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Gujarat High Court · body

2020 DIGILAW 937 (GUJ)

DOLATNABI GULNABI PATHAN v. UNION OF INDIA

2020-12-01

A.Y.KOGJE

body2020
JUDGMENT : 1. This petition under Article 226 of the Constitution of India is filed challenging the communication dated 07.01.2020 bearing No. FIMF/LBRRB/RSETI/408 issued by the respondent No.2 and declare the same to be contrary to the Manual on Human Resource Policy for the outsourced of staff of the Rural Self Employment Training Institute. 2. By way of the present challenge, the petitioners who are employees through respondent No.3 have challenged this communication and accordingly, the petitioners on account of the impugned communication, the petitioners who were duly appointed on contractual basis will have to work under a Manpower Services Provider instead of the respondent No.3. 3. Learned Advocate for the petitioners submitted that by the impugned communication issued by the respondent No.2–Bank has directed to replace the existing contractual staff through a placement agency giving an option to continue through the MSP (Manpower Service Provider) or to resign. This decision is in contravention with the guidelines issued by the Ministry of Rural Development, Government of India. 4. It is submitted that the petitioners were appointed as Drivers way back in the year 2000 with State Bank of Saurashtra which later on merged with State Bank of India. However the contractual appointment of the petitioners continued with the State Bank of India and thereafter, the petitioners had applied for the job of Peon cum Chowkidar through the Rural Self Employment Training Institute which was established for the purpose of giving employment in Public Sector Bank and other Government Organizations. The application of the petitioners was submitted through Proper Channel with the notings by the Special Officer, Incharge General Manager as well as a Committee comprising of the Deputy General Manager, Chief Manager and Director of the Rural Self Employment Training Institute to the effect that the petitioners have performed their duties for a period of more than 10 years and are well experienced and have worked with sincerity. Therefore, the services of the petitioners as Peon cum Chowkidar on contractual basis as per the existing terms framed by the Rural Self Training Institute on the basis of such recommendations, the petitioners were absorbed as Peon Cum Chowkidar on daily wages and under the approval by the Governing Council of State Bank of India, Bhavnagar. It is submitted that the petitioners are being paid by respondent No.3 on daily wages rate by preparing vouchers. It is submitted that the petitioners are being paid by respondent No.3 on daily wages rate by preparing vouchers. It is submitted that till June 2020, the petitioners have been paid a monthly salary of Rs.9,999/= 5. It is submitted that by the impugned communication dated 07.01.2020, the third party namely – G.D. Ajmera, Rajkot has been engaged as Manual Service Provider and therefore, any staff requirement by any Branch of the Bank for support staff will have to be satisfied through a Manpower Service Provider and therefore, the only option left with the petitioners was to abandon their contract and join the same work but through a Manpower Service Provider. 6. It is submitted that the decision of the respondents No.2 and 3 to engage a Manpower Service Provider and to engage the petitioners through the Manpower Service Provider is against the interest of the petitioners; more particularly the petitioners will not be able to avail the right of being considered for absorption or regularization in future. Moreover, it will amount to substituting the petitioners who are contractual workers with another contractual employees and such decision is against the decision of the Apex Court that a contractual / Ad-hoc / Daily Wager cannot be replaced by another contractual / Ad-hoc or Daily Wager. 7. It is submitted that the letter dated 07.01.2020 is also against the very policy which is prevalent from the Manual on Human Resource Policy for outsourcing staff of Rural Self Employment Training Institute. Under such Policy Chapter II which provides to engage Support Staff through the Rural Self Employment Training Institute and nowhere it is provided that the Rural Self Employment Training Institute is to be substituted by a third party Manpower Service Provider. It is submitted that by the impugned communication, the service conditions of the petitioners are sought to be changed to their detriment and without providing any opportunity to the petitioner. Reliance is placed upon the decision of the Apex Court in the case of Ajay Hasia and Others vs. Khalid Mujib Sehravardi and Others reported in 1981 1 SCC 722 . The petitioners also relies upon the decision of the Rajasthan High Court in the order dated 08.11.2019 in Civil Writ Petition No.16903/2019 in identical fact situation the service of the petitioner were protected by issuing notice and the matter is still pending. 8. As against this, learned Advocate Ms. The petitioners also relies upon the decision of the Rajasthan High Court in the order dated 08.11.2019 in Civil Writ Petition No.16903/2019 in identical fact situation the service of the petitioner were protected by issuing notice and the matter is still pending. 