Gujarat High Court
Umesh Lallubhai Rathod vs State Of Gujarat on 22 April, 2025
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/9700/2016 JUDGMENT DATED: 22/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9700 of 2016
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2020
In
R/SPECIAL CIVIL APPLICATION NO. 9700 of 2016
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2021
In
R/SPECIAL CIVIL APPLICATION NO. 9700 of 2016
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2022
In
R/SPECIAL CIVIL APPLICATION NO. 9700 of 2016
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2023
In
R/SPECIAL CIVIL APPLICATION NO. 9700 of 2016
With
CIVIL APPLICATION (FOR DIRECTION) NO. 2 of 2018
In
R/SPECIAL CIVIL APPLICATION NO. 9700 of 2016
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 2 of 2019
In
R/SPECIAL CIVIL APPLICATION NO. 9700 of 2016
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 2 of 2022
In
R/SPECIAL CIVIL APPLICATION NO. 9700 of 2016
With
CIVIL APPLICATION (FOR DIRECTION) NO. 3 of 2018
In
R/SPECIAL CIVIL APPLICATION NO. 9700 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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Approved for Reporting Yes No
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NEUTRAL CITATION
C/SCA/9700/2016 JUDGMENT DATED: 22/04/2025
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UMESH LALLUBHAI RATHOD & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR GM JOSHI(370) SENIOR ADVOCATE for the Petitioner(s) No. 17,26,36
VYOM H SHAH(9387) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,18,19,2,20,21,22,23,24,25,27,28,29,3,30,31,32,33,34,
35,37,38,39,4,5,6,7,8,9
MR SIDDHARTH RAMI, AGP for the Respondent(s) No. 1
MR PRASHAN DESAI, SENIOR ADVOCATE with MR KAUSHAL D
PANDYA(2905) for the Respondent(s) No. 3,4
MS E.SHAILAJA(2671) for the Respondent(s) No. 5
REFUSED SERVED (R)(70) for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 22/04/2025
ORAL JUDGMENT
1. Heard Mr. G. M. Joshi, the learned Senior Counsel assisted by Mr. Vyom H. Shah, the learned advocate appearing for the petitioners, Mr. Siddharth Rami, the learned AGP appearing for the respondents No.1 and 2, Mr. Prashant Desai, the learned Senior Counsel assisted by Mr. Kaushal D. Pandya, the learned advocate appearing for the respondents No.3 and 4 and Ms. E. Shailaja, the learned advocate appearing for the respondent No.5.
2. By way of present petition the petitioners herein have Page 2 of 42 Uploaded by K.K. SAIYED(HC00169) on Thu May 08 2025 Downloaded on : Sat May 10 06:38:31 IST 2025 NEUTRAL CITATION C/SCA/9700/2016 JUDGMENT DATED: 22/04/2025 undefined prayed for following reliefs :-
"(A) Be pleased to award the cost of this petition.
(B) This Hon'ble Court may be pleased to issue writ of mandamus or in the nature of mandamus or an directing the respondents to treat the petitioners as permanent regular employees of the State / Municipal Corporation and be further pleased to direct the respondents to pay regular salary and allowances to the petitioners in the pay scale of Rs.5200-20200 and all other benefits available to regular employees of the Surat Municipal Corporation from their original date of appointment and continue to pay the same;
(C) During the admission, pendency and final disposal of this petition be pleased to restrain the respondent Municipal Corporation from changing the present service conditions of the petitioners and/or introducing any outside agency for either diverting the services of the petitioners or for engaging counselors at the health centers of Surat Municipal Corporation;
(D) During the admission, pendency and final disposal of this petition be pleased to direct the respondent Municipal Page 3 of 42 Uploaded by K.K. SAIYED(HC00169) on Thu May 08 2025 Downloaded on : Sat May 10 06:38:31 IST 2025 NEUTRAL CITATION C/SCA/9700/2016 JUDGMENT DATED: 22/04/2025 undefined Corporation to start paying the petitioners salary and allowances in the pay scale of Rs.5200-20200/-.
(E) Any other and/or further relief/s that may deem fit looking to the facts and circumstances of the case may be granted to the petitioner."
3. The petitioners are all having the qualifications of either Master of Social Welfare or M.A. with Sociology or M.A. with Psychology as the case may be. All the petitioners are appointed as Counselors pursuant to a regular process of selections that commenced upon issuance of the advertisement followed by interview which resulted in the appointment of the petitioners. It is stated that the appointment orders of the petitioners was as back as in January 2000 (page-14) pursuant to an advertisement that was issued in November 1999. The advertisement and the appointment orders are duly produced at Annexure-A and B page at 22 and 23 respectively.
4. At the relevant time, i.e. up to 2008, the funds were allotted from the State Government and as the State Page 4 of 42 Uploaded by K.K. SAIYED(HC00169) on Thu May 08 2025 Downloaded on : Sat May 10 06:38:31 IST 2025 NEUTRAL CITATION C/SCA/9700/2016 JUDGMENT DATED: 22/04/2025 undefined Government decided to discontinue funding of the programs, the respondent No.3 - Surat Municipal Corporation (for short ' SMC') decided to continue funding the program from its own funds, in view of the fact that Surat had maximum incidence of HIV related issues and has maximum number of workmen/employees coming from other States/regions. The said Resolution is duly produced at Annexure-C.
5. Out of 60 centers in the State of Gujarat, 43 Urban Health Centers are established in Surat itself. The petitioners herein are Counselors working in these centers and rendering services at these centers. Under the guidelines issued by NACO, it is made compulsory to give counseling to expectant mothers in such areas before they are subjected to HIV tests. The counseling is also made compulsory for TB patients and for those patients who are already suffering from STD. The petitioners are also required to give counseling when there is an epidemic of malaria in the city as well as work for polio eradication program.
