Gujarat High Court
Gunvantbhai Vashrambhai Dandaiya & vs State Of Gujarat & 2 on 2 November, 2015
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/15541/2013 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 15541 of 2013
With
SPECIAL CIVIL APPLICATION NO. 15819 of 2013
With
SPECIAL CIVIL APPLICATION NO. 16429 of 2013
With
SPECIAL CIVIL APPLICATION NO. 15291 of 2013
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GUNVANTBHAI VASHRAMBHAI DANDAIYA & 1....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR JAYANT P BHATT, ADVOCATE for the Petitioner(s) No. 1 - 2
MR JEET J BHATT, ADVOCATE for the Petitioner(s) No. 1 - 2
Mr.Swapneshwar Goutam, AGP for the Respondent(s) No. 1 - 2
MR DG CHAUHAN, ADVOCATE for the Respondent(s) No. 3
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 02/11/2015
COMMON ORAL ORDER
Since this group of petitions preferred under Article 226 of the Constitution of India by the petitioners raise identical questions of facts and law, they are being disposed of by this common order.
The facts are drawn from Special Civil Application No. 15541 of 2013 for convenience. The petitioners have sought for the following prayers :-
"(A) Your Lordships may be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction by holding and declaring that Page 1 of 23 HC-NIC Page 1 of 23 Created On Sun Nov 08 00:27:10 IST 2015 C/SCA/15541/2013 ORDER the action of respondent No.3 in passing the impugned order dated 30.9.2013 terminating the petitioners is arbitrary, illegal and bad in law;
(B) Your Lordships may be pleased to issue a writ of mandamus and/or any other appropriate writ, order of direction in the nature of mandamus and/or certiorari to quash and set aside the impugned order dated 30.9.2013 issued by Respondent No.3, terminating the services of the petitioners and to replace the services of petitioners from outsourcing agencies as unconstitutional and violative of Art.14,15,16, 21 and 23 of the Constitution of India; (C) Your Lordships may be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction by holding and declaring that as the petitioners fulfill the criteria laid down by the Hon'ble Apex Court in Uma Devis Judgment para 53, the services of the petitioners shall be regularized as Class IV Sweeper/hamaals with respondent No.3; (D) Your Lordships may be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction by holding and declaring that as the petitioners fulfill the criteria laid down in the Resolution dated 1.5.2007 passed by the Respondent No.2 and to extend the benefit of regularization as one time measure.
(E) Your Lordships may be pleased to as a cease and desist order to permanently restraint the respondents from terminating the petitioners' service as Daily Wager and replacing them by another set of ah-hoc employees by outsourcing Page 2 of 23 HC-NIC Page 2 of 23 Created On Sun Nov 08 00:27:10 IST 2015 C/SCA/15541/2013 ORDER agencies;
(F) In the alternative, Your Lordships may be pleased to direct the respondents to consider the cases of all the petitioners individually for regularizing their service as they have served for more than 15 years on the post of Sweeper/hamaal without there being any break in service, in light of para 53 of Uma Devi's case;
(G) Pending admission and final hearing of the present petition, Your Lordships may be pleased to stay implementation and operation of the impugned order dated 30.9.2013 issued by respondent No.3 in terminating services of the petitioners ; (H) Pending admission and final hearing of the present petition, Your Lordships may be pleased to extend the services of the petitioners as daily wagers with the Respondent No.3 till the final outcome of this petition;
(I) Your Lordships may be pleased to pass any other appropriate order, as deemed fit, in the interest of justice."
The petitioners are presently working as Class IV daily wager, Sweeper/Hamaal. Their services came to be terminated on 1.10.2013 as the services of Sweeper/Hamaal is to be taken from outsourced employees as per the Government Resolution dated 25.4.2012. This challenge has been made being Special Civil Application No. 8066 Page 3 of 23 HC-NIC Page 3 of 23 Created On Sun Nov 08 00:27:10 IST 2015 C/SCA/15541/2013 ORDER of 2011 and allied matters on which the implementation of the GR has been stayed .
