Bombay High Court
Kanhaiyalal Shyamlal Dhawade And ... vs The State Of Mah., Thr. Its Secretary, ... on 1 October, 2019
Author: Sunil B. Shukre
Bench: Sunil B. Shukre, Milind N. Jadhav
WP408.18 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 408 OF 2018
1. Kanhaiyalal Shyamlal Dhawade,
aged 46 years, Occu. Service,
R/o C/o Zilla Parishad High School
Karti (Bus)
District Gondia.
2. Aniruddha Vyankatrao Kendre
aged 35 yrs, Occu. Service,
R/o C/o Zilla Parishad High School
Sadak Arjuni, District Gondia.
3. Anandrao Udaram Tekam
aged 41 years, Occu. Service,
R/o C/o Zilla Parishad High School
Deori, District Gondia.
4. Suresh Dadulal Baghele
aged 50 years, Occu. Service,
R/o C/o Zilla Parishad High School
Navegaonbandh, District Gondia.
5. Ku. Sunita Lalchand Rahangdale
aged 28 years, Occu. Service,
R/o C/o Zilla Parishad High School
Gangla, District Gondia.
6. Ku. Pratibha Bhaurao Bakde
aged 42 years, Occu. Service,
R/o C/o Zilla Parishad High School
Saundad, District Gondia.
7. Sunil Shripat Shahare
aged 47 years, Occu. Service,
R/o C/o Zilla Parishad High School
Kawarbandh, District Gondia.
8. Ku. Anita Sakharam Funde
aged 34 years, Occu. Service,
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WP408.18 2
R/o C/o Zilla Parishad High School
Kattipar, District Gondia.
9. Sau.Indrayani Thansingh Katre
Aged 47 years, Occu. Service,
R/o C/o Zilla Parishad High School
Amgaon, District Gondia.
10.Ku. Bhojeshwari Ramlal Bisen
aged 33 years, Occu. Service,
R/o C/oZilla Parishad High School
Ekodi/Dandegaon, District Gondia. ... PETITIONERS
Versus
1. The State of Maharashtra
Through its Secretary, Department of Rural
Development and Water Conservation
Mantralaya, Mumbai-32.
2. The State of Maharashtra
Through its Secretary,
Department of Education
Mantralaya, Mumbai -32.
3. Zilla Parishad Gondia
Through Its Chief Executive Officer,
Tq. and Distt. Gondia.
4. Zilla Parishad, Gondia, thr.its
The Education Officer (Secondary)
Zilla Parishad Gondia.
5. The Divisional Commissioner,
Nagpur Division, Nagpur. ... RESPONDENTS
Shri Prafulla S.Khubalkar, Advocate for the petitioners.
Smt. Ketki S.Joshi, AGP for Respondent Nos.1, 2 and 5.
Shri A.Y.Kapgate, Advocate for respondent Nos. 3 and 4.
.....
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WP408.18 3
CORAM : SUNIL B. SHUKRE AND
MILIND N. JADHAV, JJ.
DATE : 01.10.2019.
ORAL JUDGMENT :(PER SUNIL B. SHUKRE, J.)
1. Heard. Rule. Rule made returnable forthwith. Heard finally by consent.
2. This is a case wherein legitimate expectations as well as rights created by operation of the doctrine of promissory estoppel have been thrown to the winds by the arbitrary and capricious manner of working of some of the officers of the Government. The result of such arbitrariness is that the poor class of employees as that of the petitioners suffers to no end. This is the reason, why the petitioners are required to knock at the doors of this Court. They are seeking directions of this Court to respondent nos.1 to 3 to regularise their services as Junior Assistants in terms of the conditions mentioned in the advertisement dated 18.3.2010.
3. By an advertisement dated 18.3.2010, applications from eligible candidates were invited for filling up various categories of posts, as listed in the advertisement. One of the categories was that of Junior Assistants required for the Zilla Parishad schools. There ::: Uploaded on - 14/10/2019 ::: Downloaded on - 20/04/2020 09:52:58 ::: WP408.18 4 were 14 vacancies, which were confirmed to be in existence through proper verification carried out by the District Selection Committee. This fact is prominently stated in the advertisement dated 18.3.2010.
4. The petitioners applied for their selection as Junior Assistants and after going through the grind of the selection process, the petitioners were selected and were issued common appointment order dated 30.6.2011, appointing them as Junior Assistants on contractual basis on fixed remuneration of Rs.2000/- for a period of three years. It was also stated in the common appointment order that if the work of the petitioners was found satisfactory, their services would be regularised in the pay band applicable to the regular employees of the Zilla Parishad. This appointment was in consonance with the advertisement dated 18.3.2010 which stated, insofar as the post of the Junior Assistant is concerned, the appointment will be given on contractual basis for a period of three years upon fixed remuneration of Rs.2000/- and thereafter, the salary would be paid in pay band of Rs. 5200-20200 with Grade Pay of Rs.1900/-.
