Bombay High Court
Akash Piraji Kamble vs The State Of Maharashtra And ... on 28 September, 2022
Bench: Mangesh S. Patil, Sandeep V. Marne
1 wp14127.21 Judgment.docx
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 14127 OF 2021
1. Balaji s/o Shivaji Kamble,
Age; 38 years, Occ; Driver,
R/o; Karepur, Tq. Renapur,
District; Latur.
2. Balasaheb s/o Dattu Jagtap,
Age; 40 years, Occ; Driver,
R/o; Karepur, Tq. Renapur,
District; Latur.
3. Gangadhar s/o Dattu Sagar,
Age; 45 years, Occ; Driver,
R/o; Bombli, Tq. Deoni,
District; Latur.
4. Omkareshwar s/o Ramrao Patil,
Age; 39 years, Occ; Driver,
R/o; Wanjarwada, Tq. Jalkot,
District; Latur.
5. Mahadev s/o Shivaji Devde,
Age; 38 years, Occ; Driver,
R/o; Kingaon, Tq. Ahmadpur,
District; Latur. ...PETITIONERS
VERSUS
1. The State of Maharashtra,
Through its Secretary,
Ministry of Health and Family Welfare.
2. The State of Maharashtra,
Department of Rural Development
Through its Secretary, Mantralaya
Mumbai.
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3. Director of Health Services,
Saint George Hospital Compound
P.D. Mello Road, Mumbai, 400001.
4. The Divisional Commissioner,
Division; Aurangabad.
5. The Chief Executive Officer,
Zilla Parishad Latur.
District; Latur. ...RESPONDENTS
WITH
WRIT PETITION NO. 14408 OF 2021
1. Hemant Ramdas Lange,
Age; 22 years, Occ; Driver,
R/o; Babhalgaon, Tq. Shiruranantpal,
District; Latur.
2. Ganpati Vishwanath Arjune,
Age; 22 years, Occ; Driver,
R/o; Ganeshwadi, Tq. Shiruranantpal,
District; Latur.
3. Mujmil Rajjak Patel,
Age; 25 years, Occ; Driver,
R/o; Manki, Tq. Udgir,
District; Latur. ...PETITIONERS
VERSUS
1. The State of Maharashtra,
Through its Secretary,
Ministry of Health and Family Welfare.
2. The State of Maharashtra,
Department of Rural Development,
Through its Secretary, Mantralaya Mumbai.
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3. Director of Health Services,
Saint George Hospital Compound,
P.D. Mello Road, Mumbai-400001.
4. District Medical Officer,
Zilla Parishad, Latur.
5. The Chief Executive Officer,
Zilla Parishad, Latur.
District; Latur. ...RESPONDENTS
WITH
WRIT PETITION NO. 14405 OF 2021
Akash Piraji Kamble,
Age; 28 years, Occ; Driver,
R/o; Halki, Tq. Shiruranantpal,
Dist; Latur. ...PETITIONER
VERSUS
1. The State of Maharashtra,
Through its Secretary,
Ministry of Health and Family Welfare.
2. The State of Maharashtra,
Department of Rural Development,
Through its Secretary, Mantralaya Mumbai.
3. Director of Health Services,
Saint George Hospital Compound,
P.D. Mello Road, Mumbai-400001.
4. District Medical Officer,
Zilla Parishad, Latur.
5. The Chief Executive Officer,
Zilla Parishad, Latur.
District; Latur. ...RESPONDENTS
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WITH
WRIT PETITION NO. 14442 OF 2021
1. Yusuf Ibrahim Sayyed,
Age; 44 years, Occ; Driver,
R/o; Borgaon Kale,
District; Latur.
2. Kashinath Tulshiram Katvate,
Age; 36 years, Occ; Driver,
R/o; Nalegaon, Tq. Chakur,
District; latur.
3. Jyotiram Hanumat Kshirsagar,
Age; 45 years Occ; Driver,
R/o; Kategaon, Tq. & Dist. Latur.
4. A Saiph A Bari Dange,
Age; 23 years, Occ; Driver,
R/o; Dangewadi, Po Wadhona,
Tq. Udgir, Dist. Latur.