8. As against this, learned Advocate Ms. Aishwarya Paritosh submits that the petition is misconceived in fact as well as in law inasmuch as no writ can be maintained against the respondent No.3 as the respondent No.3 is a Public Trust / Co-operative Society which is a separate entity from the respondent No.1 and Union or the respondent No.2 – Bank. The respondent No.3 in any case is not a instrumentality of the State and therefore, the Writ is not maintainable ad therefore, there is a primary objection against the issuance of Writ. Learned Advocate thereafter, submits that the Human Resource Policy for Rural Self Employment Training Institute was to streamline the procedure and service conditions of the persons engaged through Rural Self Employment Training Institute. This was first circulated by a Department Order dated 21.10.2015. The Manual provides the complete guidelines of the functioning of the Institute and that a person once appointed through Rural Self Employment Training Institute are not to be treated as employees of the parent Bank. They are appointed for running the services. 9. It is submitted that the Manual governing the field duties stretches out a policy for outsourcing of the staff and thereafter, the impugned communication is only in the direction of implementing the policy for its complete compliance with the Manual. 10. Learned Advocate drew attention of this Court to the relevant Clause of the Policy governing functioning of the Rural Self Employment Training Institute and its constitution. Learned Advocate thereafter, drew attention of this Court to the additional Affidavit filed on behalf of the respondent No.3 and submitted that on a national level, an Advisory Committee was held by the Ministry of Rural Development on 06.11.2016 and several issues with regard to the operation of the Rural Self Employment Training Institute were discussed and amongst other issues the main issue with regard to operationalization of the HR Policy for outsourced staff of the Rural Self Employment Training Institute in the meeting dated 21.10.2015 was also undertaken. The practical difficulties of the sponsoring Bank in adhering to the various provisions of the HR Policy was also taken into consideration and it was concluded that the Policy for its implementation would be left to the discretion of the sponsoring Bank and the only requirement was that the sponsoring Bank were to ensure the compliance of minimum wages prescribed under the HR Policy. It was on the basis of this decision at the national level that the sponsoring Bank including the respondent No.2 decided to adopt the operationalization of the HR Policy by outsourcing the staff of the Rural Self Employment Training Institute. Attention is also drawn to the relevant records at Page Nos.151 to 152. 11. Having heard learned Advocates for the respective parties and having considered the documents produced on record, the issue that requires to be addressed is the protection of services of the petitioners against the Nationwide implementation of Policy adopted by the respondents in the direction of employment. The petitioners were initially appointed on contract basis by the erstwhile State Bank of Saurashtra at the relevant time in the year 2000. It appears that thereafter, there has been merger of the State Bank of Saurashtra with the State Bank of India. On account of the said merger to protect the employment of the petitioners on contractual basis, the petitioners applied afresh with the merged Bank for the post of Peon cum Chowkidar under the prevailing system governed by State Bank of India Rural Self Training Institute, i.e. the respondent No.3. 11.1 The Office Order engaging the services of the Engineer dated 10.05.2009 is an order issued by the respondent No.3 – Training Institute wherein it is provided that as per the terms of RSETI, Bhavnagar, the Governing Council approved the Agenda under which the petitioners were appointed RSETI, Bhavnagar on contract basis and who will be paid daily wages. 12. The impugned communication dated 07.01.2020 was for engagement of manpower service provider agency through which the Support Staff as per the requirement was to be engaged. The communication refers to that requirement for engagement of any support staff i.e. Faculty, Assistant, Attender and Watchman cum Gardener and is to be through Manpower Service Provider with effect from 01.01.2020. 12. The impugned communication dated 07.01.2020 was for engagement of manpower service provider agency through which the Support Staff as per the requirement was to be engaged. The communication refers to that requirement for engagement of any support staff i.e. Faculty, Assistant, Attender and Watchman cum Gardener and is to be through Manpower Service Provider with effect from 01.01.2020. It also provided that the Staff which is already engaged on contractual basis will continue till their Contract ends and on completion of the contract, the choice will be left with the support staff to continue in RSETI through the manpower service provider. However, there would be no fresh contract which will be entered into by RSETI with individual support staff. It appears that this communication is based on the decision taken at the Meeting of the National Level Advisory Committee on RSETI