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2020 DIGILAW 447 (JK)

Hakeem Aabid Mubarak v. J & K Bank

2020-08-31

ALI MOHAMMAD MAGREY

body2020
JUDGMENT A disengagement notice, hereinafter referred to as impugned communication issued by the respondents in the name of petitioners is the subject matter of the writ petition. The petitioners seek its quashment and subsequently allowing them to continue in contractual service till the scheme, pursuant to which they came to be engaged, is subsisting. 2. To understand the issue in its right perspective, the facts leading to filing of the writ petition are enumerated hereunder:- i) In the year 2009, the Jammu and Kashmir Bank Ltd., created an authority namely, J&K Bank Rural Self Employment Training Institutes Society, for short JKBRSETI Society. The objective of the society amongst others, is to promote JKBRSETIs, to impart entrepreneurship development, self-employment trainings, instructions and skill building programmes etc., in the State. In that direction the society set up JKBRSETIs in various districts, J&K Bank acting as a lead Bank. The funding of the society was provided by the Sponsor Bank, Government of India, State Government or any other instrumentalities or institutions of the same, directly or indirectly, for carrying out and pursuing the objectives of the society. In the year 2009, Government of India, Ministry of Rural Development formulated a Scheme/ Guidelines for Rural Self Training Institutes (RSETIs). ii) The Scheme made provisions for organizational structure, nomenclature, sponsorship including provision for engagement of staff. The manner for recruitment of the staff was provided as follows: “a) RSETIs should be headed by a Director on deputation from Sponsor bank with rural banding exposure. He should be an officer of Scale-II/III of the Bank. b) He should have the flair of training with aptitude for rural development activities. c) Supporting faculties and Staff either on deputation from the Sponsoring bank or on contract basis shall be made available on regular basis. d) The Banks may appoint fresh recruits for development management activities from organizations like NIRD and IRMA etc., to assist the Director in operationalizing the training programmes. These specialists can help in formulating training programmes to liasoning with organizations like BIRD and NABARD, evaluation and monitoring, etc. Subsequently the Government of India, Ministry of Rural Development in 2015 also provided Manual for engagement of outsourced staff of Rural Self Employment Training Institutes (RSETIs). The Manual provided qualifications and other requirements of Director, Faculty, Office Assistant, Attender, Watchman/ Gardner. For engagement of Faculty, it provided qualification. The recruitment process also came to be provided. Subsequently the Government of India, Ministry of Rural Development in 2015 also provided Manual for engagement of outsourced staff of Rural Self Employment Training Institutes (RSETIs). The Manual provided qualifications and other requirements of Director, Faculty, Office Assistant, Attender, Watchman/ Gardner. For engagement of Faculty, it provided qualification. The recruitment process also came to be provided. Minimum Standard also came to be provided. As per Clause 4 (ii) of the Manual following came to be prescribed: “The contract will be valid for a period of 3 years subject to annual review and renewal of the contract by the Director once a year.” e) The Scheme as also the Manual only provided for the contractual engagement and not for any regular engagement in the society or in the bank. For making the engagements communications were addressed to University of Kashmir and University of Jammu to identify the candidates who satisfy the qualification prescribed by the Scheme. On identification b the authorities of the University of Kashmir and University of Jammu the interaction was had with the candidates and suitable candidates were offered engagement on contractual basis and this is how the petitioners came to be engaged. f) The petitioners’ were initially engaged for a period of eleven months. Thereafter, the period was extended from time to time and in terms of the final extension the petitioners continued till 31.07.2019. g) Before the expiry of the term of the petitioners the Bank issued a revised online notification (contractual jobs @ J&K Bank RSETI) on 23rd May, 2019, which was challenged by the petitioners before the court of City Munsiff, Srinagar, by filing a civil suit and sought a declaration to declare the notification dated 23.5.2019 as void. Besides, the petitioners sought the relief of injunction seeking to restrain the defendants from disengaging the petitioners and a relief of mandatory injunction was also sought against the defendants to allow the petitioners to discharge their duties and to follow guidelines issued by the Ministry of Rural Development. A mandatory injunction was also sought against the defendants to regularize the petitioners in service and to absorb them as permanent faculty members of JKBRSETI in accordance with guidelines of Ministry of Rural Development. A mandatory injunction was also sought against the defendants to regularize the petitioners in service and to absorb them as permanent faculty members of JKBRSETI in accordance with guidelines of Ministry of Rural Development. The Court of City Munsiff Srinagar, in its order dated 24th June, 2019, directed the defendants/ respondents herein to maintain status quo with respect to position of the applicants/ petitioners till next date of hearing. After the objections to the interim relief application and the written statement to the suit was filed by the defendants and after hearing the parties the court of City Munsiff, Srinagar, vacated the order of status quo in terms of order dated 06.07.2020. Aggrieved of the order dated 06.07.2020, the petitioners filed an appeal before the court of Principal District Judge, Srinagar and the next date of hearing fixed before the appellate court is 03.09.2020. h) Till the time the status quo order was existing the petitioners continued in service but when the same was vacated the respondents issued a disengagement notice, impugned herein, intimating to the petitioners that there is no contractual relationship between the RSETI and you as on date for continuance of service, therefore, take notice that the engagement on contractual basis is discontinued forthwith. 