The petitioners Class IV- daily wager
-Sweeper/Hamaal have sought regularization on
the ground that they have been working for more than 15 years with the respondent No.3.-Board. Their names have been called from employment exchange for oral interview. After conducting the oral interview, they have been appointed as Sweeper/Hamaal.
They became daily wagers vide Departmental Order dated 12.1.1999. After the order of termination, the petitioners had been protected by the order of this Court and therefore, these petitions with the aforementioned prayers are preferred.
Mr.Jeet Bhatt, learned advocate appearing for the petitioners has urged that in case of Secretary, State of Karnataka and others Vs. Umadevi (3) and others reported in (2006) 4 SCC 1 wherein, the Apex Court had issued certain directions which observed as under :-
"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V.Narayanapa R.N.Nanjundappa and B.N.Nagarajan and referred to in para 15 above, of Page 4 of 23 HC-NIC Page 4 of 23 Created On Sun Nov 08 00:27:10 IST 2015 C/SCA/15541/2013 ORDER duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the Courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Government and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the Courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme."
He has urged that no one time measure has been taken for regularization of the employees who have continued to work for a long time. He has also sought to rely upon the decision of this Court Page 5 of 23 HC-NIC Page 5 of 23 Created On Sun Nov 08 00:27:10 IST 2015 C/SCA/15541/2013 ORDER in Special Civil Application No. 2155 of 2013 wherein this Court had issued direction to the respondent No.3 to take into consideration the regularization of the petitioners as one time measure, as indicated in the Government Resolution dated 26.2.2009 which was meant for Class III- drivers. That the State has also come out with the resolution of the Finance Department dated 1.5.2007 which was amended on 16.5.2008 which concerns one time measure for regularization.
Mr. D.G.Chauhan, learned advocate appearing for the respondent No.3-Board has urged that pursuant to the directions issued by this Court in Special Civil Application 2155 of 2013, the initiatives have been taken by the Board for regularization the service of those who are continued for more than 15 years as per Resolution of the State Government . He has no objection if the Court directs to consider the case of the petitioners on the line of the earlier decision.The case of the petitioners shall be decided on its own merits,more particularly, bearing in mind the observations made in paragraph 14 and 18 of the judgment of the Special Civil Application No. 2155 of 2013.
Heard both the sides and considered the Page 6 of 23 HC-NIC Page 6 of 23 Created On Sun Nov 08 00:27:10 IST 2015 C/SCA/15541/2013 ORDER decision rendered in case of Special Civil Application No. 2155 of 2013 as well as that of the Uma Devi's and others (Supra). Other decisions on the subject have been also taken note of by this Court wherein the employee had directed respondent-authority to take one time measure for regularization of the petitioners.Some of the observations made and directions issued would be required to be reproduced profitably hereinafter :-
"16. After referring to number of decisions, the summary of relevant principles in relation to public employment can be noticed in Paragraphs-34, 36, 42, 43 and 44 of Umadevi (supra), which are quoted hereunder:
34. While answering an objection to the locus standi of the Writ Petitioners in challenging the repeated issue of an ordinance by the Governor of Bihar, the exalted position of rule of law in the scheme of things was emphasized, Chief Justice Bhagwati, speaking on behalf of the Constitution Bench in Dr. D.C. Wadhwa and Ors. v. State of Bihar and Ors. (1987 (1) S.C.R.
798) stated:
"The rule of law constitutes the core of our Constitution of India and it is the essence of the rule of law that the exercise of the power by the State whether it be the Legislature or the Executive or any other authority should be within the constitutional limitations and if any practice is adopted by the Executive which is in flagrant and systematic violation of its constitutional limitations, petitioner No. 1 as a member of the public would have sufficient interest to challenge such practice by filing a writ petition and it would be the constitutional duty of this Court to entertain the writ petition and adjudicate upon the validity of such practice."
Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down Page 7 of 23 HC-NIC Page 7 of 23 Created On Sun Nov 08 00:27:10 IST 2015 C/SCA/15541/2013 ORDER the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because, an employee had continued under cover of an order of Court, which we have described as 'litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates.
36. While directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the concerned person has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with eyes open. It may be true that he is not in a position to bargain - not at arms length - since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of Page 8 of 23 HC-NIC Page 8 of 23 Created On Sun Nov 08 00:27:10 IST 2015 C/SCA/15541/2013 ORDER appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succor to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution of India.
42. The argument that the right to life protected by Article 21 of the Constitution of India would include the right to employment cannot also be accepted at this juncture. The law is dynamic and our Constitution is a living document. May be at some future point of time, the right to employment can also be brought in under the concept of right to life or even included as a fundamental right. The new statute is perhaps a beginning. As things now stand, the acceptance of such a plea at the instance of the employees before us would lead to the consequence of depriving a large number of other aspirants of an opportunity to compete for the post or employment. Their right to employment, if it is a part of right to life, would stand denuded by the preferring of those who have got in casually or those who have come through the back door. The obligation cast on the State under Article 39(a) of the Constitution of India is to ensure that all citizens equally have the right to adequate means of livelihood. It will be more consistent with that policy if the courts recognize that an Page 9 of 23 HC-NIC Page 9 of 23 Created On Sun Nov 08 00:27:10 IST 2015 C/SCA/15541/2013 ORDER appointment to a post in Government service or in the service of its instrumentalities, can only be by way of a proper selection in the manner recognized by the relevant legislation in the context of the relevant provisions of the Constitution. In the name of individualizing justice, it is also not possible to shut our eyes to the constitutional scheme and the right of the numerous as against the few who are before the court. The Directive Principles of State Policy have also to be reconciled with the rights available to the citizen under Part III of the Constitution and the obligation of the State to one and all and not to a particular group of citizens. We, therefore, overrule the argument based on Article 21 of the Constitution.
43. Normally, what is sought for by such temporary employees when they approach the court, is the issue of a writ of mandamus directing the employer, the State or its instrumentalities, to absorb them in permanent service or to allow them to continue. In this context, the question arises whether a mandamus could be issued in favour of such persons. At this juncture, it will be proper to refer to the decision of the Constitution Bench of this Court in Dr. Rai Shivendra Bahadur v. The Governing Body of the Nalanda College [(1962) Supp 2 SCR 144]. That case arose out of a refusal to promote the writ petitioner therein as the Principal of a college. This Court held that in order that a mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. This classical position continues and a mandamus could not be issued in favour of the employees directing the Government to make them permanent since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent.
44. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa (supra), R. N. Nanjundappa (supra), and B. N. Nagrajan (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily Page 10 of 23 HC-NIC Page 10 of 23 Created On Sun Nov 08 00:27:10 IST 2015 C/SCA/15541/2013 ORDER wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.
17. In Paragraph-45 of Umadevi (supra), all judgments, contrary to the aforestated principles, came to be denuded by following observations:
45. It is also clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, will stand denuded of their status as precedents.
18. Thus, the status of a daily wager, appointed de hors recruitment Rules, is made amply clear in Umadevi (supra).
The right to regularization is also confined to the matters where initial appointment is made in accordance with set recruitment procedure and in such cases, permanency can be conferred and if that necessitates the removal of any defect in otherwise legal recruitment procedure, it can be cured for the purpose of regularization. No regularization can be ordered under Article 226 of the Constitution of India in absence of criteria for regularization indicated in Umadevi (supra).
19. To contend that the recruitment through employment exchange is a valid and regular mode of appointment, the learned counsel heavily relied upon N. Hargopal (supra).
