Gujarat High Court
Jani Chintan Hareshkumar vs Managing Director - Paschim Gujarat on 2 May, 2013
Author: K.M.Thaker
Bench: K.M.Thaker
JANI CHINTAN HARESHKUMAR....Petitioner(s)V/SMANAGING DIRECTOR - PASCHIM GUJARAT VIJ CO LTD (PGVCL) C/SCA/3623/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 3623 of 2013 With SPECIAL CIVIL APPLICATION NO. 3626 of 2013 With SPECIAL CIVIL APPLICATION NO. 3629 of 2013 TO SPECIAL CIVIL APPLICATION NO. 3630 of 2013 With SPECIAL CIVIL APPLICATION NO. 3632 of 2013 TO SPECIAL CIVIL APPLICATION NO. 3633 of 2013 ============================================================== JANI CHINTAN HARESHKUMAR....Petitioner(s) Versus MANAGING DIRECTOR - PASCHIM GUJARAT VIJ CO LTD (PGVCL) & 3....Respondent(s) ============================================================== Appearance: MS.DILBUR CONTRACTOR, ADVOCATE for the Petitioner(s) No. 1 MR DIPAK R DAVE, ADVOCATE for the Respondent(s) No. 1 - 2 NOTICE SERVED BY DS for the Respondent(s) No. 3 - 4 ============================================================== CORAM: HONOURABLE MR.JUSTICE K.M.THAKER Date : 02/05/2013 ORAL ORDER
1. In present petitions under Article 226 and Article 14 of the Constitution of India, the petitioners have prayed, inter alia, that:
8(A)By issuing an appropriate writ, order or direction, Your Lordship may be pleased to permanently restrain the concerned respondent from relieving the petitioner from its present position as Junior Engineer (contractual), and further be pleased to direct the concerned respondent to appoint the petitioner on a permanent post of Vidyut Sahayak Junior Engineer by giving similar treatment given to other candidates selected to the post of Vidyut Sahayak cadre from same selected list.
(B) By issuing an appropriate writ, order or direction, Your Lordship may be pleased to permanently restrain the concerned respondent from appointing any other person as Junior Engineer (contractual) without exhausting the select list prepared by the respondnts pursuant to the select list of 2010.
(C) Pending hearing and final disposal of this Special Civil Application, Your Lordship may be pleased to restrain the concerned Respondents, their officers, servants and agents from relieving the services of the petitioner of his present appointment.
(D) Pending hearing and final disposal of this Special Civil Application, Your Lordship may be pleased to restrain concerned respondents, their officers, servants and agents from appointing any person in the post of Junior Engineer (contractual) and/or Vidyut Sahayak Junior Engineer without exhausting the select list of 2010.
2. So far as factual background is concerned, the petitioners have submitted that somewhere in 2010, the respondent company had, by issuing an advertisement, invited applications for appointment to the posts of Vidyut Sahayak Engineer and Junior Engineer (Electrical). According to the claim of the petitioners and also the advertisement the post of Junior Engineer (Electrical) was proposed to be filled up purely on contract basis which were to be executed for a period of 11 months.
2.1. The said advertisement stipulated, inter alia, that:
(1)The candidate who comes in merit which is decided by the authority of PGVCL after conducting Written Test/Personal Interview will be given appointment as a Vidyut Sahayak (Junior Engineer) ; and other candidates will be given appointment as a Junior Engineer (Electrical) purely on Contractual Basis for the period of 11 months as per requirement of PGVCL.
2.2. It is the case of the petitioners that in response to the said advertisement petitioners submitted their applications and offered their candidature. It is also claimed by the petitioners that they were called for selection process and on completion of the selection process they were selected.
