Gujarat High Court
Vishal Ajaybhai Rao vs State Of Gujarat & 4 on 10 January, 2017
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/19288/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 19288 of 2015
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VISHAL AJAYBHAI RAO....Petitioner(s)
Versus
STATE OF GUJARAT & 4....Respondent(s)
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Appearance:
MR RAMNANDAN SINGH, ADVOCATE for the Petitioner(s) No. 1
MS ASMITA PATEL, ADVANCE COPY SERVED TO GP/PP for the Respondent(s)
No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 5
NOTICE SERVED BY DS for the Respondent(s) No. 1 - 4
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 10/01/2017
ORAL ORDER
1. The petitioner, herein, seeks to challenge the orders / resolutions dated 28.08.2014 and 23.09.2015, whereby, his services sought to be terminated by the Respondent-authorities.
2. The petitioner applied for the post of MIS Coordinator to be filled-up under the Mahatma Gandhi National Rural Employment Guarantee Act, 2005 (for short, 'MGNREGA') and as he was having the prescribed qualifications, he was selected. The petitioner came to be appointed on the post of MIS Coordinator vide order dated 21.05.2012 in MGNREGA Department in Taluka Panchayat, Naswadi. State Government passed a resolution on 28.08.2014 for making fresh appointments and to end the contracts made vide advertisement / resolution dated 15.09.2010 or to grant extension upto 31.03.2015, i.e. till the new appointments are made. The Page 1 of 16 HC-NIC Page 1 of 16 Created On Sat Aug 12 05:23:19 IST 2017 C/SCA/19288/2015 ORDER services of the petitioner came to be extended, accordingly. The State also issued another resolution dated 15.07.2015, whereby, the services of all the employees came to be extended upto 30.09.2015. The case of the petitioner is that in the meantime, i.e. on 23.09.2015, an order came to be passed by the State, whereby, the services of all those persons, except, the persons, who had approached this Court, sought to be terminated. He is, therefore, before this Court with the following prayers:
"9. ...
(A) Your Lordships may be pleased to admit and allow the present petition.
(B) Your Lordships may be pleased to issue writ of mandamus or any other appropriate writ, by quashing and setting aside the impugned orders / resolutions dated 28.8.2014 and 23.9.2015 at Annexure-'A', proposing to terminate the services of the employees giving exception to those persons who have approached this Hon'ble Court by filing writ petitions.
(C) Pending admission, hearing and final disposal of the present Special Civil Application, Your Lordships may be pleased to direct the respondents to allow the petitioner to perform his duties on the present place of posting and may also be issued with fresh orders ignoring the order dated 23.9.2015.Page 2 of 16
HC-NIC Page 2 of 16 Created On Sat Aug 12 05:23:19 IST 2017 C/SCA/19288/2015 ORDER (D) ..."
3. This Court in case of similarly situated persons in Special Civil Application No. 13621 of 2014 and the allied matters observed and held as under CONTINUITY VIS-A-VIS PERMANENCY:
3.The advertisement of August 28, 2014, in question was for 5616 posts. On about 4000 posts, the petitioners and other similarly situated contractual employees are working. It is to be noted that as per the challenged resolution of December 23, 2013 and the consequential advertisement, new establishment is sanctioned upto the year 2017 i.e. for the period from March 01, 2014 to February 28, 2017.
Grievance is, therefore, rightly raised by the petitioners that those of them who have joined in the year 2011 and thereafter, have been made to discontinue from service on account of this new advertisement. There is likelihood of those who are now being appointed, to be terminated in the year 2017. This kind of frequent change surely would have a major negative impact on the lives of those who have at present already reached the age where public employment elsewhere is next to impossible. As the scheme has continued for all these years and is further geared up for effective implementation, of course, the better and higher qualification of support team is always desirable, Page 3 of 16 HC-NIC Page 3 of 16 Created On Sat Aug 12 05:23:19 IST 2017 C/SCA/19288/2015 ORDER but, that surely cannot be permitted if the action otherwise of the State is found arbitrary and contrary to the settled law of the country. Decision rendered by the Apex Court in Mohd. v. State of Assam [supra] needs to be borne in mind at this stage. The said decision has been subsequently followed by various High Courts and by the Apex Court. As mentioned, while discussing the law on the subject, the staff which was employed for a particular period or scheme which was temporary in nature though continued from time to time, even they were continued due to continuance of the scheme for decades, the Court held that such persons cannot claim regularization and their service come to an end as and when project or scheme is completed. Insistence on regularisation in any project or scheme is also impermissible and the existence of the posts would be co-terminus with the Scheme. The Apex Court also has held that issue, as a matter of policy having financial and other implications ie., issues involving public interest has not engaged the attention of those concerned with the policy and failure to take prompt decision on a pending issue is likely to be detrimental to the public interest. The Court would fail in its duty if they do not draw attention of the authority concerned. It held that the Courts cannot and should not be a maker of policy, however they can certainly be the catalyst when Page 4 of 16 HC-NIC Page 4 of 16 Created On Sat Aug 12 05:23:19 IST 2017 C/SCA/19288/2015 ORDER there is a need for policy or change in the policy.