However, learned AGP brought to the notice of this Court that the said decision has been overruled in Excise Superintendent Malkapatnam, Krishna District, A.P. Vs. Page 11 of 23 HC-NIC Page 11 of 23 Created On Sun Nov 08 00:27:10 IST 2015 C/SCA/15541/2013 ORDER K.B.N. Visweshwara Rao and others (1996 (6) SCC 216).
The following pertinent observations in Paragraphs-4, 5 and 6 in K.B.N. Visweshwara Rao (supra) are relevant and quoted for convenience:
4. This Court in Union of India v. N. Hargopal noted the contention of counsel appearing for respondents therein that excluding the candidates who were not sponsored through medium of employment exchange and restricting the choice of selection to the candidates sponsored through the medium of employment exchange, would offend the equality clause of Articles 14 and 16 land held that the contention was attractive and it was not open to the Government to impose restriction on the field of choice. But in view of the fact that even the paper publication would not reach many a handicapped who would be unable to have access to the newspaper, it was held that the sponsorship through the medium of employment exchange would not violate Articles 14 and 16. On the other hand, it would advance the rights to the handicapped. In that view, this Court upheld the restriction imposed by the State and Central Governments to consider the cases of the candidates through medium of employment exchange, while holding that such a restriction was not intended to be applicable to the private employment as held in para 6 of the judgment.
5. Shri Ram Kumar, learned counsel for the State, contended that in view of the above decision, the direction issued by the Tribunal is not in accordance with law. On the other other, S/Shri Shanti Swarup and L.R.Rao, the learned counsel appearing for the respondents, contended that the restriction of the field of choice to the selected candidates sponsored through the medium of employment exchange prohibits the right to be considered for employment to a post under the State and many people cannot reach the employment exchange to get their names sponsored and the employment exchanges are not adopting fair means and procedure to send the names strictly according to seniority in their record.
So, the better course would be to adopt both the mediums, viz., of employment exchange and publication in the newspaper as that would subserve the public purpose better.
6. Having regard to the respective contentions, we are of the view that contention of the respondents is more acceptable which would be consistent with the principles of fair play, justice and equal opportunity. It is common knowledge that many a Page 12 of 23 HC-NIC Page 12 of 23 Created On Sun Nov 08 00:27:10 IST 2015 C/SCA/15541/2013 ORDER candidates is unable to have the names sponsored, though their names are either registered or are waiting to be registered in the employment exchange, with the result that the choice of selection is restricted to only such of the candidates whose names come to be sponsored by the employment exchange. Under these circumstances, many a deserving candidate is deprived of the right to be considered for appointment to a post under the State. Better view appears to be that it should be mandatory for the requisitioning authority/establishment to intimate the employment exchange, and employment exchange should sponsor the names of the candidates to the requisitioning departments for selection strictly according to seniority and reservation, as per requisition. In addition, the appropriate department or undertaking or establishment should call for the names by publication in the newspapers having wider circulation and also display on their office notice boards or announce on radio, television and employment news bulletins; and then consider the cases of all the candidates who have applied. If this procedure is adopted, fair play would be subserved. The equality of opportunity in the matter of employment would be available to all eligible candidates.
20. To appreciate the above observations, the brief reference to N. Hargopal (supra) is necessary. In that case, the office memorandum restricted the authority of an employer in public employment to making appointments only through employment exchange. After holding that the Employment Exchange Act merely obliges the employer to intimate the employment exchange about the vacancies and does not compel the employer to make appointment through such mode only, it was held that the aforementioned restriction was not violative of Articles 14 and 16 of the Constitution of India. The contention that employment exchange publication would not be wider enough to attract the aspiring candidates rejected in N. Hargopal (supra) came to be accepted in K.B.N. Visweshwara Rao (supra). The Supreme Court pointed out that the employment exchange may be additional mode along Page 13 of 23 HC-NIC Page 13 of 23 Created On Sun Nov 08 00:27:10 IST 2015 C/SCA/15541/2013 ORDER with the publication in the newspapers having wide circulation.
