Madhya Pradesh High Court
Naveen Dubey vs M.P.Urja Vikas Nigam Ltd on 23 November, 2010
HIGH COURT OF MADHYA PRADESH : AT JABALPUR
Writ Petition No : 9989 of 2008(S)
Vijay Kumar Bajpayee
- V/s -
MP Urja Vikas Nigam Limited
& Another.
Writ Petition No : 4190 of 1999(S)
Vijay Kumar Bajpai
- V/s -
MP Urja Vikas Nigam Limited
& Another.
Writ Petition No : 9974 of 2008(S)
Sanjay Kumar Sharma
- V/s -
MP Urja Vikas Nigam Limited
& Another.
Writ Petition No : 9976 of 2008(S)
Krishna Kumar Shrivastava
- V/s -
MP Urja Vikas Nigam Limited
& Another.
Writ Petition No : 9978 of 2008(S)
Naveen Dubey
- V/s -
MP Urja Vikas Nigam Limited
& Another.
Writ Petition No : 9985 of 2008(S)
Ram Manohar Gautam
- V/s -
MP Urja Vikas Nigam Limited
& Another.
2
Writ Petition No : 9986 of 2008(S)
Rajesh Kumar Pandey
- V/s -
MP Urja Vikas Nigam Limited
& Another.
Writ Petition No : 9992 of 2008(S)
Suresh Kumar Suryavanshi
- V/s -
MP Urja Vikas Nigam Limited
& Another.
Writ Petition No : 9993 of 2008(S)
Sher Singh Thakur
- V/s -
MP Urja Vikas Nigam Limited
& Another.
Writ Petition No : 14773 of 2008(S)
Rakesh Kumar Gupta
- V/s -
MP Urja Vikas Nigam Limited
& Another.
Present : Hon'ble Shri Justice Rajendra Menon.
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Shri Ashok Lalwani, learned counsel for the
petitioners.
In W.P.No.:14773/2008(S):
Shri Brindawan Tiwari, learned counsel for the
petitioner.
Smt. Shobha Menon, Senior Advocate, with Shri
Rahul Choubey for the respondents.
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Whether approved for reporting: Yes / No.
3
ORDER
23/11/2010 As common questions are involved in all these petitions and as challenge made in these petitions are to order dated 31.7.2008, by which services of the petitioners are being retrenched in accordance to the provisions of Section 25-F of the Industrial Disputes Act, 1947, all these petitions are being heard and decided by this order. For the sake of convenience and as requested for by the parties, documents filed and the pleadings available in the record of W.P.No.9989/2008 is being referred to in this order.
2- The petitioners were employed in the establishment of the respondents in various capacities. As far as petitioner Vijay Kumar Bajpayee, in W.P.No.9989/2008(S), is concerned, he was appointed as a Junior Assistant vide order-dated 23.5.1990. It is the case of this petitioner that he was appointed in the regular establishment of the respondents, whereas it is the case of the respondents that each of the petitioner was appointed in a particular Project known as Integrated Rural Energy Programme (hereinafter referred to as 'IREP'). According to the petitioner Vijay Kumar Bajpayee, his initial appointment vide Annexure P/1 on 23.5.90 was on probation and thereafter he was confirmed after extension of probation. The orders in this regard are Annexure P/2 dated 1.8.91 and Annexure P/3 dated 1.10.97. It is the case of the petitioners that even though in the orders passed, they are shown to be appointed and confirmed in the IREP Scheme, but it is their case that they are the regular employees of the respondent corporation and as per the service rules applicable to the respondents corporation i.e... Annexure P/4, namely the Employees Service and Recruitment Rules of 1989, petitioners are the permanent employees of the department as they have worked for more than two years. It is the case of each of the petitioner that by virtue of the definition of "permanent employee" as contained in Rule 2(7), after two years of service with the Corporation, he is deemed to be a regular employee of the department. It 4 is the case of each of the petitioner that till date they have put in more than 18 years of service and respondents are granting him the benefit of Group Insurance, Employees Provident Fund Scheme 1992 and various other benefits. It is emphasized that treating the petitioner to be an employees of the Project their services are being dispensed with on the ground that the Project is being wound up and the Scheme, which is implemented at the instance of the Central Government, has come to an end.
