Bombay High Court
Sachin S/O Vasantrao Yerewar And ... vs The Union Of India, Thr. Its ... on 10 August, 2022
Bench: A.S. Chandurkar, Urmila Sachin Phalke
WP-8622-18 with connected writ petitions.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 8622 of 2018
Sachin Vasantrao Yerewar and others
vs.
The Union of India, through its Secretary, Human Resources Department, Government of
India, New Delhi and others.
With
WRIT PETITION NO. 8623 of 2018
Ms Jaya Ramaji Bhagat and another.
vs.
The Union of India, through its Secretary, Human Resources Department, Government of
India, New Delhi and others.
With
WRIT PETITION NO. 8624 of 2018
Nitin Sadashivrao Korde
vs.
The Union of India, through its Secretary, Human Resources Department, Government of
India, New Delhi and others.
With
WRIT PETITION NO. 8625 of 2018
Manoj Madhukarrao Deshmukh and others.
vs.
The Union of India, through its Secretary, Human Resources Department, Government of
India, New Delhi and others.
------------------------------------------------------------------------------------------------
Office Notes, Office Memoranda of Court's or Judge's Order
Coram, appearances, Court's Orders
or directions and Registrar's order
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Shri Anand Parchure, Advocate for petitioners in writ petitions.
Shri N. S. Deshpande, Assistant Solicitor General of India for respondent no.1 in
all writ petitions.
Ms. N. P. Mehta, Assistant Government Pleader for respondent nos. 2 to 5 in all
writ petitions.
Shri V. P. Maldhure, Advocate for respondent no.7 in W. P. No.8622/2018
Shri B.N.Jaipurkar, Advocate for respondent no.7 in W. P.No.8623/2018 and
8624/2018.
Shri Sachin Zoting, Advocate for respondent no.7 in W.P.No.8625/2018
CORAM :- A.S.CHANDURKAR AND URMILA JOSHI-PHALKE, JJ.
DATE :- AUGUST 10, 2022
Common Order
In these writ petitions the petitioners seek a direction to
be issued to Zilla Parishad, Chandrapur, Zilla Parishad, Gadchiroli,
WP-8622-18 with connected writ petitions.odt 2
Zilla Parishad, Wardha and Zilla Parishad, Yavatmal to regularise
their services and thereafter grant them all consequential benefits.
2. For the sake of convenience, the facts in Writ Petition
No.8622 of 2018 are being referred to. It is the case of the
petitioners that they have been working on the post of Junior
Engineer on contractual basis under the 'Sarva Shiksha Abhiyaan'
Scheme. Their initial appointment has been made in the year
2004-05 and such appointment was on contractual basis for a
period of eleven months. After giving a technical break of one day
their services have been again re-engaged on contractual basis. The
petitioners claim that they have discharged such contractual duties
till the year 2015 and their services have thereafter not been further
engaged. It is claimed that the service record of each petitioner is
clean and there is no reason for not continuing their services on
contractual basis by the Zilla Parishad. Various representations
have been made by them since their discontinuation seeking the
relief of regularisation and consequential benefits. The work done
under the Sarva Shiksha Abhiyaan Scheme was available and there
was no reason for not continuing the petitioners in service. Since
there has been no response to the representations made by the
petitioners, they have approached this Court by filing the aforesaid
writ petitions in December 2018.
3. In the reply filed by the Zilla Parishads the claim as made
by the petitioners has been denied. It has been stated therein that
WP-8622-18 with connected writ petitions.odt 3
in absence of any sanctioned post of Junior Engineer being
available, the services of the petitioners cannot be regularised.
Their engagement was under the Scheme known as 'Sarva Shiksha
Abhiyaan' and the appointments were purely on temporary and
contractual in nature. The said Scheme was sponsored by the
Central Government and the Zilla Parishad was merely an
implementing agency for the said Scheme. In absence of any legal
right in favour of the petitioners, the prayers as made in the writ
petitions cannot be granted.
On behalf of the Rural Development Department of the
State of Maharashtra, its Additional Chief Secretary has filed
affidavit on 07.07.2022. It has been stated therein that as per the
Scheme in question, the State Project Director, Maharashtra
Primary Education Council of the State Government is the
competent authority for appointing employees on contractual basis
under the Sarva Shiksha Abhiyaan. As per Government Resolution
dated 01.07.2021, there is no budgetary provision made available
with the Rural Development Department for undertaking the
construction and maintenance of various facilities at the Zilla
Parishads Schools. It is the School Education Department which is
the controlling department in that regard. It is thus stated that no
relief can be granted to the petitioners.