It was pointed out that wide publicity to proposed recruitment can be given also through display on relevant office notice boards or by announcement on radio, television as also through an employment news, etc. Thus, the submission of the learned counsel for the petitioners that in N. Hargopal (supra), the Supreme Court approved the recruitment through employment exchange with the rider that it should be mandatory for the requisitioning authority/establishment to intimate the employment exchange and employment exchange should sponsor the names of the candidates to the requisitioning departments for selection strictly according to seniority and reservation, as per requisition, cannot be accepted for the simple reason that it is not permissible to pick up a sentence from the judgment for appreciating the purport of the judgment. As indicated above, in K.B.N. Visweshwara Rao (supra), an employment exchange came to be recognized only as additional mode and emphasis was laid on wide publication of the public vacancies through various modes discussed in Paragraph-6 of the judgment.
21. In Nihal Singh (supra), the initial appointments of the candidates were made in accordance with the statutory procedure contemplated under Section 17 of the Special Police Act, 1861. The suitable ex-servicemen or other abled bodied persons were selected. The persons already having licence Page 14 of 23 HC-NIC Page 14 of 23 Created On Sun Nov 08 00:27:10 IST 2015 C/SCA/15541/2013 ORDER were given priority and such recruitment through employment exchange was held to be consistent with the requirement of Articles 14 and 16 of the Constitution of India. Thus, such recruitment was sanctioned by law under Section 17 of the aforementioned Act. The Court also took into consideration the terrorism prevalent in the State of Punjab which triggered appointments on war footing and thus the process of selection was not found to be irrational. The Court also noticed that the need was to obtain the services of persons who had some experience and training in handling an extraordinary situation of dealing with armed miscreants. It was further held that the process of selection adopted in identifying the appellants herein cannot be said to be unreasonable or arbitrary in the sense that it was devised to eliminate other eligible candidates. It would, thus, appear that Nihal Singh (supra) dealt with a peculiar facts and situation and it also considered Umadevi (supra) and thus cannot be cited as an authority laying the principle contrary to the principle laid in Umadevi (supra).
22. In State of Karnataka Vs. M.L. Kesari (2010 (0) GLHEL-SC 48642), the Supreme Court, while relying upon Umadevi (supra), made following observations:
5. It is evident from the above that there is an exception to the general principles against regularization enunciated in Umadevi, if the following conditions are fulfilled:
(i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the Page 15 of 23 HC-NIC Page 15 of 23 Created On Sun Nov 08 00:27:10 IST 2015 C/SCA/15541/2013 ORDER interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.
(ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be regular.
Umadevi casts a duty upon the concerned Government or instrumentality, to take steps to regularize the services of those irregularly appointed employees who had served for more than ten years without the benefit or protection of any interim orders of courts or tribunals, as a one-time measure. Umadevi, directed that such one-time measure must be set in motion within six months from the date of its decision (rendered on 10.4.2005).
6. The term one-time measure has to be understood in its proper perspective. This would normally mean that after the decision in Umadevi, each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularize their services.