2. 2. Upon notice the respondents appeared and filed their reply resisting the claim of the petitioner inter alia on the grounds, that, the offer of contractual engagement was made for a period of eleven months which was extended from time to time till final extension that allowed the continuation of the petitioners on contractual basis till 31st July, 2019 and they have been discontinued on the expiry of their term; that a civil suit is filed by the petitioners on the identical lines before the Court of City Munsiff, Srinagar, who initially passed an order of status quo in respect of position of the applicants/ petitioners vide its order dated 24th June, 2019 and vacated the same later on in terms of order dated 6th July, 2020, against which the petitioners have filed an appeal which is pending before the Principal District and Sessions Judge, Srinagar, where the matter is scheduled to come up for consideration on 3rd September, 2020; that the petitioners are not in place from the date of discontinuation i.e. 8th July, 2020; that the petitioners cannot invoke the jurisdiction of this Court as they have already filed a civil suit which is pending consideration; that the disengagement is not premature as the period of engagement had already expired on 31st July, 2019. Etcetera. 3. Heard learned counsel for the parties. 4. Mr M. Y. Bhat, learned counsel for the petitioners, while strengthening his claim for the relief prayed for has referred to the judgment of the Hon’ble Supreme Court delivered in case titled Md. Abdul Kadir and another v. Director General of Police, Assam and others, (2009) 6 SCC p. 611, and submits that the Hon’ble Supreme Court provides for continuation of employees engaged under a scheme during the currency of the scheme. He submits that it further provides that such employees shall not be substituted as well. Mr Bhat, learned counsel for the petitioners, submits further that the action under challenge is arbitrary, illegal, unreasonable and against the mandate of the judgment of the Hon’ble Supreme Court Supra. 5. He submits that it further provides that such employees shall not be substituted as well. Mr Bhat, learned counsel for the petitioners, submits further that the action under challenge is arbitrary, illegal, unreasonable and against the mandate of the judgment of the Hon’ble Supreme Court Supra. 5. Mr Bhat, learned counsel for the petitioners, referred to the scheme, JKBRSETI, to indicate that the scheme provides that if the contract has been renewed for two consecutive terms, s/he may be designated as Senior Faculty for the next contract of three years, therefore, the learned counsel for the petitioners, submits that the scheme is a career oriented scheme as it provides for career progression on good performance. He submits that the scheme does not restrict the tenure of the faculty to a fixed term, but makes it renewable subject to satisfactory performance. In this behalf Mr Bhat, learned counsel for the petitioners, referred to Chapter-11 (Recruitment) of the Manual On Human Resources Policy For The Outsourced Stuff of Rural Self Employment Training Institutes (RSETIS). 6. Mr Bhat, learned counsel for the petitioners, further submits that the recruitment of the staff, in terms of the Scheme, has to be made as per the policy accepted and guidelines issued by the sponsoring Bank. He submits that in the Minimum Standards of the Manual it is provided that the contract will be valid for a period of three years subject to annual review and renewal of the contract by the Director once a year. 7. Mr Bhat, learned counsel for the petitioners, submits that the impugned communication, being not in tune with the mandate of the scheme, cannot sustain, therefore, may be set-aside and the respondents be directed not to discontinue the petitioners till the scheme is subsisting. 8. Mr Z.A Shah, learned senior counsel, on the other hand submits that the Scheme in question was formulated by the Central Government and there are limitations provided therein. He submits that it would not be in consonance with law that people are allowed to continue in contractual service for all times to come and/ or if the scheme, under which they are engaged, continues for 100 years they would continue for the said period. 9. He submits that it would not be in consonance with law that people are allowed to continue in contractual service for all times to come and/ or if the scheme, under which they are engaged, continues for 100 years they would continue for the said period. 9. Mr Z. A. Shah, learned Senior Counsel, submits that the Bank had issued an advertisement notice dated 22nd May, 2017, when the term of engagement of the petitioners was expiring, and received as many as 1600/- Curricular Vitae/ Resumes, however, the difficulty was faced in evaluating these CVs, therefore, it was decided that a revised online notification be issued and candidates asked to apply online instead of submitting their Cvs. He submits that the petitioners were allowed to continue till the process would be completed i.e. 31.07.2019. 10. Mr Shah, learned Sr. Counsel, submits that the revised notification was issued on 23rd May, 2019, which was challenged by the petitioners in a civil suit, therefore, the counsel submits that the petitioners ought not to have filed a writ petition on the same issue with only exception of issuance of disengagement notice. 