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6. The petitioners are also giving counseling to adolescent school children making them aware about various aspects of sexually related issues. The work of the petitioners is permanent in nature and they are performing regular duties at the heath centers established by Surat Municipal Corporation and in the field also. A proposal was made by the administrative of Surat Municipal Corporation to absorb the petitioners in permanent establishment as back as in the year 2009 considering the nature of work performed by the petitioners being that of permanent nature of work and that there was need to continue the Counselors on the project.
7. The Counselors working at the relevant time and those engaged subsequently are performing duties on regular basis, but on contract. It is the case of the petitioners that till 2012, the petitioners were given orders continuously but thereafter, they are issued orders every year by giving them an artificial break of one day. In view of such artificial break the Page 6 of 42 Uploaded by K.K. SAIYED(HC00169) on Thu May 08 2025 Downloaded on : Sat May 10 06:38:31 IST 2025 NEUTRAL CITATION C/SCA/9700/2016 JUDGMENT DATED: 22/04/2025 undefined petitioners are treated to be not on duty for that particular day. Lastly, the petitioners are engaged till March 2017 with effect from April 2016. The administration i.e. the Accounts Department raised objections with respect to the nature of payment made to the petitioners by treating as contractors and the petitioners learnt that instead of making them permanent, the administration is contemplating introduction of an outside contractor through which the petitioners would be paid. The said objections are duly produced at Annexure-E.
8. The respondent Corporation is already exploiting the petitioners inasmuch as the maximum pay drawn by the oldest petitioners is Rs.16,000/-, whereas, the peon in the same center is drawing a salary of Rs.36,280/-. In all other programs, employees with same qualifications rendering the same services are given the nomenclature of either medical social workers or community organizers are paid salary and allowances in the pay scale of Rs.5200-20200 with grade pay of Rs.2,800/-.
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9. The moment, an outside contractor is introduced, the petitioners would lose whatever benefit they are getting and would be subjected to further exploitation. The aforesaid has given rise to filing of the present petition invoking Article 226 of the Constitution of India for the reliefs, as referred above.
Submissions on behalf of the petitioners :-
10. Mr. G. M. Joshi, the learned Senior Counsel appearing for the petitioners relied on the aforesaid facts and submitted that the establishment setup by the urban health centers/maternity homes is permanent in nature inasmuch as there are all full time employees like a doctor, a pharmacist, a nurse, mid-wives, female health worker, sanitary inspector (health inspector), sanitary health sub-inspector, a peon, a gardener and a counselor. All the employees except the counselor are treated as regular employees and are paid regular salary and allowances.
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NEUTRAL CITATION C/SCA/9700/2016 JUDGMENT DATED: 22/04/2025 undefined 10.1 It is submitted that though the petitioners herein are post graduate in Social Welfare Sociology and Psychology as the case may be and are performing the duties which are mandatory in nature, are paid less than a peon or a gardener, which is nothing but exploitation and such action suffers from arbitrariness, unreasonableness and is clearly violative of Articles 14, 16 and 21 of the Constitution of India. 10.2 It is submitted that the respondent Corporation itself accepted that, the services of the petitioners are required for a long term basis, acknowledging the fact that in the event of discontinuing the petitioners, there is a likelihood of outburst of HIV related cases and therefore, conscious decision was taken as back as in the year 2008 to continue the program by funding the same.
10.3 It is submitted that such proposal was made by the administration the same has not resulted in positive decision. It is submitted that suddenly, the respondent Corporation wants Page 9 of 42 Uploaded by K.K. SAIYED(HC00169) on Thu May 08 2025 Downloaded on : Sat May 10 06:38:31 IST 2025 NEUTRAL CITATION C/SCA/9700/2016 JUDGMENT DATED: 22/04/2025 undefined to get rid of the present petitioners by introducing an outside agency.
10.4 It is submitted that similarly situated employees in other programs such as TB program or the employees employed as medical social workers or community organizers who are performing voluntary duties as compared to mandatory functions performed by the petitioners are not only engaged on permanent basis but are paid regular salary and allowances with terminal benefits available to them. 10.5 It is submitted that one of the counselors who had died in harness didn't get anything much less any terminal benefits. It is submitted that such action or inaction on the part of the respondent Corporation as 'State' and an ideal employer is such that the respondent cannot treat its employee in the manner in which it is demonstrated above.
10.6 It is submitted that upon making inquiries with the Page 10 of 42 Uploaded by K.K. SAIYED(HC00169) on Thu May 08 2025 Downloaded on : Sat May 10 06:38:31 IST 2025 NEUTRAL CITATION C/SCA/9700/2016 JUDGMENT DATED: 22/04/2025 undefined respondent corporation, the petitioners are informed that the State Government is not granting any funds for the program and therefore, petitioners are not made permanent. It is submitted that the excuse is lacking any logic or foundation on the part of the respondent Corporation which is a profit making body and taking work from the petitioners which is permanent in nature. It is submitted that it does not lie in the mouth of body like the respondent corporation that in absence of the funds from the State Governments, petitioners may suffer.
