariness and unreasonableness in the State action in all spheres of its activities. Article 21 of the Constitution which guarantees protection against deprivation of life and personal liberty includes within it the right to dignified livelihood. Article 39(d) spells out the directive principles of the State policy towards securing equal pay for equal work for both woman and man and Article 42 stipulates the Directive Principles of the State policy in securing just and humane conditions of work.
(iv) equal pay for equal work and security of employment by regularising casual employees of long duration within a reasonable period have been unanimously accepted as Constitutional goal to our policy. To this end, thrust has been that the management particularly Govt. agencies should not allow workers to remain as casual labourers or temporary employees for unreasonably long period of time.
(v) mere continuation for some period on ad hoc by itself does not give a right to permanency but where for any reason ad hoc or temporary or work charged employees are continued for fairly long spell they have a right to claim regularisation and the authorities are under obligation to consider their case for regularisation in a fair manner.
(vi) regularisation cannot be resorted to by the governmental agencies as mode of fresh recruitment to permit back door entries to frustrate Page 8 of 12 HC-NIC Page 8 of 12 Created On Wed Mar 02 02:03:13 IST 2016 C/SCA/15237/2014 ORDER the mandate of Article 16 by making a straight jacket measure of service for regularising the appointment made de hors the rules, unmindful of the circumstances under which the appointment had been made.
(vii) the first condition for laying claim for regularisation is availability of work on reasonably permanent basis. Mere continuance for some time of a casual or ad hoc employee does not give right to presume about need for continued employment or work charged but continuation of casual or ad hoc employee or work charged for a long duration of several years raises a presumption for need for regular permanent employment may be justified.
(viii) Apart from the right to reasonable treatment by the State agencies and security of job emanating from the Constitutional provisions, Industrial Disputes Act is a legislative measure giving effect to the directive principles of State Policy in the field of ensuring equal pay for equal work and ensuring security of job with just and humane conditions by providing prohibition against practising of unfair labour practice both by employers and employees and defining the term unfair labour practice to include practice of engaging workman for long spells characterising them badli, casual, temporary, ad hoc work charged with the object of denying them the status of permanency and benefits and privileges attached thereto.
(ix) A claim by workers, continuing for long spell as casual or temporary or work charged under an employer governed by the Industrial Disputes Act, to permanency is a demand which can be achieved through collective bargaining or a claim giving rise to a industrial dispute which can be enforced through adjudication under the provisions of the I.D. Act.
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(x) Adjudication of claim for permanent status as an industrial dispute which has been made subject matter of reference to the Industrial tribunal is governed by the principles emanating from the provisions of Industrial Disputes Act which by necessary implication involves determination of question whether continued casual or temporary employment is a bonafide administrative exigency simplicitor or amounts to unfair labour practice on the part of the employer, inasmuch as claim to permanency under Industrial Disputes Act directly emanates from prohibition against unfair labour practice adopted by the employer.
(xi) In situation emerging from long spell of ad hoc or temporary or casual employment of daily rated workmen, courts have consistently resorted to issue of directions for framing a scheme for regularisation of such workmen on a just and fair basis to the employer or have also issue of directions for regularising the petitioners before it as the circumstances of the case may warrant but ordinarily in the first instance an opportunity is being given to the employer himself to frame a scheme in a fair and just manner of absorbing such casual workmen on permanent basis whether in one go or in a phased manner and has considered objections thereto, if any, before according its approval to such scheme.
(xii) In considering the question of granting relief as to conferring status of permanency and emoluments and privileges attached thereto, primary consideration is existence of permanent nature of work for such casual employees to be utilised against it and the extent of absorption on regular and permanent basis depends upon the extent of regular work available against which temporary employee can be regularly employed. Regularisation or permanency is not to be resorted in case where the establishment by itself is of temporary nature; where the employment is not with the object of offering employment but for ameliorating financial condition of weaker sections Page 10 of 12 HC-NIC Page 10 of 12 Created On Wed Mar 02 02:03:13 IST 2016 C/SCA/15237/2014 ORDER of the society like employment under Jawahar Yojana or where employment has been secured or offered by committing illegalities, irregularities or fraud as in the case of Ashwani Kumar (supra) where the appointments were found to have been given to six thousand persons out of all proportion to the then existing requirement of the project for about 800 persons only, by the Director of the project Mr. Malik by committing illegalities, irregularities and fraud as per the investigation report. In which case the appointments against rules were held to be nullity and void ad initio."
It is also not clear, whether any fresh recruitment process is contemplated in the near future or not.
Be that as it may, the respondents are directed to consider the case of the petitioner for regularization in service keeping in mind the judgment of this Court referred to above i.e. Special Civil Application No.10829 of 2003 and allied matters, within a period of eight weeks from the date of receipt of the writ of the order.
At this stage, an apprehension has been expressed by the learned counsel appearing for the petitioner that the authorities might terminate the services of the petitioner by keeping a spite as she has approached this Court.
As such, the apprehension is not well-founded, but if it is done so, the same will be viewed very strictly.
I expect the authorities to consider the case keeping in mind the law as discussed in the judgment referred to above and pass appropriate orders in accordance with law in that regard.
Page 11 of 12HC-NIC Page 11 of 12 Created On Wed Mar 02 02:03:13 IST 2016 C/SCA/15237/2014 ORDER With the above, this writ-application is disposed of. Direct service is permitted.
(J.B.PARDIWALA, J.) MOIN Page 12 of 12 HC-NIC Page 12 of 12 Created On Wed Mar 02 02:03:13 IST 2016