11. Mr Shah, learned Senior Counsel, further submits that it is a contract of personal service and this cannot be enforced even by a civil court muchless by this court under Constitutional jurisdiction. 12. Mr M. Y. Bhat, learned counsel for the petitioners, in rebuttal submits that the Chapter-II, Recruitment Manual very categorically mentions the categories of circumstances under which the recruitment may be necessitated. It includes i) Resignation of existing Staff ii) Termination of Staff member due to any reason; iii) Death of any Staff member; iv) Opening of new RSETI: V) To fill the existing/ unfilled vacancy; and vi) To fill up an additional vacancy, if any. 13. Mr M. Y. Bhat, learned counsel for the petitioners, would, submit that since none of such occasions had arisen, therefore, the impugned communication and consequent substitution of the petitioners is bad in law, therefore, requires to be interfered with. 14. Considered the submissions made by the learned counsel for the parties. 15. 13. Mr M. Y. Bhat, learned counsel for the petitioners, would, submit that since none of such occasions had arisen, therefore, the impugned communication and consequent substitution of the petitioners is bad in law, therefore, requires to be interfered with. 14. Considered the submissions made by the learned counsel for the parties. 15. The contention of the learned counsel for the petitioners that since the scheme under which the petitioners are appointed is continuing, therefore, a right has accrued the petitioners to be in place as long as such scheme is in force irrespective of the fact that they are contractual appointees governed by the terms of the contract. The idea of continuance is further conceived on the count that since the performance of the petitioners is appreciated because of which the term has been extended from time to time, therefore, they need to be continued in service and no other person could be appointed on the post held by them for the last more than three years. 16. The petitioners, on the above assumptions, seek interference of the court to, quash the impugned communications by a writ of certiorari; extend the term of contractual appointment by a writ of mandamus; and to allow them to continue in service till the time the Scheme, pursuant to which their engagement has come into being, is in force. 17. Mr Z A. Shah, learned senior counsel appearing for the respondents, has referred to the judgment of the Hon’ble Apex Court delivered in case titled Union of India and others v. Brahma Dutt Tripathi, (2006) 10 SCC 220 to indicate that the Hon’ble Apex Court has taken the same view in the said judgment. It would be profitable to reproduce paragraphs 19, 20 and 21 of the judgment herein, thus: “19. The contention of the learned counsel for the respondent that the respondent was appointed under the NCC Act and Rules and he would be entitled to continue in the post till he attained the age of 45 years is mis-conceived. It was to the knowledge of the respondent himself that he was appointed under the composite Scheme framed in exercise of the power under proviso (iii) to Rule 16. It was to the knowledge of the respondent himself that he was appointed under the composite Scheme framed in exercise of the power under proviso (iii) to Rule 16. Under the Scheme, the appointment was a tenure appointment and the service was for three years extendable by another three years at a time, subject to the requirement of the service but not beyond the age of 55 years. His service might also be terminated at any time before the completion of the initial or extended tenure at the discretion of the Government of India in terms of Clause 4 of Appendix B of the Scheme 20. Further, it needs to be noticed that the service of the respondent was extended from time to time. The service of the respondent was extended by an order dated 19.10.1971 along with other officers mentioned in Appendix ‘A. The name of Lt. B.D. Tripathi appears at Sl. No. 70 and his service was extended from 11.12. 1971 to 10.12.1972. The last extension was granted by an order dated 15.12.1978. At SI. No. 87, service of Capt. B.D. Tripathi is shown to have been extended from 11.12. 1978 to 10.12.1979. 21. These unimpeachable documents on record will clearly show that it was to the knowledge of the respondent himself that his appointment was a tenure appointment, extendable from time to time. He has not raised any grievance against this before any authority.” 18. Mr M. Y. Bhat, learned counsel for the petitioners, has referred to and relied upon judgment of the Apex court reported as Mohd Abdul Kadir and another v. Director General of Police, Assam, and others, (2009) 6 SCC 611 is also on distinguishable facts as the appellants before the Apex Court had challenged the scheme under which they were engaged and had also sought regularization. The Hon’ble Apex Court in the said case, in paragraphs 13, 14 and 15 has held as under: 13. The fact that the appellants were employed under the PIF Additional Scheme is not disputed. The duration of PIF Additional Scheme under which they are employed was initially two years, to be reviewed for continuation along with the original PIF Scheme. The said scheme is being extended from time to time and is being continued. The fact that the appellants were employed under the PIF Additional Scheme is not disputed. The duration of PIF Additional Scheme under which they are employed was initially two years, to be reviewed for continuation along with the original PIF Scheme. The said scheme is being extended from time to time and is being continued. If the temporary or ad hoc engagement or appointment is in connection with a particular project or a specific scheme, the ad hoc or temporary service of the persons employed under the Project or Scheme would come to an end, on completion/closure/cessation of the Project or the Scheme. 