10.7 Placing reliance on the aforesaid submissions, it is submitted that the prayers as prayed for in the present petition be allowed and the petitioners herein be treated as regular permanent employees of the State or Surat Municipal Corporation and that be paid regular salary and allowances in the pay scale of Rs.5200-20200 and other benefits available to the regular employees of the Surat Municipal Corporation from the original date of appointment. It is also submitted that the Page 11 of 42 Uploaded by K.K. SAIYED(HC00169) on Thu May 08 2025 Downloaded on : Sat May 10 06:38:31 IST 2025 NEUTRAL CITATION C/SCA/9700/2016 JUDGMENT DATED: 22/04/2025 undefined respondent Corporation be restrained from changing the present service conditions of the petitioners and/or introducing an outside agency for either diverting the services of the petitioners or for engaging counselors in the Health Centers of the Surat Municipal Corporation.
10.8 To substantiate the aforesaid submissions, Mr. Joshi, the learned Senior Counsel relied on the ratio laid down in the following decisions:-
(a) In the case of Ghanshyam M. Pandya vs. State of Gujarat, reported in 1985 GLH (U.J.) page-51.
(b) In the case of Jaggo vs. Union of India, reported in AIR 2025 SC 296 paragraphs 22 and 23
(c) In the case of Shripal and Anr. vs. Nagar Nigam, Ghaziabad, reported in 2025 SCC OnLine SC 221 Mr. Joshi, the learned Senior Counsel in the course of hearing has also placed on record an order dated 9.11.2022 issued by the National AIDS Control Organization, Ministry of Page 12 of 42 Uploaded by K.K. SAIYED(HC00169) on Thu May 08 2025 Downloaded on : Sat May 10 06:38:31 IST 2025 NEUTRAL CITATION C/SCA/9700/2016 JUDGMENT DATED: 22/04/2025 undefined Health & Family Welfare, Government of India(for short NACO). The said order provides revised integrated terms of reference (for short 'TOR') for the counselors under National AIDS control programme NACP phase.
10.9 Placing reliance on the aforesaid it is submitted that NACO has also passed an order of continuing the programme. Reliance is also placed on the order passed in the Special Civil Application No.9828 of 2022 and it is submitted that though the said petition is disposed of, the employees of STD care project are treated as employees of the Surat Municipal Corporation. It is fairly submitted that the dispute is pending before the competent forum for adjudication, the dispute is regarding provident-fund.
Submissions on behalf of the respondent - SMC :-
11. Mr. Prashant Desai, the learned Senior Counsel appearing for the respondent Corporation relied on the affidavit-in-reply filed which is duly produced at page-61. Page 13 of 42 Uploaded by K.K. SAIYED(HC00169) on Thu May 08 2025 Downloaded on : Sat May 10 06:38:31 IST 2025
NEUTRAL CITATION C/SCA/9700/2016 JUDGMENT DATED: 22/04/2025 undefined Placing reliance on the said reply Mr. Desai, the learned Senior Counsel submits that the petitioners are HIV Counselors and are not part of the SMC Health Center. Reliance is placed on the Staff Pattern of the SMC Health Centre duly produced at Annexure-R-1 (page-69). It is submitted that the STD care project since its inception from Jan 2000 to 31 st Dec 2007 was working under technical guidance of National Aids Control Organization (NACO) and under direct supervision of Gujarat State AIDS Control Society (GSACS).
11.1 It is submitted that the project initially started in 08 urban health centres of SMC, later it was extended to 28 urban health centres till Dec 2007. The Counselors were appointed on contractual basis since beginning and were paid from the grants of Central & State Government.
11.2 It is submitted that upon discontinuation of grant to this project from NACO vide letter of Gujarat State AIDS Control Society No.GSACS/NGO/DISNT/17254/65/2007, the respondent - Page 14 of 42 Uploaded by K.K. SAIYED(HC00169) on Thu May 08 2025 Downloaded on : Sat May 10 06:38:31 IST 2025
NEUTRAL CITATION C/SCA/9700/2016 JUDGMENT DATED: 22/04/2025 undefined SMC continued the project looking to the prevalence of HIV in Surat city at that time and hopping grant from the Government. Reliance is placed on Resolutions passed by the Standing Committee from time to time to continue the said project which read thus :-
(1) SMC standing committee resolutions no 176/2008 Dt.
18/01/2008 from 01/01/2008 to 31/12/2008 with annual amount Rs. 42 lakh.
(2) SMC standing committee resolutions no 17/2009 Dt. 02/01/2009 from 01/01/2009 to 31/03/2009 with Rs. 10.50 lakh.
(3) SMC standing committee resolutions no 394/2009 Dt. 27/02/2009 from 01/04/2009 to 31/03/2010 with Rs. 42 lakh. In year 2010-11 the project continued under receiving grant of Rs. 59.20 lakh from Reproductive Child Health (RCH), Govt. of Gujarat.
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NEUTRAL CITATION C/SCA/9700/2016 JUDGMENT DATED: 22/04/2025 undefined (4) Same way in year 2011-12 the project continued on grant of Rs. 60 lakh from RCH, Govt. of Gujarat. (5) In year 2012-13 grant from RCH, not sanctioned hence again under SMC standing committee resolution no 2372/2012 Dt. 03/10/2012 the project continued with Rs. 53 lakh per year from 01/04/2012 to 31/03/2013.
(6) In year 2013-14 with standing committee resolution no. 468/2013 Dt. 22/02/2013. Project continued till date with 5 % rise in counselors wages every year.