2.3. The petitioners have also claimed that for the purpose of selection there was no distinction in selecting the candidates for both posts and a common selection list was prepared by the respondent company. The selection list was prepared on 16th December 2010. The petitioners have claimed that they were appointed in the cadre of Junior Engineer (Electrical) on contract basis. The petitioners have claimed that pursuant to the said selection they were granted first appointment on contract basis for 11 months vide order dated 11.07.2011. The terms and conditions of the said appointment order/contract, which were relevant for the purpose of present petition, read thus:
2. You shall be paid a consolidated retainer ship of Rs.13,000/- per month.
5. Your services as Jr. Engineer purely on contractual basis for a fix period of 11 months can be terminated by the Company at any time during the period of Eleven months with a notice of one month, similarly you can also leave the services as a Junior Engineer purely on contractual basis for a fix period of 11 months at your own accord with a notice of one month. However, in case of disciplinary actions, principles of nature justice would be observed.
6. You are appointed under PGVCL, Circle Office, Amreli and the detail posting will be issued by the Superintending Engineer, PGVCL, Circle Office, Amreli.
This appointment letter is purely on contractual basis for a fixed period of 11 months and does not give any right for appointment to the regular post of Jr.Engineer.
2.4. The petitioners have further claimed that from the same selection list wherein the petitioners names appeared, appointments to the posts of Vidyut Sahayak (Jr. Engineer) were made by the respondent company. It is also claimed that the candidates who were initially engaged on contract basis were being appointed to the posts of Vidyut Sahayak (Jr.Engineer) in existing vacancies or the vacancies which were arising in due course.
2.5. The petitioners have further claimed that on completion of the period of 11 months, the petitioners were relieved w.e.f. 15.06.2012 with assurance that they will be immediately reappointed.
2.6. The petitioners have also averred that in view of the said understanding, assurance and the practice which was being followed by the respondent company in case of other persons as well, the petitioners were reengaged/reappointed under another similar appointment order/contract dated 11.06.2012. Thus, after break of only 3 days, the petitioners were again engaged on the same post and on the same terms and under similar contract. Except that, in the appointment order/contract two additional conditions were inserted.
2.6. In addition to the aforesaid facts, the petitioners have also averred, inter alia, that:
3.6. Petitioner further submits that respondent company on 7.12.2011 has given work order of posting petitioner at Sub Division (2) at Dhari and simultaneously it is stated that he has to perform all duties which are performed by one Mr. D.P.Desai. Petitioner was also given copy of letter dated 30.10.2009 to inform the petitioner about nature of duties that was performed by Mr.D.P.Desai who was initially appointed as junior engineer (electrical) on contractual basis and was subsequently made junior engineer Vidyut Sahayak after completion of contractual period. Thus petitioner was asked to perform all the duties Vidyut Sahayak junior engineer and some additiona work as stated in letter dated 7.10.2012 in addition to the duties performed by Mr.D.P.Desai, but he was denied posting of Vidyut Sahayak junior engineer like Mr.D.P.Desai. Thus the respondent company has violated its norms and past practice of appointing the petitioner on post of junior engineer, though asked to perform the same duty of junior engineer Vidyut Sahayak. Thus being aggrieved since petitioner was appointed initially on 11.07.2011 as junior engineer on contractual basis then an artificial break was given to him on 15.06.2012 and instead of reappointing him as Vidyut Sahayak Junior Engineer after completion of first 11 months period, he was posted afresh again as junior engineer on contract basis vide second appointment order dated 18.06.2012. Thus petitioner has been done gross injustice and great prejudice is caused to him as the petitioner as not given his due posting as Vidyut Sahayak junior engineer on completion of his period of contract and instead of that he was asked to continue on the same post as if it is fresh appointment after giving an artificial break by issuing relief letter on 15.06.2012 and re-appointing him on the same post by violating its own norms. Copy of order dated 7.12.2011 to petitioner and other orders issued by respondent company to Mr.D.P.Desai who was initially appointed as junior engineer on contractual basis and subsequently promoted as junior engineer Vidyut Sahayak and later as junior engineer on regular pay are annexed hereto with for perusal as ANNEXURE-G collectively. It may be stated that after rejoining from 18.06.2012 petitioner has been paid Rs.13,000/- as salary per month as indicated in the appointment letter, petitioner is also contributing P.F. as it is in the case of regularly appointed employees. Copy of an illustrative salary slip showing deduction towards PF contribution from salary is annexed hereto to show that