wherein after considering all the prevailing situation nation wide with regard to the engagement of the support staff, the Committee has decided on the point of operationalization of HR Policy for outsourcing staff of RSETI. The house has discussed this issue at length and in view of the reservations and practical difficulties expressed by the sponsoring Banks in adhering to the various provisions contained therein, it was resolved that implementation / adoption of the HR Policy be left to the discretion / choice of the Banks. The Banks were however to ensure that minimum wage prescribed in HR Policy / Guidelines are to be implemented. In view of the aforesaid, the impugned decision does not render the petitioners without employment but it only changes the format of employment as per the policy decision taken. 13. Apparently, no cause has arisen so far as loss of employment is concerned. However, the concern of the petitioners appears to be that if the form of employment is changed then they might loose the future prospect of being regularized. Such contention cannot be treated to be violation of fundamental rights so as to invoke the jurisdiction of this Article 226 of the Constitution of India. 14. It is not in dispute that the petitioners are under contractual employment on the basis of Office Order by respondent No.3 – Training Institute and there is nothing to indicate that the petitioners are in any manner having any Master Servant relationship with the respondent No.2 – State Bank of India. 14. It is not in dispute that the petitioners are under contractual employment on the basis of Office Order by respondent No.3 – Training Institute and there is nothing to indicate that the petitioners are in any manner having any Master Servant relationship with the respondent No.2 – State Bank of India. As is narrated, the petitioners were initially appointed also on contractual basis in the erstwhile State Bank of Saurashtra and thereafter upon merger, the petitioners were continued on contractual basis as per the prevailing policy of employment through respondent No.3 – Training Institute. The Court is of the view that as there is no change in terms of employment of contractual nature, no violation of fundamental right is found so as to invoke Article 226 of the Constitution of India. 15. The employment of the petitioners through the respondent No.3 – Training Institute requires close examination which is on the basis of the Manual of Human Resource Policy for the outsourcing staff of Rural Self Employment Training Institute. The background for such Institute was when the Government of India, Ministry of Rural Development accepted the model of Rural Self Employment Training Institute across the country with the aim of tackling the problem of unemployment through vigorous training, motivation and practical orientation of the youth towards self-employment besides providing follow up / escort services for enabling their self-employment. The aim behind was to channelize youth power in wealth creation, empowering youth to share economic progress equitably and transformation of rural youth to acquire productive identity through short duration intervention. The object of RSETI was to identify, orient, motivate and assist unemployed youth to undergo free residential training at RSETI to take up self-employment and wage employment activities. It was also to impart knowledge and skills to the candidates by organizing training programmes on Agri based activities, product, process and general EDP and to achieve high settlement rate for all the trained candidates. The Constitution and Governance of RSETI was by establishing a Trust or Society by the Sponsored Bank and the Organization Structure of RSETI would consist of a Director, Faculty, Office Assistant, Attender, Watchman / Gardener etc. The purpose of RSETI to recruit competent individuals as support staff to achieve the goals and objectives of RSETI. The Constitution and Governance of RSETI was by establishing a Trust or Society by the Sponsored Bank and the Organization Structure of RSETI would consist of a Director, Faculty, Office Assistant, Attender, Watchman / Gardener etc. The purpose of RSETI to recruit competent individuals as support staff to achieve the goals and objectives of RSETI. The Recruitment may be necessitated for filling vacancies arising due to resignation of existing staff, termination of staff member due to any reason, death of any staff member to fill the existing / unfilled vacancies. Thereafter, apparently the relation between the respondent No.3 and the petitioners has been contractual in nature and it has been so since 2000 and thereafter also, there does not appear to be in violation of fundamental right of the petitioners. 