5. Dattatraya Kishanrao Wadikar,
Age; 33 years, Occ; Driver,
R/o; Devarjan Tq. Udgir,
District; latur. ...PETITIONERS
VERSUS
1. The State of Maharashtra,
Through its Secretary,
Ministry of Health and Family Welfare.
2. The State of Maharashtra,
Department of Rural Development,
Through its Secretary, Mantralaya Mumbai.
3. Director of Health Services,
Saint George Hospital Compound,
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P.D. Mello Road, Mumbai-400001.
4. The Divisional Commissioner,
Division; Aurangabad.
5. The Chief Executive Officer,
Zilla Parishad, Latur.
District; Latur. ...RESPONDENTS
WITH
WRIT PETITION NO. 14441 OF 2021
1. Govind Bharat Shinde,
Age; 33 years, Occ; Driver,
R/o; Bitargaon, Tq. Renapur,
District; Latur.
2. Ramchandra Suryakant Panchal,
Age; 25 years, Occ; Driver,
R/o; Kharola, Tq. Renapur,
District; Latur.
3. Ahmed Khurshid Sayyad,
Age; 37 years, Occ; Driver,
R/o; Bhatangali, Tq. Latur.
District; Latur.
4. Rahul Prabhakar Chikate,
Age; 45 years, Occ; Driver,
R/o; Khalangri, Tq. Renapur,
District; Latur.
5. Shaikh Mehbub Rahimsab Shaikh,
Age; 30 years, Occ; Driver,
R/o; Wadhona, Behind Yashwant College,
Tq. Udgir, District; Latur. ...PETITIONERS
VERSUS
1. The State of Maharashtra,
Through its Secretary,
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Ministry of Health and Family Welfare.
2. The State of Maharashtra,
Department of Rural Development,
Through its Secretary, Mantralaya Mumbai.
3. Director of Health Services,
Saint George Hospital Compound,
P.D. Mello Road, Mumbai-400001.
4. The District Medical Officer,
Zilla Parishad, District; Latur.
5. The Chief Executive Officer,
Zilla Parishad, Latur.
District; Latur. ...RESPONDENTS
...
Mr.Pramod A. Kulkarni, learned Advocate for Petitioners in all matters
Mr. S.B.Yawalkar, learned AGP for Respondent Nos. 1 to 4
Mr. Uttam B. Bondar, learned Advocate for respondent No. 5 in
WP/14127/2021, WP/14405/2021, WP/14442/2021, WP/14441/2021
and WP/14408/2021)
...
CORAM : MANGESH S. PATIL &
SANDEEP V. MARNE, JJ.
Reserved Date : 21.09.2022
Pronouncement Date : 28.09.2022
JUDGMENT : [PER : SANDEEP V. MARNE, J.]
1. Rule. Rule is made returnable forthwith. With the consent of
the learned Advocates for the respective parties, heard finally at the stage
of admission.
2. The petitioners are the ambulance drivers engaged through a
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Contractor by Zilla Parishad, Latur. They have filed present Writ Petitions
with following prayers :
A) Writ Petition may kindly be allowed.
B) The Hon'ble Court be pleased to direct the
respondent No. 5 to not to terminate the services of
the petitioners as an ambulance drivers till
permanent drivers are appointed.
C) Pending hearing and final disposal of this Writ
Petition the Hon'ble Court be pleased to direct the
respondent No. 5 to not to terminate the services of
the present petitioners.
3. Petitioners are engaged through contractors as ambulance
Drivers in the Respondent Zilha Parishad. The petitioners had earlier
filed various Writ Petitions seeking prayer for regularization of their
services. Those petitions were disposed of by this Court by order dated
13.01.2021. As far as the relief of regularization was concerned, this
Court did not specifically grant it but it merely noted order dated
03.09.2019 passed in Writ Petition No. 10260 of 2019, in which it was
recorded that the grievance of the petitioners therein was being looked
into. So far as the grievance with regard to equal pay for equal work was
concerned, this Court relied upon various decisions earlier passed and
directed that the petitioners be paid wages at minimum of pay scales in
the lowest grade in regular pay scales entitled to the regular employees
holding the same posts w.e.f. the date of the petitions.
