Bombay High Court
Chetan Suryakant Katkar And Ors vs Union Of India And Ors on 10 February, 2023
Bench: Sandeep V. Marne
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rrpillai IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 1586 OF 2022
1. Chetan Suryakant Katkar
Age : Adult, Occ : Service
Residing at 1427, D Ward
Uttareshwar Peth
Kolhapur-416 002
2. Sarjerao Balu Killedar
Age : Adult, Occ : Service
Residing at Khadakewada
Tal Kagal, Kolhapur-416 235
3. Bhagvan Vilas Patil
Age : Adult, Occ : Service
Residing at Nadhavade
Tal Bhudargad, Kolhapur-416 209
4. Pravin Tukaram More
Age : Adult, Occ : Service
Residing at PO Bhatiwade
Tal Bhudargad, Kolhapur-416 223
5. Rohini Ananda Divate
Age : Adult, Occ : Service
Residing at H/No. 1172
Nadgonda Galli, Senapati Kapshi
Digitally
signed by
... Petitioners
RAJESHWARI Tal Kagal, Kolhapur-416 218
RAJESHWARI RAMESH
RAMESH PILLAI
PILLAI Date:
2023.02.13
10:51:24
+0530
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6. Vinod Bhaskar Samudre
Age : Adult, Occ : Service
Residing at Borpadle
Tal Panhala, Borapadle
Kolhapur-416 213
7 Nagesh Sidhapa Nalawade
Age : Adult, Occ: Service
Residing at 1382, E Ward
Wada wadi, Rajarampuri
14th Lane, Kolhapur-416 008
8. Sagar Pratap Gaikwad
Age : Adult, Occ: Service
Residing at Plot No. 12
Rajarampuri, ST Colony,
Kolhapur-416 008
9. Kunal Shrikant Bavadekar
Age : Adult, Occ: Service
Residing at Plot No. 731, E-Ward,
Sant Gora Kumbhar,
Vasahat Bapat Camp,
Kolhapur-416 005
10. Mandar Dinkar Jatrate
Age : Adult, Occ: Service
Residing at Post Balinge
Taluka Karveer
... Petitioners
Kolhapur-416 010
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11. Swapnil Balu Nagre
Age : Adult, Occ: Service
Residing at A/p. Kameri
Tal. Walwa, Dist Sangli 415 403
12. Rahul Mohan Vade
Age : Adult, Occ: Service
Residing at Burud Galli
Yallama Chowk, Uran
Islampur, Tal : Walwa
Sangli - 415 409
13. Ranjit Prakash Divse
Age : Adult, Occ: Service
Residing at Nagdevade, A/p.
Balinga, Tal. Karvir
Dist. Kolhapur
14. Vinay Goutam Gungikar
Age : Adult, Occ: Service
Residing at 2805/1, C Ward
Siddharth Nagar, Shaniwar Peth
Kolhapur-416 002
15. Aditya Dattatray Patil
Age : Adult, Occ: Service
Residing at Datta Rupa, R. S. 461,
Plot No. E-29, Padalkar Colony,
Kasaba Bavada
... Petitioners
Kolhapur-416 006
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16. Sachin Rajaram Kamble
Age : Adult, Occ: Service
Residing at 576, Ambedkar Galli,
Kalamba Trf Thane, Tal. Karveer
Kolhapur-416 007
17. Manoj Mohanrao Wade
Age : Adult, Occ: Services
Residing at Islampur, Tal. Walva
Dist. Sangli
18. Pradip Prakash Ghorpade
Age : Adult, Occ: Service
Residing at Tal : Kagal
Dist: Kolhapur
19. Vikas Baburao Kamble
Age : Adult, Occ: Service
Residing at Siddharth Nagar
At - Kadagaon, Tal : Bhudargad
Dist: Kolhapur
20. Rajaram Vilas Shinde
Age : Adult, Occ: Service
Residing at AP Ghunaki
Tal : Hatkanangale
Kolhapur-416 112
21. Uttam Rajaram Samudre
Age : Adult, Occ: Service
Residing at PO Bodpadale
... Petitioners
Tal : Panhala Dist. Kolhapur
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22. Laxman Gangaram Chavan
Age : Adult, Occ: Service
Residing at PO Tisangi, Tal
Gaganbawada
Kolhapur-416 206
23. Dattatray Sutar
Age : Adult, Occ: Service
Residing at PO Sangrol
Tal. Karveer
Dist: Kolhapur
24. Abhimanyu Gawade
Age : Adult, Occ: Service
Residing at PO Ujjaliwadi
Tal : Karveer
Dist :Kolhapur
25. Laxman Sukumar Parit
Age : Adult, Occ: Service
Residing at PO Sagav, Tal :
Halkanlange
Dist : Kolhapur
26. Mahesh Deepak Chavan
Age : Adult, Occ: Service
Residing at 563, 3, Malakapur
Harijan Vada, Village Malakapur
Tal. Shahuvadi,
... Petitioners
Dist. Kolhapur-415 101
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Versus
1. Union of India through its
Principal Secretary, Ministry of
Finance, Department of Revenue
Having address as 136 A/North
Block, New Delhi, Delhi
2. Reserve Bank of India
New Central Office Building,
Shahid Bhagat Singh Road,
Fort, Mumbai-400 001
3. Bank of Maharashtra
Through its Managing Director
and CEO Having address Head
Office, Lakmangal, Pune
4. Bank of Maharashtra
Through its General Manager,
Human Resource, Having address
Head Office, Lakmangal, Pune.
