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2021 DIGILAW 572 (GUJ)

Harijan Laxmanbhai Jumabhai v. State of Gujarat

2021-07-12

A.Y.KOGJE

body2021
JUDGMENT : 1. This petition under Article 226 of the Constitution of India is filed with a prayer to regularize the services of the petitioners by considering the services of the petitioners to have been regularized upon completing stipulated period of service and grant revised pay-scale from the date on which the petitioners are entitled to be absorbed as regular employees. 2. Learned advocate for the petitioners submitted that four petitioners before this Court were appointed on various dates, respectively to work in the Primary Health Center at Village: Munpur and were paid monthly remuneration of Rs.900/-, which was enhanced from time to time. The appointment given to each of the petitioner was renewed from time to time and though the petitioners have been in service since 1995, the petitioners were entitled to be absorbed as regular employees after having completed 5 years of service and entitled to the pay-scale which is paid to the other Class-IV employees of the State. 3. Learned advocate for the petitioners submitted that the petitioners were entitled to the benefits of Government Resolution issued by Finance Department dated 01.05.2007 and 16.02.2006, wherein upon completion of 5 years, if the services of the petitioners were found satisfactory, the petitioners were entitled to automatically regularization of service and regular pay-scale. 4. It is submitted that the petitioner no.1 completed his 5 years of service in the year 2001 and petitioner nos. 2 to 4 completed their 5 years of service in the year 2013. Despite this, the petitioners have not been given the benefits. It is submitted that the great injustice is meted out to the petitioners, as though the petitioners were entitled to regularization in their services instead to the shock and surprise and behind the back of the petitioners, the petitioners are now being employed through an agency to which the work carried out by the petitioners has been outsourced. It is submitted that to oppose this decision, the petitioners had also approached its Union and Union at various level has made representations about the case of the petitioners, but none of the authorities has taken any decision. 5. It is submitted that in the petition the notice came to be issued by order dated 25.02.2019 and parties were ordered to maintain status-quo. The petitioners have thereafter, filed Civil Application with a prayer as under:- “5 (A) Admit and allow this application. 5. It is submitted that in the petition the notice came to be issued by order dated 25.02.2019 and parties were ordered to maintain status-quo. The petitioners have thereafter, filed Civil Application with a prayer as under:- “5 (A) Admit and allow this application. (B) Direct and order that the concerned respondents mainly the respondent no.1 to 4 to pass urgent specific appropriate orders for continuation of the applicants/petitioners in their services on their respective posts with regular payment of their salary since April-2019 in order to comply with the orders of this Hon’ble Court at Annexure-A/1 and A/2 to this application and to stay fresh recruitment and/or deputation by way of outsourcing and/or transfer of persons in place of the applicants/petitioners upon their respective posts, and (C) ….” 6. In the Civil Application, it is contended that though this Court had granted status-quo order, without complying with the said order for continuation of services of the petitioners and payment of their salaries, the petitioners were informed in mid September-2019 that they have been recruited in the Department only through new contract labourer, as the contract with the earlier contractor was already over. It is, therefore, submitted that the respondents have committed breach of order of status-quo granted by this Court. 7. In the Civil Application the petitioners have relied upon the decision of this Court rendered in the group matters i.e. Special Civil Application No.7462 of 2012 & allied matters in support of their contention that persons, who are employed by the State Government for a long period then they should be given the benefit of being treated as regular employees. The petitioners have also relied upon the decision of the Division Bench of this Court passed in LPA preferred by the State in the very matter cited herein above and submitted that the order of the co-ordinate bench of this Court was confirmed. 8. Mr. Munshaw, learned advocate for the respondents submitted that the petitioners were engaged as part-timers upon the availability of work and fund on fixed remuneration from time to time. The engagement of the petitioners was made randomly without any procedure and were not appointed on any sanctioned post in the establishment on permanent basis. 