Bombay High Court
Sachin S/O Vasantrao Yerewar And Others vs The Union Of India, Thr. Its Secretary, ... on 10 August, 2022
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
WP-8622-18 with connected writ petitions.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 8622 of 2018
Sachin Vasantrao Yerewar and others
vs.
The Union of India, through its Secretary, Human Resources Department, Government of
India, New Delhi and others.
With
WRIT PETITION NO. 8623 of 2018
Ms Jaya Ramaji Bhagat and another.
vs.
The Union of India, through its Secretary, Human Resources Department, Government of
India, New Delhi and others.
With
WRIT PETITION NO. 8624 of 2018
Nitin Sadashivrao Korde
vs.
The Union of India, through its Secretary, Human Resources Department, Government of
India, New Delhi and others.
With
WRIT PETITION NO. 8625 of 2018
Manoj Madhukarrao Deshmukh and others.
vs.
The Union of India, through its Secretary, Human Resources Department, Government of
India, New Delhi and others.
------------------------------------------------------------------------------------------------
Office Notes, Office Memoranda of Court's or Judge's Order
Coram, appearances, Court's Orders
or directions and Registrar's order
------------------------------------------------------------------------------------------------------------------------------
Shri Anand Parchure, Advocate for petitioners in writ petitions.
Shri N. S. Deshpande, Assistant Solicitor General of India for respondent no.1 in
all writ petitions.
Ms. N. P. Mehta, Assistant Government Pleader for respondent nos. 2 to 5 in all
writ petitions.
Shri V. P. Maldhure, Advocate for respondent no.7 in W. P. No.8622/2018
Shri B.N.Jaipurkar, Advocate for respondent no.7 in W. P.No.8623/2018 and
8624/2018.
Shri Sachin Zoting, Advocate for respondent no.7 in W.P.No.8625/2018
CORAM :- A.S.CHANDURKAR AND URMILA JOSHI-PHALKE, JJ.
DATE :- AUGUST 10, 2022
Common Order
In these writ petitions the petitioners seek a direction to be issued to Zilla Parishad, Chandrapur, Zilla Parishad, Gadchiroli, WP-8622-18 with connected writ petitions.odt 2 Zilla Parishad, Wardha and Zilla Parishad, Yavatmal to regularise their services and thereafter grant them all consequential benefits.
2. For the sake of convenience, the facts in Writ Petition No.8622 of 2018 are being referred to. It is the case of the petitioners that they have been working on the post of Junior Engineer on contractual basis under the 'Sarva Shiksha Abhiyaan' Scheme. Their initial appointment has been made in the year 2004-05 and such appointment was on contractual basis for a period of eleven months. After giving a technical break of one day their services have been again re-engaged on contractual basis. The petitioners claim that they have discharged such contractual duties till the year 2015 and their services have thereafter not been further engaged. It is claimed that the service record of each petitioner is clean and there is no reason for not continuing their services on contractual basis by the Zilla Parishad. Various representations have been made by them since their discontinuation seeking the relief of regularisation and consequential benefits. The work done under the Sarva Shiksha Abhiyaan Scheme was available and there was no reason for not continuing the petitioners in service. Since there has been no response to the representations made by the petitioners, they have approached this Court by filing the aforesaid writ petitions in December 2018.
3. In the reply filed by the Zilla Parishads the claim as made by the petitioners has been denied. It has been stated therein that WP-8622-18 with connected writ petitions.odt 3 in absence of any sanctioned post of Junior Engineer being available, the services of the petitioners cannot be regularised. Their engagement was under the Scheme known as 'Sarva Shiksha Abhiyaan' and the appointments were purely on temporary and contractual in nature. The said Scheme was sponsored by the Central Government and the Zilla Parishad was merely an implementing agency for the said Scheme. In absence of any legal right in favour of the petitioners, the prayers as made in the writ petitions cannot be granted.