11.3 It is submitted that the appointment order and TOR of the petitioners provide that the appointments are contractual in nature. It is submitted that the State Government after 2008 abandoned the project of HIV Counselors and the respondent SMC from it's own funds continued the project and the petitioners on their contractual appointment in light of the Page 16 of 42 Uploaded by K.K. SAIYED(HC00169) on Thu May 08 2025 Downloaded on : Sat May 10 06:38:31 IST 2025 NEUTRAL CITATION C/SCA/9700/2016 JUDGMENT DATED: 22/04/2025 undefined situations of HIV in the city of Surat with an expectation that the State might re-grant in future. Reliance is placed on the appointment memo and TOR duly produced at Annexure R-2 page-71.
11.4 It is submitted that the appointment order and TOR clearly mention that the petitioners would not be considered as permanent employee of SMC in future and that the respondent
- SMC has right to change the terms and conditions of TOR without giving prior notice to the employee. All appointed employees had signed on their TOR after reading these terms & conditions.
11.5 It is submitted that the services of the petitioners are not used daily. The petitioners are paid remuneration as per the services rendered. The same type of work is undertaken from other contractual workers of departments like TB and RCH.
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NEUTRAL CITATION C/SCA/9700/2016 JUDGMENT DATED: 22/04/2025 undefined 11.6 It is submitted that proposal was made to absorb (page-
64) to continue the project and not to absorb the councilors in permanent establishment and accordingly the Standing Committee vide Resolution No.17 of 2009 dated 02.01.2009 approved continuation of the project up to 31.03.2009. Reliance is placed on the resolution passed by the Standing Committee dated 02.01.2009.
11.7 It is submitted that it is not true that the petitioner were not given any break till 2012. Reliance is placed on the order giving compulsory one day break from the year 2014 till 2016. It is submitted that the said break is not an artificial but it is a compulsory break at the end of every contractual period (page-65).
11.8 It is submitted that it is denied that the Account Department of the Surat Municipal Corporation raised objection about the nature of payment to the petitioners to introduce out-sourcing. It is submitted that after discontinuing of the Page 18 of 42 Uploaded by K.K. SAIYED(HC00169) on Thu May 08 2025 Downloaded on : Sat May 10 06:38:31 IST 2025 NEUTRAL CITATION C/SCA/9700/2016 JUDGMENT DATED: 22/04/2025 undefined grant from the respondent - State, the Account Department raised a query seeking details of amount of grant received by Surat Municipal Corporation and the details of various NGOs doing similar work counseling and amount of grant received by those NGOs from the State Government.
11.9 It is submitted that the allegation for pay scale of Rs. 5200 - 20,200/- and grade pay of Rs.2800 for other similar program by the similar qualified workers has to be proved by the petitioners. It is submitted that the respondent - Surat Municipal Corporation published an advertisement for recruitment and appointed the petitioners and other similarly situated employees as contractual employees, therefore they cannot be made permanent employee. The petitioners are paid as per the work and there is no exploitation at the end of the respondent - Corporation and the allegation levelled against the respondent Corporation are such that the same are denied. 11.10 It is reiterated that the Counselors are not under the Page 19 of 42 Uploaded by K.K. SAIYED(HC00169) on Thu May 08 2025 Downloaded on : Sat May 10 06:38:31 IST 2025 NEUTRAL CITATION C/SCA/9700/2016 JUDGMENT DATED: 22/04/2025 undefined schedule of the Corporation and hence are not considered as permanent employees as per the scheme of the establishment of Health Centers of Surat Municipal Corporation. 11.11 It is submitted that the Counselors are not only the reason for reduction of HIV cases in the area of Surat, there are other reasons also enumerated in paragraph-3.2 of the reply which have resulted in reduction of HIV cases in the city of Surat. Another agency such as District AIDS Control Society, other public awareness programs for protection of sexual disease have also played an important role in reducing the said HIV disease.
11.12 Placing reliance on the aforesaid submissions, it is submitted that originally fund was provided by the State. The appointments are also contractual in nature and that the same is based on the work which may or may not be required. It is submitted that the petitioners have no right to claim permanency especially when the State stopped the fund in the Page 20 of 42 Uploaded by K.K. SAIYED(HC00169) on Thu May 08 2025 Downloaded on : Sat May 10 06:38:31 IST 2025 NEUTRAL CITATION C/SCA/9700/2016 JUDGMENT DATED: 22/04/2025 undefined entire State, the SMC is continuing them for work against the HIV. The petitioners were fully aware when they joined originally and also subsequent to the stoppage of the funds by SMC, that they are contractually working and the tackling of HIV shall not be a permanent nature job.
11.13 Placing reliance on the aforesaid contentions, it is submitted that the present petition is devoid of merit and the same be dismissed.
11.14 It is lastly submitted that the respondent do not want to continue with the Scheme, however in light of the order of status-quo by order dated 27.6.2016 the respondent authorities are continuing with the Scheme. It is also upon instructions submitted that once the Scheme ends, there would be no outsourcing by the respondent - Corporation and in view thereof the apprehension of the petitioners is such that the same is without any base.
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NEUTRAL CITATION C/SCA/9700/2016 JUDGMENT DATED: 22/04/2025 undefined 11.15 Reliance is placed on the following decisions :-
(1) Judgment dated 20.3.2025 passed in the Special Civil Application No.21920 of 2005.
(2) In the case of Union of India vs. All India trade Union Congress, reported in 2019 (5) SCC 773.
Placing reliance on the aforesaid decisions, it is submitted that the petitioners herein are contractual employees and do not have any legal right to seek permanency or regular pay- scale. It is submitted that even if the petitioners are continued for a considerable period of time, the same cannot be a reason to regularize their services. It is submitted that this Court in light of the aforesaid may not exercise extraordinary jurisdiction under Article 226 of the Constitution of India, the petitioners herein having been engaged on contractual basis and the respondent Corporation wanting to end the Scheme.
