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2021 DIGILAW 470 (GUJ)

MINESHKUMAR MANHARLAL THAKKAR v. STATE OF GUJARAT

2021-06-23

BHARGAV D.KARIA

body2021
JUDGMENT : 1. Heard learned advocate Ms. Aditi S. Raol for the petitioner and learned Assistant Government Pleader Mr. K.M. Antani for the respondent-State through video conference. 2. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs : “A) Your Lordships may be pleased to issue a writ mandamus or any other appropriate writ, order or direction directing the respondent authorities to make applicable the CAV Common judgment dated 01.07.2016,more particularly para 52.1 thereof, passed by this Hon'ble Court in Special Civil Application no.13621 of 2014 and other cognate matters to the petitioner; (B) Your Lordships may be pleased to pass cease and desist order prohibiting the respondent authorities from terminating the contractual service of the petitioner till the scheme continues; (C) Pending admission and final hearing of the present petition, Your Lordships may be pleased to restrain the respondent authorities from terminating the contractual service of the petitioner except for any disciplinary reason; and (D) Your Lordships may be please to pass any other and/or further order, as deemed fit, in the interest of justice.” 3. Brief facts of the case are that the petitioner was qualified for being appointed to the post of Technical Assistant under National Rural Employment Guarantee Scheme. The petitioner was appointed to the post of Technical Assistant by order dated 3.9.2009 by the Director, District Rural Development Agency, District Anand on contract basis on a fixed monthly pay of Rs. 10,000/- without any other allowances initially for a period of 11 months which was renewed from time to time with an artificial break. 4. The Scheme under the National Rural Employment Guarantee Act, 2005 is now known as Mahatma Gandhi National Rural employment Guarantee Scheme. 5. Respondent no.1 Panchayat, Rural Housing and Rural Development department of State of Gujarat came out with a resolution stipulating that all the contractual employments on the establishment of Mahatma Gandhi National Rural employment Guarantee Scheme should be terminated on the expiry of contractual period on 28.2.2014 and that all the posts in the establishment should be filled in by way of fresh recruitment on the basis of the revised qualifications and experience as prescribed in the annexures thereto on contract basis on the terms and conditions stipulated therein. 6. 6. It appears that thereafter by circular letter dated 29.1.2014 addressed to all the District Programme Coordinators, District Development officers and District Panchayats, the Commissioner, Rural Development office directed that services of all those contractual employees employed as per the requirements of Government Resolution dated 15.09.2010 who fulfilled the qualification and experience requirements as specified in Government Resolution dated 23.12.2013 and whose rating of annual overall assessment of performance was above 50% may be terminated on the expiry of their contract on 28.2.2014 and they may be taken back in service on fresh appointment basis by obtaining an application from them on contract basis for 11 months under Government Resolution dated 23.12.2013. 7. By Government Resolution dated 14.8.2014 respondent no.1 prescribed the detailed recruitment programme for all the posts in the establishment at State, District, Taluka and village Panchayat levels that were sanctioned for the period from 01.03.2014 to 28.02.2017 as per Government Resolution dated 23.12.2013. 8. As the recruitment under Government Resolution dated 23.12.2013 could not be undertaken by the State Government, by Government Resolution dated 28.8.2014, the contractual term of the petitioner was extended till 31.03.2015 or till the new appointments are made to the posts whichever is earlier. 9. The respondent authorities published advertisement on 28.8.2014 inviting on-line applications for the posts specified therein. By circular letter dated 1.9.2014, Commissioner, Rural Development office withdrew the directions given in its letter dated 29.01.2014 to renew the contractual appointment. The petitioner appeared in the recruitment test held in the year 2015 and was selected as per the result of the test announced on 9.10.2015 and was appointed to the post of Technical Assistant. 10. Various petitions were filed before this Court challenging the Government Resolutions dated 23.12.2013 and 14.08.2014 seeking relief of regularisation or renewal of their contracts without insisting on undergoing the examination and interview for fresh selection and appointment on contract basis etc. 11. This Court by common judgment dated 1.7.2016 disposed of Special Civil Application No.13621/2014 and other allied matters by partly allowing the same. 12. The petitioner therefore, has preferred this petition to get the benefits of the said order passed by the Court in the said group. 13. It appears that the petitioner was granted interim relief by this Court whereby status-quo was granted not to terminate the service of the petitioner which is in operation and the petitioner is in service. 14. 12. The petitioner therefore, has preferred this petition to get the benefits of the said order passed by the Court in the said group. 13. It appears that the petitioner was granted interim relief by this Court whereby status-quo was granted not to terminate the service of the petitioner which is in operation and the petitioner is in service. 14. It is the case of the petitioner that he is discharging duties of permanent nature and though the work order issued are for 11 months on contractual basis, the same are renewed from time to time. 15. This Court (Coram : Hon’ble Mr. Justice N.V. Anjaria)in case of similarly situated person namely Bhatt Sadikali Mustakali v. Union of India by order dated 3rd July, 2018 in Special Civil Application No.16943/2016 held as under : “6. The petitioners relied on the decision of this Court in Prajapati Hitesh Mohanlal and others vs. State of Gujarat and others, being Special Civil Application No.13621 of 2014 and allied matters,which came to be decided on 01.07.2016. 6.1 Learned Assistant Government Pleader was ad idem with the submission of learned advocate for the petitioners that Prajapati Hitesh Mohanlal (supra) was a case of similarly situated employees in which identical facts were involved and the prayers were also similarly made. It was undisputedly stated that the decision in Prajapati Hitesh Mohanlal (supra) would apply to squarely govern the relief to be granted in the present case. It is a matter of record that Prajapati Hitesh Mohanlal (supra) was carried in Letters Patent Appeal No.983 of 2017 which appeal came to be dismissed by Letters Patent Bench by judgment dated 24.04.2018. 6.2 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. 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 upgradation 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 nonextension 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. 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. 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.” 6.3 In the Letters Patent decision, 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. 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. 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.” 6.4 In the aforesaid view, the relief in the present petition is required to be granted in the same terms as is granted in Prajapati Hitesh Mohanlal (supra), as approved by the Division Bench. No other or further relief could be granted. 7. Accordingly, in the present petition, following directions are issued, (i) 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 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 upgradation of knowledge, improvisation of technical skill and overall preparedness on the subject, so also on computerization. (ii) 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. The petition stands disposed of in the aforesaid terms and with aforesaid directions.” 16. In view of above, in the present petition also, following directions are issued : (i) The prayer of the petitioner to regularize their contractual services and make him permanent on the establishment is rejected. Limited immunity that is made available to the petitioner is by allowing him to continue on his contractual employment and not to be replaced by other set of contractual employees on adhocism. The petitioner 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 his performance, service and disciplinary rules as may be made applicable to him. The respondent State shall insist on periodical upgradation of knowledge, improvisation of technical skill and overall preparedness on the subject, so also on computerization. (ii) 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 petitioner. 17. The petition stands disposed of in the aforesaid terms and with aforesaid directions.