23. It appears that subsequent to Umadevi (supra), the resolution dated 26.02.2009 came to be passed and insofar as Drivers are concerned, it inter alia contemplated a criteria of ten years service for regularization. The argument by G.P.C.B. is that, at the relevant point of time, the posts were not sanctioned. It is, however, noticed from Rule 15 of Gujarat Water (Prevention and Control of Pollution) Rules, 1976 that G.P.C.B. is authorized to create the posts carrying the pay-scale Page 16 of 23 HC-NIC Page 16 of 23 Created On Sun Nov 08 00:27:10 IST 2015 C/SCA/15541/2013 ORDER within Rs.1,600/-. The petitioners were appointed as Daily Wagers and were offered pay of Rs.950/- per month which is obviously lower than Rs.1,600/- per month. It cannot be disputed that the work with G.P.C.B. is of perennial nature inasmuch as the petitioners were continued from 1997 till 2002 i.e. before 15 years and still the G.P.C.B. has requisitioned more force of Drivers by its communication dated 08.05.2009 and thus in fact, it is in need of more number of posts. The question, which falls for consideration, at this stage, is as to whether in the eventuality of the work being of perennial nature and more and more manpower is needed to discharge that work, can the appointment be made on daily wage basis? In other words, will such procedure be arbitrary and in violation of Article 16 of the Constitution of India ? Whether a public employer has a choice of selecting between daily wagers and permanent employees when the work is of perennial nature and is not likely to end within a short span of time ? In Umadevi (supra), the power to make appointment on daily wage basis or temporary, casual or other similar nomenclatures not being permanent but only for a limited period was recognized with a rider that such manpower shall have to be replaced by regular appointees as early as possible. Thus, this Court is of the opinion that the appointments other than of the permanent nature cannot last for years together and the action of making such appointments for years together is nothing but arbitrary particularly when the Page 17 of 23 HC-NIC Page 17 of 23 Created On Sun Nov 08 00:27:10 IST 2015 C/SCA/15541/2013 ORDER work is of perennial nature and more manpower is needed in future as has happened in the present case.
24. As discussed above, the Board has the power to create the posts, and therefore, it was its duty to create the posts as per its requirement and merely because it failed to do so, it cannot be said that in absence of sanctioned posts, regularization, by way of one time measure in a terms of the aforementioned resolution and Umadevi (supra) cannot be done. The learned counsel for respondent no.3 would contend that the Government Resolutions were not applicable to the Board. Such a contention cannot be accepted for the simple reason that under Rule 15 aforesaid, the Board cannot create the post carrying the pay of more than Rs.1,600/- and as on date, the pay of the Drivers starts with Rs.3,050/- and in fact, the third respondent has relied upon the Government for sanctioning of the additional posts of the Drivers. Under such circumstances, the resolution aforesaid will apply to the third respondent as well.
25. It is misconceived for the State to rely upon the resolutions dated 01.05.2007 and 16.05.2008 to oust the petitioners-
Drivers since the resolution dated 01.05.2007 only refers to the part timers Class-IV employees and the resolution dated 16.05.2008 refers to Class-IV employees, whereas the petitioners are Class-III employee and specific resolution Page 18 of 23 HC-NIC Page 18 of 23 Created On Sun Nov 08 00:27:10 IST 2015 C/SCA/15541/2013 ORDER governing them is the one discussed hereinabove in Paragraph-
23.
26. Insofar as termination of the petitioners services is concerned, the petitioners argue and the G.P.C.B. disputes that they were terminated. G.P.C.B. contends that by efflux of time, their appointment lapsed for want of extension. While declining to regularize the petitioners, the respondent-State came out with a case that their services are required to be dispensed with in view of the policy of inducting Drivers by outsourcing. It, thus, appears that the services of the petitioners were allowed to be lapsed with the intention of filling up the posts of Drivers by outsourcing. The argument made by the learned counsel for the petitioners is that outsourcing is not the recognized mode of appointment and even if such mode can be recognized, it is contended that the term of appointment of employees by outsourcing would be fixed by way of a contract and that thus appointment of the Drivers again is contractual i.e. not permanent. It is argued that in view of Umadevi (supra), daily wagers cannot be replaced by outsourced fixed term appointees. The argument is that even if the outsourcing policy is approved, it can work prospectively and not retrospectively.
27. This Court, in the facts of the case, may not go into the wider question as to whether outsourcing employment is a constitutionally valid mode of appointment. The fact, however, remains that the petitioners have been replaced by another set Page 19 of 23 HC-NIC Page 19 of 23 Created On Sun Nov 08 00:27:10 IST 2015 C/SCA/15541/2013 ORDER of non-permanent employees which act of the respondents is in direct conflict with the principles laid down in Umadevi (supra).