8. Mr. Munshaw, learned advocate for the respondents submitted that the petitioners were engaged as part-timers upon the availability of work and fund on fixed remuneration from time to time. The engagement of the petitioners was made randomly without any procedure and were not appointed on any sanctioned post in the establishment on permanent basis. It is submitted that the petitioners were being engaged as part-time “Safai Kamdar” and were paid remuneration as per Government Resolution dated 05.04.1997, whereas the petitioner nos.2 to 4 were engaged for the period of 11 months by “Rogi Kalyan Samiti” under National Rural Health Mission which is the work to be carried out by the separate committee by paying their remuneration. It is submitted that the policy of engaging the part-timers was withdrawn by the Finance Department by issuing Government Resolution dated 16.02.2006 and engaged the petitioners on contractual basis for stipulated period with monthly remuneration. Such resolution was passed and accepted by Rogi Kalyan Samiti dated 01.09.2008. The petitioners were, therefore, considered as contractual workers and engaged to carry out the work of the Rogi Kalyan Samiti under the obligation of the Rogi Kalyan Samiti. The State Government had framed the policy for getting the work to be carried out by Rogi Kalyan Samiti through outsourcing agency to increase the efficiency of the work and getting better returns to the payment made. 9. It is submitted that despite the position to engage the contractor to do this work, the petitioners have been continued to render their services through contractor and are receiving the payment of salary through the contractor. Essentially, there is no privity of contract with the State Government and it is only a relationship of contractual nature for which Article 226 of the Constitution of India cannot be invoked. It is further submitted that the petitioners with open eyes with their knowledge, have been engaged to do the work under the Rogi Kalyan Samiti through respondent no.5-contractor since long and petitioners have never raised any complaint or issue while accepting the salary from the respondent no.5 and now, under the guise of Union, the issue is being re-agitated by creating different picture. 10. 10. It is submitted the case of the petitioners, if required to be considered then also several questions of facts have to be gone into so as to ascertain whether the petitioners are meeting with the requirement of the Government Resolution which is specifically provide for absorption of part-timers on one time basis. In absence of any factual evidence which can be treated as uncontroverted, the Court may not enter into the disputed questions of facts. 11. Learned advocate has relied upon the decision of this Court in a group petitions being Special Civil Application No.11441 of 2012 & allied matters to contend that similar claim raised by the petitioners of those petitions to regularization the services as one time measure, but the Court has not accepted the case of those petitioners to exercise the jurisdiction under Article 226 of the Constitution of India. Another case relied upon by the petitioner is the decision of this Court dated 19.10.2016 passed in Special Civil Application No.14456 of 2014 & allied matters. 12. Having heard learned advocates appearing for the parties and having perused the documents on record, the petitioner no.1 claims to have been given appointment as “Sweeper” to work in the Primary Health Care Center on 01.06.1995 on a monthly remuneration to render the services for duration of 6 hours per day. The petitioner was paid remuneration, which was enhanced from time to time. Similarly, the petitioner no.2 was appointed as “Sweeper” on 02.05.2008 on fixed pay contract (part-time) in Primary Health Care Center, Munpur. The petitioner nos.3 and 4 were also similarly were engaged. 13. The sample appointment order produced along with the petition of Harjivan Laxmanbhai Zumabhai dated 21.04.2009 indicates that the petitioner no.1 was engaged in the P.H.C., Munpur as “Safai Kamdar” for the period of 11 months with the remuneration of Rs.1500/- per month. The appointment was temporary with remuneration prescribed in the order. It was clarified that the selection was purely for temporary basis and for a stipulated period of 11 months. It was under the Scheme of National Rural Health Mission that the petitioners were engaged. 14. Similar orders are found in cases of remaining petitioners also. The petitioners are seeking the benefit of Government Resolution dated 16.02.2006. This Government Resolution was a scheme to engage Class-III & Class-IV employees in the cadre of fixed pay on probation. It was under the Scheme of National Rural Health Mission that the petitioners were engaged. 