Kiranbhai Amritlal Desai vs Indian Institute Of Management
2021 Latest Caselaw 5232 Guj

        C/SCA/1024/2021                                       JUDGMENT



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 1024 of 2021

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI                       Sd/­
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1    Whether Reporters of Local Papers may be allowed                 YES
     to see the judgment ?

2    To be referred to the Reporter or not ?                          YES

3    Whether their Lordships wish to see the fair copy                 NO
     of the judgment ?

4    Whether this case involves a substantial question                 NO
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                        KIRANBHAI AMRITLAL DESAI
                                  Versus
                    INDIAN INSTITUTE OF MANAGEMENT
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Appearance:
MR SHALIN MEHTA, SENIOR ADVOCATE with MR SHRINEEL M
SHAH(9374) for the Petitioner(s) No. 1
MR NANDISH Y CHUDGAR(2011) for the Respondent(s) No. 1
UNSERVED WANT OF TIM(31) for the Respondent(s) No. 2
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 CORAM: HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

                             Date : 23/04/2021

                            ORAL JUDGMENT

1. By way of this petition under Article 226 of the Constitution of India, the petitioner has asked for the following reliefs:­

(A) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing the Respondent Institute to treat the Petitioner as permanent Full Time Resident Medical Officer in the Respondent Institute w.e.f. the date of his joining the services;

      (B)     Your Lordships may be further pleased to issue a writ of





        C/SCA/1024/2021                                              JUDGMENT

mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing the Respondent Institute to grant the benefits of Pay Commission Pay­scales and other monetary benefits extended to the other Officers, Staff members and employees of Respondent Institute w.e.f. his date of joining along with arrears with 12% simple interest per annum;

(C) Your Lordships may be further pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing the Respondent Institute to grant the benefits of terminal benefits viz. Gratuity, Leave Encashment, Pensionary benefits etc. to the petitioner herein at par with other Officers, Staff members and employees of Respondent Institute after his superannuation from the service of Respondent Institute;

(D) During the pendency of this petition, Your Lordships may be pleased to direct the respondent Institute to continue the Petitioner herein upto December, 2023 i.e. upto completion of 70 years of his age and continue to grant him Pay­scales and other monetary benefits at par with other Officers, Staff members and employees of Respondent Institute till the final disposal of the present petitioner in the interest of justice;

(E) During the pendency of this petition, Your Lordships may be pleased to direct the respondent Authorities not to fill in the post of Medical Officer in place of Petitioner herein till the final disposal of the present petition in the interest of justice.

      (F)    ..............
      (F)    .............."

2. The case of the petitioner, in brief, is that the Indian Institute of Management Dispensary started functioning originally with appointment of Dr. B.G. Desai in 1963, who was a General Practitioner in Vadaj area of Ahmedabad. He was attending his own dispensary in the evening hours and one Mr. Yogendra Adhvaryu was an Attendant at the dispensary with effect from 1967 and was dispensing the medicines and performing the functions of dressing, first­aid, etc. On account of the increase in strength of the students and staff members, the dispensary started functioning from morning hours and one Dr. R.R. Joshi, MBBS and General Practitioner of

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Naranpura area was also appointed as Medical Officer in 1976 and along with him, one Mr. Dhanjibhai Patel joined as an Attendant performing the same duty like Mr. Yogendra Adhvaryu. On account of increase in the need at IIM campus in 1979, Dr. B.G. Desai contacted the present petitioner who was interviewed by Dr. V.S. Vyas, the then Director of the respondent Institute and selected the petitioner as Honorary Medical Officer on contract basis in IIM Dispensary with effect from 7.12.1979. On the same day, Dr. Dhanwant Shah, D.Pharm joined as Pharmacist. During the said time, Dr. B.G. Desai started staying at IIM Campus in House No.417 and thereby was attending the dispensary in the evening hours, whereas Dr. R.R. Joshi was staying outside and was attending the dispensary in the morning hours, while the petitioner was staying away from the campus and was attending the dispensary in the morning and evening hours as well as Practitioner. Due to increase in the workload, said Dr. B.G. Desai decided to move out of the campus and Dr. R.R. Joshi refused to stay in the campus, the petitioner was requested by the Institute to stay in the campus and as such, has started staying in the campus in House No.T­11 and started working as Resident Medical Officer but on same terms. The petitioner was still allowed continuing and practicing at his earlier residence in Vikram Apartment in Shreyas area and was attending both the campus as well as his private dispensary. By giving the details with regard to his merit, the petitioner has submitted that he was issued with letters from time to time, informing that his contract as Honorary Medical Officer has been extended for a further period, specified therein, and the grievance of the petitioner is that he was continued on Honorary Medical Officer status from time to time and no­doubt, honorarium has been extended from time to time as indicated in the petition. The grievance of the petitioner is that despite long standing career in serving with the respondent IIM, the petitioner has been paid a consolidated remuneration per month of Rs.75,000/­ with effect from 1.7.2020, over and above was paid consolidated