On behalf of the Rural Development Department of the State of Maharashtra, its Additional Chief Secretary has filed affidavit on 07.07.2022. It has been stated therein that as per the Scheme in question, the State Project Director, Maharashtra Primary Education Council of the State Government is the competent authority for appointing employees on contractual basis under the Sarva Shiksha Abhiyaan. As per Government Resolution dated 01.07.2021, there is no budgetary provision made available with the Rural Development Department for undertaking the construction and maintenance of various facilities at the Zilla Parishads Schools. It is the School Education Department which is the controlling department in that regard. It is thus stated that no relief can be granted to the petitioners.
4. During the pendency of the present proceedings, Government Resolution dated 01.07.2021 was issued by the Rural WP-8622-18 with connected writ petitions.odt 4 Development Department in the matter of assigning the work of construction of new schools at the Zilla Parishad as well as for repairs and re-construction of existing schools in the context of Sarva Shiksha Abhiyaan. It was stated that in the Construction Department of the Zilla Parishad various posts of Engineers were vacant and with a view to get the aforesaid works completed, the responsibility was being fixed on the Junior Engineers who were working under the Sarva Shiksha Abhiyaan as well as other technical staff. In view of the Government Resolution dated 01.07.2021, the petitioners moved a civil application in each writ petition seeking a direction to be issued to the respondents to continue their services as per the aforesaid Government Resolution. Reply has been filed by the respective Zilla Parishads as well as the Rural Development Department to the same. Reply has also been filed by the Department of School Education as well as the Maharashtra Prarthamik Shikshan Parishad (Maharashtra Primary Education Council). The requirement of the work assigned to Junior Engineers has been specified and it has been stated that considering the quantum of work presently available, it would not be possible to grant re-appointment to the petitioners. Reference is also made to the judgment in Writ Petition No.9923 of 2014 with connected writ petitions (Rajeev Prabhakarrao Terkhedkar and ors vs. Union of India and others) decided at Aurangabad Bench on 06.03.2019. It is thus stated that the relief as prayed for cannot be granted to the petitioners.
WP-8622-18 with connected writ petitions.odt 5
5. In the aforesaid backdrop since the prayers made in the civil applications were being pursued, the Court had indicated that the writ petitions could be decided on merits as adjudication of the civil applications would have material bearing on the adjudication of the writ petitions. The learned counsel for the parties have accordingly been heard.
6. The learned counsel for the petitioners submitted that considering the fact the petitioners were working as Junior Engineers since the year 2004-05 though on contractual basis, it was clear that the work discharged by them was available and their services were entitled to be regularised. The Zilla Parishad had in fact passed a Resolution by which it was resolved to regularise the services of such Junior Engineers on vacant posts. Despite pursuing the matter with the Zilla Parishads since long, the petitioners were denied the benefit of regularisation. Only on the ground that the petitioners had been appointed under the Sarva Shiksha Abhiyaan, the same cannot be a reason to deny the relief of regularisation to them. The fact that the petitioners had worked for more than ten years on contractual basis was sufficient to hold them entitled to the relief of regularisation. It was thus prayed that the petitioners be granted the reliefs as prayed for in the writ petitions. WP-8622-18 with connected writ petitions.odt 6
7. The learned counsel for the various Zilla Parishads pointed out that each petitioner had been engaged on contractual basis till the year 2015 after which they were not again engaged. Since the appointment of the petitioners on contractual basis was under a Scheme, there was no right created in their favour to seek regularisation. The fact that the petitioners approached the Court after almost three years from their discontinuation was sufficient to deny them the relief of regularisation.
The learned Assistant Government Pleader invited attention to the Maharashtra Prarthamik Shikshan Parishad Service Regulations, 1994 (for short, 'the said Regulations') to submit that the posts under the said Regulations were temporary in nature carrying fixed pay for a limited period. As per Clause 17 of the said Regulations the appointment was to be made on contractual basis and there was no right created to seek regularisation. It was submitted that each petitioner was aware that his appointment was contractual and temporary in nature during the period of the Scheme and therefore there was no right created in them. Attention was also invited to various such appointment orders in which it was clearly stated that the appointment was of a temporary nature. The Scheme in question was being overlooked by the School Education Department and not by the Rural Development Department. Hence the Government Resolution dated 01.07.2021 issued by the Rural Development Department could not be applied in the present case. It was also stated that in various Zilla Parishads the Scheme was not WP-8622-18 with connected writ petitions.odt 7 being further continued as a result of which the posts of Junior Engineers were reduced. Reliance was also placed on the decision of the Aurangabad Bench in Rajeev Prabhakarrao Terkhedkar and ors. (supra). It was thus submitted that the petitioners were not entitled to any relief whatsoever.