16. The Court has also taken into consideration the contention raised on behalf of the respondent No.3 that the respondent No.3 cannot be termed as a State or instrumentality of the State and contemplated under Article 12 of the Constitution of India. After having examined the Constitution of RSETI, the Court is of the view that the Institute cannot be termed as a instrumentality of the State as there is no governing power of the State which is allocated in the Institute. The Institute is acting on its own behalf and not behalf of Government and it cannot be termed to be in the nature of such an Entity. The Court is of the view that for being termed as a State Agency or an instrumentality, the financial resource of the State ought to be within the functional character of the Institute and has to be of the Government in essence and the plenary right needs to reside with the Government and that the activity undertaken by the Institute should be undertaken itself on previous occasions by the Government and that the Government must enjoy some element of authority. What matters is the functionality of the Institute along with State control. In the instant case, neither from the pleadings or from the submissions made at the Bar the petitioners are able to convince the Court that the respondent No.3 falls in the trapping of a State under Article 12 of the Constitution of India. What matters is the functionality of the Institute along with State control. In the instant case, neither from the pleadings or from the submissions made at the Bar the petitioners are able to convince the Court that the respondent No.3 falls in the trapping of a State under Article 12 of the Constitution of India. Hence, also this Court is of the view that no case is made out to exercise the jurisdiction under Article 226 of the Constitution of India, against respondent No.3 with whom petitioners having contractual relations. 17. The SBI Rural Self Employment Training Institute was set up in March 2009 as a Trust incorporated under the Bombay Sarvajanik Trust Act, 1950 and also registered under the Society Registration Act, 1860. Pursuant to the Memorandum of Association, the Institute renders the training in the rural Sector to encourage self employment. In view of the aforesaid discussion qua the constitution of the respondent No.3 - Institute, the Court is of the view that the judgment in the case of Ajay Hasia and Others (supra) will be of no assistance to the petitioners. In case of Ajay Hasia and Others (supra), the Court was considering the issue as to whether the Regional Engineering College is to be considered as an instrumentality or Agency of the State and while considering such issue, the Apex Court held that the test for determining if an authority falls within the definition of the State in Article 12 is whether it is an instrumentality or agency of the Government. The inquiry has to be not as to how the juristic person is born but why it has been brought into existence. It is, therefore, immaterial whether the Corporation is created by a statute or under a Statute. The concept of instrumentality or agency of the Government is not limited to a corporation created by a statute but is equally applicable to a Company or Society and in a given case it would have to be decided, on a consideration of the relevant factors, whether the Company or Society is an instrumentality or agency of the Government so as to come within the meaning of the expression “authority” in Article 12. The basis for determination has been provided in the decision in the case of Ramana Dayaram Shetty vs. The International Airport reported in 1979 3 SCC 489 . 18. The basis for determination has been provided in the decision in the case of Ramana Dayaram Shetty vs. The International Airport reported in 1979 3 SCC 489 . 18. The Training Institute and its incorporation in the opinion of the Court is not exercising any powers of the Government or is engaged in functioning of the State or the State Bank of India. Had it been a Institute dealing with the functioning of the Bank which is the principal work of the Bank as a instrumentality of the State, in that eventuality, the case would stand on a different footing. In the instant case, the Training Institute with whom the petitioners have a contractual relationship is only for the purpose of providing employment cannot be treated to be an Institute engaged in the functionality of the State. 19. Lastly this Court is of the view that when the petition is filed for protecting the service conditions of the petitioners more particularly, the prospective benefit that the petitioners may continue to receive, may be in the same form of employment as against the implementation the nation wide policy for the purpose of facing the problem of unemployment. The Court is of the view that the odds would always weigh heavily in favour of the Policy which is framed in the national interest and therefore, the case of the petitioners do not deserve consideration. 20. The respondent No.2-bank is a Nationalized Bank which an employ only through a recognized modes of recruitment. The modes of recruitment is a policy decision of the bank. When Nationwide policy is accepted by the Nationalized Banks to limit the recognized modes of employment, the employment of the petitioners on the contractual terms with the respondent No.3 no more is a recognized mode of employment. With regards to change in service condition, it is a matter of evidence for which the petitioners may have an alternative remedy and hence, this Court may not interfere. 21. The contentions that the impugned communications being against the manual, it is observed that the manual is mere guideline to apply the policy. The manual does not stipulate the police itself. 22. In view of the aforesaid reasoning, the petition does not deserve consideration and therefore, stands dismissed. Notice is discharged.