PF deduction is made from his salary as is deducted from regularly employees of the company at ANNEXURE-H. 3.7. Petitioner further submits that respondent company has come into existence by unbundling of Gujarat Electricity Board into 7 companies and said companies were formed. It has come to the knowledge of the mother company that is Gujarat Urja Vikas Nigam and various subsidiary companies formed by Gujarat Electricity Board are not following common norms for appointment of staff and adhocism, irregularity have crept in appointment staff in their companies by following different norms and criteria regarding qualifications, experience, age limit in different companies, it came out with circular on 7.9.2010 that henceforth all the companies which have come into existence after unbundling of Gujarat Electricity Board into 7 companies will follow rules and regulations of circulars and general standing orders pertaining to service matters as prevailed during erstwhile Gujarat Electricity Board when it existed. It also further stated in that communication that none of the 7 sister companies will deviate from the norms unless and until the same norms are changed, modified, cancelled, or superseded with the approval of Gujarat Urja Vikas Nigam Limited (GUVNL), the mother company or Government of Gujarat. Thus none of the 7 sister companies can deviate from the norms followed by GUVNL or Government of Gujarat without prior specific approval from same authority. Copy of G.R. dated 7.9.2010 is annexed hereto and marked ANNEXURE-I. 3.9. Petitioner submits that original general standing order dated 04.10.1960 issued by erstwhile Gujarat Electricity Board has prescribed appointment of employees by two methods, one by direct recruitment and other by promoting from lower cadre. The appointment of petitioner being direct in nature, it is fulfilling terms and conditions as stated in the said general standing order dated 4.10.1960. It is also stated in the same that the appointment to the post will be confirmed by joint decision of Service Selection Committee wherein appointments are of Class-I and Class-II nature and selection committee will be formed by members namely Chairman, Technical member, Secretary, Accounts Member etc. As far as appointment of petitioner is concerned this selection committee was constituted and the selection list also was consented by all the persons mentioned in this general standing order. Hence this appointment can strictly fall into the category of Vidyut Sahayak Junior Engineer and not as Junior Engineer (Electrical), purely on contract basis and petitioner s appointment as Junior Engineer (contractual) is therefore violative of the general standing order, though the selection procedure was followed by the respondent company for direct appointments. Copy of General Standing Order dated 04.10.1960 is annexed hereto and marked ANNEXURE-K. 3.11.Even today there are number of vacancies for the post of Vidyut Sahayak but respondent company is circumventing by creating artificial distinction of new post of junior engineer contractual basis and removing them and posting fresh candidates in their place in the same way every year but not posting those persons as Vidyut Sahayaks who have been selected under selection process inspite of large vacancies available in the company. Though the petitioner was selected after common written test was conducted for Vidyut Sahayak and junior engineer (contractual) on 12.12.2010, the fresh appointments are made by conducting fresh test on 22.01.2012 wherein the petitioner has appeared for the test but he is not appointed and again new list is prepared for appointing Vidyut Sahayak junior engineer and junior engineer purely on contract basis for a period of 11 months. Thus the action of respondent company is totally violative of fundamental and legal rights of the petitioner. The company has totally followed arbitrary method of selection by creating artificial distinction and not giving him the benefit of posting as Vidyut Sahayak junior engineer as has been doing by the company in so many persons case. The respondent company has also appointed another ground of 28 persons as Vidyut Sahayak junior engineers from the selection list dated 22.01.2012 on 11.01.2013 without exhausting the list dated 16.12.2010. The copy of selection list dated 24.1.2012 prepared out of examination conducted on 22.1.2012 order dated 11.1.2013 are annexed hereto and marked ANNEXURE-M collectively.
2.7. Further case of the petitioners is that in view of the appointment order/contract dated 18.06.2012 the petitioners are likely to be discontinued in April 2013 and according to information available to them the respondents are in process of or contemplating to initiate fresh but similar selection process for effecting appointments on the said two posts, however, by discontinuing the petitioners and other similarly situated persons who came to be engaged pursuant to the advertisement issued in 2010 and subsequently in 2012 and therefore petitioners are constrained to prefer present petitions and on this background the petitioners have prayed for interim relief to the effect that the respondents may be directed to not discontinue the petitioners and the respondents may be restrained from appointing other person as Junior Engineer (contractual).