3- Case of each of the petitioners are that even though they are shown to be appointed in the Scheme in question, but infact and in law they are regular employees of the Corporation, have attained the status of permanent employee and, therefore, the respondents cannot terminate their service in the manner done. It is emphasized by Shri Ashok Lalwani and Shri Brindawan Tiwari, learned counsel appearing for the petitioners, during the course of hearing, that each of the petitioner is a permanent employee, he has attained the status of a permanent employee and the respondents cannot terminate their services treating them to be employees of the Project. It is stated that once the Provident Fund and other benefits are extended to the petitioners and when they are paid the benefit of gratuity, group insurance etc, they cannot be treated as employees of a particular Project or Scheme.
4- Referring to the set up of the respondents' organization, the Scheme, namely - The Integrated Rural Energy Programme, and the appointments made of various other employees to the Scheme, it was emphasized that many employees appointed under the said Scheme are still continued. Referring to the case of an employee - Smt. Indu Goyal, who has been appointed vide Annexure P/9 on 31.12.93, it is argued that Smt. Indu Goyal is still continued, petitioners contend that it is a case where various other employees appointed under the Scheme are still continuing and by adopting a pick and choose method, only 12 persons who are petitioners before this Court are being retrenched. Referring to Annexure P/10, document with regard to payment of salary and other benefits to the employees working under the Scheme, learned counsel 5 for the petitioners emphasized that in the scheme in question, 111 employees have been appointed and even though 99 employees are still continuing in service, it is only the 12 petitioners who are being singled out for retrenchment. Contending that this action of the respondents in only terminating the services of the present 12 petitioners and permitting 99 employees, similarly situated, to continue amounts to discrimination, is violative of Article 14 of the Constitution, interference into the matter is sought for.
5- Referring to the rejoinder filed, the documents annexed thereto and the interlocutory applications filed, Shri Ashok Lalwani emphasized that when 99 employees are continued then there is no reason or justification on the part of the respondents to take the impugned action, it is stated that action of the respondents are discriminatory and unsustainable. Inviting my attention to I.A.No.2869/2010, the grounds raised therein and emphasizing that if the Scheme itself is closed then how 99 other employees are permitted to work, petitioners want this Court to interfere into the matter. 6- Finally, placing reliance on certain orders passed by this Court in the matter of certain employees namely Rudra Prasad Mishra, Budhsen etc, it was argued by Shri Ashok Lalwani that as these employees have been directed to be regularized by this Court, petitioners who are also similarly situated like these employees are entitled to be extended similar treatment. Claiming parity with these employees prayer made is that the relief as prayed for be granted and the retrenchment proposed by the impugned notice - Annexure P/5 dated 31.7.2008 be quashed.
7- In support of his contention Shri Ashok Lalwani invites my attention to the following judgments: Central Inland Water Transport Corporation Ltd. and another Vs. Brojo Nath Ganguly and another, AIR 1986 SC 1571; V.L. Chandra and others Vs. All India Institute of Medical Sciences and others, 1990 SCC 38; and, State of West Bengal and others Vs. Kabert Khastagir and others, AIR 2009 SC 1437.
68- Refuting the aforesaid contention Smt. Shobha Menon, learned Senior Advocate, by referring to the orders of appointment i.e... the appointment order of Shri Vijay Kumar Bajpayee, petitioner in W.P.No.9989/2008, and taking me through the orders - Annexures P/1, P/2 and P/3, issued in his case, pointed out that in each and every order issued to this person it is clearly stipulated that he is appointed in connection with the IREP. It is the case of the respondents that the IREP is a Scheme floated by the Government of India and the respondent Nigam is only a nodal agency appointed by the Central Government for implementation of the Scheme. The Scheme is implemented for the purpose of making available renewable and non-renewable source of energy in rural areas and the expenditure for implementing the Scheme is shared @ 50% each between the Central Government and the State Government. It is emphasized that the Central Government having closed the Scheme now and having withdrawn the financial assistance granted, it is stated that the petitioners, who were appointed for a particular Scheme, cannot claim any further continuation in service. It is the case of the respondents that petitioners' appointment is co-terminus with the Scheme and once the Scheme is wound up, the service of the petitioners also come to an end. It is the case of the respondents that once the Scheme is concluded, the petitioners' have been rightly retrenched after following the provisions of Section 25-F of the Industrial Disputes Act. Smt. Shobha Menon, learned Senior Advocate, submits that in the respondents Corporation, there are two sets of employees. Under the Recruitment Rules of 1989 - Annexure P/4, appointments are made to the regular cadre post in the department and such appointments are made either by direct recruitment or by promotion or on deputation. All other appointments made are either casual in nature or in connection with certain Schemes or Project that are being