14. Similar orders are found in cases of remaining petitioners also. The petitioners are seeking the benefit of Government Resolution dated 16.02.2006. This Government Resolution was a scheme to engage Class-III & Class-IV employees in the cadre of fixed pay on probation. The government has stopped the recruitment which had led the situation where the employment was not been generated and the work of the government was also not being undertaken according to the resolution of 16.02.2006. The said resolution reads as under:- “Resolution:- In order to accomplish the noble objectives that new recruitment do not stop completely with control over the non-planned expenditure of the state treasury with an object of cost-cutting in various services of the state government, also considering the facts stated in the preamble, at the end of careful consideration, it is hereby decided that the appointments by way of direct recruitment on the post of all the cadres of Class-III and Class-IV of the State Government shall be made as fixed pay probationers for the period of five years.” 15. While accepting the resolution, several conditions were stipulated, which are part of the Government Resolution. The reading of the Government Resolution in its entirety does not indicate as to how the case of the petitioners, who were undoubtedly engaged as part-timers to serve the scheme which was being monitored by National Rural Health Mission would fall under the requirement of this resolution. It is made clear in Paragraph No.20 of the resolution on which much reliance has been placed by the petitioners to cover their case, however, Paragraph No.20 refers to only the employees, who have been engaged under the particular scheme, as Clause-20 opens with the phrase that “the candidates, who are appointed under this Scheme and have rendered 5 years of satisfactory service”. The clear reference was to cover those individuals, who were covered under the scheme. 16. In the opinion of this Court, this resolution does not in any manner assist the case of the petitioners. The clear reference was to cover those individuals, who were covered under the scheme. 16. In the opinion of this Court, this resolution does not in any manner assist the case of the petitioners. Another resolution dated 18.01.2017 is for the purpose of filling up all the posts of Class-III & Class-IV by direct recruitment on a fixed pay on probation so again the resolution of 2017 is pertaining to the appointment in Class-III & Class-IV posts on a fixed pay and consideration of their case upon completion of 5 years of service to the satisfaction of the employer. 17. The resolution dated 06.09.2014 pertains to the persons, who were employed in the State Government Offices as part-timers and their entitlement to the wages was fixed in the said resolution. Similarly, 24.11.2014 is the circular for compliance and making payment of remuneration to the part-timers in due course of their services. The resolution of 09.02.2007 was passed for the purpose of the formation of health committees at various levels of the public health system to ensure public participation in order to establish the coverage and effectiveness of public health services in the State of Gujarat. 18. It is in the preamble that Health is basic need for everyone. It is the primary obligation of the state to provide quality public health services to the people and interior villages and the state is committed for the same. The World Health Organization suggested 'Health for all in the year 2000'. By the first National Health Policy in the year 1983, the Government of India had accepted to achieve the goal of 'Health for all in the year 2000'. At the national level, there is a need of indicative development in achieving the goal of infant mortality, maternal mortality and fertility. By the first National Health Policy in the year 1983, the Government of India had accepted to achieve the goal of 'Health for all in the year 2000'. At the national level, there is a need of indicative development in achieving the goal of infant mortality, maternal mortality and fertility. In this resolution, it was resolved that in order to reduce the disparity in the availability of health services infrastructure by area, to pool resources, to coordinate between administrations, to maximize the skills of health-workers, to decentralize public health programs everywhere, to increase community participation as well as maintenance of available infrastructure by the people, to transform the community health centers into the hospital where services as per Indian Public Health Standards (I.P.H.S.) are available and at the same time to provide quality health service to the people of the state without the discrimination of male-female in a fair and equitable manner to every class, caste, creed and geographical area of the society. The provision of finance was made under resolution as under:- “In addition, (1) the conditions, imposed by the grant releasing authority for the use of grant and the limitation of the rules of the Central Government, shall have to be followed. (2) The grant shall be allotted out of whatever financial grant is available under the National Rural Health Mission (N.R.H.M.) of the Central Government. The State Government shall have no financial responsibility in this regard.” 