Submissions on behalf of the respondent No.5 :-
12. Ms. E. Shailaja, the learned advocate appears for newly Page 22 of 42 Uploaded by K.K. SAIYED(HC00169) on Thu May 08 2025 Downloaded on : Sat May 10 06:38:31 IST 2025 NEUTRAL CITATION C/SCA/9700/2016 JUDGMENT DATED: 22/04/2025 undefined added respondent No.5 - Employees Provident-Fund Organization. Reliance is placed on the affidavit-in-reply duly produced at page-120. Placing reliance on para-5 of the said affidavit it is submitted that it transpires that an inspection had been assigned through Shram Suvidha portal to Enforcement Officer (EO) and the said EO submitted report dated 11.4.2018. On the basis of inspection report, a show cause notice dated 24.7.2018 was issued against M/s.STD Care Project and copy was served to the Dy. Commissioner, SMC being principal employer for its submission with the requisite returns.
12.1 It is submitted that M/s.STD Care Project got itself covered under EPF & MP Act, 1952 and has taken a PF Code No.SR/SRT/1973538000 dated 1.7.2019 through OLRE i.e. Online Registration of Establishments as a new registration under Section 2A of the Act.
12.2 It is submitted that subsequently when the compliance Page 23 of 42 Uploaded by K.K. SAIYED(HC00169) on Thu May 08 2025 Downloaded on : Sat May 10 06:38:31 IST 2025 NEUTRAL CITATION C/SCA/9700/2016 JUDGMENT DATED: 22/04/2025 undefined was not shown, a show cause notice dated 1.10.2019 was issued against M/s. STD Care Project for depositing the statutory dues of Rs.46,44,866/- for the period April, 2013 to March, 2018.
12.3 It is submitted that the M/s. STD Care Project, SMC replied through a letter dated 22.10.2019 which was received by the office on 25.10.2019. In the said response, it was submitted that status quo is granted with respect to the service condition of the petitioners. The inquiry initiated by the competent authority under Section 7A of the Act to assess the PF and allied dues payable by M/s. STD Care Project was concluded by order dated 14.3.2022 upon affording reasonable opportunity of hearing to the said establishment. An Appeal being EPF Appeal No.21 of 2022 filed by M/s. STD Care Project challenging the said assessment is pending before the Appellate Authority.
12.4 Placing reliance on the aforesaid submissions, it is Page 24 of 42 Uploaded by K.K. SAIYED(HC00169) on Thu May 08 2025 Downloaded on : Sat May 10 06:38:31 IST 2025 NEUTRAL CITATION C/SCA/9700/2016 JUDGMENT DATED: 22/04/2025 undefined submitted that the respondent No.5 has acted in conformity with the mandatory provisions and in view thereof, there is room for granting any relief as sought for in the facts of the present case.
Analysis :-
13. Having heard the learned advocates appearing for the respective parties, it emerges that the petitioners herein applied for the post of Counselors pursuant to the advertisement issued for the post as stated in the said advertisement duly produced at Annexure-A (page-22). Upon perusal of the said advertisement, it emerges that the same is issued for the project managed by SMC through network of Government and Non-Government Organization. The said project is a partnership for sexual health (PSH) project which is a major STD/HIV prevention project in Surat city funded by DEIO Gov. of U.K. The project requires the personnel on contract basis for a period from October, 1999 to July, 2000. Page 25 of 42 Uploaded by K.K. SAIYED(HC00169) on Thu May 08 2025 Downloaded on : Sat May 10 06:38:31 IST 2025
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14. The petitioners herein, as referred above, applied pursuant to the said advertisement and came to be appointed on contractual basis. The appointment memo of the petitioners dated 2.7.2001 are placed on record from pages-23 to 52 at Annexure-B Collectively and the same is also produced by the respondent Corporation vide Annexure-R2 page-71. One such appointment memo is reproduced for the sake of brevity which reads thus :-
"Appointment Memo:-
This is to inform you that you are selected for the post of "Project Coordinator" in "SMC- STD Care Project" on purely temporary basis with Total Emoluments of 6,000/-fixed per month. You have to join your duty within 7 days.
You have to submit your all original certificates / documents with joining report to the undersigned.
Project In charge SMC-STD Care Project To, Mr. Umesh. L. Rathod 77, Nandi Park Society, Piplod, Surat-7 Page 26 of 42 Uploaded by K.K. SAIYED(HC00169) on Thu May 08 2025 Downloaded on : Sat May 10 06:38:31 IST 2025 NEUTRAL CITATION C/SCA/9700/2016 JUDGMENT DATED: 22/04/2025 undefined Copy C.C.to : Dy. Comm. (H&H),Jt. Project Director shri, SMC. for information please.
Project Manager shri, PCO, for information please."
Various orders are produced on record with respect to the petitioners herein.
15. It is apposite to refer to the appointment order duly produced at page-84 which reads thus :-
"Appointment Memo To, Patel Bijal P. At Po : Vasan Ta :- Gandovi Dist :- Navasari Sub: Appointment memo cum ToR in STD Care Project Run by RCH Project.
You are appointed as Counselor in ' STD Care Project' with consolidated fixed salary Rs.6,500/- per month.
Your appointment is purely on contract basis in this project from 10th November 2010 lo 31st March 2011. Your service will end on 31" March 2011. In case of early termination /resignation one month prior written notice is must.
Place: Surat. Project In charge
Date : 04/11/2010 SMC-STD Care Project
I, the undersigned hereby acknowledge that the above
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undefined
mentioned Appointment-cum-Tor letter is received by me on 4/11/2010."