5 Union of India
Through Ministry of Labour and
Employment, Having address as
Govt. of India, Shram Shakti
Bhawan Rafi Marg,
... Respondents
New Delhi-110 001
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Dr. Abhinav Chandrachud a/w. Mr. Makarand Kale i/b. Mr.
Yogesh Sankpal and Mr. Akash Reddy for the Petitioner.
Mr. Dhananjay Bhanage for Respondent nos. 3 and 4.
CORAM : S.V. GANGAPURWALA, ACJ. &
SANDEEP V. MARNE, J.
RESERVED ON : 1 FEBRUARY 2023
PRONOUNCED ON : 10 FEBRUARY 2023
JUDGMENT (Per Sandeep V. Marne, J) :-
1. Petitioners assail action of the respondent-bank in
outsourcing housekeeping activities thereby marring their
hopes of securing employment as Part time Sub-Staff. They
seek appointment as Part time Sub-Staff consequent to their
selection for that post.
2. Facts of the case, shorn of unnecessary details, are that
Petitioners' names were requisitioned from employment
exchange by Respondent-Bank of Maharashtra for
appointment as Part Time Substaff (PTS). After undergoing a
process of selection, they were engaged by as temporary PTS to
perform duties of cleaning, sweeping and house-keeping as well
as to assist other bank employees in smooth functioning of
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branches/offices. Their initial engagements were made in
various years from 2007 onwards. A Memorandum of
Settlement dated 5 April 2017 was reached between the Bank
and Union, under which the bank agreed to recruit 450 PTS on
1/3rd Scale wages at its branches/offices by undertaking "Part
Time Substaff Recruitment Process 2017". In pursuance of the
said Memorandum of Settlement, letter dated 24 January 2017
was issued to all the offices/branches of the bank for carrying
out "Part Time Substaff Recruitment Process 2017".
Petitioners applied in pursuance of the said process and were
subjected to psychometric test held on 9 September 2018. The
results were declared on 1 January 2019 in which they were
declared successful. Verification letter dated 7 February 2019
was issued calling upon them to submit documents for
verification for issuance of appointment orders. However,
despite submitting requisite documents, no further progress
was made by the respondent-bank. Instead, respondent-bank
suddenly issued letter dated 6 April 2021 conveying the
decision to outsource the house-keeping services. By further
letter dated 4 December 2021, the decision to outsource house-
keeping services was reiterated. Accordingly, a Request for
Proposal is floated to appoint an agency for outsourcing.
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Petitioners are aggrieved by the Bank's decision to abort the
recruitment process and instead opt for outsourcing.
3. Appearing for Petitioners, Dr Chandrachud the learned
counsel would contend that having undertaken recruitment
process in pursuance of the Memorandum of Settlement, the
respondent-bank cannot abandon the same and outsource
work to contractors thereby marring the rights created in
favour of the selectees. He would submit that 450
vacancies/posts of PTS were sanctioned in view of settlement.
That though the principle of the employer having right to keep
a post vacant cannot be disputed, at the same time sanctioned
vacancies cannot be kept vacant without cogent reasons. Dr.
Chandrachud would take us to the affidavit in reply filed by the
respondent-bank in order to demonstrate that the reasons for
not filling up posts are not cogent. He would dispute the theory
of abolition of the posts set up by the Bank contending that it
has not placed on record any document to show that the posts
are indeed abolished.
4. Per contra Mr. Bhanage the learned counsel appearing
for the respondent-bank would oppose the petition submitting
that petitioners are already agitating their grievances before
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the Central Government Industrial Tribunal, Mumbai in Ref.
CGIT Case No/2/8 of 2021. He would submit that additionally
Writ Petition no. 965 of 2021 has been filed by the Union of
petitioners involving the same issue. That in the Memorandum
of Settlement, no commitment was made for filling up the posts
nor any promise was made that petitioners would be employed.