4. Now the cause for filing the Petition is letter dated 10-12-2021
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issued by the Respondent Zilha Parishad to M/s Frontier Ex-serviceman
Association, Latur who is the contractor through whom the petitioners
are engaged. By that letter, it was informed to the Petitioners' contractor
that ambulance drivers now would be provided by CSC e-Governance
India Ltd., and accordingly upon receipt of deployment of ambulance
Drivers through the said Company, the work orders issued to Petitioners'
contractor would come to an end. This is how issuance of letter dated
10.12.2021 has triggered filing the present petitions by the petitioners
seeking prayers not to terminate their services till the appointment of
permanent drivers. By way of interim order dated 15.12.2021, it was
directed that the petitioners may not be replaced by either temporary or
contractual employees.
5. Appearing for the petitioners Mr. Kulkarni, the learned
counsel has submitted that the petitioners have put in about 10 years of
services and therefore, they cannot be displaced in an unceremonious
manner that too, by other contractual employees. That services of the
petitioners cannot be replaced by other contractual ambulance Drivers.
He relied on the order of the Apex Court in Manish Gupta and Anr. Etc.
Etc. V. President Jan Bhagidari Samiti and Ors. Etc. Etc., Special Civil
Appeal Nos. 3084-3088 of 2022 decided on 21.04.2022, in support of his
contention that adhoc employee cannot be replaced by another adhoc
employee. He would also rely upon the decision of this Court, Bench at
Nagpur in Dhiraj S. Wankhede and Ors. Vs. The Zilla Parishad,
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Chandrapur and Ors., Writ Petition No. 2247 of 2014 decided on
20.11.2019. He would also rely upon the order dated 08.12.2020 passed
in Writ Petition (ST.) No. 92250 of 2020 Nagendrayya P. Hiremath and
Ors. Vs. The State of Maharashtra and Ors. Lastly, he would contend that
in similar circumstances, this Court Bench at Nagpur in Ritesh @ Jeetu
Babulal Chakravarty and Ors. Vs. the State of Maharashtra and Ors. in
Writ Petition No. 1305 of 2021 decided on 06.04.2022 has granted
protection to ambulance Drivers of non-replacement by other contractual
employees.
6. Per Contra, Mr. Bonder, the learned counsel appearing for
respondent No. 5-Zilla Parishad submits that the petitioners are engaged
through the contractors and that there is no employer - employee
relationship. He relied on the Government Resolution dated 26.08.2020,
by which all Zilla Parishads have been directed by the State Government
to procure manpower through CSC e-Governance India Ltd. By the said
Government Resolution, it is directed that in respect of workers provided
by the said Company, no post would be created nor there would be any
liability on the Zilha Parisahd. It is further provided that there would be
no employer- employee relationship between the workers provided by the
Company and the Zilla Parishad. He would submit that the Government
Resolution dated 26.08.2020 has also directed Zilla Parishad not to
renew the earlier contract and to procure manpower only through CSC e-
Governance India Ltd. He further relies upon the work order dated
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15.03.2021 issued to CSC e-Governance India Ltd., by which the
Company has been called upon to provide contract ambulance Drivers on
various terms and conditions w.e.f. 01-04.2021. He also relied on letter
dated 10.12.2021 by which Petitioner's contractor M/s Frontier Ex-
Serviceman Association, Latur was communicated the decision of
termination of contract. He has produced before us a chart under which
various contractors were engaged by the Zilla Parishad from the year
2015 onwards, to buttress his contention that different contractors have
been providing ambulance Drivers to the Zilla Parishad. He also relied
upon the letter dated 11.10.2021 of CSC e-Governance India Ltd. and
submitted the list of 44 drivers for fulfilling contract engagement with
Zilla Parishad. He has also taken us through the work order dated
16.09.2019 issued to CSC e-Governance India Ltd., as well as individual
appointment orders issued by M/s Frontier Ex-Serviceman Association in
favour of some of the petitioners.
