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Gujarat High Court · body

2019 DIGILAW 679 (GUJ)

VAHORA BHAVESHKUMAR AMRUTLAL v. UNION OF INDIA

2019-07-03

N.V.ANJARIA

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ORDER : At the outset, learned advocate for the petitioner Mr. Nirav Sanghavi seeks to delete respondent No.1 as well as respondent No.4, since in the facts of the case, the controversy could be addressed and decided without they being parties. 1. Heard learned advocate Mr. Nirav Sanghavi for the petitioners, learned Assistant Government Pleader Ms. Krina Calla for the respondent No.2, learned advocate Mr.Meet Shah on behalf of learned advocate Mr. A.D.Oza for the respondent No.3. 2. The petitioners who are working as Technical Research Persons since last more than ten years have prayed by filing the present petition to restrain the respondents from terminating the services of the petitioners upon completion of eleven months period as Engineers Technical Research Persons (TRP). It is subsequently prayed to direct the respondents to grant the benefits of salary to the petitioners from the date of appointment at par with the regular appointed Engineers of State Government and to further direct the State Government to pay the difference of salary with interest. 3. The learned advocates appearing for the respective parties are ad idem that the controversy in this petition is covered by the decision of this Court in Mistri Mohmad Faruk Umardin & 21 other(s) Vs. State of Gujarat & 3 other(s) being Special Civil Application No.20897 of 2017 decided on 15.04.2019. 3.1 The petitioners are aggrieved because on one hand the scheme has been continued, yet they are apprehending to be replaced by another set of ad hoc employees. Therefore, they have prayed to continue them on the respective posts without giving any artificial break during the said scheme Sarva Shiksha Abhiyan is continued and not to replace them by appointing other ad hoc employees till the regular appointments in the respective posts are made. 4. It is the case of the petitioners that similar employees working as ad hoc in the other schemes known as Mahatma Gandhi National Rural Employment Guarantee Scheme (MANREGA), who were also appointed for 11 months and their services came continued from time to time, approached this court which culminated into decision in Prajapati Hitesh Mohanlal vs. State of Gujarat being Special Civil Application No. 13621 of 2014 and group of petitions decided on 1.7.2016. The decision in Prajapati Hitesh Mohanlal (supra) was relied on by this court in further decision in Shaikh Mohammad Sohaib Ahamedhussein vs. State of Gujarat being Special Civil Application No. 6779 of 2017. 4.1 Learned advocate for the petitioners have relied on the aforesaid decisions. Though the respondents have filed affidavit in reply to contest the petition, learned advocates for the respondents could not dispute the position of law emanating from the aforementioned decisions. 4.2 Furthermore, in para-17 of the affidavit in reply, the following is averred by the respondents to submit before the court that the authorities are not going to replace one set of ad hoc persons with another set of ad hoc persons for performing the work under the scheme, “there is no denial or dispute to the legal position that one set of ad hoc or contractually engaged persons can not (sic) be replaced, without just cause, by another set of ad hoc or contractually engaged persons. I submit that in the present case the respondent authorities have not sought to discontinue the engagement of services of petitioners, upon expiration of the duration of their engagement or prematurely by terminating their contract and employee some other persons on contract basis.” 4.3 The following assertion was stated on oath, “I assure the Hon'ble Court that the respondent authority shall not replace one set of persons contractually engaged on ad hoc basis for performing work under the scheme with another set of persons on contract basis.” 4.4 It has to be concluded that the law laid down in Prajapati Hitesh Mohanlal (supra) and the directions issued therein shall apply in principle to the present set of petitioners who are identically situated in terms of their service conditions and the scheme under which they are appointed. Their contention could be countenanced that though they are ad hoc they could not be replaced by another set of ad hoc employees which would amount to violation of their rights under Article 14 and 16 of the Constitution. 5. Prajapati Hitesh Mohanlal (supra) was allowed by learned Single Judge by issuing the following directions, which are the operative paragraphs 52 to 52.7 extracted hereunder, “52. For the foregoing reasons, the present group of petitions are partly allowed. 52.1. The prayer of the petitioners to regularize their contractual services and make them permanent on the establishment is rejected. 5. Prajapati Hitesh Mohanlal (supra) was allowed by learned Single Judge by issuing the following directions, which are the operative paragraphs 52 to 52.7 extracted hereunder, “52. For the foregoing reasons, the present group of petitions are partly allowed. 52.1. The prayer of the petitioners to regularize 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 adhocism. 