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2022 DIGILAW 1581 (GUJ)

Vishvnath Prahladbhai Pandya v. State Of Gujarat

2022-11-15

A.S.SUPEHIA

body2022
JUDGMENT : Order in Special Civil Application No.11827/2019 1. RULE. Learned AGP Mr.Aditya D. Davda waives service of notice of rule on behalf of the respondents. 2. The Present writ petition has been filed for the following prayers:- “9(A). Your Lordships may be pleased to issue a writ in nature of mandamus and/or any other appropriate writ, order or direction, directing the respondent Authorities to consider the petitioners as regular employees like Gujarat Government employees and not the employees of the outsourcing agencies; (B) Your Lordships may be pleased to direct the respondent Authorities to grant the petitioners periodical revision in their salary and further be pleased to direct the respondent Authorities not to force upon the petitioners to joint through the outsourcing agency and not to terminate their services in case of the petitioners dealing to join outsourcing agency.” 3. The prayers indicate that the petitioners are seeking a direction directing the respondent authority to consider the petitioners as regular employees like the Gujarat Government Employees and not the employees of the outsourcing agencies. 4. All the petitioners are appointed on contractual basis initially in the year 2010 onwards, in the respondent-Project Implementation Unit (PIU). 5. It is the case of the petitioners that the petitioners cannot be appointed through outsourcing agency as they were working since many years and the Project Implementation Unit was introduced in the State of Gujarat on 30.07.2001 because of the earthquake which occurred in the year 2001. It was framed since there were major damages to the infrastructures of Health and Family Welfare Department, Government of Gujarat. 6. Learned advocate Mr.Pandya appearing for the petitioners has submitted that the petitioners, though are working for more than 10 years, are transferred and given additional charges even to the higher posts in other departments as and when such services are required. Their services are not regularized. Learned advocate Mr.Pandya has submitted that the petitioners were appointed pursuant to the advertisement issued by the respondent-Department, on contract and have been continued for so many years and hence, they are required to be regularized and treated at par with the Government Employees. 7. Their services are not regularized. Learned advocate Mr.Pandya has submitted that the petitioners were appointed pursuant to the advertisement issued by the respondent-Department, on contract and have been continued for so many years and hence, they are required to be regularized and treated at par with the Government Employees. 7. It is also submitted that subsequently since the Government realized that the work is of perennial nature, 89 posts were sanctioned by the Resolution dated 28.06.2022 and instead of appointing the petitioners on such posts, an advertisement is issued by the respondent authorities for filling-up such posts on contractual basis. Such advertisement is annexed by way of a draft amendment in Civil Application No.1 of 2022. Mr.Pandya has thus, also placed reliance on the provisions of Resolution dated 28.06.2022, and has submitted that the case of the petitioners is required to be examined in light of the aforesaid resolution and they are required to be appointed on regular post on the regular pay-scale, as mentioned in the said resolution. 8. Per contra, learned AGP Mr.Aditya D. Davda, on instructions of the Officer who is present before this Court, has specifically made a statement that the advertisement is issued for the purpose of taking the work through outsourcing agency on the contractual basis and the 89 posts, which are mentioned in the resolution are not intended to be filled-in. Learned AGP Mr.Davda has further placed reliance on the judgment of the Supreme Court on the analogous issue in case of State of Gujarat and other v. R.J. Pathan and others (Civil Appeal No.1951 of 2022) and has submitted that in an identical issue of an employee, who was appointed in the very same Project Implementation Unit, who had claimed regularization, the Supreme Court has set aside the direction issued by the Division Bench of this Court for absorption and regularization. Thus, it is submitted that since the petitioners would be governed by the law enunciated by the Apex Court in the said case, they are neither entitled for regularization nor they can be treated at par within the Government Employees, as their initial appointment is contractual and all the petitioners, having accepted the same, are bound by the terms and conditions as mentioned therein. 9. I have heard the learned advocate Mr.Yogen N. Pandya for the petitioners and learned AGP Mr.Aditya D. Davda for respondents. 10. 9. I have heard the learned advocate Mr.Yogen N. Pandya for the petitioners and learned AGP Mr.Aditya D. Davda for respondents. 