3. The petitions are opposed by the respondent company by filing reply affidavit wherein it is claimed, inter alia, that:
8. It is submitted that the respondent-PGVCL is engaged in the business of electricity and is undertaking various activities including Rural Electrification Scheme. It is submitted that electrification of agricultural wells were undertaken by PGVCL. Moreover for high voltage distribution system and certain other schemes of Government like Sagar Khedu Scheme, Tatkal agriculture scheme, Hutmates electrification etc. immediate skilled man power for certain period was required. It is submitted that because of the said fact, PGVCL was in need of additional skilled manpower for the purpose of completion of entire project. It is submitted that firstly for the purpose of Sagar Khedu project and secondly for the purpose of RGGVY project, extra skilled manpower was needed and therefore, vide Board Resolution dated 07.09.2010 it was decided to engage Junior Engineer on contractual basis. A copy of Board Resolution dated 07.09.2010 is annexed herewith and marked as ANNEXURE-R1.
It is submitted that in fact the PGVCL had earlier given advertisement in the newspaper on 20.07.2010 inviting applications from B.E./B.Tech (Electrical) for the purpose of appointment of Junior Engineer (Vidhyut Sahayak) as well as Junior Engineer on purely contractual basis for a period of 11 months. A copy of said advertisement published in Divya Bhaskar daily newspaper on 20.07.2010 is annexed herewith and marked as ANNEXURE-R2. It is submitted that in pursuance to the said advertisement, written test was conducted on 12.12.2010 and in all 467 candidates appeared in the said test. On the basis of assessment of written test, Panel Report dated 16.12.2010 consisting of 306 candidates including the present petitioner was prepared. It is submitted that though in the advertisement, post mentioned of Vidhyut Sahayak were 10, since even before test was held, many vacancies fallen vacant of Vidhyut Sahayak, respondent-PGVCL appointed 73 Vidhyut Sahayaks. It is submitted that the respondent-PGVCL had to complete several projects in pursuance to R.E. Scheme and therefore, vide Board Resolution dated 06.07.2011 it was further resolved to appoint 177 R.E. Teams headed by one Junior Engineer (Contractual). A copy of Board Resolution dated 06.07.2011 is annexed herewith and marked as ANNEXURE-R3.
It is pertinent to note here that earlier it was decided that only candidate possessing marks up to 55% shall be considered for the purpose of contractual appointment, however, in view of the fact that PGVCL needed immediate manpower for completion of R.E. Scheme, which is in the public interest, and since appointment was only contractual, in the sense it will not give any right to candidate of employment, Panel list was operated further up to 35% marks. It is submitted that thereafter it was decided that those candidates, who have acquired below 55% marks, shall not be entitled for offer of appointment as Vidhyut Sahayak.
10. It is at this stage pertinent to note that candidates, who were placed in the panel list prepared on the basis of the written test, were not guaranteed any employment. All the candidates including the petitioner were made fully aware that offer is for contractual period of 11 months only. At the end of 11 months, candidates was not entitled to continue further. It is submitted that in this case, since several Schemes of Rural Electrifications were going on and projects were going on, it was decided that contractual appointment to the petitioner and other like candidates should be offered again. It is submitted that therefore again the petitioner and like candidates were offered appointment. Copy of 2nd contractual appointment order is annexed with the main petition. I crave liberty to refer to and rely upon the same at the time of hearing of the present petition. Thus, the fact remains that the petitioner s appointment was purely contractual and temporary. The said appointment does not confer any right of whatsoever nature to the petitioner. The petitioner has with wide open eyes accepted the said contract and acted under the said order. Now the petitioner cannot challenge the said order after having acquiescence with the said order. Even the petitioner has failed to point out any embargo under any law by which PGVCL cannot offer such contractual appointment to the Junior Engineer. It is submitted that the contract offered by the PGVCL to the petitioner and accepted by the petitioner is not illegal, void ab-initio or prohibited by any law. It is submitted that therefore, the petitioner has no case in eye of law.