7. Mr. Yawalkar, learned AGP appearing for respondent State
has supported the stand of the Zilla Parishad and pressed for dismissal
of the petitions.
8. The arguments were concluded and the judgment was
reserved on 14.09.2022. However, on request of Mr. Kulkarni, he was
permitted to rely upon additional documents. Accordingly, the petitions
were fixed for further hearing on 21.09.2022. Mr. Kulkarni, has filed
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additional rejoinder dated 19.09.2022. Mr. Bondar, has also filed
additional compilation of documents. In the interest of justice, both have
been taken on record. Both the counsels were heard on the additional
documents on 21-09-2022.
9. During the course of further hearing, Mr. Kulkarni, has
relied upon the monthly attendance sheets to contend that the
attendance sheets are maintained by the Zilla Parishad and not by the
Contractor. Relying on statements of accounts of some of the petitioners,
he would further submit that the payments are also being made by the
Zilla Parishad directly and not through the Contractor. That such
payments were made on account of order dated 17.02.2022 passed by
this Court in Contempt Petition No. 709 of 2021.
10. In his additional submissions, Mr Bondar has submitted that
the payments are directly made in the bank account of the petitioners
represent difference in wages on account of direction of this Court to
grant wages in minimum of pay scales to the petitioners. He would
submit that at the time of making of such payments, the contracts of the
previous contractors had ended and therefore, the Zilla Parishad could
not make such payments through contractors. It is only on account these
circumstance that an exception was required to be made to deposit the
arrears of wages directly in the bank accounts of the petitioners. Except
this, wages are always paid to the petitioners through the respective
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contractors.
11. Having set out the case of the parties and submissions of
their counsels, we now proceed to examine the issue of application of the
principle of 'ad hoc employee not to be replaced by ad hoc employee' to
the present case.
12. Undisputedly, the petitioners have been currently engaged
through the contractor M/s Frontier Ex.-Service Man Association.
Petitioner's engagements flow out of work order dated 16-09-2019 issued
to Frontier Ex-Serviceman Association for supply of drivers by the Zilha
Parishad. The tenure of work order was for 10 months. Upon receipt of
work order, Frontier Ex-Serviceman Association has issued individual
appointment orders to each of the petitioners on or around 27.09.2019.
The terms and conditions of the appointments are determined by the
M/s. Frontier Ex-Serviceman Association.
13. Since the engagement is by the contractor M/s Frontier Ex.
Serviceman Association, the termination of Petitioners' service, if any,
would also be by the contractor. The petitioners have failed to implead the
contractor as a party respondent to the present petitions. The
contractor's contract came to an end upon expiry of tenure of the
contract. Even otherwise, the contract was terminated by way of
communication dated 10.12.2021. Admittedly, the contractor has not
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initiated any proceedings challenging termination of its contract. We,
therefore, fail to comprehend as to how the petitioners can independently
file present petitions against the Zilla Parishad seeking relief of protection
from termination. Petitioners are, admittedly, appointed by the contractor
and the Zilla Parishad cannot terminate their services. The termination
will have to be effected by the contractor alone. The petition is thus a
flawed document.
14. Now we deal with contention of Mr. Kulkarni, that an adhoc
employee cannot be replaced by another employee. In support of his
contention he has relied upon the order of the Apex Court in Manish
Gupta (supra) in which it is held,
"It is a settled principle of law that an ad hoc
employee cannot be replaced by another ad hoc
employee and he can be replaced only by another
candidate who is regularly appointed by following a
regular procedure prescribed. Reliance in this
respect can be placed on the judgment of this Court
in the case of Rattan Lal and others vs. State of
Haryana and others' and on the order of this Court
in the case of Hargurpratap Singh vs. State of
Punjab and Others."