4. During the pendency of the present proceedings,
Government Resolution dated 01.07.2021 was issued by the Rural
WP-8622-18 with connected writ petitions.odt 4
Development Department in the matter of assigning the work of
construction of new schools at the Zilla Parishad as well as for
repairs and re-construction of existing schools in the context of
Sarva Shiksha Abhiyaan. It was stated that in the Construction
Department of the Zilla Parishad various posts of Engineers were
vacant and with a view to get the aforesaid works completed, the
responsibility was being fixed on the Junior Engineers who were
working under the Sarva Shiksha Abhiyaan as well as other
technical staff. In view of the Government Resolution dated
01.07.2021, the petitioners moved a civil application in each writ
petition seeking a direction to be issued to the respondents
to continue their services as per the aforesaid Government
Resolution. Reply has been filed by the respective Zilla Parishads as
well as the Rural Development Department to the same. Reply has
also been filed by the Department of School Education as well as
the Maharashtra Prarthamik Shikshan Parishad (Maharashtra
Primary Education Council). The requirement of the work assigned
to Junior Engineers has been specified and it has been stated that
considering the quantum of work presently available, it would not
be possible to grant re-appointment to the petitioners. Reference is
also made to the judgment in Writ Petition No.9923 of 2014 with
connected writ petitions (Rajeev Prabhakarrao Terkhedkar and ors
vs. Union of India and others) decided at Aurangabad Bench on
06.03.2019. It is thus stated that the relief as prayed for cannot be
granted to the petitioners.
WP-8622-18 with connected writ petitions.odt 5
5. In the aforesaid backdrop since the prayers made in the
civil applications were being pursued, the Court had indicated that
the writ petitions could be decided on merits as adjudication of the
civil applications would have material bearing on the adjudication
of the writ petitions. The learned counsel for the parties have
accordingly been heard.
6. The learned counsel for the petitioners submitted that
considering the fact the petitioners were working as Junior
Engineers since the year 2004-05 though on contractual basis, it
was clear that the work discharged by them was available and their
services were entitled to be regularised. The Zilla Parishad had in
fact passed a Resolution by which it was resolved to regularise the
services of such Junior Engineers on vacant posts. Despite pursuing
the matter with the Zilla Parishads since long, the petitioners were
denied the benefit of regularisation. Only on the ground that the
petitioners had been appointed under the Sarva Shiksha Abhiyaan,
the same cannot be a reason to deny the relief of regularisation to
them. The fact that the petitioners had worked for more than ten
years on contractual basis was sufficient to hold them entitled to
the relief of regularisation. It was thus prayed that the petitioners
be granted the reliefs as prayed for in the writ petitions.
WP-8622-18 with connected writ petitions.odt 6
7. The learned counsel for the various Zilla Parishads
pointed out that each petitioner had been engaged on contractual
basis till the year 2015 after which they were not again engaged.
Since the appointment of the petitioners on contractual basis was
under a Scheme, there was no right created in their favour to seek
regularisation. The fact that the petitioners approached the Court
after almost three years from their discontinuation was sufficient to
deny them the relief of regularisation.
The learned Assistant Government Pleader invited
attention to the Maharashtra Prarthamik Shikshan Parishad Service
Regulations, 1994 (for short, 'the said Regulations') to submit that
the posts under the said Regulations were temporary in nature
carrying fixed pay for a limited period. As per Clause 17 of the said
Regulations the appointment was to be made on contractual basis
and there was no right created to seek regularisation. It was
submitted that each petitioner was aware that his appointment was
contractual and temporary in nature during the period of the
Scheme and therefore there was no right created in them. Attention
was also invited to various such appointment orders in which it was
clearly stated that the appointment was of a temporary nature. The
Scheme in question was being overlooked by the School Education
Department and not by the Rural Development Department. Hence
the Government Resolution dated 01.07.2021 issued by the Rural
Development Department could not be applied in the present case.