10. The established fact is that all the petitioners are appointed on the contractual basis on a Project Implementation Unit, which was formed after the devastating earthquake which took place in 2001. An advertisement, was issued pursuant to the Resolution dated 07.12.2010, for filling-up 200 posts by contract on fixed pay basis. The Resolution dated 07.12.2010 indicates that the persons in the Project Implementation Unit are to be appointed on a fixed pay on contract basis, and accordingly, the petitioners were appointed. Their appointment orders also indicate that they were appointed on contractual basis, and thereafter, continued for all the years, however, it is deserves to be noted that as and when the service of the petitioners were required, the same has been taken by various outsourcing agencies i.e. Indian Red Cross Society and other agency also. 11. At this stage, it would be apposite to refer to the observations made by the Supreme Court in the Judgment dated 24.03.2022 in the case of State of Gujarat v. R.J. Pathan (Civil Appeal No.1951 of 2022), wherein, in the case of a similarly situated employee, who was a driver, and was appointed in the Project Implementation Unit for the purpose of rehabilitation after the earthquake of 2001, the Division Bench of this Court, had directed the respondent-State Authorities to absorb them in his service and considered his case of regularization, as he has worked for a long period. The Division Bench had directed the authorities to consider the case sympathetically, and if necessary, by creating supernumerary post. The Supreme Court, after considering the directions of the Division Bench and the facts of the case and the nature of appointment of the concerned employee for a period of 11 months on contractual basis for a fixed months in the Project Implementation Unit, has held thus:- “5. We have heard the learned counsel for the respective parties at length. At the outset, it is required to be noted that the respondents herein – original writ petitioners were, as such, appointed in a temporary project, which was created only for the purpose of rehabilitation pursuant to the earthquake for “Post-Earthquake Redevelopment Programme”. We have heard the learned counsel for the respective parties at length. At the outset, it is required to be noted that the respondents herein – original writ petitioners were, as such, appointed in a temporary project, which was created only for the purpose of rehabilitation pursuant to the earthquake for “Post-Earthquake Redevelopment Programme”. All of them were initially appointed for a period of eleven months on a fixed salary, which came to be continued from time to time till the requirement in a particular project/unit – “Project Implementation Unit”. However, as the said unit was required to be closed which, as such, was a temporary unit, instead of putting an end to the services of the respondents, the State Government thought it fit to transfer and place them with the Indian Red Cross Society. At this stage, the respondents approached the High Court and challenged their placement with the Indian Red Cross Society. The learned Single Judge dismissed the said writ petition by observing as under : “It is not in dispute that the petitioners, who are serving on a fixed term and salary as per the terms of the contract of service with respondent Nos. 1 & 2, are now transferred to respondent No.4 in view of administrative exigencies. Appointment of the petitioners is only for 11 months on a fixed salary which is continued from time to time and even the Unit on which the petitioners are appointed temporarily is a ‘Project Implementation Unit’ created only for the purpose of rehabilitation pursuant to the earth-quake for ‘post earth-quake redevelopment programme’. Thus, the Unit itself has temporary status and tenure to which the petitioners are appointed on a fixed term and salary. If the decision is taken by the Authority to place their services with the Indian Red Cross Society continued with salary, it cannot be said that any service condition under the Rule is violated inasmuch as none of the petitioners is regularly appointed employee on any permanent sanctioned post on any establishment of the Government where the petitioners have any lien. Placement of the petitioners is neither violative of any statutory rule nor mala fide.” 7. From the impugned judgment and order passed by the Division Bench of the High Court, it appears that what has weighed with the High Court was that the respondents were continued in service for a long time, i.e., seventeen years. Placement of the petitioners is neither violative of any statutory rule nor mala fide.” 7. From the impugned judgment and order passed by the Division Bench of the High Court, it appears that what has weighed with the High Court was that the respondents were continued in service for a long time, i.e., seventeen years. However, the High Court has not considered that out of seventeen years, the respondents continued in service for ten years pursuant to the interim order passed by the High Court. Therefore, even considering the decision of this Court in the case of Umadevi (supra), the period for which the employees have continued in service pursuant to the interim order is to be excluded and not to be counted. The High Court has totally missed the aforesaid aspect. 