28. It is true that by efflux of time, the petitioners appointments were allowed to lapse but the fact remains that intention behind such lapsing was to make a room for appointment by outsourcing. In view of Umadevi (supra), such recruitment is arbitrary. The learned counsel for the respondents would, however, argue that no mandamus can be issued by this Court in absence of any statutory or constitutional right accruing to the petitioners and corresponding obligation being cast on the respondents. It is, however, rightly argued by the learned counsel for the petitioners that once the Apex Court pronounces a legal position, it binds the public institution and it could not have acted contrary to the principle that ad-hoc appointee cannot be replaced by another ad-hoc appointee.
Thus, by virtue of the Supreme Court pronouncement, a duty was cast upon the respondents not to replace a non-permanent employee/a daily wager through outsourcing on contractual basis. Therefore, mandamus can be issued.
29. The preliminary objections raised by the learned counsel for G.P.C.B. cannot be sustained inasmuch as once admitted, the petition is required to be heard on merits rather than rejecting on technical grounds.
30. In above view of the matter, this Court is of the opinion that Page 20 of 23 HC-NIC Page 20 of 23 Created On Sun Nov 08 00:27:10 IST 2015 C/SCA/15541/2013 ORDER the petitioners appointment was de hors the recruitment procedure, the recruitment through employment exchange in absence of compliance with other sources of publication, as indicated in K.B.N. Visweshwara Rao (supra), cannot be recognized as a valid source of permanent appointment. The illegal appointees i.e. the persons whose appointment was not made in accordance with set recruitment procedure cannot seek a shelter of Umadevi (supra), except to an extent of seeking the one time measure of regularization as approved in Umadevi (supra) provided that they are not appointed after the decision rendered in Umadevi (supra) and they comply with the criteria laid down therein.
31. Without examining the question as to whether outsourcing is a permissible mode of appointment in confirmation with Article 16 of the Constitution of India, it is held that the Government Policy to make appointment on contractual basis through outsourcing cannot operate retrospectively and cannot have the effect of termination or discontinuation of employees working in various departments on the date of issuance of the said policy.
32. It is made clear that the regularization ordered herein would not confer upon the petitioners a status of permanent employee and it would only mean their continuance in service until the date of superannuation.
33. In the above circumstances, the petition succeeds. The Page 21 of 23 HC-NIC Page 21 of 23 Created On Sun Nov 08 00:27:10 IST 2015 C/SCA/15541/2013 ORDER respondents are directed to reinstate the petitioners with continuity of service within four weeks from the date of receipt of the writ of this Court. They are also directed to consider the regularization of the petitioners as one time measure, as indicated in the Government Resolution dated 26.02.2009.
Rule is made absolute with no order as to costs."
Taking note of Government Resolution dated 1.5.2007 and subsequently amended Government Resolution dated 16.5.2008 so also considering the affidavit-in-reply which does not dispute the factum of the petitioners having worked as Sweeper/ Hamaal on ad-hoc basis for all these years, these petitions deserve to be allowed on the line of the direction issued by this Court in SCA No. 2155 of 2013.
The respondent -authority shall consider the case of the petitioners within twelve (12) weeks from the date of receipt of copy of this order on the aspect of regularization of the petitioners as one time measure as per Government Resolution dated 1.5.2007 and subsequently amended Government Resolution dated 16.5.2008.
All the petitions are allowed in the above Page 22 of 23 HC-NIC Page 22 of 23 Created On Sun Nov 08 00:27:10 IST 2015 C/SCA/15541/2013 ORDER terms with no order as costs. Direct service is permitted. (MS SONIA GOKANI, J.) BINA Page 23 of 23 HC-NIC Page 23 of 23 Created On Sun Nov 08 00:27:10 IST 2015