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remuneration for one month as bonus and medical reimbursement. It is further the case of the petitioner that the petitioner has served the respondent for a period of more than 40 years with utmost honesty and sincerity practically as full time Resident Medical Officer, he is not considered at par with the other regular permanent employees employed by the respondent Institute. The employees working under the petitioner in the dispensary are considered as regular employees and are entitled for revision of pay scale and other monetary benefits, whereas despite written representations from time to time, the respondent Institute had neither considered the same nor given any benefit and as such, submitted his last representation on 24.1.2020 requesting to continue him upto the age of 70 years with other monetary benefits.

3. The case of the petitioner is that the Director of the respondent Institute appreciated and acknowledged the long meritorious service vide letter dated 6.2.2020 but refused to grant request as prayed for, which has constrained the petitioner to submit another representation dated 5.3.2020 for seeking several benefits and to continue him till the age of 70 years at par with the other Central Government Institutes, etc. In addition to the aforesaid written representations, in the month of March 2020, another representation was submitted to the Chairperson of the Grievance Committee with regard to his claim, date of his retirement, his eligibility with respect to pay scale at par with other regular employees in the Institute and also to treat him as regularly appointed permanent employee, i.e. Full Time Resident Medical Officer of the Institute and to furnish all other incidental benefits with retrospective effect. In the past, the Medical Officers were continued beyond the age of 70 years as mentioned by him in the representation and by giving comparison of other employees' pay structure and status, a request was made to consider his case and since the same having not been paid any attention, present petition is

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brought before this Court for seeking the aforesaid reliefs since the tenure of the contract was to over by March 2020. To substantiate his claim, the petitioner has narrated some more details, but the main grievance which is voiced out is that though he is appointed as Honorary Medical Officer, he is to be treated as regularly appointed permanent employee, i.e. full time Resident Medical Officer and by treating him as such, give all monetary benefits which are attached to such post as if permanent and regular appointee with effect from his joining in service.

4. The petition is based upon the aforesaid factual background, appears to have been entertained by issuance of notice on 28.1.2021, but then a request was made by both learned advocates that since the pleadings are completed and the issue is in narrow compass, admission hearing be treated as practical final hearing as no much details are further to be dealt with, except which are pleaded in the proceedings and since the tenure was to over and based upon such consensus by learned advocates, the Court has taken up the petition for hearing.

5. Learned senior advocate Mr. Shalin Mehta, assisted by learned advocate Mr. Shrinil M. Shah appearing for the petitioner has vehemently contended that to continue the petitioner for a pretty long time under the contract is nothing but a clear example of arbitrariness and exploitation. It has been submitted that the petitioner has continued almost for a period of 40 years and as such, ought to have been treated as a permanent regular employee and must have been paid the benefits. It has been contended that though there is a nomenclature about honorary service, but in fact, the petitioner has not been used either as a part­time or as a honorary, on the contrary the petitioner has throughout worked as if he is a permanent employee attached to the Institute. Mr. Mehta has submitted that in fact, the petitioner was being paid bonus as well and it is obvious that

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the benefit of bonus is not to be paid to the part­timer or honorary employee and therefore, simply because honorarium is being received by the petitioner, his status ought to have been described and understood as a regular permanent employee.

6. Learned senior advocate Mr. Mehta has submitted that though an appointment was made for a limited period, but throughout the said period has been extended from time to time with consent of both the sides and time gap is such would not permit the respondent to arbitrarily treat the petitioner as merely an honorary employee and therefore, ought to have been regularized and due benefits must have been given to the petitioner. Mr. Mehta has submitted that it is a settled position of law that a contractual employee or an ad­hoc employee cannot be replaced by another set of contract or ad­hoc employee and that law has been laid down by catena of decisions and here is a case in which, recently an advertisement has been issued by the Institute indicating to fill up the post in place of the present petitioner through another contractual employee, i.e. Medical Officer, and that being the position, it is clearly violative of the settled position of law. Mr. Mehta has submitted that though the petitioner has reached a particular age, but the Ministry of Health and Family Welfare Department of the Government has already issued a guideline whereby engagement of contractual Doctors under CGHS is continued upto the age of 70 years and that has been approved by Hon'ble HFM. This reliance has been placed by referring to a document attached to the petition compilation on page 80 - a communication dated 16.1.2019, and as such, alternatively, the petitioner has submitted that at least, upto the age of 70 years, the petitioner deserves to be continued on the post. Mr. Mehta has submitted that throughout the entire career, as a Medical Officer, the petitioner has shown due diligence and to the utmost dedication has served the Institute and therefore, after almost a period of 40 years, just to discontinue him