implemented by the respondents. It is the case of the respondents that the petitioners were never appointed in connection with the regular establishment or activities of the Corporation, in accordance to the 7 Recruitment Rules against sanctioned post and, therefore, the benefit of the Recruitment Rules of 1989 is not applicable to them. 9- As far as payment of Employees Provident Fund and other statutory benefits are concerned, it is the case of the respondents that merely because the benefit statutory in nature, payable to the employee is paid that would not mean that the employee becomes a permanent or regular employee of the establishment. Contending that there is no discrimination and taking me through the appointments of various employees like Smt. Indu Goyal, Shri A.K. Garg, Shri Rajeev Kumar Bakshi and others and filing a detailed statement indicating that these employees even though deputed to work under the Scheme are infact regular employees of the Nigam and even after winding up of the Project they still continue as employees of the Nigam. Smt. Shobha Menon, learned Senior Advocate, emphasized that the contention of the petitioners that 111 employees were appointed under the Project and only 12 are being terminated is incorrect. Learned Senior Advocate took me through the documents filed alongwith the return as Annexures R- 11-A to R-11-Z, and pointed out that out of 111 employees working in the Scheme in question, most of the employees were the regular employees of the Nigam and they were temporarily deputed to work under the Project/Scheme in question. After the Scheme/Project is over, they are being brought back to the regular establishment. It is stated that the nature of appointment of the petitioners and these regularly appointed employees are different and, therefore, petitioners cannot compare their case with these employees. Referring to the orders of appointment of Smt. Indu Goyal and other employees available on record, the plea of discrimination is rebutted by the respondents. 10- Smt. Shobha Menon, learned Senior Advocate, further submits that the petitioners are employees appointed in a particular scheme or project, their appointment is co-terminus with the scheme and once the scheme is over their services come to an automatic end. As far as the case of Rudra Prasad Mishra & Budhsen is concerned, Smt. Shobha Menon invites my attention to the Division Bench judgment rendered in 8 the case of M.P. Urja Vikas Nigam Limited and others Vs. Rudra Prasad Mishra, on 2.5.2007 in W.A.No.419/2007, and submits that in the light of the order passed by the Division Bench, in this case petitioners cannot claim any benefit. It is argued that in the case of other employees, referred to in paragraphs 6.4 of the petition, they were granted the benefit of certain orders passed by the learned Single Judge and in view of the order passed by the learned Single Judge in the case of Rudra Prasad Mishra, the same is now under challenge in the Writ Appeal after the judgment rendered by the Division Bench in the case of Rudra Prasad Mishra, it is argued that the cases of the present petitioners and these employees are different.
11- As far as the case of other employees are concerned, it is said that when the services of these employees were terminated, they challenged the termination before the Labour Court and it was their case that their termination is retrenchment and the same is illegal. Labour Court found that these employees were removed from service contrary to the principles laid down for retrenchment as contemplated under the Industrial Disputes Act, 1947 and, therefore, their termination was held to be illegal. This order of the Labour Court having been upheld by this Court, therefore, these employees were reinstated. In the present case, petitioners have not challenged the retrenchment on the ground as was raised by these employees, which was considered by the Labour Court. That being so, the case of these employees is clearly distinguishable. In that case the Labour Court has not considered the question with regard to the Project employees being continued after winding up of the Project. It is a case where the termination is held to be retrenchment and the same being without following the procedure contemplated under the Industrial Disputes Act, is held to be illegal.
12- In support of her contention to the effect that petitioners are project employees and cannot claim any benefit and further in support of the various other averments made by her, Smt. Shobha Menon, learned counsel, placed reliance on the following judgments: Delhi 9 Development Horticulture Employees' Union Vs. Delhi Administration, Delhi and others, (1992) 4 SCC 99; State of Himachal Pradesh through the Secretary (Rural Development) to the Govt of Himachal Pradesh, Shimla Vs. Ashwani Kumar and others, AIR 1997 SC 352; State of Himachal Pradesh through the Secretary, Agriculture to the Govt of Himachal Pradesh, Shimla Vs. Nodha Ram and others, AIR 1997 SC 1445; Surendra Kumar Sharma Vs. Vikas Adhikari and Another, (2003) 5 SCC 12; Mahendra L. Jain and others Vs. Indore Development Authority and others, A. Umarani Vs. Registrar, Cooperative Societies and others, (2004) 7 SCC 112; AIR 2005 SC 1252; Gurbachan Lal Vs. Regional Engineering College, Kurukshetra and others, 2007 INDLAW SC 323; Lal Mohammed and Others Vs. Indian Railway Construction Co. Ltd. & Others, AIR 2007 SC 2230; Mohd. Abdul Kadir and Another Vs. Director General of Police, Assam and others, (2009) 6 SCC 611; and, judgments of the Delhi High Court in the cases of Amita Gulati Vs. Union of India and others, ILR 1996 Delhi 327; and, Union of India Vs. Ram Pal Singh and others, W.P.(C) No.1542/2010, decided on 26.8.2010.