19. Therefore, the submissions made by the learned advocate for the respondents that the petitioners were being paid remuneration as per the Government Resolution dated 05.04.1997 of the State Finance Department and the appointment of petitioner nos.2, 3 & 4, who were engaged by the Rogi Kalyan Samiti under National Rural Health Mission needs to be accepted and in absence of any other submission in this regard by the petitioners, the petitioners cannot be treated to be duly appointed employees in Class-III & Class-IV as per the resolution relied upon the petitioners. The resolution dated 01.05.2007 has passed for regularizing the part-timers as an one time measure to end the situation arisen. The resolution dated 01.05.2007 has passed for regularizing the part-timers as an one time measure to end the situation arisen. The necessity to pass such resolution was failed by the State Government, as as per the resolution dated 10/02/2006, the State Government has withdrawn the powers regarding the part-timers engaged by the Head of the Office / District / Department pursuant to the provisions of Rules-9A-72 of the Bombay Contingent Fund Rules, 1959 and the financial powers delegated to the Administrative Departments / Head of the Department under Delegation of Financial Power Rules, 1998. The part-timers working in the offices were relieved by the offices of the state on the basis of the provisions of resolution dated 10/02/2006. Being aggrieved thereof, the concerned part-timers had preferred various civil applications in the Hon'ble High Court. Considering the judgments delivered by the Hon'ble Supreme Court and Hon'ble High Court, the matter to undertake necessary procedure in the form of 'One Time Measure' to regularize the part-timers fulfilling the criteria mentioned in below mentioned 'Resolution' was under consideration. 20. The resolution accepted the policy stipulated various conditions to be fulfilled for applying one time measure to the part-timer workers. This exercise has to be undertaken on the basis of facts of each case, as this exercise would require ascertaining of facts of individuals regarding their tenure and type of service rendered during their engagement. This exercise even in the case of the petitioners will have to be undertaken and would engage questions of facts. Hence, the Court cannot entertain the claim of the petitioners. However, it is for the petitioners to claim and the respondent authorities to ascertain as to whether the claim of the petitioners can be covered under resolution dated 01.05.2007 bearing Reference ECR/1094/424/ CH, as the same is not prayer before this Court. The Court is not dwelling all these issues any further. The reliance is placed by the petitioners on the decision of this Court in group of matters being Special Civil Application No.7462 of 2012 & allied matters. The petitioners in those petitions have absorb for setting aside the Government Resolution dated 25.04.2012 with direction to terminate the services of the Class-IV part-time employees from 31.05.2012. The reliance is placed by the petitioners on the decision of this Court in group of matters being Special Civil Application No.7462 of 2012 & allied matters. The petitioners in those petitions have absorb for setting aside the Government Resolution dated 25.04.2012 with direction to terminate the services of the Class-IV part-time employees from 31.05.2012. The petitioners therein were employed for more than 10 years with the Health and Medical Services, Medical Education, Sales Tax Department and other Departments of the State Government and under the Resolution of 2012 an ultimatum was given to terminate the services of Class-IV part-time employees before the stipulated date. However, the Court has observed that the petitioners of those petitions had come into service through regular selection mode and had put in more than 15 to 20 years of service. This decision was subject matter of challenge in the Letters Patent Appeal preferred by the State. It maintains that the candidates, who were the petitioners had undergone valid selection process by calling the names from the employment exchange, holding interviews of the selected candidates and issued appointment letters as part-time employees. In present case, there is nothing on record to indicate petitioners have undergone through selection process. On the other hand, this Court in the case of Abbasbhai Abdulkarim Mansuri & Ors. Vs. State of Gujarat & Ors., passed common oral order dated 19.10.2016 in Special Civil Application No.14456 of 2014 & allied matters was examining the engagement of employees on contractual basis under the Mahatma Gandhi National Rural Employment Guaranteed Scheme. The Court has held as under:- “Grievance is, therefore, rightly raised by the petitioners that those of them who have joined in the year 2011 and thereafter, have been made to discontinue from service on account of this new advertisement. There is likelihood of those who are now being appointed, to be terminated in