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from the service by treating him merely a honorary and contractual employee, said action is not only deserved to be deprecated but is quite contrary to the concept of fair play in action and violative of Article 14 of the Constitution of India. Mr. Mehta by referring to certain documents attached to the petition compilation has submitted that had there been a mere honorary contractual engagement of the petitioner, then in a routine manner, the contract ought not to have been continued from time to time and as such, in true sense even the authority has also assumed to continue the petitioner as if he is a permanent employee and therefore, now to abruptly discontinue the petitioner is nothing but a clear example of capricious exercise of power. Mr. Mehta, with a view to strengthen his submissions, has made an attempt to rely upon some of the observations contained in the decisions delivered by the Division Bench of this Court in Letters Patent Appeal No.983 of 2017 (In the case of State of Gujarat Vs. Prajapati Hitesh Mohanlal) decided on 24.4.2018 as well as Letters Patent Appeal No.1155 of 2019 and allied matters (In the case of State of Gujarat and others Vs. Vinodbhai Shivrambhai Rathod and others) decided on 9.5.2019 and after referring to these judgments, Mr. Mehta has submitted that the reliefs which are prayed for deserve to be granted in the interest of justice.

7. Learned senior advocate Mr. Mehta has pointed out that in the dispensary, other paramedical staff are getting regular scale, like Junior Pharmacist­cum­ Senior Dresser, who retired in 2019, was paid terminal benefits to the extent of Rs.40 lac and is receiving pension of Rs.20,000/­ per month, whereas in case of doctors, i.e. Medical Officer, like the petitioner, a different yardstick is adopted by the respondent authority which is in no case said to be just and proper. Mr. Mehta has submitted that in past also, few Medical Officers who were attached to this respondent Institute had been continued for a pretty long period, whereas the petitioner is sought to

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be discontinued by not continuing even on the contract. Though specific representation has been made before the Grievance Committee of the respondent Institute, but the grievance is not redressed, which has constrained the petitioner to approach this Court by way of the present petition.

8. The petitioner has also pointed out in the petition to what extent, he has discharged his duties in the respondent Institute and at least, that could have been considered before taking any adverse decision against the petitioner. In any case, according to Mr. Mehta, if the petitioner is to be replaced by another Medical Officer on contractual basis, same is impermissible, and as such, the reliefs prayed for in the petition deserve to be granted. No other submissions have been made.

9. As against the aforesaid submissions, learned advocate Mr. Nandish Chudgar appearing for respondent No.1 authority has vehemently contended that the present Institute is not a Government body but it is an autonomous body and even by a later change, its autonomy is not taken away at least in respect of recruitment and employment and therefore, it is not open for the petitioner to seek any writ of mandamus as of right. It has further been contended that this running of dispensary is not a perennial function of IIM, but it is only with a view to provide medical assistance to the staff as well as to the students who are residing in the campus and nothing beyond that. Mr. Chudgar has submitted that this petitioner is a highly educated Medical Officer, was quite aware of his status in the employment from beginning, he was merely honorary part­time visiting Medical Officer and that too on a contractual basis and as such, he cannot at the fag­ end of his career claim the status s if he is a permanent regular employee of the Institute. The concept of honorarium is quite distinct from the other status of the employees and therefore, it is not open for the petitioner to seek any relief from this Court. Even otherwise, the

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contractual employment status is already well recognized by catena of decisions and there is no indefeasible right to claim continuance. According to Mr. Chudgar, the present petitioner is having his own pathology laboratory, is having his own source of separate income from different source of his own profession and he is merely discharging part­time honorary services to the Institute and nothing beyond that. The timings are fixed which are well accepted by the petitioner without any demur at the time when he was indicated and therefore, after this much period of time, now the petitioner cannot seek any relief as if he is to be treated as a permanent regular employee. Being a part­time honorary Medical officer, the petitioner is not estopped at any time by the Institute not to continue with his other parallel activity and he was and is free and at liberty to engage himself in his own way in the field of medical, which undisputedly the petitioner is having. The honorarium which is being paid cannot be equated with the salary, which is paid to the regular employee and therefore, looking to his status, it is not open for the petitioner to claim any writ as of right.