13- Having heard learned counsel for the parties and on perusal of the records, it is seen that the main question that would arise for consideration in this writ petition is as to whether petitioners were employees, who were appointed into the regular service of M.P. Urja Vikas Nigam Limited; and, whether they are deemed to have attained the status of a permanent employee as enumerated in Rule 2.7 of the M.P. Urja Vikas Nigam Rules, 1989. The second question would be as to whether the petitioners are employees appointed against a Project and if so, what is the result of closure of the Project. A further question requiring consideration is as to whether other similarly situated employees engaged in the same Project are continued and by adopting a 'pick and choose' formula, petitioners are singled out for being terminated even though other similarly situated project employees are continuing. The final question would be with regard to benefit to be 10 granted to the petitioner in the light of the decision rendered in the case of Rudra Prasad Mishra and other employees like Shri Budhsen, so also those who were granted relief by the Labour Court.
14- Before adverting to consider the questions for determination as indicated hereinabove, it may be appropriate to take note of the so called Integrated Rural Energy Programme and the role of the MP Urja Vikas Nigam Limited, in the matter of execution of this Scheme/Project. From the material available on record, it is clear that the M.P. Urja Vikas Nigam Limited is a Company incorporated under the Companies Act, 1956. It is an independent legal entity and it is fully owned and established by the Government of MP. It has various functions to be carried out and is amenable to the writ jurisdiction of this Court. The aims and object of the Nigam is available in the memorandum of association.
15- The IREP was a Scheme initially sponsored by the Central Government and came into force in the year 1986-87. The purpose of this Scheme was to provide assistance for establishing Integrated Rural Energy Planning Source at State Level and District Level. Respondent M.P. Urja Vikam Nigam was nominated as the Nodal Agency for implementing this Scheme and the burden for implementing the Scheme was to be shared on the basis of 50% each by the State Government and the Central Government.
16- As far as employment to the services of MP Urja Vikas Nigam Limited is concerned, the same is governed by the MP Urja Vikas Nigam Rules, 1989 and the service conditions stipulated therein. 17- Petitioners claim that they are regular employees appointed by the respondent company. However, on a perusal of the appointment order of the petitioners, which is similar in nature, it is seen that in the order-dated 23.5.90 - Annexure P/1, with regard to appointment of petitioner Shri Vijay Kumar Bajpayee, it is clearly indicated that he is appointed on a fixed salary of Rs.950/- per month in the IREP Scheme and posted at Amarpatan. Even though in the order it is stated that his appointment is on probation for a period of two years, but the 11 stipulations contained in the appointment order clearly points out that it is under the IREP Scheme. Thereafter, when the order of confirmation was passed vide Annexure P/2 on 1.8.1981, it is again indicated in this order that he is appointed under the particular scheme, as is already contained in the order-dated 23.5.90 - Annexure P/1. Finally, in the order-dated 1.10.1997 - Annexure P/3, it is clearly indicated that petitioner's appointment is against the IREP Scheme and he is an employee of the Scheme. The stipulations in this regard are evident from the order-dated 1.10.1997 - Annexure P/3 issued by the Department. It is, therefore, clear that in the case of each of the petitioner's the appointment order clearly stipulates that they are appointed for the purpose of execution of a particular scheme. The words used in the order of appointment - Annexure P/3 dated 1.10.1997 in Hindi, reads as under:
" Jh fot; dqekj cktis;h vkRet Jh clar dqekj cktis;h dks vLFkkbZ :i ls vkxkeh vkns'k rd fuxe } kjk fØ;kUohr dh tk jgh ,dhÑr xzkeh.k ÅtkZ ;kstuk dk;ZØe ¼iw.kZr% vLFkkbZ½ ds vUrxZr dfu"B lgk;d in ij osrueku :i;s & ;g fu;qfDr ifj;kstuk ds vUrxZr iw.kZr% vLFkkbZ gS rFkk vLFkkbZ fu;qfDr ds nkSjku Jh cktis;h dh lsok,a fdlh Hkh le; fdlh Hkh ,d i{k }kjk ,d ekg dk uksfVl nsdj ;k mlds ,ot esa ,d ekg dk osru nsdj lekIr dh tk ldrh gSA
-----------------------------vkbZ-vkj-bZ-ih- jhok esa inLFk fd;k tkrk gS rFkkfi iz'kkldh; vko';drkvksa ds dkj.k bUgsa e/; izns'k esa fuxe ds fdlh Hkh dk;kZy; vFkok vkbZ-vkj-bZ-ih- ifj;kstuk dk;kZy; esa inLFk djus dk fu;e dks vf/kdkj gksxkA"