5. The appointment letter contained some other conditions, which are relevant and also need to be mentioned here. One of the ::: Uploaded on - 14/10/2019 ::: Downloaded on - 20/04/2020 09:52:58 ::: WP408.18 5 conditions was that the appointee was required to give an undertaking accepting the fact that his appointment was of temporary nature and was liable to be terminated without any prior notice and without assigning any reason. The other condition was that an appointee would be eligible for applying for inter district transfer only upon completion of 10 years of service after regularisation of the service.
6. After completion of three years of contractual service on the post of Junior Assistant, none of the petitioners was informed anything about his/her service having been found to be unsatisfactory. At the same time, no regularisation of the service was granted to any of the petitioners. The petitioners, therefore, started making representations to respondent no.3 praying for regularising their services in terms of an advertisement dated 18.3.2010 and also the appointment letter dated 30.6.2011, but in vain. The petitioners, therefore, filed Writ Petition no.3572/2015 before this Court in earlier round of litigation, which was disposed of by this Court by giving liberty to the petitioners to make a proper representation to respondent no.3, with a direction to the respondents to decide the same, in accordance with law. Zilla Parishad took its decision on 17.11.2016 wherein it was stated that ::: Uploaded on - 14/10/2019 ::: Downloaded on - 20/04/2020 09:52:58 ::: WP408.18 6 even if all the submissions of the petitioners were taken into account still, Zilla Parishad could not regularise their services, as there was no approval of the State Government.
7. It appears to us that after this decision, all the submissions of the petitioners were taken into consideration along with other material available on record and it was found by the then Chief Executive Officer of the Zilla Parishad that the appointments of the petitioners were made in a regular manner by following the provisions contained in Zilla Parishad District Services (Recruitment) Rules, 1967 and as such, the Chief Executive Officer by the proposal dated 9.2.2017 sent to respondent no.5 recommended regularisation of services of the petitioners.
8. No decision for a reasonable period of time came forth from respondent no.5 on the proposal dated 9.2.2017 and, therefore, the petitioners once again were before this Court in Writ Petition No.1133/2017. This petition marked second round of litigation. The petition was disposed of by this Court by directing the concerned Officers of the State Government to take appropriate decision on the proposal dated 9.2.2017 within three months. The decision was taken by respondent no.1 on 4.1.2018 and as it went against the petitioners, the petitioners have filed present petition, as ::: Uploaded on - 14/10/2019 ::: Downloaded on - 20/04/2020 09:52:58 ::: WP408.18 7 a third round of litigation.
9. With the assistance of Shri P. S. Khubalkar, learned counsel appearing for the petitioners, Smt.Ketki Joshi, learned AGP appearing for respondent nos.1, 4 and 5 and Shri A. Y. Kapgate, learned counsel for respondent nos.3 and 4 - Zilla Parishad, we have gone through the advertisement, common appointment order and all other documents, which are relevant for adjudicating upon the issue involved in the present case. From amongst all these documents, we find that the advertisement dated 18.3.2010, the appointment letter dated 30.6.2011 with approved roster, the letter sent by Zilla Parishad, Gondia to respondent no.5 on 18.12.2014, the observations of this Court appearing in its order dated 21.7.2016 in Writ Petition No.3572 of 2015, which have been reiterated in the subsequent petition being Writ Petition No.1133 of 2017 decided on 14.8.2017 and the recommendations of Zilla Parishad, Gondia made vide letter dated 9.2.2017 are relevant.
10. Upon consideration of the aforestated documents, we find that some important facts emerge on record. They show that the appointments of the petitioners were on permanent post although, the appointments were conditional. The only condition was that after completion of three years of their contractual services, the ::: Uploaded on - 14/10/2019 ::: Downloaded on - 20/04/2020 09:52:58 ::: WP408.18 8 services of the petitioners were to be regularised, if their services were found to be satisfactory. The advertisement dated 18.3.2010 clearly stated that there were 14 clear vacancies identified through proper verification, which were to be filled up in a particular manner. They were to be filled up by giving appointments, for initial three years period, on contractual basis on payment of fixed remuneration of Rs.2000/- and thereafter the services were to be made regular by applying pay band of Rs.5200-20200 with Grade Pay of Rs.1900. The appointment order also disclosed the same manner of appointments and the same conditions. It is stated therein that, if the services of the petitioners were found to be satisfactory, they would be placed in the pay band of Rs. 5200- 20200 with Grade Pay of Rs.1900/- by regularising their services. The identified vacancies were also in consonance with the approved roster, which referred to the staffing pattern, as prescribed under the Government Resolution of the year 2005. The petitioners, after completion of three years of their contractual service, were not informed that service of them all or any of them, was unsatisfactory.