3.This Court is fully conscious of catena of decisions, some of which found place in the discussion on law hereinbefore that the matter of creation/abolition of posts, cadre, prescription of qualification of service, etc., is in the exclusive domain of the State and it is neither for the Courts to direct on eligibility or method of selection nor to substitute its views for that of the State. Amendment, additions, variations in the rules for administrative exigencies should be left to the State to handle.
1.Again, contractual employees appointed or continued for a long time in public employment, ordinarily may not be allowed to claim under the theory of legitimate expectation. No theory of the State holding out promise of making permanent while engaging them also can be countenanced. Their claim or prayer of equal pay for equal right, also is not easy to be translated in mathematical formula. These employees even as per the decision of the Apex Court in the case of Uma Devi (supra), form a class by themselves. This Court, however, at the same time, cannot be oblivious of the fact that their appointment has been made on fixed contractual term in a particular cadre, after Page 5 of 16 HC-NIC Page 5 of 16 Created On Sat Aug 12 05:23:19 IST 2017 C/SCA/19288/2015 ORDER following due process of selection in terms of relevant recruitment rules/ guidelines. Their periodical extension on review of their performance and continuation of the scheme also are the factors which would cement their claim of continuation.
3.With regard to the prayer of regularization of the petitioners, this Court needs to once again refer to the decision of the Apex Court rendered in the case of Mohd. Abdul Kadir and another v. Director Director General of Police, Assam and others, reported in (2009) 6 SCC 611, where the appellants were ex-servicemen and they were employed under the Prevention of Infiltration of Foreigners Additional Scheme, 1987. The scheme which was otherwise meant for strengthening of Assam Government machinery for detection and deportation of foreigners. The scheme was temporary but it was continued although for nearly two decades after extending it from time to time. The Apex Court had rejected the claim of regularization by holding that any temporary or ad- hoc engagement or appointment if in connection with a particular project or a specific scheme is there, the services of those persons under such project would come to an end, on completion/ closure /cessation of the project or scheme. The Court went on holding that merely because the scheme was in operation for some decades and the employee concerned had continued for one or two Page 6 of 16 HC-NIC Page 6 of 16 Created On Sat Aug 12 05:23:19 IST 2017 C/SCA/19288/2015 ORDER decades, also would not entitle them to seek permanency or seek regularization. Even if any posts are sanctioned with reference to the scheme, such sanction is of ad hoc or temporary posts conterminous with the scheme and not of permanent posts.
3.Thus, after referring to various decisions on the issue, the Apex Court has denied the permanency to those also who were engaged in connection with such project or scheme. Qua the right to continue in service or seeking regularization in some other project or service, this Court is of the opinion that such claim of the petitioners of regularization of their services on account of their continuing in the project for a sufficiently long time, would not curry favour with the Court.
3.This Court held and observed in this judgment of Pradeep Navinbhai Patel (supra) that the continuation of contractual appointment for a long span would establish a genuine requirement of filling up such posts on regular basis. The frequent or continuous adhocism is not desirable in any service. And, yet creation of permanent establishment if is not possible as these appointments are meant for implementing the scheme, they need to be made co-terminous with the scheme itself. Once the appointment is made on following the rules or guidelines or through regular process of selection, frequent changes and new selection Page 7 of 16 HC-NIC Page 7 of 16 Created On Sat Aug 12 05:23:19 IST 2017 C/SCA/19288/2015 ORDER adopting adhocism is surely not a welcome step.
In other words, the petitioners if are precluded under the law to claim permanency, the State cannot either be permitted to exploit the situation. As a model employer, while insisting on proficiency and optimum output from the contractual employees, it is not expected to take shelter behind the new policy to remove regularly selected contractual employees who have worked for a considerably long period without any grievance against them.
4.At the same time, in the changed policy guidelines prepared in the year 2013, qualification of the persons manning each cadre is enhanced as is quite apparent from the table given hereinabove.
Along with better qualification, experience of prescribed years is also part of the requirement. Of course, those petitioners who were already working in the field have by now received the field experience of many years.