(Emphasis supplied) 18- The aforesaid stipulation in this order of appointment of the petitioners clearly shows that appointment of the petitioners are in connection with a particular scheme. If the appointment orders of other employees available on the record as Annexure R-11-A to R-11-Z are taken note of, it would be seen that in the appointment order of none of these employees, it is indicated that their appointment is in connection 12 with the execution of a particular scheme. On the contrary it is seen that their appointment is to the service in the Nigam, for example in the order
- Annexure R-11-C, appointing four persons, it is stated that the employees are appointed to the services of the Nigam. Petitioners want this Court to hold that by virtue of the provisions of Clause 2(7) of the Service Rules - Annexure P/4, petitioners having worked for two years, are deemed to be employees of the Nigam is wholly misconceived. Petitioners can become employees of the Urja Vikas Nigam, if their appointment is made in accordance to the conditions for recruitment into service of the Nigam as is stipulated in the Recruitment Rules - Annexure P/4 itself. Clause 10 onwards of the aforesaid Recruitment Rules contains elaborate procedure for appointment to the service of the Nigam and there is nothing to indicate that the petitioners were appointed to the service of the Nigam after following the Rules and the Procedure contemplated in Annexure P/4, that also against sanctioned post as per the schedule to this rule. It is a case where the petitioners are appointed on a particular Scheme/Project and merely because they have worked for two years, it cannot be construed that they have become permanent employees in the regular establishment of the respondents. For appointment to the regular establishment of the respondents a detailed recruitment procedure is contemplated under the Recruitment Rules - Annexure P/4 and in the absence of the petitioners establishing the fact that they are appointed in compliance to the requirement of the aforesaid recruitment rules, it cannot be held that the petitioners are regular employees of the department. As far as the claim of the petitioner with regard to payment of Provident Fund, Gratuity, GIS are concerned, merely because the aforesaid statutory benefits are extended to the petitioners, it cannot be construed that they become regular employees of the establishment.
19- Similar questions as are being raised by the petitioners in these petitions have been considered by the Supreme Court in the case of Lal Mohammed (supra), relied upon by Smt. Shobha Menon. It has been held by the Supreme Court in the aforesaid case that when 13 appointment is not made in accordance to the Rules for recruitment in the Department and when the appointment is dehors the rules and further when the appointment letter clearly appoints a person against a particular project, the appointment cannot be termed to be one in the regular establishment of the Company, but would only be an appointment in connection with the Project. In paragraph 14 of the aforesaid judgment, the matter has been considered in detail and it has been held that until and unless appointment is not made in accordance to the regular recruitment rules, merely because some benefit of Group Insurance Scheme or Provident Fund is extended, the Project employee will not become an employee of the establishment. The principles laid down in the aforesaid judgment would squarely apply in the facts and circumstances of this case and in the light of the specific stipulation as is contained in the order of appointment of each of the petitioners, it is clear that they are appointed to a particular project and there is nothing to indicate that their appointment is to the regular service of the establishment of the respondent after following the conditions stipulated in the Recruitment Rules. Accordingly, the contentions advanced by Shri Ashok Lalwani, in this regard and in the facts and circumstances of the present case and in view of the principles laid down as indicated hereinabove, I am unable to accept the grounds raised by the petitioner that they are regular employees of the establishment/Nigam. The petitioners are not appointed in the regular establishment of the respondents, they are only appointed to a particular project. 20- As far as the right accruing to the petitioners and their claim for continuing in service after winding up of the Project is concerned, the law in this regard is well settled and there cannot be any doubt with regard to the right of a project employee and the principle to be followed in such cases. In the judgments relied upon by Smt. Shobha Menon, the principles have been clearly laid down. In the case of Delhi Development Horticulture Employees' Union (supra), decided in the year 1992, it has clearly been held that an employee appointed under a 14 particular scheme has no right to claim regularization only because he has worked for a particular period of time.