15. There can be no dispute about the proposition that an adhoc
employee cannot be replaced by another adhoc employee. It is expounded
by several decisions of the Apex Court and High Courts. Eventhough not
relied upon by Mr. Kulkarni, we may make reference to decision of the
Apex Court in Mohd. Abdul Kadir v. Director General of Police, (2009) 6
SCC 611 in which it is held as under:
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18. We are therefore of the view that the learned
Single Judge was justified in observing that the
process of termination and reappointment every year
should be avoided and the appellants should be con-
tinued as long as the Scheme continues, but purely
on ad hoc and temporary basis, coterminous with
the Scheme. The Circular dated 17-3-1995 directing
artificial breaks by annual terminations followed by
fresh appointment, being contrary to the PIF Addi-
tional Scheme and contrary to the principles of ser-
vice jurisprudence, is liable to be quashed.
16. The principle of 'adhoc employee not to be replaced by adhoc
employee' is founded on State's obligation to resort to regular
engagements. The sanctioned vacant posts must be filled on regular basis
rather than engaging adhoc employees thereon. In rare cases where
regular appointments are delayed, the Government is justified in
resorting to ad hoc engagements. For such stop-gap arrangement,
whether Government is justified in engaging multiple adhoc employees by
resorting to terminations and replacements is the question which finds
its answer in the principle of 'adhoc employee not to be replaced by adhoc
employee'. However, what happens when the Government wishes to
outsource the work by contracting the same out by engaging a contractor
for supply of manpower for performance of specific work, eg.
housekeeping or cleaning. Whether the principle of 'adhoc employee not
to be replaced by adhoc employee' can be extended to such a situation
also? We find the answer to this question in the negative. In such a
situation, there is no stop gap arrangement as the Government does not
propose to fill up any posts on permanent basis for manning the work
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which is outsourced to a contractor. Therefore the principle will have no
application in such a case.
17. Petitioners are admittedly not adhoc employees. They are
employees engaged by the contractor, with whom the contract is entered
into by the Zilla Parishad. In the instant case, the State Government has
directed the Zilla Parishads to hire manpower on contract basis instead of
engagement of the permanent staff in specified areas. Therefore, there
appears to be no possibility of Zilha Parishad taking up regular
recruitment process to appoint permanent ambulance Drivers.
Contractual engagements are thus not by way of stop gap arrangement.
18. However, the expression 'contractual employees' is loosely
used to describe different kinds of engagements. Like in present case,
there can be outsourcing of work to a contractor, whose employees are
referred to as contract employees. However, Governments in some case do
hire employees on direct contract basis, without involvement of any
contractor. In that case there is direct relationship between the
Government and the employee whose salaries are paid and conditions of
service determined by the Government, as per terms and conditions of
contract and not as per Rules applicable to permanent employees. Use of
the expression 'contract employee' in such cases if often a semantic
exercise, where the employees could also be referred to as ad hoc,
temporary, daily wage, etc. In such cases, it may be possible to extend the
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principle of 'adhoc employee not to be replaced by adhoc employee' in a
given fact situation. However where the entire work is outsourced to a
contractor who brings in his own workforce for execution of a contract,
the principle of 'adhoc employee not to be replaced by ad hoc employee'
would have no application.
19. In the instant case, there is no direct engagement of
petitioners by the Zilla Parishad in any manner. From the chart produced
by Mr. Bondar, it is clear that different contractors have been engaged by
the Zilla Parishad for different periods of time. The chart is reproduced
below :
Sr. Name of the Supplier Period
No
.
1. Kirti Swayanrojagar Sanstha, 15.04.2015 to 17.04.2017
Auangabad.
2. Chatrapati Security Force, Borwati, Tq. 18.04.2017 to 15.09.2019
& Dist. Latur.
3. Frontier Ex-Servicman , Association, 16.09.2019 to 14.05.2021
latur
4. CSC e-Governance India Ltd., New Delhi. 15.05.2021 till date.
The above chart, contents of which are undisputed, leaves no
matter of doubt that the Petitioners have been performing the duties of
ambulance Drivers as employees of different contractors. Therefore the
principle of 'adhoc employee not to be replaced by adhoc employee' would
have no application to them.