11. The petitioner is claiming his right on the basis of alleged discrimination. Firstly the petitioner cannot plead concept of negative equality. The petitioner is pleading that in past there was practice of offering appointment on the post of Vidhyut Sahayak to the candidates, who were covered under the contract. In fact, as and when vacancies had arisen on the post of Vidhyut Sahayak, PGVCL was offering said appointment looking to the merits of candidates. However, in past also, there are instances where candidate in a panel list would not get offer of Vidhyut Sahayak in view of the fact that there are no vacancy and his number is below in the panel list. Thus, at the first instance there is no discrimination. Secondly, even if the petitioner s case is accepted as it is, merely because some illegalities has taken place or something has been done contrary to Rules in the past, it will not confer any right to the petitioner.
At this stage it is submitted that respondent-PGVCL all the while followed Rules and Regulations. It is submitted that so far as contractual appointment is concerned, sine it is required to be given in view of dire urgency and for the purpose of project work, it is not governed by any recruitment Rules. The Board by its Resolution from time to time decided to offer contractual appointment. Secondly, though the contract was expiring after 11 months, since project was not completed it was decided to extend the contract for further 11 months to complete the project.
13. ........It is submitted that the petitioner now cannot claim that no other person should be appointed as Vidhyut Sahayak until earlier panel list is exhausted. In fact, validity of panel list is of one year. The said validity has expired long back. Moreover, the petitioner was not falling within the merit and the petitioner is far below in the merit list. The petitioner, therefore, was not appointed as Vidhyut Sahayak.
It is submitted that as stated aforesaid, the petitioner and other candidates was appointed purely on contractual basis in view of project work of Rural Electrification. The petitioner, therefore, cannot insist that his contract should be extended. Further, the petitioner also cannot insist that unless he is appointed, no other person should be appointed on the post of Junior Engineer (Vidhyut Sahayak). The petitioner was never informed that he will be appointed as Vidhyut Sahayak. On the contrary, advertisement clearly stipulates that 10 posts only are meant for Vidhyut Sahayak and other posts are for contractual appointment. The petitioner has accepted the said contractual appointment and now wants to challenge the said appointment. Contractual appointment of the petitioner is not prohibited by law and the petitioner who is B.E. (Electrical) and in rank of class II officer cannot claim that he should not be relieved from service. In fact, the petition is totally premature and is proceeding on the basis of ifs and buts. The petitioner has no legal and vested right to remain on the contractual post of Junior Engineer.
4. Subsequently, during the process of hearing the respondent has filed further affidavit-in-reply and the petitioners have filed affidavit-in-rejoinder.
5. Mr. Nanavati, learned counsel has appeared with Ms.Contractor, learned advocate for petitioners and Mr. Dave, learned advocate has appeared for respondent company.
6. I have heard learned counsel for petitioners and respondents at length and I have also considered the material available on record of present petition.
7. Learned counsel for the petitioners claimed that the respondents are adopting unfair practice. He also claimed that at regular interval the respondent keeps on engaging persons on contract basis even on the posts which are vacant and thereby replacing contract based employees by other contract based employees. Learned counsel for petitioners also claimed that in giving appointments to the candidates selected pursuant to the advertisement issued in 2010, i.e. from the common list which was prepared on the basis of the selection process conducted pursuant to the advertisement issued in 2010, the respondents have adopted pick and choose policy and certain persons whose names were below the petitioners in the selection list have been given appointments as Vidhyut Sahayak, whereas, some time petitioners engagement on contract base was renewed/extended and now petitioners are likely to be terminated. Learned counsel for petitioners submitted that the respondents should not be permitted to adopt such unfair practice. Learned counsel for petitioners also submitted that the fact that the petitioners were selected in selection process conducted pursuant to the advertisement issued in 2010 and their contract was subsequently extended/renewed, establishes the fact that the petitioners are qualified for the selection/recruitment and there is no justification in terminating the service of the petitioners. It is also claimed that the petitioners possessed the qualification and they fulfilled the criteria prescribed by the respondents for the post in question. It is also claimed that the petitioners were recruited pursuant to the advertisement issued in 2010 after following regular selection procedure and therefore also there is no justification in respondents action of engaging the petitioners only on contract basis and thereafter terminating their service and in their place engaging other contract based employees. Learned counsel for petitioners relied on the decision in case between State of Hariyana & Ors. v. Piara Singh & Ors. [AIR 1992 SC 2130].