21- In the case of State of Himachal Pradesh through the Secretary, Agriculture to the Govt of Himachal Pradesh, Shimla Vs. Nodha Ram and others (supra), it has been held that an employee appointed in a government project does not have any right to continue in employment after the project is closed. It is stated that appointment in a project is temporary in nature and co-terminus with the continuation or otherwise of the Project.
22- Similar is the view of the Supreme Court in the case of Ashwani Kumar (supra), where it is held that termination on closure of a project is proper and not illegal. In the judgments rendered by the Supreme Court, in the case of Mahendra L. Jain (supra), it has been held that if appointments are made without following the rules contemplated in the Recruitment Rules, such an employment cannot be regularized and if the appointment is on a particular scheme or a project, the appointment will come to an end once the scheme or the project is wound up or closed.
23- In the case of Mohd. Abdul Kadir (supra) also, it has been held that staff employed for a particular project or scheme will have no right to claim regularization and they cannot claim continuation in service or regularization in other project or scheme once the scheme or project for which they are appointed is closed. This is the view taken by the Supreme Court in the case of Surendra Kumar Sharma (supra) also, wherein after following the law laid down in various other cases, it has been held that once the scheme, project or programme is abolished, the employee appointed under such scheme, project or programme automatically comes to an end. The consistent view of the Supreme Court and various other High Courts, particularly the Delhi High Court - in the cases relied upon by Smt. Shobha Menon, to the effect that a project employee continues to work so long as the project continues, the appointment is co-terminus with the project and once the project is wound up the appointment comes to an end.15
24- In that view of the aforesaid, once the petitioners are seen to be appointed against a project, they have no right to claim continuation in service after the project is wound up. In the present case, the overwhelming documentary evidence available on record clearly indicates that the Central Government had wound up the project and stopped funding and it was because of the same that the petitioners' services are being retrenched.
25- During the course of hearing Shri Ashok Lalwani had placed heavy reliance on a judgment of the Supreme Court, in the case of Kabert Khastagir (supra), to say that petitioner is not a project employee. The aforesaid judgment has to be considered in the facts and circumstances of that case. It was a case where even though the employees were appointed for discharging certain duties under ICDC Scheme or a Project by the Government of West Bengal, but the facts that are unveiled on going through the said judgment indicates that they were appointed to the services of the State of West Bengal in accordance to the recruitment rules of the State and thereafter delegated to discharge their duties in a particular project, for which the State Government was the implementing agency. That was a case where the employees were appointed to the services of the State and their services utilized for a particular project and it was in view of the aforesaid that the Supreme Court held that the closure of the Project will not affect the services of the employees as they were appointed by the State Government itself. In the case of Kabert Khastagir (supra), there was a specific provision in paragraph 47 of the Scheme, in which it was contemplated that even though for implementation of the Scheme the fund would be provided by the Central Government, the staff will be borne on the appropriate cadre of the State Government and the State Government was obliged under the Scheme to create and sanction posts, as per appendix to the Scheme in the appropriate scale of pay. In pursuance to this provision the State Government issued various notifications and finally posts were sanctioned, recruitment rules were framed and the employees were appointed against these sanctioned posts to the services of the State 16 Government. It was in view of the aforesaid peculiar circumstances that in the case of Kabert Khastagir (supra), Supreme Court decided the matter as indicated hereinabove. For the sake of convenience, the relevant part of the Supreme Court judgment in this regard is reproduced hereinunder, which clarifies the position and, therefore, on this count the case of Kabert Khastagir (supra), relied upon by Shri Ashok Lalwani, being distinguishable, will not apply in the facts and circumstances of the present case:
"26. ...... Infact, paragraph 47 of the Scheme, which has been extracted hereinabove, in no uncertain terms makes it very clear that even though funds for the Scheme would be provided for by the Central Government, the staff would be borne on the appropriate cadres of the States which would sanction the posts in the appropriate corresponding State pay scale. In the face of such provision it is difficult to accept that the writ petitions were Project workers and not employees of the State Government."
26- In the present case, it is clear that all the twelve petitioners were appointed to work in the IREP and the Central Government having closed the said scheme, the petitioners' appointment which was in connection with the scheme will automatically come to an end. Accordingly, it has to be held that the petitioners being project employees have no right to continue in service once the Project has come to an end.