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20. Reliance of Mr. Kulkarni, on the decisions of this Court in
Dhiraj (Supra) and Nagendrayya (supra) is of no avail, as this Court only
extended the benefit of principle of 'equal pay for equal work' in those
cases. The protection from termination is not extended in the those
cases. In Ritesh @ Jeetu (supra), this Court was essentially dealing with
the issue of 'equal pay to equal work. It relied on various previous
decisions of this Court including the decision in Dhiraj Wankhede (supra)
and has granted the relief of wages at the minimum of the pay scales to
the petitioners therein. Even though, a direction has been issued to the
contractors therein not to replace the petitioners therein with other
contractual employees, we find that the direction is again of no avail to
the petitioners. The petitioners have failed to implead their contractor in
the present petitions. They do not seek the relief of protection of
termination against their contractor. In Ritesh (Supra) a direction not to
replace the petitioners therein with other contractual employees is not
issued to the Zilla Parishad but the same is issued to the contractor.
Therefore relying on the decision in Ritesh (Supra), Petitioners cannot
seek direction against Zilha Parisahd to continue their services. Reliance
of Mr. Kulkarni, on the decision of Ritesh (supra) is therefore misplaced.
21. Now we deal with the last contention of Mr. Kulkarni that the
defence of absence of employer and employee relationship was specifically
raised in the earlier round of litigation. He relies upon the affidavit-in-
reply filed by the Zilla Parishad in Writ Petition No. 6762 of 2020, in
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which, such defence appears to have been taken. He submits that despite
such defence, this Court granted relief of wages at minimum of pay scales
by its order dated 13.01.2021. He has submitted that one such similar
decision has been upheld by the Apex Court in The Chief Executive
Officer Zilla Parishad Solapur Vs. Ashok Dhondiba Meher & Ors. Special
Leave Petition (C) No. 8395 of 2021 decided on 23.03.2022. However we
find that this court, in its various decisions relating to 'equal pay for
equal work' has decided the issue of applicability by principles
enunciated in State of Punjab Vs. Jagjit Singh, in which, it has been
directed that all temporary employees (with whatever nomenclature such
as adhoc, contractual, daily wagers) etc. are entitled to be paid minimum
pay in the pay scale applicable to regular employees. Thus, in Jagjit
Singh (supra) the benefit of wages in the minimum of pay scales has been
extended to the contracted employees as well. Therefore, merely because
the benefit minimum of pay scales is granted to them, it would not mean
that the petitioners have become direct employees of the Zilla Parishad in
any manner. Therefore, the contention of absence of employer-employee
relationship being considered in altogether different context would not
mean that there indeed exists such a relationship for seeking relief of
continuation of services.
22. The reliance of Mr. Kulkarni on the documents filed along
with additional rejoinder dated 19.09.2022 is again misplaced. Mr.
Bondar, has successfully demonstrated that the payments were directly
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deposited in the bank accounts of the petitioners towards wages arising
out of the order passed by this Court to grant minimum of pay scales to
the petitioners. Since the tenure of the earlier contractors had ended, the
Zilla Parishad was not able to make payments of such arrears through
those contractors and therefore, an exception was made to deposit the
payments directly in their bank accounts. In our opinion, this would not
make the petitioners as direct employees of the Zilla Parishad, in any
manner. The reliance of Mr. Kulkarni on muster roll is also misplaced as
mere certification thereof by the Medical Officer of Zilla Parishad would
not mean that the muster roll is maintained by the Zilla Parishad or that
the petitioners became the employees of the Zilla Parishad.
23. We therefore, do not find any merit in the petitions. All
Petitions are dismissed with no orders as to costs. Interim order granted
earlier stands vacated. Rule is discharged.
( SANDEEP V. MARNE ) ( MANGESH S. PATIL )
JUDGE JUDGE
24. After the judgment was pronounced, Mr. Kulkarni the
learned Advocate appearing for the petitioner prays for continuation of
interim relief in order to enable the petitioner to approach the Supreme
Court.
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25. Considering the reasons recorded by us for dismissing the
petition, we are not inclined to continue the interim relief. The prayer
is rejected.
( SANDEEP V. MARNE ) ( MANGESH S. PATIL )
JUDGE JUDGE
mahajansb/