The said appointment memo dated 4.11.2010 is for a contractual appointment from 10.11.2010 to 31.3.2011. The service of such candidate would end on 31.3.2011. In case of early termination or resignation one month prior written notice is a must. On perusal of such appointment order placed on on record, it is not in dispute that the petitioners herein are appointed on contractual basis.
16. Considering the reply filed by the respondent Corporation, from page-64 para 2.3 it emerges that services of the petitioners are not used daily. Whenever services are required, the petitioners are paid remuneration accordingly as per the services rendered. It also emerges that similarly situated employees in the TB Department and the RCH Department are also continued on contractual basis.
17. The contention raised by Mr. Joshi, the learned Senior Page 28 of 42 Uploaded by K.K. SAIYED(HC00169) on Thu May 08 2025 Downloaded on : Sat May 10 06:38:31 IST 2025 NEUTRAL CITATION C/SCA/9700/2016 JUDGMENT DATED: 22/04/2025 undefined Counsel that those employees in the TB Department and the RCH Department are regularized, is such that the same is negated in light of the clarification issued in the affidavit-in- reply which remains uncontroverted.
18. This Court has perused staff pattern of the STD Care Project which is reproduced at page-69 Annexure-R1. From the aforesaid, it also emerges that the said posts to which the petitioners are claiming permanency are not in the sanctioned setup. Those posts which are duly sanctioned or is part of the setup, such employees are receiving regular pay-scale.
19. Upon perusal of the communication dated 17.12.2009 (page-58/A) 2009 on the administrative side, it emerges that the proposal was made for continuation of the project and not for absorption of the Counselors in the permanent establishment and accordingly Standing Committee of the respondent Corporation vide Resolution No.17 of 2009 dated 2.1.2009 approved continuation of the project upto 31.3.2009. Page 29 of 42 Uploaded by K.K. SAIYED(HC00169) on Thu May 08 2025 Downloaded on : Sat May 10 06:38:31 IST 2025
NEUTRAL CITATION C/SCA/9700/2016 JUDGMENT DATED: 22/04/2025 undefined The said proposal relied upon by the petitioners is duly produced at page-54. The same is also produced by the respondent Corporation at page-112 and the Resolution No.17 of 2009 passed by the respondent Corporation dated 6.1.2009 is duly produced at page-116 Annexure-R4.
20. It appears that the petitioners apprehended that the petitioners would be substituted by outsource agency and in view thereof the petitioners approached this Court seeking regularization, permanency and that the petitioners may not be replaced by outsourcing agency and that the respondent Corporation be restrained from undertaking outsourcing and/or for engaging Counselors at the Health Centers at the Surat Municipal Corporation.
21. Upon issuance of notice, status-quo was granted. The petitioners herein are continued in light of the status-quo dated 27.6.2016 till today.
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NEUTRAL CITATION C/SCA/9700/2016 JUDGMENT DATED: 22/04/2025 undefined
22. In light of the aforesaid, it is apposite to deal with the judgments relied upon by Mr. Joshi, the learned Senior Counsel appearing for the petitioners :-
(A) In the case of Ghanshyam M. Pandya vs. State of Gujarat and Ors., reported in 1985 GLH (U.J.) 51, in the said case the petitioners had acquired temporary status. The petitioners were terminated orally, such oral termination was held to be arbitrary and violative of Articles 14 and 16 of the Constitution of India.
(B) In the case of Jaggo vs. Union of India, reported in AIR 2025 SC 296, in the said judgment, the appellant assailed the order passed by the Tribunal wherein the claim of the petitioners to be regularized in the services was negated by the Tribunal in terms of the DOP and TOM dated 11.12.2006 issued in compliance with the directions of the Hon'ble Supreme Court in case of Umadevi, reported in 2006 (4) SCC page-1.Page 31 of 42 Uploaded by K.K. SAIYED(HC00169) on Thu May 08 2025 Downloaded on : Sat May 10 06:38:31 IST 2025
NEUTRAL CITATION C/SCA/9700/2016 JUDGMENT DATED: 22/04/2025 undefined In the said judgment the petitioners were appointed as Safaiwalis in the years 1993, 1998 and 1999 respectively whereas the petitioners No.4 and 5 were appointed as Mali and Khalasi in the years 2000 and 2004 respectively in the Central Water Commission on ad hoc basis and they were paid lumpsum monthly emolument.
Considering the long span of service, the Hon'ble Apex Court held that irrespective of the department or office or the nature of work, the petitioners were performing essential duties that were indispensable in the day-to-day functioning of the CWC's. Irrespective of the department or office, the nature of work remained the same which did not require any specific academic qualification. In the said Commission itself Safaiwalis with lesser number of years were regularized and, therefore, the Hon'ble Apex Court held that the aforesaid was clear violation of Article 14 of the Constitution of India.
In the facts of the present case, the petitioners are appointed on contractual basis and are continued in service in light of the STD Care project which was initiated under the Page 32 of 42 Uploaded by K.K. SAIYED(HC00169) on Thu May 08 2025 Downloaded on : Sat May 10 06:38:31 IST 2025 NEUTRAL CITATION C/SCA/9700/2016 JUDGMENT DATED: 22/04/2025 undefined technical guidance of the National AIDS Control Organization (for short 'NACO') and under direct supervision of the Gujarat State AIDS Control Society (for short 'GSACS'). It was initially funded by the State Government, however the State Government also abandoned the project in the year 2009, however the same is continued by the respondent Corporation SMC.