8. Now, so far as the reliance placed upon the decision of this Court in the case of Umadevi (supra) and the subsequent decision of this Court in the case of Narendra Kumar Tiwari (supra), relied upon by the learned counsel appearing on behalf of the respondents is concerned, none of the aforesaid decisions shall be applicable to the facts of the case on hand. The purpose and intent of the decision in Umadevi (supra) was, (1) to prevent irregular or illegal appointments in the future, and (2) to confer a benefit on those who had been irregularly appointed in the past and who have continued for a very long time. The decision of Umadevi (supra) may be applicable in a case where the appointments are irregular on the sanctioned posts in regular establishment. The same does not apply to temporary appointments made in a project/programme. 8.1 Even in the case of Narendra Kumar Tiwari (supra) also, it was a case of irregularly appointed employees. Even otherwise, in view the facts and circumstances of Narendra Kumar Tiwari (supra), the said decision shall not be applicable to the facts of the case on hand. The case before this Court was with respect to the employees working with the State of Jharkhand which was created only on 15.11.2000 and therefore it was contended on behalf of the irregularly appointed employees that no one could have completed ten years of service with the State of Jharkhand on the cut-off date of 10.04.2006, which was the cut-off date fixed under the relevant rules of the State of Jharkhand. 9. 9. Even otherwise, it is to be noted that though not required, the State, instead of putting an end to the services of the respondents, graciously placed the respondents in the Indian Red Cross Society. No duty was cast upon the State to transfer them to another establishment in a case where it is found that the employees are appointed in a temporary unit and on a temporary contractual basis and on a fixed term salary and on closure of the temporary unit, their services are not required. However, the State Government was gracious enough to place the respondents in the Indian Red Cross Society, which the respondents did not accept. 10. From the impugned order passed by the Division Bench of the High Court it appears that the High Court has observed hereinabove that in the peculiar facts and circumstances of the case, it is directed that the order of absorption and regularisation and if necessary, by creating supernumerary posts, will not be treated as a precedent in other cases. Even such a direction could not have been passed by the Division Bench of the High Court as there were no peculiar facts and circumstances which warranted the above observation. No such order of absorption and/or regularisation even if required for creating supernumerary posts and not to treat the same as precedent could have been passed by the High Court in exercise of powers under Article 226 of the Constitution of India.” 12. After survey of various judgments, the Supreme Court has held that the directions of absorption and regularization were not required to be issued to the State Authorities as no duty was cast upon the State to transfer such employees to another establishment in a case where it is found that the employees are appointed in a temporary unit and on a contractual basis on a fixed terms salary. It is stated that the employee was not appointed on the permanent sanctioned post and hence, the High Court should not have issued directions for absorption. 13. Thus, the Supreme Court has set aside the directions issued by the Division Bench of this Court by observing that no such order of absorption and regularization was required to be made. It is stated that the employee was not appointed on the permanent sanctioned post and hence, the High Court should not have issued directions for absorption. 13. Thus, the Supreme Court has set aside the directions issued by the Division Bench of this Court by observing that no such order of absorption and regularization was required to be made. The petitioners are similarly situated to the employees before the Apex Court as all of them are appointed on contractual basis in the Project Implementation Unit and some of their services were taken by the Indian Red Cross Society. Thus, having accepted the terms and conditions of their contract, as per their appointment orders even if the petitioners have continued for so many years, they are not entitled to be absorbed or regularized in the service. It is in the absolute domain of the State Authorities to take their service as per the contract. Their initial appointment itself was in a unit i.e. Project Implementation Unit, which is formed in order to provide succour to the victims of earthquake. It is a well settled proposition of law that the regularization cannot be claimed merely for the reason that an employee, has rendered particular number of years of contractual service. 14. Under the circumstances, the writ petition, fails and is hereby rejected. Rule discharged. Order in Civil Application No.1/2022 Draft amendment is allowed in terms of the draft. The same shall be carried out forthwith. In view of the order passed in main matter, the connected Civil Application for direction does not survive and disposed of accordingly.