He would submit that the Memorandum of Settlement was
executed only with a view to give preference to the staff
already employed on part time posts and for relaxing their
qualifications and that the same cannot be pressed into service
to create an obligation on the part of the bank to employ
petitioners. He would submit that the respondent-bank has
rightly taken decision to outsource house-keeping services in
view of various government directives. Lastly Mr. Bhanage
would contend that mere selection of the petitioners does not
create any right in their favour to seek appointment with the
respondent-bank.
5. Competing claims of Petitioners seeking appointments in
pursuance of their selection and of the Bank in enforcing its
right to outsource house-keeping services now fall for our
consideration.
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6. Petitioners essentially premise their claim for
appointment as PTS on their selection in the recruitment
process, which is sought to be abandoned by Respondent Bank.
The recruitment process is undeniably held in pursuance of
Memorandum of Settlement dated 5 April 2017 where the
respondent-bank decided to undertake "Part Time Substaff
Recruitment Process 2017" to fill up 450 posts of PTS. We
therefore proceed to examine whether Memorandum of
Settlement would create any obligation on the part of the Bank
to recruit 450 PTS.
7. Careful perusal of the Memorandum of Settlement would
indicate that the bank had accepted the recommendation of
the Khandelwal Committee prescribing minimum educational
qualification of 10th Standard pass for Substaff /Part Time
Substaff. However, it appears that the temporary PTS already
working with the bank (like Petitioners) were neither
possessing the said minimum educational qualifications nor
were fitting within the maximum age limit of 28 years.
Therefore by way of settlement, it was agreed that as a onetime
measure, temporary PTS already working in the bank would be
held eligible to participate in recruitment process irrespective
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of their age, educational qualification etc. It therefore appears
that the main objective of entering into the Memorandum of
Settlement was to provide relaxation to PTS to participate in
recruitment process. It cannot be stated that the
Memorandum of Settlement created any obligation on the part
of the respondent-bank to fill up 450 posts of Part Time
Substaff. The only possible right created in favour of
temporary PTS already working with the bank was to seek
relaxation in terms of educational qualification and age limit.
8. True it is that the respondent-bank did undertake "Part
Time Substaff Recruitment Process 2017" and subjected
petitioners to the selection process in which they are selected.
However, it is settled law that mere selection in the
recruitment process does not create any right in favour of
selected candidates. Reference in this regard can be made to
the judgment of the Apex Court in Commissioner of Police Vs.
Umesh Kumar1, in which it is held thus:
14 The real issue, however, is whether the respondents were
entitled to a writ of mandamus. This would depend on whether
they have a vested right of appointment. Clearly the answer to
this must be in the negative. In Punjab SEB vs. Malkiat Singh,
this Court held that the mere inclusion of candidate in a selection
list does not confer upon them a vested right to appointment. The
Court held:
1 (2020) 10 SCC 448
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"4. ...the High Court committed an error in proceeding on the
basis that the respondent had got a vested right for appointment
and that could not have been taken away by the subsequent
change in the policy. It is settled law that mere inclusion of name
of a candidate in the select list does not confer on such candidate
any vested right to get an order of appointment. This position is
made clear in para 7 of the Constitution Bench judgment of this
Court in Shankarsan Dash v. Union of India [(1991) 3 SCC 47 :
1991 SCC (L&S) 800 : (1991) 17 ATC 95] which reads: (SCC pp.
50-51)
"7. It is not correct to say that if a number of vacancies are notified
for appointment and adequate number of candidates are found fit,
the successful candidates acquire an indefeasible right to be
appointed which cannot be legitimately denied. Ordinarily the
notification merely amounts to an invitation to qualified candidates
to apply for recruitment and on their selection they do not acquire
any right to the post. Unless the relevant recruitment rules so
indicate, the State is under no legal duty to fill up all or any of the
vacancies. However, it does not mean that the State has the
licence of acting in an arbitrary manner. The decision not to fill up
the vacancies has to be taken bona fide for appropriate reasons.
And if the vacancies or any of them are filled up, the State is
bound to respect the comparative merit of the candidates, as
reflected at the recruitment test, and no discrimination can be
permitted. This correct position has been consistently followed by
this Court, and we do not find any discordant note in the decisions
in State of Haryana v. Subash Chander Marwaha [(1974) 3 SCC
220 : 1973 SCC (L&S) 488 : (1974) 1 SCR 165] , Neelima
Shangla v. State of Haryana [(1986) 4 SCC 268 : 1986 SCC
(L&S) 759] or Jatinder Kumar v. State of Punjab [(1985) 1 SCC
122 : 1985 SCC (L&S) 174 : (1985) 1 SCR 899] ."