(C) In the case of Shripal and Anr. vs. Nagar Nigam, Ghaziabad, reported in 2025 SCC OnLine SC 221, in the facts of the said case, appellants were workmen in the Ghaziabad Nagar Nigam having approached the Labour Court, Ghaziabad, wherein the Labour Court in one set reinstated some workmen with partial back-wages and in another set denied relief together to similarly placed workmen.
The Hon'ble Apex Court intervened and held that the impugned action of terminating the services of the appellants workmen was violative of Section 6E and 6N of the U.P. Industrial Disputes Act, 1947 and in lieu thereof all the Page 33 of 42 Uploaded by K.K. SAIYED(HC00169) on Thu May 08 2025 Downloaded on : Sat May 10 06:38:31 IST 2025 NEUTRAL CITATION C/SCA/9700/2016 JUDGMENT DATED: 22/04/2025 undefined appellants workmen were ordered to be treated as continued in regular service from the date of their termination for all the purposes including seniority and continuity of service.
Upon bare perusal of the aforesaid judgment relied upon by Mr. Joshi, the learned Senior Counsel it emerges that the petitioners herein are appointed on purely contractual basis and in view thereof the petitioners are governed by the terms of contract. Admittedly the petitioners are not appointed regularly by the respondent SMC.
Position of Law :-
23(A) In light of the aforesaid, it is apposite to refer to the decision in the case of Union of India vs. All India Trade Union Congress, reported in 2019 (5) SCC 773, wherein paragraph-13 reads thus :-
"13. That was also a case where the Union of workers namely "Vartak Labour Union" had claimed a relief of regularization of the services of the casual workers who were working in BRO for a considerable period in construction activities undertaken by BRO in the State of Assam. The Union of workers, therefore, filed a writ petition against the Union of India in the Page 34 of 42 Uploaded by K.K. SAIYED(HC00169) on Thu May 08 2025 Downloaded on : Sat May 10 06:38:31 IST 2025 NEUTRAL CITATION C/SCA/9700/2016 JUDGMENT DATED: 22/04/2025 undefined Gauhati High Court. The High Court allowed the writ petition and directed the Union of India to regularize the services of all such casual workers. The Union of India felt aggrieved and filed special leave to appeal in this Court against the judgment of the Gauhati High Court. This Court allowed the appeal and set aside the order of the Gauhati High Court with the following observations:
"17. We are of the opinion that the respondent Union's claim for regularisation of its members merely because they have been working for the BRO for a considerable period of time cannot be granted in light of several decisions of this Court, wherein it has been consistently held that casual employment terminates when the same is discontinued, and merely because a temporary or casual worker has been engaged beyond the period of his employment, he would not be entitled to be absorbed in regular service or made permanent, if the original appointment was not in terms of the process envisaged by the relevant rules. [See State of Karnataka v. Umadevi (3); Official Liquidator v. Dayanand; State of Karnataka v. Ganapathi Chaya Nayak; Union of India v. Kartick Chandra Mondal; Satya Prakash v. State of Bihar and Rameshwar Dayal v. Indian Railway Construction Co. Ltd.]
22. Therefore, in the facts and circumstances of the instant case, where members of the respondent Union have been employed in terms of the Regulations and have been consistently engaged in service for the past thirty to forty years, of course with short breaks, we feel, the Union of Page 35 of 42 Uploaded by K.K. SAIYED(HC00169) on Thu May 08 2025 Downloaded on : Sat May 10 06:38:31 IST 2025 NEUTRAL CITATION C/SCA/9700/2016 JUDGMENT DATED: 22/04/2025 undefined India would consider enacting an appropriate regulation/scheme for absorption and regularisation of the services of the casual workers engaged by the BRO for execution of its ongoing projects.
23. In the final analysis, the appeals are allowed, and the impugned judgments and orders are set aside. However, in the circumstances of the case, the parties are left to bear their own costs."
The petitioners herein are in litigious employment. It is submitted by Mr. Desai, the learned Senior Counsel appearing for the respondent Corporation that the respondent Corporation intends to close the Scheme.
(B) It is apposite to refer to the ratio laid down in Federation Of All India Customs And Central Excise Stenographers (Recognised) Versus Union Of India, reported in (1988) 3 SCC 91 wherein paragraphs 7 and 11 read thus :-
"7. Equal pay for equal work "is a fundamental right. But equal pay must depend upon the nature of the work done, it cannot be judged by the mere volume of work, there may be qualitative difference as regards reliability and responsibility.Page 36 of 42 Uploaded by K.K. SAIYED(HC00169) on Thu May 08 2025 Downloaded on : Sat May 10 06:38:31 IST 2025
NEUTRAL CITATION C/SCA/9700/2016 JUDGMENT DATED: 22/04/2025 undefined Functions may be the same but the responsibilities make a difference. One cannot deny that often the difference is a matter of degree and that there is an element of value Judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service. So long as such value judgment is made bona fide, reasonably on an intelligible criterion which has a rational nexus with the object of differentiation, such differentiation will not amount to discrimination. It is important to emphasise that equal pay for equal work is a concomitant of Art. 14 of the Constitution. But it follows naturally that equal pay for unequal work will be a negation of that right.