14. The fact that the Scheme had been in operation for some decades or that the employee concerned has continued on ad hoc basis for one or two decades would not entitle the employee to seek permanency or regularization. Even if any posts are sanctioned with reference to the Scheme, such sanction is of ad hoc or temporary posts co-terminus with the scheme and not of permanent posts. 15. On completion of the project or discontinuance of the scheme, those who were engaged with reference to or in connection with such project or Scheme cannot claim any right to continue in service, nor seek regularization in some other project or service. In view of this settled position, the appellants will not be entitled to regularization.” 19. The learned counsel for the petitioners is citing the judgment to project that the petitioners are entitled to continue in service till the cessation of the scheme. 20. The court has already taken note of the proceedings pending before the Civil Court qua challenge to the advertisement notice by virtue of which the respondent Bank had sought to fill up the posts held by the petitioners in the year 2017, by filing a civil suit titled Hakeem Aabid Mubarak and others v. J&K Bank Ltd and others with the following prayers: “A decree of declaration to the effect that the advertisement notice dated 23.05.2019 issued by JK bank bearing No.HRD/RECTP/2019-722 is illegal and void ab-initio. A decree of permanent injunction restraining the defendants from disengaging the plaintiffs and replacing them by way of similar set of contractual appointments. A decree of injunction commanding the defendants to regularize the service of the plaintiffs and absorb them as permanent faculty at JKBRESRTI.” 21. A decree of permanent injunction restraining the defendants from disengaging the plaintiffs and replacing them by way of similar set of contractual appointments. A decree of injunction commanding the defendants to regularize the service of the plaintiffs and absorb them as permanent faculty at JKBRESRTI.” 21. The only exception, as noticed earlier, to the civil suit is the issuance of impugned communication which is challenged in this writ petition with the following relief:- “That by issuance of a writ of certiorari, the impugned termination / disengagement orders issued against the petitioners (Annexure I) be quashed. By issuance of a writ of mandamus, the respondents be directed to continue the petitioners as Faculty Members in their RSETIs till the RSETI Scheme is in kept in force by the Ministry of Rural Development, Government of India, with all consequential benefits, as same shall be in the interests of justice. Any other writ, order or direction which this Hon’ble Court may deem fit in the circumstances of the case may also be passed in favour of the petitioners and against the respondents in the interests of justice and equity. 22. Now it has to be seen as to whether the writ petition in hand is barred by Section 10 of the Code of Civil Procedure, for short CPC? As the petitioners have chosen a forum by filing a civil suit before the trial court on the subject and the same is pending consideration, therefore, the inherent jurisdiction vested with this Court cannot be exercised on the subject while the civil suit is pending. The Hon’ble Apex Court in case titled Manohar Lal v. Seth Hiralal reported as AIR 1962 SC 527 has taken a similar view. Paragraph 43, being relevant, is taken note of hereunder: 43. The Code of Civil Procedure is undoubtedly not exhaustive: it does not lay down rules for guidance in respect of all situations nor does it seek to provide rules for decision of all conceivable cases which may arise. The civil courts are authorised to pass such orders as may be necessary for the ends of justice, or to prevent abuse of the process of court, but where an express provision is made to meet a particular situation the Code must be observed and departure therefrom is not permissible. The civil courts are authorised to pass such orders as may be necessary for the ends of justice, or to prevent abuse of the process of court, but where an express provision is made to meet a particular situation the Code must be observed and departure therefrom is not permissible. As observed in 62d II App 80: ( AIR 1935 PC 85 ): “It is impossible to hold that in a matter which is governed by an Act, which in some limited respects gives the court a statutory discretion, there can be implied in court, outside the limits of the Act a general discretion to dispense with the provisions of the Act.” Inherent jurisdiction of the court to make orders ex debito justitiae is undoubtedly affirmed by S. 151 of the Code, but that jurisdiction cannot be exercised so as to nullify the provisions of the Code. Where the Code deals expressly with a particular matter, the provision should normally be regarded as exhaustive.” 23. In view of the legal position on the subject the petitioners were estopped in law to file instant writ petition when already they had chosen a forum and exhausted a remedy available in terms of the provisions of the Code of Civil Procedure. 24. Since the petitioners have already availed remedy before the Civil Court on the subject, therefore, they are left free to pursue the remedy and challenge the impugned communication, if they so choose, by seeking necessary amendment in the civil suit. 25. For the reasons recorded hereinbefore, the writ petition is held to be without any merit, therefore, dismissed. However, the dismissal of the writ petition shall not form an impediment for the Civil Court to decide the case on merits in terms of applicable laws without getting influenced or overawed by any of the observations made or finding(s) recorded in this judgment. 26. No order as to costs.