(emphasis supplied)
9. An exception is sought to be made by Dr. Chandrachud to
the above settled position of law by relying upon judgment of
the Apex Court in Manoj Manu and Anr. Vs Union of India and
Ors.2 in which it is held that the selection process cannot be
arbitrarily canceled or restricted without a valid reason. It is
contended that there is no cogent reason for cancellation or
abandonment of process of selection.
2 (2013) 12 SCC 171
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10. We therefore proceed to examine the reasons put forth by
Respondent-Bank for dropping the recruitment process. In its
affidavit in reply, the Bank had taken the following stand :
"11. I say that although the Bank had proposed to
recruit 450 part-time sub-staff on 1/3rd scale wages, it
was not obliged in law to make the actual recruit. The
candidates have no rights in law individually or through
Union to force the employer to make the recruitment
since it is always dependent on the best judgment of the
Management about the requirement, financial
consequences or changes in policy. I say that the
Settlement dated 05/04/2017 also made it clear in para
VI that the said Settlement would be subject to applicable
laws, Bipartite Settlement and Government guidelines. I
say that the Bank subsequently found that it was not
possible or necessary to make such huge recruitment at
the relevant time. Subsequently, the Board of Directors
of the Bank in its meeting dated 20/03/2021 decided to
adopt the Outsourcing Model for house keeping activities
in pursuance of the Govt's policy of 'Enhanced Access
and Service Excellence' (EASE) reform agenda. The
Bank therefore decided to outsource house keeping
services and gave the necessary instructions to its zonal
heads by circular dated 06/02/2021 lying down certain
norms.
12. I say that introduction of the outsourcing method
made redundant the requirement of part-time sub-staff
for house keeping work. The Bank therefore before
implementation of outsourcing converted all part-time
sub-staff as full time sub-staff on certain terms and
conditions and declared the same by circular dated
25/11/2021. I say that the posts of part-time sub-staff
have been abolished by the Bank. The Bank thereafter
invited tenders region wise from competent 3 rd party
agencies to undertake the Contracts for cleaning and
house-keeping work. It is pertinent to note that an
agency called WWSO Security and Facility Ltd. has been
allotted the said contract for the Kolhapur and Sangli
region in which the Petitioners claim to have worked as
temporary part-time sub-staff. I say that the Petitioners
have been given an option to join the said Company as
sub-staff although the said Company is not bound to do
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so. I therefore say that the Bank has taken care of the
Petitioners by giving them the said option of
employment. The allegation that the Bank is forcing
them to join the said Company is wrong."
(emphasis & underlining supplied)
11. Petitioners dispute the defence of abolition of posts by
contending that nothing is placed on record to show such
abolition. Letter dated 25 November 2021 is on record. By that
letter, respondent-bank decided to discontinue the "Part Time
Substaff Recruitment Process 2017" and instead converted all
PTS to full time cadre as a onetime measure. It was also
directed that after conversion of PTS as Full Time Substaff,
zones shall continue the house-keeping activities as per bank's
outsourcing policy. Thus, by letter dated 25 November 2021,
the bank apparently discontinued the policy of engaging or
retaining PTS altogether by converting the existing PTS on full
time basis. Thus on the basis of letter dated 25 November
2021, an inference of abolition of 450 posts of PTS can be
drawn.
12. Outsourcing of house-keeping activities and abolition of
posts of PTS is a policy decision taken by the bank, in which
this court would be loath interfering. Merely because
petitioners participated in the selection process for
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engagement as PTS and were selected, would not create any
right in their favour to question the policy decision of the bank
to opt for outsourcing of house-keeping services. Petitioners
are not in employment of respondent-bank, it is not their case
that their conditions of service are affected by the decision of
outsourcing. We have no hesitation in holding that petitioners
cannot question the policy decision of the respondent-bank to
abolish posts, not to proceed ahead with recruitment process
and instead opt for outsourcing of house-keeping services. The
challenge set up by Petitioners to letters dated 6 April 2021
and 4 December 2021 must therefore fail.
13. Resultantly we do not find any merit in the petition.
Petition is dismissed without any orders as to costs.
(SANDEEP V. MARNE, J.) (ACTING CHIEF JUSTICE)
14. At this stage learned Advocate for the petitioner seeks
continuation of the interim order passed earlier.
15. Considering the request made, the interim order passed
earlier is continued for a period of two weeks. On lapse of two
weeks, the interim protection shall come to an end.
(SANDEEP V. MARNE, J.) (ACTING CHIEF JUSTICE)