11. In this case the differentiation has been sought to be justified in view of the nature and the types of the work done, that is, on intelligible basis. The same amount of physical work may entail different quality of work, some more sensitive, some requiring more tact, some less - it varies from nature and culture of employment. The problem about equal pay cannot always be translated into a mathematical formula. If it has a rational nexus with the object to be sought for, as reiterated before a certain amount of value judgment of the administrative authorities who are charged with fixing the pay scale has to be left with them and it cannot be interfered with by the Court unless it is demonstrated that either it is irrational or based on no basis or arrived at mala fide either in law or in fact. In the light of the averments made and in Page 37 of 42 Uploaded by K.K. SAIYED(HC00169) on Thu May 08 2025 Downloaded on : Sat May 10 06:38:31 IST 2025 NEUTRAL CITATION C/SCA/9700/2016 JUDGMENT DATED: 22/04/2025 undefined the facts mentioned before, it is not possible to say that the differentiation is based on no rational nexus with the object sought for to be achieved. In that view of the matter this application must fail and it is accordingly dismissed without any order as to costs."
(C) In the Letters Patent Appeal No.378 of 2025 and allied matters in the judgment dated 18.3.2025, paragraphs 11, 12 and 13 read thus :-
"11. Thus, the aforesaid clauses of the contractual appointment manifest that on a successful completion of probation period of a candidate, i.e. 3 months, the contractual appointment for three years of fixed term of employment i.e., (FTE contract) shall commence. It is further clarified that "this contract shall be renewable on satisfactory performance including achievements of targets and/or such other criteria as may be decided by the management and on the basis of mutual agreement". It is pertinent to note that, it is further provided that "Unless renewed, the contract shall stand automatically terminated on the expiry of period of contract without any notice or compensation". Thus, the contract between the appellants and the Respondent no.2 is governed by the terms and conditions of the resolution and the appointment order. The appellants cannot, as a matter of right, insist to continue in service beyond the period of three Page 38 of 42 Uploaded by K.K. SAIYED(HC00169) on Thu May 08 2025 Downloaded on : Sat May 10 06:38:31 IST 2025 NEUTRAL CITATION C/SCA/9700/2016 JUDGMENT DATED: 22/04/2025 undefined years, till the existence of the Company even if their service is found unsatisfactory. Having accepted the conditions of the appointment, they have to undergo assessment of their work performance.
12. The prayer clauses mentioned in the writ petitions, as mentioned hereinabove, relate to the regularization of the services of the appellants and also for quashing and setting aside the order of termination dated 11th June, 2014. However, the undisputed fact remains that, when the writ petition was filed, there was no termination, but the respondent no.2 had extended the contractual appointment till 31st July, 2014, and this Court had passed an interim order protecting their services, which has continued for all these years.
13. We are in complete agreement with the findings recorded by the learned Single Judge so far as the denial of the prayers of regular pay scale to the appellants are concerned since the appellants are appointed by the respondent no.2 on contractual basis and they cannot claim regular pay scale or regularization on a contractual post, even if the same is sanctioned, as the contractual appointment is only confined for a period of 3 years subject to further assessment of their work performance. Only in case the respondent no.2 - company finds that they have performed satisfactorily including achievements of targets and/or such other criteria as decided by the management, Page 39 of 42 Uploaded by K.K. SAIYED(HC00169) on Thu May 08 2025 Downloaded on : Sat May 10 06:38:31 IST 2025 NEUTRAL CITATION C/SCA/9700/2016 JUDGMENT DATED: 22/04/2025 undefined their contract can be renewed."
24. Mr. Joshi, the learned Senior Counsel submits that the advertisement is issued by the Gujarat State AIDS Control Society on 11.3.2025 and placing reliance on the said advertisement submits that the Scheme be continued by the respondent State.
Upon perusal of the said advertisement which is placed on record by Mr. Joshi, the learned Senior Counsel it emerges that qua Surat at Serial No.22 there is one post of Counselor at Navi Civil Hospital, Surat and the aforesaid is also on contractual basis for eleven months on fixed remuneration.
25. Mr. Joshi, the learned Senior Counsel relies on the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017 and submits that the action of the respondent in not regularizing the services of the petitioners is nothing but exploitation at the hands of the authorities. The aforesaid act clearly mentions Page 40 of 42 Uploaded by K.K. SAIYED(HC00169) on Thu May 08 2025 Downloaded on : Sat May 10 06:38:31 IST 2025 NEUTRAL CITATION C/SCA/9700/2016 JUDGMENT DATED: 22/04/2025 undefined role of the counselors and the petitioners herein be regularized in light of the aforesaid Act.
Upon perusal of the Act which is placed on record, Mr. Joshi, the learned Senior Counsel is not in a position to assist the Court with respect to nature of appointment of the counselors as provided under Section 9 of the Act and as to how the petitioners seek parity.
26. In light of the aforesaid position of law, as referred above, this Court is not inclined to exercise extraordinary jurisdiction under Article 226 of the Constitution of India qua the prayer of the petitioners to regularize the services of the petitioners, however it is clarified with respect to Prayer (C) that the petitioners be continued till the Scheme continues subject to the Service and Disciplinary Rules as may be made applicable to them.
27. Mr. Joshi, the learned Senior Counsel requests that the order of status-quo dated 27.6.2016 be continued for a period Page 41 of 42 Uploaded by K.K. SAIYED(HC00169) on Thu May 08 2025 Downloaded on : Sat May 10 06:38:31 IST 2025 NEUTRAL CITATION C/SCA/9700/2016 JUDGMENT DATED: 22/04/2025 undefined of six weeks.
The status quo that is granted by order dated 27.6.2016 be extended for a period of four weeks.
28. In view of above, the present petition stands disposed of. Consequently all the civil applications stand disposed of.
(VAIBHAVI D. NANAVATI,J) K.K. SAIYED Page 42 of 42 Uploaded by K.K. SAIYED(HC00169) on Thu May 08 2025 Downloaded on : Sat May 10 06:38:31 IST 2025