Madhya Pradesh High Court
Smt Savita Sahu vs The State Of Madhya Pradesh on 22 January, 2018
Document Title Center Text 1
THE HIGH COURT OF MADHYA PRADESH
WP-1633-2015
(SMT SAVITA SAHU Vs THE STATE OF MADHYA PRADESH)
Jabalpur, Dated : 22-01-2018
This order will govern the disposal of the W.P. Nos.1633/2015,
1784/2015, 2411/2015 and 2837/2015. These petitions were analogously
heard on the joint request of the parties.
2. Learned counsel for the parties, during the course of argument, fairly
admitted that the petitioners were working as Yoshada Karyakarta under
the Scheme of National Health Mission sponsored by Norway India
Partnership Initiative (NIPI). It is agreed that the appointment of
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petitioners were co-terminus to the life of the Scheme/Project. The
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petitioners rendered more than a decadeâs service with the
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respondents. The respondents by communication dated 06.05.2013
(Document No.1 with additional affidavit filed in W.P. No.2411/2015) and Pr by order dated 13.08.2013 decided to absorb the employees against a certain vacancies by creating supernumerary post.
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3. Shri Brindavan Tiwari, learned counsel for the petitioner, placed heavy ad reliance on the circular dated 13.08.2013 filed with the aforesaid additional affidavit. Petitioners also placed reliance on AIR 1994 SC 216 M (C.A. Shankar Prasad and others Vs. Karnataka State Adult of Education Council and others) and a Division Bench judgment of this Court reported in 1996 MPLJ 547 (Madhya Pradesh Rajya Sahakari rt Bank Maryadit Vs. Vijaysingh Solanki and others). Learned counsel ou for the petitioners contended that the respondents may be directed to C consider the candidature of the petitioners on any available post for h which petitioners are eligible by taking into account the services ig rendered by them for a decade.
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5. Per contra, Shri Gangrade, learned P.L. for the State opposed the same. He submits that the petitionersâ services were contractual in nature. The services were co-terminus to the life of the project. Since the project came to an end, the petitioners have no legal right whatsoever to continue in the employment. He had tried to distinguish the document dated 13.08.2013 by contending that the said order is applicable to Block Child Health Managers (BCHM) and Block Programme Manager (BPM). The petitioners are admittedly not working against the said post and, therefore, the said circular cannot be pressed into service.
6. No other point is pressed by learned counsel for the parties.
7. I have heard learned counsel for the parties and perused the record.
8. The question whether the project employees whose services are co-
Document Title Center Text 2terminus with the project have any legal right to continue or get absorbed in other department is no more res integra. After considering the catena of judgments of various Courts including the Supreme Court, Rajendra Menon, J. (As His Lordship then was) in Vijay Kumar Bajpayee Vs.M.P. Urja Vikas Nigam Ltd. and another, 2011 (1) MPLJ 410 has held as under:
â13. 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 sh of the Project. A further question requiring consideration is as to whether other similarly situated employees engaged in the same Project are continued e and by adopting a 'pick and choose' formula, petitioners are singled out for ad being terminated even though other similarly situated project employees are continuing. The final question would be with regard to benefit to be granted to the petitioner in the light of the decision rendered in the case of Rudra Pr Prasad Mishra and other employees like Shri Budhsen, so also those who were granted relief by the Labour Court.
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14. Before adverting to consider the questions for determination as indicated hy 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 ad 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 M 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 of Court. The aims and object of the Nigam is available in the memorandum of association.
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15. The IREP was a Scheme initially sponsored by the Central Government ou 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 C nominated as the Nodal Agency for implementing this Scheme and the h burden for implementing the Scheme was to be shared on the basis of 50% ig each by the State Government and the Central Government.
16. As far as employment to the services of MP Urja Vikas Nigam Limited is H 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 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 Document Title Center Text 3 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 fÃ;kUohr dh tk jgh ,dhÃr xzkeh.k à tkZ ;kstuk dk;ZÃe 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 sh 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 e their appointment is in connection with the execution of a particular scheme.
ad 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.
Pr 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 a years, are deemed to be employees of the Nigam is wholly misconceived.
hy Petitioners can become employees of the Urja Vikas Nigam, if their appointment is made in accordance to the conditions for recruitment into ad service of the Nigam as is stipulated in the Recruitment Rules - Annexure P/4 itself. Clause 10 onwards of the aforesaid Recruitment Rules contains M 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 of 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 rt merely because they have worked for two years, it cannot be construed that ou 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 C Rules - Annexure P/4 and in the absence of the petitioners establishing the h fact that they are appointed in compliance to the requirement of the aforesaid ig 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 H 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 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 Document Title Center Text 4 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' sh Union (supra), decided in the year 1992, it has clearly been held that an employee appointed under a particular scheme has no right to claim e regularization only because he has worked for a particular period of time.
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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 Pr 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 a co-terminus with the continuation or otherwise of the Project.
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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 ad 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 M 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 of the project is wound up or closed.
23. In the case of Mohd. Abdul Kadir (supra) also, it has been held that staff rt employed for a particular project or scheme will have no right to claim ou 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 C of Surendra Kumar Sharma (supra) also, wherein after following the law laid h down in various other cases, it has been held that once the scheme, project or ig programme is abolished, the employee appointed under such scheme, project or programme automatically comes to an end. The consistent view of the H 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.
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 Document Title Center Text 5 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 sh the services of the State Government. It was in view of the aforesaid peculiar circumstances that in the case of Kabert Khastagir (supra), Supreme Court e decided the matter as indicated hereinabove. For the sake of convenience, the ad 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 Pr distinguishable, will not apply in the facts and circumstances of the present case:
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"26. ...... Infact, paragraph 47 of the Scheme, which has been extracted hereinabove, in no uncertain terms makes it very clear that ad even though funds for the Scheme would be provided for by the Central Government, the staff would be borne on the appropriate M cadres of the States which would sanction the posts in the appropriate corresponding State pay scale. In the face of such of provision it is difficult to accept that the writ petitions were Project workers and not employees of the State Government."
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26. In the present case, it is clear that all the twelve petitioners were ou appointed to work in the IREP and the Central Government having closed the said scheme, the petitioners' appointment which was in connection with the C 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 h once the Project has come to an end.â ig
9. In the light of the aforesaid authoritative judgment rendered by this H Court in the case of Vijay Kumar Bajpayee (supra), it can be safely held that such project employees have no legal right to continue in employment after closure of the project. The documents on which reliance is placed by the petitioners are not related to the posts which were held by the petitioners. The said documents are, therefore, of no assistance to the petitioners. The judgment in the case of M.P. Rajya Sahakari Bank Maryadit (supra) is not a case related to the project employees whose services are admittedly co-terminus to the life of the project.
10. In this view of the matter, I am unable to hold that the petitioners have any legal vested or constitutional right to continue in employment after completion of the project.
Document Title Center Text 611. So far prayer for consideration in other employment is concerned, suffice it to say that in the event of issuance of any advertisement relating to any post for which petitioners are eligible, they may submit their candidature for the relevant post. It will be open to the petitioners to claim weightage of their experience gained from the present employment. If rules/provisions/law permits, the employer may give weightage/age relaxation etc. to the petitioners in accordance with law. No other relief is due to the petitioners in the present case.
12. The petitions are disposed of with aforesaid observations.
(SUJOY PAUL) JUDGE e sh ad Biswal Pr a hy Digitally signed by SHIBA NARAYAN BISWAL ad Date: 2018.01.17 23:42:01 +05'30' M of rt ou C h ig H