the year 2017. This kind of frequent change surely would have a major negative impact on the lives of those who have at present already reached the age where public employment elsewhere is next to impossible. There is likelihood of those who are now being appointed, to be terminated in the year 2017. This kind of frequent change surely would have a major negative impact on the lives of those who have at present already reached the age where public employment elsewhere is next to impossible. As the scheme has continued for all these years and is further geared up for effective implementation, of course, the better and higher qualification of support team is always desirable, but, that surely cannot be permitted if the action otherwise of the State is found arbitrary and contrary to the settled law of the country. Decision rendered by the Apex Court in Mohd. v. State of Assam [supra] needs to be borne in mind at this stage. The said decision has been subsequently followed by various High Courts and by the Apex Court. As mentioned, while discussing the law on the subject, the staff which was employed for a particular period or scheme which was temporary in nature though continued from time to time, even they were continued due to continuance of the scheme for decades, the Court held that such persons cannot claim regularization and their service come to an end as and when project or scheme is completed. Insistence on regularisation in any project or scheme is also impermissible and the existence of the posts would be coterminus with the Scheme. The Apex Court also has held that issue, as a matter of policy having financial and other implications i.e., issues involving public interest has not engaged the attention of those concerned with the policy and failure to take prompt decision on a pending issue is likely to be detrimental to the public interest. The Court would fail in its duty if they do not draw attention of the authority concerned. It held that the Courts cannot and should not be a maker of policy, however they can certainly be the catalyst when there is a need for policy or change in the policy. 41……. 41.1 Again, contractual employees appointed or continued for a long time in public employment, ordinarily may not be allowed to claim under the theory of legitimate expectation. No theory of the State holding out promise of making permanent while engaging them also can be countenanced. 41……. 41.1 Again, contractual employees appointed or continued for a long time in public employment, ordinarily may not be allowed to claim under the theory of legitimate expectation. No theory of the State holding out promise of making permanent while engaging them also can be countenanced. Their claim or prayer of equal pay for equal right, also is not easy to be translated in mathematical formula. These employees even as per the decision of the Apex Court in the case of Uma Devi (supra), form a class by themselves. This Court, however, at the same time, cannot be oblivious of the fact that their appointment has been made on fixed contractual term in a particular cadre, after following due process of selection in terms of relevant recruitment rules/ guidelines. Their periodical extension on review of their performance and continuation of the scheme also are the factors which would cement their claim of continuation. 42. With regard to the prayer of regularization of the petitioners, this Court needs to once again refer to the decision of the Apex Court rendered in the case of Mohd. Abdul Kadir and another v. Director General of Police, Assam and others, reported in (2009) 6 SCC 611 , where the appellants were ex-servicemen and they were employed under the Prevention of Infiltration of Foreigners Additional Scheme, 1987. The scheme which was otherwise meant for strengthening of Assam Government machinery for detection and deportation of foreigners. The scheme was temporary but it was continued although for nearly two decades after extending it from time to time. The Apex Court had rejected the claim of regularization by holding that any temporary or adhoc engagement or appointment if in connection with a particular project or a specific scheme is there, the services of those persons under such project would come to an end, on completion/closure /cessation of the project or scheme. The Court went on holding that merely because the scheme was in operation for some decades and the employee concerned had continued for one or two decades, also would not entitle them to seek permanency or seek regularization. Even if any posts are sanctioned with reference to the scheme, such sanction is of ad hoc or temporary posts conterminous with the scheme and not of permanent posts. 43. Even if any posts are sanctioned with reference to the scheme, such sanction is of ad hoc or temporary posts conterminous with the scheme and not of permanent posts. 