It was also stated that in various Zilla Parishads the Scheme was not
WP-8622-18 with connected writ petitions.odt 7
being further continued as a result of which the posts of Junior
Engineers were reduced. Reliance was also placed on the decision
of the Aurangabad Bench in Rajeev Prabhakarrao Terkhedkar and
ors. (supra). It was thus submitted that the petitioners were not
entitled to any relief whatsoever.
8. We have heard the learned counsel for the parties and we
have perused the documents placed on record. It can be seen that
each petitioner was appointed for a temporary period on
contractual basis under the Sarva Shiksha Abhiyaan Scheme in the
year 2004. As per the said appointment orders, each petitioner was
required to sign the contract stating therein that the terms and
conditions mentioned therein were acceptable to them. It is not in
dispute that such temporary contractual appointments were given
to the petitioners after a technical break of one day. This
arrangement continued for a period of more than ten years and
thereafter since the year 2015 they have not been engaged on
contractual basis. It is not in dispute that after 2015 the petitioners
did not take immediate steps for their engagement under the said
Scheme and they have approached this Court only in December
2018 seeking the relief of regularisation. It is thus clear that when
the petitioners sought the relief of regularisation in December 2018
they were not in contractual engagement with the respective Zilla
Parishads. For seeking the relief of regularisation, it would be
necessary for a person making such request to be in employment at
WP-8622-18 with connected writ petitions.odt 8
the relevant time. Since none of the petitioners were engaged
under the said Scheme by the respective Zilla Parishads when they
approached this Court seeking the relief of regularisation, it would
not be permissible in law to examine such request for regularisation
under Article 226 of the Constitution of India especially when none
of the petitioners is serving with the Zilla Parishad on contractual
basis. The learned Assistant Government Pleader is justified in
placing reliance on the judgment of the Hon'ble Supreme Court in
Civil Appeal No.1951 of 2022 (State of Gujrat vs. R.J. Pathan)
decided on 24.03.2022. It has been held therein that if the initial
engagement was on contractual basis pursuant to a Scheme
undertaken, the High Court would not be justified in issuing a
direction for absorption and regularisation, if necessary, by creating
supernumerary posts. For the reason that none of the petitioners
were engaged on contractual basis when they approached this
Court with a prayer for regularisation, we find that the petitioners
would not be entitled for such relief under Article 226 of the
Constitution of India.
9. Insofar as the Government Resolution dated 01.07.2021
is concerned, it is seen that the same has been issued by the Rural
Development Department of the State of Maharashtra. It pertains
to assigning the work of new construction and special repairs of
existing school buildings with the Zilla Parishad. It has been noted
that with the Building Department of the Zilla Parishad there were
WP-8622-18 with connected writ petitions.odt 9
various vacant posts and since there were restrictions from Finance
Department for filling in new posts, such work could be assigned to
those Junior Engineers who were working under the Sarva Shiksha
Abhiyaan. It has been clarified by the Rural Development
Department that insofar as implementation of Sarva Shiksha
Abhiyaan Scheme is concerned, it is the School Education
Department of the State of Maharashtra which is concerned with
the same. The honourarium and other allowances are paid by the
School Education Department. Further approval of the State
Project Director, Maharashtra Primary Education Council is required
for engaging a person on contractual basis. It has further been
clarified that there is no budgetary provision with the Rural
Development Department for implementation of the Government
Resolution dated 01.07.2021 in the matter of completing the work
of construction and maintaining various facilities at Zilla Parishad
schools. We therefore find that this Government Resolution dated
01.07.2021 does not come to the aid of the petitioners in seeking
the relief of regularisation.
10. Thus considering the contractual engagement of each
petitioner on temporary basis for a fixed period coupled with the
fact that such engagement came to an end in the year 2015 itself,
the prayer for regularisation in the year 2018 cannot be considered
in exercise of jurisdiction under Article 226 of the Constitution of
India.
WP-8622-18 with connected writ petitions.odt 10
11. For this reason, we do not find that the petitioners would
be entitled to any relief whatsoever in the writ petitions. By
clarifying that it is open for the petitioners to pursue their remedies
in accordance with law, the writ petitions stand dismissed with no
order as to costs. Pending civil applications are also disposed of.
( URMILA JOSHI-PHALKE, J.) (A.S.CHANDURKAR, J.)
Andurkar..
Digitally Signed byJAYANT S
ANDURKAR
Personal Assistant
Signing Date:
10.08.2022 14:42
