Gujarat High Court
Ghanshyambhai Chikabhai Bhusadiya vs State Of Gujarat on 3 August, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/10854/2015 IA ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION NO. 1 of 2018
IN R/SPECIAL CIVIL APPLICATION NO. 10854 of 2015
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CHIEF EXECUTIVE OFFICER Versus GHANSHYAMBHAI CHIKABHAI BHUSADIYA ========================================================== Appearance:
DS AFF.NOT FILED (R) for the PETITIONER(s) No. MR RAKESH PATEL, AGP for the PETITIONER(s) No.7 MR DG CHAUHAN for the PETITIONER(s) No. RONAK D CHAUHAN for the PETITIONER(s) No. MR BHUNESH C RUPERA for the RESPONDENT(s) No. ========================================================== CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 03/08/2018 IA ORDER
1. By this application, the applicants - original respondents have prayed for the following reliefs: 13(A) Be pleased to modify the order of status quo dated 03.05.2016 and 12.04.2016 passed in Special Civil Application No.16587 of 2015 and other group of petitions to the effect that the applicant be permitted to transferred the concerned contractual employees due to exigency of water supply work in the villages in the public interest.
(B) Be pleased to pass other and further orders that may deem fit and proper in the interest of justice.
2. In the application, the following averments have been made:
2. The applicants state that the concerned contractual employees were appointed on contractual basis for fixed period and on fixed remuneration on the terms and conditions set out in the appointment orders as well as Page 1 of 8 C/SCA/10854/2015 IA ORDER in the agreement entered into between the applicant and the concerned contractual employees - respondents. The said terms and conditions were accepted by the concerned employees with open eyes and the same are binding to the concerned employees. Having accepted contractual appointment, the concerned employees are estopped from challenging the terms and conditions of the appointment order and terms and conditions of the agreement respectively.
3. That the applicant - WASMO is a Society registered under the Bombay Public Trust Act, 1950 being registration No.F/861/Gandhinagar. The applicant - WASMO is also a society registered under the provision of Societies Registration Act, 1860 being registration no.GUJ/904/ Gandhinagar.
4. The applicants further state that under the WASMO Service Rules, there is no permanent set up of the employees in the Organization. There are no sanctioned posts except Chief Executive Officer and Chief Engineer in the organization. It is provided under the Rules that all employees in the WASMO would be appointed on contractual basis or on deputation from other organization and their services are transferable from one place to another place under the WASMO Service Rules and also under agreement enter into between the parties.
5. The applicant respectfully says and submit that the objectives, roles and responsibilities of WASMO are to act as a facilitator to Village Pani Samitis under the programme known as community - manager in village water supply programme under demand - driven decrentralized system. Its objectives, roles and responsibilities are:
(i) Creation of awareness among village people for community participation on water resource management, water conservation, safe drinking water, hygiene etc. in the village.Page 2 of 8
C/SCA/10854/2015 IA ORDER
(ii) Capacity building of village Pani Samitis and village community to
shoulder their responsibilities.
(iii) To provide technical and financial support to Village Pani Samitis in the state in planning and implementation of scheme invillage water supply schemes as per norms of the project.
(iv) To support village Pani Samitis for purposeful execution of water supply work in villages etc.
6. The applicants further submit that the WASMO has made continuous efforts to achieve its objectives roles and responsibilities since its inception in 2002 in villages. It is respectfully submitted that the work in villages with respect to water supply under community managed, demand - driven and decentralized system are going on. It is pertinent to note that about 80% of community managed schemes are completed and only 20% schemes are yet to be implemented subject to demand that may be made by the villages community.
3. Let me take notice of the reliefs prayed for by the 52 contractual employees in their respective Special Civil Applications.
(B) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order, directing the respondent Organization - WASMO to regularize the service of the petitioner in the interest of justice.
(C) Your Lordships may be pleased to issue an appropriate writ, order or directing to the respondent Organization - WASMO to conduct regular recruitment for the vacant posts within six months or as deemed fit by this Hon'ble Court and to accord preference to the petitioner for his service rendered.
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(D) Pending admission hearing and final disposal of this petition, Your
Lordships may be pleased to direct respondent Organization - WASMO not to terminate the service contract of the petitioner and also further be pleased to direct the respondent Organization - WASMO not to recruit any other person on the post of Deputy Coordinator on which the petitioner is performing his duties on ad hoc basic.
4. In Paragraphs9, 10, 11 and 12, the following averments have been made:
9. The applicants respectfully submit that the concerned contractual employees are required to be transferred due to exigency of essential work of water supply in villages. The applicants say and submit that WASMO facilitates invillage water supply distribution system under community managed, demanddriven decentralized system etc. The State Government also aims to provide water supply through household tap water facility. At present, 78% households in rural areas have such facility. The applicant further states that the tribal and far flung areas have lesser household connectivity.
10. The applicants further state that the State Government has accorded top priority to provide drinking water facility to all households through tap water facility by the year 2022. Under such circumstances, the applicants have to increase tap water connectivity with special focus in tribal/other deprived areas to achieve the objectives of the State Government.