27- As far as the other ground raised with regard to discrimination and adopting a 'pick and choose' policy in the matter of terminating the services of the petitioners are concerned, the said ground is raised mainly on account of two reasons. The first factual aspect for assailing the aforesaid ground is based on case of one Smt. Indu Goyal. According to the petitioner she was also appointed vide order-dated 31.12.1993 - Annexure P/9, in the same project. If the order of appointment of Smt. Indu Goyal is perused i.e.. Annexure P/9 dated 31.12.1993, filed by the petitioner, it is seen that this order pertains to 17 appointment of Smt. Indu Goyal as a Junior Assistant in the regular pay scale and it is clearly stipulated that she is appointed in connection with the service and affairs of the Nigam under the Service Rules of 1989 and after being so appointed, in the appointment order it is stated that after her appointment she is posted to work in the Project being undertaken by the Urja Vikas Nigam i.e... IREP Project. It is, therefore, clear that the nature and the content of appointment of Smt. Indu Goyal and that of the petitioners are entirely different. Smt. Indu Goyal is appointed to the services of the Nigam in accordance to the rules applicable to the Nigam and after such appointment she is delegated to work in the Project at a particular office whereas in the case of the petitioner the stipulation in the appointment order is with regard to their appointment in connection with the work of the Project. That being so, the nature and contract of appointment in the case of the petitioners and Smt. Indu Goyal is entirely different.
28- It is the case of the petitioners that in all 111 employees were working in the Project and it is only the petitioners, twelve in number, who are picked up for termination on the ground that the Project is closed. Petitioners in support are placing reliance on a note-sheet - Annexure P/10. Annexure P/10 is a note-sheet prepared by the Department for the purpose of drawing salary and allowance of various employees, which includes Project Officers, Mechanics, Helpers, Junior Assistants, Project Directors etc, appointed in the Block Level, Head Office etc. If the set up of the department and the appointment of various employees, whose names are contained in the list annexed to Annexure P/10, is taken note of, it would be seen that the list consists of various persons, which includes certain persons like A.K. Garg, Rajeev Kumar Bakshi etc. If the return filed by the respondents is perused, it would be seen that it is the case of the respondents that the employees who were continuing in service even after winding up of the Project are employees appointed into the service of the Nigam and not for the Project. For example - in the document filed by the petitioner as Annexure P/10 in the State Level Cell, at Head Office, one Shri A.K. 18 Garg is shown to be appointed as Project Director. Salary for Shri A.K. Garg is drawn in this document. The appointment order of Shri A.K. Garg is filed by the respondents as Annexure R/11-A and this order indicates that Shri A.K. Gupta is appointed as Regional Manager in the office of M.P. Urja Vikas Nigam, Rewa. He is appointed to work in the Nigam and there is nothing in the order - Annexure R/11-A to indicate that Shri A.K. Garg is appointed against a particular Project. Similarly, Shri Rajeev Kumar Bakshi and Shri Sunil Kumar Gahukhedkar, whose name also appear in Annexure P/10, are appointed vide Annexure R/11- B and they are also appointed in connection with the affairs of the Nigam. Similar is the position with Shri Arif Hussain, who is appointed as Assistant and various other employees in whose cases respondents have filed the appointment order - Annexure R/11-C to R/11-Z. A scrutiny of these appointment letters indicate that all these employees were regular employees of the department and they were thereafter deputed to work in the Project. It is not a case where these employees were appointed particularly to work in the Project and inspite of closure of the Project they are continued. The case of the petitioners and these employees are entirely different. The nature of appointment and the contract of appointment in the case of the petitioners and these employees are different. The petitioners have not brought on record example or instance in the case of a single employee appointed like the petitioners to a particular Project and thereafter continued. On the contrary, it is seen from the records that only such employees are continued in service after winding up of the project, who were regularly appointed into the service of the Nigam as per the Recruitment Rules of the Nigam and after such appointment were posted to work in the Project and after winding up of the Project are brought back to the main stream activities of the Nigam. Contention of the petitioners that a 'pick and choose' policy is followed and there is discrimination is wholly unsustainable and not established from the material available on record. That being so, the third ground raised by the petitioners is also found to be unsustainable.