3.There are about 1229 petitioners who are Gram Rojgar Sevaks; out of which 572 have been found eligible as a result of recent examination, whereas the remainder 657 persons are not figuring in the merit list either for their not clearing the examination or for possessing the old qualification. None of the Gram Rojgar Sevak can claim pay- scale or minimum wages at par with the employees regularly employed in the State Government as in the case of Special Civil Application No.9898 of 2013 and 3024 of 2014.
Page 8 of 16HC-NIC Page 8 of 16 Created On Sat Aug 12 05:23:19 IST 2017 C/SCA/19288/2015 ORDER Sufficient reasons have been provided for not allowing them to claim any pay-scale comparable with the regularly working employees. At the same time, to deny employment to 657 persons either on the ground of their having not qualified for the selection despite having cleared the examination or for their possessing old qualification of Std.XII pass instead of graduation with knowledge of computer, in the opinion of this Court may not be permissible.
4.As could be noticed from the factual matrix, out of total number of employees, many of them have left contractual employment considering extremely meager payment methods and service conditions and yet many of them have continued who are desirous of being regularized under the scheme, more particularly, when the scheme or the project has continued and is likely to continue for a while. It is also not for this Court to make any hazardous guesses as to for what length of period, there would be requirement of continuing such scheme or project. As discussed above, it is quite unlikely that the objective set out in MGNREGA would get fulfilled in a near future. In its all probabilities, these objectives may require the continuity of project or scheme for a very long time. However, the scheme may continue, but those of them who are the extended administrative arms for providing enhancement of livelihood and security of household in the rural Page 9 of 16 HC-NIC Page 9 of 16 Created On Sat Aug 12 05:23:19 IST 2017 C/SCA/19288/2015 ORDER areas, may undergo the change with the restructuring of the set up. It is to be ingeminated that what the said Act of 2005 has provided is 100 days' guaranteed wages by employer in every financial year to every household. This guaranteed wage employment is for those millions of families who are the part of household in rural areas. The Act surely does not provide the guarantee of continuance or permanency for those who are the part of implementation team, as with the change of passage not only restructuring of the set up may be necessary, but there are other facets which may be added. As held, in absence of any legal right to uphold the claim of permanency, merely because the goal set out in the MGNREGA appears to be yet far-fetched, also cannot furnish a reason, much less a potent ground for the same.
3.As noted in the foregoing paragraph, from time to time the establishment for implementing the said scheme has been restructured. The last such restructuring was made in the year 2013 by the State whereby the extension was given for contractual period to those working under this set up. The new measures introduced along with increase in salary to the sanctioned establishment by 15% on the basis of evaluation of work and circumscribing the same to 6% administrative expenses. And, yet the terms and conditions set out in th Government Resolution dated December 23, 2013, do not allow Page 10 of 16 HC-NIC Page 10 of 16 Created On Sat Aug 12 05:23:19 IST 2017 C/SCA/19288/2015 ORDER any other benefits, except the limited aspect as mentioned hereinbefore.
3.Those of them who have cleared examination even with change in the policy guidelines and the enhancement in the qualifications, surely need no replacement by another set of ad-hoc employees. Many of them have chosen not to join on the ground of non-grant of permanency. Their insistence on issuance of the writ of mandamus or any other similar writ for securing them permanency on the post on which they have been serving all these years, in the wake of discussion held hereinabove, cannot be acceded to. The limited immunity that could be made available to the petitioners is to allow them to continue and not to be replaced by another set of ad-hoc employees.
4.It is, of course, required to be emphasized that these contractual employees are required to update themselves and are expected to enhance their professional skills with passage of time. With the change of requirement periodically due to administration exigency, a platform needs to be provided by the State Government for these contractual employees to equip themselves with higher qualifications and the skills. In-
service training in all departments for widening the base of knowledge and skill is not alien to the government departments. For doing so, the ad- hoc employees need not be replaced by fresh appointees. These Page 11 of 16 HC-NIC Page 11 of 16 Created On Sat Aug 12 05:23:19 IST 2017 C/SCA/19288/2015 ORDER employees are needed to gear up and also to deliver, armed with such knowledge and skill. While permitting introduction of competitiveness and mechanism of enhancement of professional skills as also the rigours of disciplinary rules, the State cannot be permitted to employ completely a new set of employees on contractual terms on ad-hoc basis.