11. The applicants state that contractual staff needs to be transferred to place as per need of the programme in public interest. Since status quo order has been granted by this Hon'ble Court for 38 contractual employees/professionals and is in operation, the applicant is not able to utilize optimally services of such status qua contractual employees. The applicants further state that there is urgent need for execution of the Page 4 of 8 C/SCA/10854/2015 IA ORDER programme in tribal and other deprived areas and contractual employees/ professionals are required to be transferred due to exigency of work and in public interest.
12. Under these circumstances, the status quo order granted by this Hon'ble Court in all petitions is required to be modified to the extent that the applicants may be permitted to transfer the concerned contractual employees due to exigency of water supply work in the villages in public interest.
5. On 03/05/2016, this Court passed the following order: Let Rule be issued to the respondents, returnable on 6th May 2016. Direct service is permitted. Status quo in the meantime.
6. Later on a note for speaking to minutes, the following order dated 12/04/2016 came to be passed.
The Note for Speaking to Minutes has been filed pointing out that inadvertently, in the order passed by this Court dated 4th April, 2016, the order of status quo as regards service conditions has not been incorporated.
Let there be an order of status quo as regards service conditions of the respective petitioners.
The correction shall be effected only in the writ applications which are as under:
1. Special Civil Application No.16587 of 2015
2. Special Civil Application No.10858 of 2015
3. Special Civil Application No.10860 of 2015
4. Special Civil Application No.10862 of 2015
5. Special Civil Application No.13992 of 2015
6. Special Civil Application No.13993 of 2015
7. Special Civil Application No.16571 of 2015
8. Special Civil Application No.16572 of 2015
9. Special Civil Application No.16573 of 2015
10.Special Civil Application No.16574 of 2015
11.Special Civil Application No.16578 of 2015 Page 5 of 8 C/SCA/10854/2015 IA ORDER
12.Special Civil Application No.16579 of 2015
13.Special Civil Application No.17061 of 2015
14.Special Civil Application No.17064 of 2015
15.Special Civil Application No.17068 of 2015
16.Special Civil Application No.17069 of 2015.
Office shall issue a fresh writ of the order incorporating the interim order. The Note is accordingly disposed of.
7. Mr. Chauhan, the learned counsel appearing for the applicants submitted that all the original petitioners are contractual employees. They are rendering their services in the project called WASMO. He further pointed out that the rules provide for transfer from one place to another or on deputation from the any other organization. The object, role and responsibilities of WASMO is to act as a facilitator to the Village Water Summittee under the programme known as the community managed in Village Water Supply Programme under the demanddriven centralized system. It is further pointed out that the contractual employees should not object to render their services at different places where the work is necessary. They cannot offer resistance as regards transfer from one place to the other.
8. This application has been vehemently opposed by Mr. Bhunesh Rupera, the learned counsel appearing for the original petitioners.
9. An affidavitinreply has been filed interalia stating as under:
2. I say and submit that I am filing present AffidavitInReply only with a view to oppose the admission of the present petition. I reserve all my right to file the detailed affidavit as and when necessary.
3. It is submitted that my nondealing with parawise may not be construed as admission on my part.
4. It is respectfully submitted that original petitioners have challenged the action of the respondent authorities who, rather than treating their service as a regular one from the date of their Page 6 of 8 C/SCA/10854/2015 IA ORDER appointment, the services of the original petitioner will come to an end on the ground of the completion of respective contract. That though the petitioner is appointed after following the prescribed regular process of selection by competitive method and also petitioner has gone through various trainings from time to time, for their respective posts. It is submitted that petitioner was also denied a regular pay scale as per WASMO (Service) Rules, 2002.
5. It is respectfully submitted that the present civil applications have been filed with a prayer to modify the order of status quo granted by this Hon'ble High Court to the extent that applicants herein, original respondents may be allowed to transfer the original petitioners for the proper administration however the same is just with a view to harass and frustrate the original petitioner so as to weaken their claim of regularization as the petitioner are working on the contractual post in their own district since long.
6. It is respectfully submitted that in the present civil application, applicant herein, original respondents have requested this Hon'ble Court to modify the order of status quo granted by this Hon'ble High Court to the extent that applicants herein, original respondents may be allowed to transfer however, the applicants herein have already transferred some of the original petitioners who have also been protected by this Hon'ble High Court and therefore, present applicants have not approached with clean hand and have suppressed this fact from this Hon'ble Court as there action amounts to contempt of this Hon'ble Court.
7. It is respectfully submitted that the prayer made in the present civil application itself is not maintainable, as per various Government Notification, services of contractual employee cannot be transferred looking to the fact that they are not getting any additional benefit then their fix pay and therefore, their services may not be transferred.
8. It is respectfully submitted that the status quo was granted after hearing both the parties at length and all the points were considered before granting the order of status quo and therefore, now applicants herein cannot pray for the modification of the status quo which will vitiate the claim of the original petitioners.
10. Having heard the learned counsel appearing for the parties and having considered the materials on record, I am of the view that the order of status quo as the regards service conditions of the respective petitioners needs to be modified to the extent that it shall be open for Page 7 of 8 C/SCA/10854/2015 IA ORDER the applicants to avail of the services of contractual employees at different places across the State. For this limited purpose, it is always open for the applicants to transfer the contractual employees from one place to the other as the situation may demand. With this limited modification, this Civil Application is disposed of.
(J.B.PARDIWALA, J) aruna Page 8 of 8