8. We have heard the learned counsel for the parties and we have perused the documents placed on record. It can be seen that each petitioner was appointed for a temporary period on contractual basis under the Sarva Shiksha Abhiyaan Scheme in the year 2004. As per the said appointment orders, each petitioner was required to sign the contract stating therein that the terms and conditions mentioned therein were acceptable to them. It is not in dispute that such temporary contractual appointments were given to the petitioners after a technical break of one day. This arrangement continued for a period of more than ten years and thereafter since the year 2015 they have not been engaged on contractual basis. It is not in dispute that after 2015 the petitioners did not take immediate steps for their engagement under the said Scheme and they have approached this Court only in December 2018 seeking the relief of regularisation. It is thus clear that when the petitioners sought the relief of regularisation in December 2018 they were not in contractual engagement with the respective Zilla Parishads. For seeking the relief of regularisation, it would be necessary for a person making such request to be in employment at WP-8622-18 with connected writ petitions.odt 8 the relevant time. Since none of the petitioners were engaged under the said Scheme by the respective Zilla Parishads when they approached this Court seeking the relief of regularisation, it would not be permissible in law to examine such request for regularisation under Article 226 of the Constitution of India especially when none of the petitioners is serving with the Zilla Parishad on contractual basis. The learned Assistant Government Pleader is justified in placing reliance on the judgment of the Hon'ble Supreme Court in Civil Appeal No.1951 of 2022 (State of Gujrat vs. R.J. Pathan) decided on 24.03.2022. It has been held therein that if the initial engagement was on contractual basis pursuant to a Scheme undertaken, the High Court would not be justified in issuing a direction for absorption and regularisation, if necessary, by creating supernumerary posts. For the reason that none of the petitioners were engaged on contractual basis when they approached this Court with a prayer for regularisation, we find that the petitioners would not be entitled for such relief under Article 226 of the Constitution of India.
9. Insofar as the Government Resolution dated 01.07.2021 is concerned, it is seen that the same has been issued by the Rural Development Department of the State of Maharashtra. It pertains to assigning the work of new construction and special repairs of existing school buildings with the Zilla Parishad. It has been noted that with the Building Department of the Zilla Parishad there were WP-8622-18 with connected writ petitions.odt 9 various vacant posts and since there were restrictions from Finance Department for filling in new posts, such work could be assigned to those Junior Engineers who were working under the Sarva Shiksha Abhiyaan. It has been clarified by the Rural Development Department that insofar as implementation of Sarva Shiksha Abhiyaan Scheme is concerned, it is the School Education Department of the State of Maharashtra which is concerned with the same. The honourarium and other allowances are paid by the School Education Department. Further approval of the State Project Director, Maharashtra Primary Education Council is required for engaging a person on contractual basis. It has further been clarified that there is no budgetary provision with the Rural Development Department for implementation of the Government Resolution dated 01.07.2021 in the matter of completing the work of construction and maintaining various facilities at Zilla Parishad schools. We therefore find that this Government Resolution dated 01.07.2021 does not come to the aid of the petitioners in seeking the relief of regularisation.
10. Thus considering the contractual engagement of each petitioner on temporary basis for a fixed period coupled with the fact that such engagement came to an end in the year 2015 itself, the prayer for regularisation in the year 2018 cannot be considered in exercise of jurisdiction under Article 226 of the Constitution of India.
WP-8622-18 with connected writ petitions.odt 10
11. For this reason, we do not find that the petitioners would be entitled to any relief whatsoever in the writ petitions. By clarifying that it is open for the petitioners to pursue their remedies in accordance with law, the writ petitions stand dismissed with no order as to costs. Pending civil applications are also disposed of. ( URMILA JOSHI-PHALKE, J.) (A.S.CHANDURKAR, J.) Andurkar..
Digitally Signed byJAYANT S ANDURKAR Personal Assistant Signing Date:
10.08.2022 14:42