5.Variation in qualification of those who would be freshly recruited and those who are continuing, also is not a ground to deny continuation. It happens in every establishment that those who are employed earlier may possess less qualification than the one required due to amendment in rules. That per se cannot throw out the person who performed sincerely, diligently and without any grievance against them. While denying the request of permanency in the wake of discussion made hereinabove, it is being noted that in the examination conducted in the year 2014, the criteria have been fixed for allocating marks for expertise and the skills as well as experience, the petitioners had in the field while evaluating and finalising the results.
Except this variation in
qualification and excessive
emphasis on use of Information Technology while operating in the field are two major grounds put forth by the State for overhauling and as held, discussed and observed hereinbefore, they are neither sufficient nor adequate, Page 12 of 16 HC-NIC Page 12 of 16 Created On Sat Aug 12 05:23:19 IST 2017 C/SCA/19288/2015 ORDER much less potently valid to permit replacement or change as provided in the Government Resolution dated December 23, 2013.
:: OPERATIVE ORDER ::
3.For the foregoing reasons, the present group of petitions are partly allowed.
1.The prayer of the petitioners to regularise their contractual services and make them permanent on the establishment is rejected.
Limited immunity that is made available to the petitioners is by allowing them to continue on their contractual employment and not to be replaced by other set of contractual employees on ad- hocism. The petitioners shall be continued in the existing cadre as long as the said Scheme continues, but purely on contractual basis and such employment shall be co-
terminus with the scheme, subject to evaluation of their performance, service and disciplinary rules as may be made applicable to them. The respondent-State shall insist on periodical upgradation of knowledge, improvisation of technical skill and overall preparedness on the subject, so also on computerisation.
2.The challenge to the Government Resolutions dated December 23, 2013 and August 28, 2014 and the consequential process of recruitment Page 13 of 16 HC-NIC Page 13 of 16 Created On Sat Aug 12 05:23:19 IST 2017 C/SCA/19288/2015 ORDER undertaken in the year 2014 pursuant to the public advertisement dated August 28, 2014, succeeds qua the petitioners only. Those petitioner who have qualified in the last examination of the year 2014 shall be continued on contractual employment without insistence on their fresh appointment by the respondent-State.
The respondent-authorities shall renew the petitioners' contract of service on the same terms and conditions as continued so far
3.Those petitioners who have cleared the examination and not qualified in the process of recruitment of the year 2014, shall not be discontinued, if already on contractual service pursuant to their selection through legally permissible mode in the years 2009 and 2011.
4.Those of the petitioners who have approached this Court after their termination on account of non-extension of their contractual employment, but otherwise given appointment after selection under the Rules/ on following public advertisement, shall be restored to continue on their original posts. This shall be considered as their contractual employment without any break.
5.It is being clarified that those appointments which have been made freshly pursuant to the aforementioned resolutions Page 14 of 16 HC-NIC Page 14 of 16 Created On Sat Aug 12 05:23:19 IST 2017 C/SCA/19288/2015 ORDER and process of selection under challenge in the year 2014, in no manner, shall be affected by this judgment.
6.It is being clarified that in absence of any policy of the State to grant permanency in any of the cadres at the District, Taluka or Gram Panchayat levels, the issue of the length of service of the petitioners deserves no adjudication. However, if any such policy in future is made by the State, the petitioners shall be at liberty to raise the contention of continuation and shall be entitled to raise the issue of the length of service from the date of their initial appointment. This Court has not concluded the said issue in the present group of petitions and has left the same for the petitioners to contend at an appropriate time in the future, if the occasion so arises.
7.As a parting note, it is being observed that this Court would fail in its duty if it does not act as a catalyst in the words of the Apex Court and draws the attention of the State Government that if may need to take a policy decision in respect of creating permanent establishment where contractual appointments have continued for more than a decade and its continuation is still felt by gearing up at all levels. Since it entails large financial implication, a Page 15 of 16 HC-NIC Page 15 of 16 Created On Sat Aug 12 05:23:19 IST 2017 C/SCA/19288/2015 ORDER marathon exercise is begging the attention of the State. Rule is made absolute to the aforesaid extent. There shall be, however, no order as to costs.
In view of disposal of the main petitions, the connected Civil Applications do not survive and the same stands disposed of accordingly.
Disposed of accordingly."
4. Under the circumstances, the case of the petitioner, herein, shall also be governed along the line of the decision of this Court in Special Civil Application No. 13621 of 2014 allied matters and the directions issued by this Court in its OPERATIVE order dated 1.07.2016 shall be applied in the case of the present petitioner. Disposed of, accordingly.
(MS SONIA GOKANI, J.) UMESH Page 16 of 16 HC-NIC Page 16 of 16 Created On Sat Aug 12 05:23:19 IST 2017