11. The facts and circumstances of the case which are established on record and discussed above clearly show that though ::: Uploaded on - 14/10/2019 ::: Downloaded on - 20/04/2020 09:52:58 ::: WP408.18 9 the appointments for the initial period of three years were on contractual basis, they were made in relation to the permanent posts duly identified by respondent no.3. They further show that if the petitioners were not informed upon completion of three years of contractual service that they had rendered unsatisfactory service, which is indeed the case here, the right of each of the petitioners to regularisation of their service was crystalised with the fulfillment of the promise given to the petitioners and then, such vested right of the petitioners could not be taken away by the respondents, by operation of the principles of legitimate expectations and promissory estoppel.
12. In the order dated 21.7.2016 rendered in Writ Petition 3572 of 2015, this Court had also recorded a finding that the advertisement was issued for filling up permanent posts on permanent basis and initial engagement on contractual basis was only for three years. This Court then prima facie found that even the workload existed and, therefore, this Court thought it fit to remand the matter to respondent nos.1 to 3 for taking an appropriate decision, provided suitable representations were made by the petitioners. This would mean that the finding of making of appointments of the petitioners on permanent posts was already ::: Uploaded on - 14/10/2019 ::: Downloaded on - 20/04/2020 09:52:58 ::: WP408.18 10 there on record, and that was for facilitating rendering of proper decision by respondent no.1. But, while passing the impugned order, this finding of the Court was ignored by respondent no.1, although the Zilla Parishad i.e. respondent no.3 had accepted that finding and even acted upon it when it sent the proposal dated 9.2.2017.
13. Now, it is the case of respondent no.1, as reflected in the impugned order, that the procedure adopted in the present case for making appointments of the petitioners was not consistent with the procedure prescribed in the Zilla Parishad District Service (Recruitment) Rules, 1967 and that the procedure, that has been followed, was based upon the Government Resolution dated 25.11.2005, which was not applicable to the establishment of the Zilla Parishad, Gondia. According to us, the reason so given is fallacious and flies against what has been promised to the petitioners.
14. It may be true that procedure prescribed under 1967 Rules may not be providing for making of appointment on contractual basis for a period of three years. But, the fact remains that except for this deviation, there is no other deviation, which has occurred in the present case in making appointments of the petitioners. The ::: Uploaded on - 14/10/2019 ::: Downloaded on - 20/04/2020 09:52:58 ::: WP408.18 11 advertisement inviting applications from the eligible candidates was issued and the other procedure consisting of various steps like written examination, orals etc., was also followed. So, equal opportunity to participate in the process initiated for filling up the public posts has been given to all and that is without any discrimination made against anybody. Even, the roster has been followed and that it is nobody's case that there were not in existence 14 vacancies, as stated in the advertisement dated 18.3.2010. In such a case, it cannot be said that the appointments of the petitioners were without following any proper procedure.
15. The deviation, that has occurred in the present case, is something for which no fault could be placed upon shoulders of the petitioners and, if any, fault is to be found, it would have to be seen in the officers responsible for committing the same. But, for the fault of the officers, the petitioners could not be sought to be penalised. The impugned order, of course, does say that necessary action be taken against the erring officers for fastening upon them the accountability. But, no material is placed on record showing that any inquiry has been conducted and accountability has been fixed upon the identified officers so that further departmental action could be taken against them. In any case, we must say, whatever happens to ::: Uploaded on - 14/10/2019 ::: Downloaded on - 20/04/2020 09:52:58 ::: WP408.18 12 the erring officers, it would not, in any manner, affect the rights of the petitioners, which have already been crystalised in the present case.
16. Then, there is also an issue of legitimate expectations. In a case like this, and especially when an assurance is given to the prospective employees that if they get through the recruitment process, they would be appointed in a certain manner, and the appointments are also given and these candidates are allowed to work for a considerable period of time, the expectation would be that whatever had been initially assured to them would not be withdrawn by the Government. After all, the assurance has been given by public authorities and, it has also been acted upon. Now, if the authorities wish to deviate, they must do so in a reasonable manner, as for example, awarding reasonable compensation to the petitioners, given the fact that they have spent prime period of their career in the present employment, which has dimmed their prospects of getting new employment. In this case, no such procedure has been followed and, therefore, the impugned action is arbitrary and hit by principle of legitimate expectations. Legitimate expectations can be overcome only when change in policy or decision is made fairly and reasonably and in larger public interest, ::: Uploaded on - 14/10/2019 ::: Downloaded on - 20/04/2020 09:52:58 ::: WP408.18 13 satisfying the twin test of fairness and reasonableness implicit in Article 14 of the Constitution of India.