1929- As far as the last ground with regard to relief granted to Shri Rudra Prasad Mishra and Budhsen is concerned, it is seen that in the case of Shri Rudra Prasad Mishra an order was passed by a Single Bench of this Court on 11.12.2006, in WP(S) No.6088/2006 and earlier to that M.P.No.4589/1993 was filed by him seeking his regularization in the services of the respondent. It seems that on 16.4.2002, a Single Bench of this Court passed certain orders in M.P.No.4589/93 and this order was confirmed in LPA No.388/2003 and, therefore, when the matter was again agitated, the Division Bench in W.A.No.419/2007, held that in the light of the order already passed in LPA No.388/2003, interference cannot be made. After evaluating the circumstances in the case, the Division Bench in paragraph 39 has issued various directions and the direction contained in paragraph 39(e) of the judgment rendered by the Division Bench reads as under:
"39(e) - In case vacancies arise, directions given in LPA No.388/2003 shall be carried out in letter and spirit as the said judgment has attained the finality. It is hereby clarified that the said decision is not to be treated as a precedent for any purpose because it only issued directions in that particular factual matrix."
From the aforesaid, it is clear that the judgment in the case of Rudra Prasad Mishra (supra) was rendered in the peculiar factual matrix that were existing in the said case, and the Division Bench itself has held that the order passed will not be treated as a precedent. It is also pointed out by Smt. Shobha Menon that in the light of the order passed by the Division Bench, in the case of Rudra Prasad Mishra (supra), in W.A.No.419/2007, writ appeals in the case of other similarly situated employees are pending and as their cases are different petitioners cannot claim any benefit. Accordingly, it is clear that the cases of the petitioners and that of these employees are different and petitioners cannot claim parity with these employees. Similarly, the case of other employees are also different in as much as in the case of these employees the Labour Court had interfered with the matter on the ground that their 20 termination is illegal - retrenchment being in contravention to the statutory requirement contemplated under the Industrial Disputes Act, 1947 and, therefore, unsustainable. It is not at all the case of the petitioners in these petitions that their retrenchment is illegal, being in contravention to the provisions of the Industrial Disputes Act 1947, no such contention was ever raised at the time of hearing. As far as the present petitioners are concerned, analysis of the material available on record and the grounds and reasons as are indicated hereinabove clearly shows that each of the petitioner was appointed for a particular Project i.e... IREP, the Project continued for a certain period of time and so long as the Project continued petitioners, who were appointed in this Project continued to work. After the Project was closed and wound up by the Central Government, petitioners' services have been retrenched. That being so, in the light of the discussions made hereinabove and for the grounds and reasons indicated therein, this Court does not find any merit in this writ petition.
30- It is, therefore, clear that petitioners are claiming parity with three categories of employees. The first category of employees are those like Smt. Indu Goyal and others, but as these employees are regular employees of the establishment and were appointed to sanctioned post as per the recruitment rules, their cases is clearly different from that of the petitioners. The second category of employees with whom parity is claimed is that of Shri Rudra Prasad Mishra and others like Budhsen. In their case, in view of the specific stipulation made by the Division Bench, in the Writ Appeal of Shri Rudra Prasad Mishra, the said order cannot be treated as a precedent and made applicable to the present petitions. The third set of employees are those, who aggrieved by their termination approached the Labour Court and challenged the termination on the ground that it is illegal retrenchment. This contention of the employees has been upheld and finding the retrenchment to be illegal, the Labour Court has interfered in the matter. In the present case, there is nothing pleaded or established before this Court nor any submission made to show that the retrenchment in question is illegal or contrary to 21 the statutory requirement of the Industrial Disputes Act. It is a case where the parity claimed is not in existence and petitioners have not brought to the notice of this Court case of even a single employee similarly situated like the petitioners and appointed specifically in connection with the Scheme, who is continued after winding up of the Scheme. Even though during the course of hearing of this writ petition, by referring to certain interlocutory applications filed, Shri Ashok Lalwani tried to emphasize that as the respondents have failed to produce all the documents to justify their action of discrimination adverse inference should be drawn, I am of the considered view that petitioners have not made out any case for claiming parity with other employees as alleged in the writ petitions and, therefore, no adverse inference is required to be drawn in the matter.
31- As services of the petitioners are being retrenched after allegedly complying with the provisions of Section 25-F of the Industrial Disputes Act, 1947 and as the petitioners have not raised any ground with regard to breach of these provisions in this writ petition, the said question is not to be gone into. In case the petitioners have any grievance with regard to their retrenchment being contrary to the provisions of the Industrial Disputes Act, 1947 or they want to claim parity with those employees, in whose case it has been held by the Labour Court that their retrenchment is illegal, they have to agitate the same by resorting to the remedy available under the Industrial Disputes Act, 1947 before the appropriate Labour court or Industrial Court.
32- In the facts and circumstances of the case, finding no case for interference in these writ petitions on the grounds as are indicated hereinabove, the petitions are dismissed. No order as to costs.
( RAJENDRA MENON ) JUDGE Aks/-