8. Per contra, learned counsel for respondent reiterated the details mentioned in the reply affidavit and denied the allegation that the respondents are adopting unfair labour practice. Learned counsel for respondents submitted that in view of administrative exigency and considering the workload at the relevant time, the petitioners were engaged as stop gap arrangement and since certain portion of work was not completed, some of the persons selected pursuant to advertisement issued in 2010 were continued and their contracts were renewed/extended for another period of 11 months after the decision was taken by the Board. Learned counsel for respondent contended that the petitioners are not the employees of the respondent company but they have been engaged on contract basis and their right against the respondent company is only under the contract and the petitioners can, at the most, if they succeed in their claim against the respondents, claim damages. In view of the fact that the petitioners are engaged on contract basis for a fixed period mentioned in the contract, the petitioners do not have any other right to claim against the respondent company. Learned counsel for respondent also submitted that under Article 226 of the Constitution of India the Court would not ask the respondent company to enter into further contract with the petitioners. Learned counsel for the respondent also submitted that after the fixed period of contract expires, the petitioners do not have any right to claim extension/renewal of contract or to continue with the respondent company. The learned counsel for respondent also denied that the respondents are replacing contract based employees by another group of contract based employees. Learned counsel for respondents submitted that from the common list which was prepared pursuant to the advertisement issued in 2010, the appointment to the posts of Vidhyut Sahayak was made on the basis of the merits/seniority as per the said common list and any recruitment was not made arbitrarily or by violating merits and seniority as per the list. As regards the persons appointed by the respondents on the posts of Vidhyut Sahayak are despite the fact that their names appeared in the common list below the names of the petitioners, learned counsel for respondent submitted that the said persons were from Scheduled Caste category and that therefore the said appointments were made keeping in mind the existing vacancies on posts of Vidhyut Sahayak in SC category. Learned counsel for respondent also submitted that the petitioners voluntarily and willingly accepted all terms and conditions of the contract and now it is not open to the petitioners to challenge the terms of the contract. Learned counsel for the respondent submitted that in light of the facts of the case and since the petitioners are not employees of the respondents and they are engaged on contract basis, the relief prayed for by the petitioners may not be granted and the petitions may be rejected. So as to support and justify his submissions, learned counsel for respondent relied on the decisions in case between State Bank of India & Ors. v. S.N.Goyal [2008 (3) GLH 512], Satish Chandra Anand v. The Union of India [AIR 1953 SC 250], Gurbachan Lal v. Regional Engineering College, Kurukshetra & Ors. [(2007) 11 SCC 102], Gridco Ltd. & Anr. v. Sadananda Doloi & Ors. [AIR 2012 SC 729] and Rakhi Ray v. High Court of Delhi [(2010) 2 SCC 637].
9. While it is true that when any appointment is made purely and genuinely on contract basis and when such arrangement/appointment is genuine and bonafide having regard to and co-relation with the nature and/or exigency of work and if such arrangement is not a method to avoid direct and regular appointment for permanent nature of work, then in that event, the Court would not interfere with such contractual or contract based appointments and in such genuine arrangement the parties to such contract would be governed by the terms and conditions of the contract.
10. However, when one of the parties to the contract, particularly, the appointee approaches the Court with grievance and allegations that a contract is facade and it is actually a non-genuine method for giving artificial breaks so as to avoid regular appointment though the nature of work is regular and permanent, then the Court would be justified in piercing the veil to find out as to whether the arrangement is genuine or it is a method to avoid regular appointment for permanent nature of work. If so, it would be an unfair practice which would militate against the concept and philosophy of Article 14 of Constitution of India.