17. In the case of Union of India and another Vs. International Trading Co. and another (2003) 5 SCC 437, it is observed in paragraph nos.14 to 17, as under:
14. It is trite law that Article 14 of the Constitution applies also to matters of governmental policy and if the policy or any action of the Government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional.
15. While the discretion to change the policy in exercise of the executive power, when not trammelled by any statute or rule is wide enough, what is imperative and implicit in terms of Article 14 is that a change in policy must be made fairly and should not give the impression that it was so done arbitrarily or by any ulterior criteria. The wide sweep of Article 14 and the requirement of every State action qualifying for its validity on this touchstone irrespective of the field of activity of the State is an accepted tenet. The basic requirement of Article 14 is fairness in action by the state, and non-arbitrariness in essence and substance is the heart beat of fair play. Actions are amenable, in the panorama of judicial review only to the extent that the State must act validly for a discernible reasons, not whimsically for any ulterior purpose. The meaning and true import and concept of arbitrariness is more easily visualized than precisely defined. A question whether the impugned action is arbitrary or not is to be ultimately answered on the facts and circumstances of a given case. A basic and obvious test to apply in such cases is to see whether there is any discernible principle emerging from the impugned action and if so, does it really satisfy the test of reasonableness.
16. Where a particular mode is prescribed for doing an act and there is no impediment in adopting the procedure, the deviation to act in a different manner which does not disclose any discernible principle which is reasonable itself shall be labelled as arbitrary. Every State action must be informed by reason and it follows that an act uninformed by reason is per se arbitrary.::: Uploaded on - 14/10/2019 ::: Downloaded on - 20/04/2020 09:52:58 ::: WP408.18 14
17. The courts as observed in G.B. Mahajan v.
Jalgaon Municipal Council /SC/0284/1991 are kept out of lush field of administrative policy except where a policy is inconsistent with the express or implied provision of a statute which creates the power to which the policy relates or where a decision made in purported exercise of power is such that a repository of the power acting reasonably and in good faith could not have made it. But there has to be a word of caution. Something overwhelming must appear before the Court will intervene. That is and ought to be a difficult onus for an applicant to discharge. The courts are not very good at formulating or evaluating policy. Sometimes when the Courts have intervened on policy grounds the Court's view of the range of policies open under the statute or of what is unreasonable policy has not got public acceptance. On the contrary, curial views of policy have been subjected to stringent criticism".
We have drawn strength from these observations, for reaching our conclusions in this case.
18. We also see this case to be a case to which the doctrine of promissory estoppel would apply. By issuing a promise of giving an appointment in certain manner and actually issuing the appointment order, the promise is fulfilled. The petitioners, accepting the order, also joined on their posts. So, this is a case where the promise is fulfilled and acted upon, and as such the Government would be estopped from withdrawing that promise on the ground that proper procedure was not followed in making the appointments by some of its officers, unless public interest demands otherwise. But that is not the case here. Not following the proper procedure is an internal matter of the Government and the suitable action for that can always be taken by the Government against ::: Uploaded on - 14/10/2019 ::: Downloaded on - 20/04/2020 09:52:58 ::: WP408.18 15 those officers. But, that action cannot extend to even the promisees like the petitioners, who have altered their situation almost irreversibly by accepting the promise.
19. Thus, we find that the impugned order is manifestly illegal and arbitrary. It deserves to be quashed and set aside and further directions are required to be given to the Government.
20. In the result, the Petition is allowed. Respondent nos.1 and 3 are directed to regularise the services of the Petitioners from the date on which the petitioners completed their three years of contractual service and from that date onwards, it is further directed, the petitioners shall be placed in the pay band of Rs.5200-20200 with Grade Pay of Rs.1900/-. It is further directed that the Petitioners shall be given all consequential benefits and also dearness allowance and other allowances, as mentioned in the respective appointment orders.
21. Rule is made absolute in these terms. There shall be no order as to costs.
JUDGE JUDGE ambulkar ::: Uploaded on - 14/10/2019 ::: Downloaded on - 20/04/2020 09:52:58 ::: WP408.18 16 ::: Uploaded on - 14/10/2019 ::: Downloaded on - 20/04/2020 09:52:58 :::