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 coterminus 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 up gradation of knowledge, improvisation of technical skill and overall preparedness on the subject, so also on computerization. 52.2. The challenge to the Government Resolutions dated December 23, 2013 and August 28, 2014 and the consequential process of recruitment 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 52.3. 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. 52.4. 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. 52.5. It is being clarified that those appointments which have been made freshly pursuant to the aforementioned resolutions and process of selection under challenge in the year 2014, in no manner, shall be affected by this judgment. 52.6. This shall be considered as their contractual employment without any break. 52.5. It is being clarified that those appointments which have been made freshly pursuant to the aforementioned resolutions and process of selection under challenge in the year 2014, in no manner, shall be affected by this judgment. 52.6. 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. 52.7. 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 marathon exercise is begging the attention of the State.” 5.1 Prajapati Hitesh Mohanlal (supra) was carried in Letters Patent Appeal bearing No. 983 of 2017. The Division Bench upheld the aforesaid directions to hold and observe as under, “7. Since the prayer to regularise the contractual service of the writ petitioners and to make them permanent on the establishment is rejected by learned Single Judge, limited benefit made available to them was also direction to the authority to continue the contractual employment and that they are not to be replaced by other set of contractual employees on adhoc basis. Since the prayer to regularise the contractual service of the writ petitioners and to make them permanent on the establishment is rejected by learned Single Judge, limited benefit made available to them was also direction to the authority to continue the contractual employment and that they are not to be replaced by other set of contractual employees on adhoc basis. Further while passing such order learned Single Judge has taken care of existing educational qualifications and work experience of each of the employees and readiness on their part to undergo any kind of training so as to improvisation of technical skill and overall preparedness on the subject, so also on computerisation. 8. The directions of above in nature issued by learned Single Judge in exercise of powers under Article 226 of the Constitution of India are in consonance with law laid down by the Apex Court, to which, reference is made in the decisions and it is trite that nature of employment namely contractual on which employee is serving is not to be replaced by another set of employees with same terms and conditions. 9. Considering the object of the Act, 2005 namely to provide employment in rural area by the Central Government and substantial cost to be incurred for and administrative side namely payment of wages and salary is to be borne by the Central Government under Rule 22 and State Government is fastened with the liability with the cost of unemployed allowances payable under the scheme and only 1/4th of the material cost of the scheme including payment of wages to skilled and semiskilled workers subject to provisions of Schedule II, we find no substance in the challenge to the order impugned passed by learned Single Judge in this appeal filed by the State of Gujarat and in absence of merit it is dismissed.” 5.2 The present petitioners would be entitled to relief on the same lines as the law laid down as above applies to them in principle having regard to the facts attendant to their case. 6. Accordingly, in the present petition, the following directions are issued, (i) The petitioners shall be allowed to continue in their contractual employment and the petitioners shall not be replaced by other set of contractual employee on ad hoc basis. (ii) The petitioners shall be continued in the existing cadre as long as the aforementioned Sarva Siksha Abhiyan Scheme continues. 6. Accordingly, in the present petition, the following directions are issued, (i) The petitioners shall be allowed to continue in their contractual employment and the petitioners shall not be replaced by other set of contractual employee on ad hoc basis. (ii) The petitioners shall be continued in the existing cadre as long as the aforementioned Sarva Siksha Abhiyan Scheme continues. However, their services shall remain purely on contractual basis and such employment shall be coterminus with the Scheme, subject to evaluation of performance, services and disciplinary rules as may be applicable. (iii) The respondent State shall insist on periodical upgradation of knowledge, improvisation of technical skill and overall preparedness on the subject, so also on computerization. 6.1 The other directions given in paragraphs 52.2 to 52.7 in Prajapati Hitesh Mohanlal (supra) would also apply to operate in the case of the present similarly situated petitioners. 6.2 The prayers beyond above or part of the prayers beyond above cannot be granted. 7. The petition stands allowed to the aforesaid extent and in the aforesaid terms. It stands disposed of accordingly. Direct service is permitted.