11. In present petitions, the petitioners case or grievance is not only about termination of his services or the case is not only about termination of contract/contract based service but the petitions also raise issue about company adopting unfair practice of resorting to method of contractual appointments for regular and/or permanent nature of work. So as to support such allegation the petitioners have alleged that at least since 2010 the company is repeatedly issuing advertisement inviting applications for appointment on contract basis or is resorting to practice of selectively extending/renewing contracts of the persons already engaged on contract basis.
12. At this stage, it is relevant to mention that as observed by Hon ble Apex Court in case of Central Inland Water Transport Corporation Ltd. & Anr. v. Brojo Nath Ganguly & Anr. [(1986) 3 SCC 156] where Hon ble Apex Court refused to enforce an unfair and unreasonable contract and unfair clause in a contract and observed that there has been notable shift from the legal position settled earlier to the effect that termination of contractual employment in accordance with terms of the contract was permissible. In the said decision, Hon ble Apex Court observed that:
26. A conspectus of the pronouncement of this Court and the development of law over the past few decades thus show that there has been a notable shift from the stated legal position settled in earlier decisions, that termination of a contractual employment in accordance with the terms of the contract was permissible and the employee could claim no protection against such termination even when one of the contracting parties happened to be the State. Renedy for a breach of a contractual condition was also by way of civil action for damages/compensation. With the development of law relating to judicial review of administrative actions, a writ Court can now examine the validity of a termination order passed by public authority. It is no longer open to the authority passing the order to argue that its action being in the realm of contract is not open to judicial review. A writ Court is entitled to judicially review the action and determine whether there was any illegality, perversity, unreasonableness, unfairness or irrationality that would vitiate the action, no matter the action is in the realm of contract. Having said that we must add that judicial review cannot extend to the Court acting as an appellate authority sitting in judgment over the decision. The court cannot sit in the arm chair of the Administrator to decide whether a more reasonable decision or course of action could have been taken in the circumstances. So long as the action taken by the authority is not shown to be vitiated by the infirmities referred to above and so long as the action is not demonstrably in outrageous defiance of logic, the writ Court would do well to respect the decision under challenge.
13. From the allegations made by the petitioner in present case and from the details mentioned by the petitioners and from the material which is placed on record, at this stage, it prima facie appears that the work/posts on which the company has been engaging persons, since 2010, on contract basis or renewing/extending contracts of some of such persons and not renewing/extending contracts of other persons, is of regular or permanent nature of work and it also prima facie appears that posts/vacancies exist on the establishment of the respondent company. But, the respondent company is engaging persons on contract basis and every year or ever alternative year respondent company issues advertisement, invites applications and engages persons on contract basis and in some cases contracts are renewed/extended. Differently put, at this stage, it prima facie appears that the respondent company is replacing the persons engaged purportedly on contract basis are replaced by persons engaged on similar basis i.e. purportedly on contract basis. In case of Air India Corporation, Hon ble Apex Court described such contract as sham contract with reference to the persons covered under the definition of workman under the Industrial Disputes Act.
14. In this view of the matter, it appears that the petitions deserve and require further and detail consideration and for that purpose the petitions are required to be admitted.
15. Hence, Rule.
16. This brings in picture the issue about the interim relief. The petitioners and learned counsel for petitioners would claim that the respondent company may not be allowed to replace them (i.e. the persons who are presently engaged on contract basis) by set of persons who would also be engaged in similar manner (i.e. on contract basis). So as to support the said submission, learned counsel for petitioners has placed reliance on the decision by Hon ble Apex Court in case of State of Haryana & Ors. (supra).
17. However, while considering the request for such interim relief it will have to be kept in focus that such interim direction would have effect of Court extending/renewing contract and would also amount to granting final relief at interim stage, though, having regard to the facts of the case the petitioners can be, if they succeed in the petitions, compensated in terms of money or Court can appropriately mould the relief and pass necessary and appropriate directions at that/final stage.
18. In this view of the matter, the Court is of the view that in these petitions interim relief as prayed for cannot be granted. Therefore, request for interim relief is not accepted. However, considering the facts of the cases, the process of Rule is made returnable on 5th August 2013.
(K.M.THAKER, J.) Jani 18