43. Thus, after referring to various decisions on the issue, the Apex Court has denied the permanency to those also who were engaged in connection with such project or scheme. Qua the right to continue in service or seeking regularization in some other project or service, this Court is of the opinion that such claim of the petitioners of regularization of their services on account of their continuing in the project for a sufficiently long time, would not curry favour with the Court.” 21. With regard to Civil Application filed by the petitioners for complying the order of this Court or being in breach of the order, the affidavit is filed by the Chief District Health Officer, Mahisagar wherein it is stated that as such the applicants herein are not at all in employment of Mahisagar District Panchayat or Munpur Primary Health Center being administered by it as categorically stated in affidavit-in-reply filed in Special Civil Application No.3975 of 2019 as well as Civil Application No.1 of 2019. None of the applicants are engaged by the District Panchayat/Munpur Primary Health Center on daily wage basis or part time basis or in any other capacity. It is submitted that their services were provided by the respondent no.5 with whom a contract was executed for providing man power and it has ended on 31.03.2019. It is stated that the services of the applicants are not availed by the respondent no.3 in any capacity, and therefore, they are not entitled to any salary/wages. It is further stated that no daily wager or part timer is engaged at Munpur Primary Health Center and similarly, no outsourcing agency is providing any man power to Munpur Primary Health Center. 22. It is submitted that the applicants have annexed a statement as Annexure-B at Page No.13 indicating the names of employees rendering services at Munpur Primary Health Center. They are time bound contractual employees on para-medical side like Pharmacist, Lab Technician etc. They are rendering services under National Health Mission, and therefore, applicants are not justified in comparing their respective cases with such time bound contractual employees under National Health Mission. 23. They are time bound contractual employees on para-medical side like Pharmacist, Lab Technician etc. They are rendering services under National Health Mission, and therefore, applicants are not justified in comparing their respective cases with such time bound contractual employees under National Health Mission. 23. It is the policy of the State Government to carry out the work of the government by engaging workers through contract. This policy is not a subject matter of challenge by the petitioners, and therefore, the contention that the petitioners are being engaged through Contractor cannot be examined. In fact, the petitioners themselves have worked through the Contractor, which is very much within their knowledge and is evident from the documents produced on record. Annexure-G is the communication dated 29.06.2018 to the private manpower provider pursuant to which employees are engaged, as their names are reflected in the posting orders by the respondent no.5. 24. For the foregoing reasons, the petitioners have not made out any ground for interference by invoking Article 226 of the Constitution of India. Considering the submissions made by learned advocate for the petitioners that the petitioners have not been paid for the period to which the work has been offered by the petitioners, it would be appropriate to direct the respondent authorities together the details with regards to the non-payment for the period of service rendered by the petitioners under respondent no.4-Medical Officer or through the respondent no.5-Balaji Security & Manpower Service and the same be paid to the petitioners within a period of three months from the date of receipt of this order. 25. It is open for the petitioners also to agitate their case to claim the benefit under Government Resolution before the authorities. At the end of hearing, typed copy of an order purportedly by the Health Department of the District Panchayat is produced. Hence, accordingly, if any benefit is available to the petitioners in the line of the order placed by the petitioners, it is open for the respondent authorities to consider the same. The learned advocate for the petitioner has placed on record the order. 26. At this stage, learned advocate for the petitioners requests for continuation of the order dated 25.02.2019, wherein specifically order was granted regarding the service condition. The learned advocate for the petitioner has placed on record the order. 26. At this stage, learned advocate for the petitioners requests for continuation of the order dated 25.02.2019, wherein specifically order was granted regarding the service condition. Considering the fact that status-quo order was granted and has been continued from time to time, status quo order shall continue to operate for the period of two months. 27. In view of order passed in main matter, connected Civil Applications do not survive and stand disposed of, accordingly. With aforesaid, the present petition stands disposed of.