10. Learned advocate Mr. Chudgar has submitted that on the contrary, in addition to the honorarium which is being paid by the Institute to the petitioner for the purpose of giving medicines, he is paid separately by the Institute and is being reimbursed and additional charge is also being paid for visiting patient in the Institute and as such, he is not at all an employee in the manner in which the petitioner wants to introduce himself and as such, the claim which has been put forth is not permissible in the eye of law. Mr. Chudgar has further submitted that the circular which is sought to be relied upon about the age is being applied to CGFC and not to the autonomous body which is having its own way of working and as such, ex­facie, the circular is not applicable to the case of the petitioner. Apart from this, it is a settled position of law that in

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absence of any malice or any malafide, it is not open for the Court to compel an employer to continue the contract or to change the terms of contract and as such, since it is the exclusive domain of the respondent Institute and the status is well accepted by this petitioner, from beginning there is hardly any case made out to grant any relief. Apart from that, according to Mr. Chudgar, it is only for the management whether to continue the contract or not and here is a case in which the Institute after thoughtful consideration is of the view that the contract of honorary Medical Officer, i.e. the petitioner, is not deserving to be continued, there is hardly any case made out by the petitioner to seek any relief as prayed for. Mr. Chudgar has referred to certain averments which are made in the affidavit­in­reply exhaustively filed by the respondent Institute and thereby has contended that looking to the stand taken by the Institute, the petitioner is not to be made available any relief, simply because the petitioner is continued for quite some time, that would not give license to the petitioner to claim as of right to be treated as permanent full­ time employee engaged in the Institute and as such, this being merely a honorary discharge of the function as a Medical Officer on contract basis, there is no right vested in the petitioner to claim any relief.

11. Simply because in the past, some Medical Officers might have been continued, but that would not give any leverage to the petitioner to claim as of right. It has further been submitted that time and again, upon the request of the petitioner himself, the authority has considered to extend the contract and in those applications also, the petitioner has well accepted his status as honorary Medical Officer on a contract basis and that being so, over a period of time, the petitioner has acquiesced his right of raising any grievance to be treated as permanent employee and to claim any benefit out of it and thereto retrospectively and hence, Mr. Chudgar has vehemently submitted that no case is made out of any nature to grant any relief. It is

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exclusively for the Institute to deal with the petitioner and there is no malafide or any ill­motive of the respondent Institute against the petitioner. That being the situation, the petition does not deserve to be entertained.

12. Having heard learned advocates appearing for the sides and having gone through the material on record, it appears that before dealing with the central issue raised in the petition, following few facts are worth to be taken note of:­

(1) From the record, one communication reflecting on page 18­A, a typed copy of Annexure dated 17.12.1979 has indicated that the petitioner has been appointed as an Additional Honorary Medical Officer on the terms which are deduced in writing and this letter of appointment is well accepted by the petitioner. Not only this, the letter of appointment further indicates that the petitioner is Honorary Medical Officer and has indicated a specific term for such appointment. Condition No.(b) has indicated that the petitioner will be paid honorarium of Rs.400/­ per month at the relevant point of time and in addition to other terms, clause (e) has indicated that the rates chargeable by the petitioner for injection, medicines, visiting patients of their residence, etc. will be the same as approved by IIM from time to time and therefore, this basic terms are merely suggesting that the petitioner's services were merely an Honorary Medical Officer only and this contract has been extended from time to time, by consent of both sides.

(2) One another letter which has indicated that his honorarium has been increased from time to time and in an communication dated 21.2.2017, it has been mentioned that the honorarium monthly is increased to the extent of Rs.35,000/­ with effect from 1.11.2016. It has been mentioned clearly that the terms

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and conditions of contractual employment will remain unchanged. This is well accepted by the petitioner.

(3) A further enhancement has also been mentioned, but nowhere it has been indicated that the petitioner's salary is being increased. In fact, in almost all the correspondences, it is indicated that the petitioner is merely an Honorary Medical Officer attached to the Institute as a part­time Medical Officer and is being provided honorarium and not salary.

(4) The request letters which have been written by the petitioner for continuing his tenure also indicate that the petitioner is merely engaged on honorary basis on contract and his status in no case is possible to be treated as akin to regularly appointed officer, which appears to have been accepted by himself.

(5) Along with the affidavit­in­reply filed by the Institute, some correspondences written by the petitioner have also been attached, whereby on page 49, a letter has been written by the petitioner himself on 14.8.1984 has indicated that pursuant to the advertisement mentioned in Gujarat Samachar for the purpose of Part­time Honorary Resident Medical Officer, is inclined to apply and in second paragraph, it has been clearly mentioned that he will be completing 5 years at the Institute as part­time Honorary Medical Officer.

(6) Another document dated 27.10.1984 reflecting on page 50 also indicates that the petitioner's tenure/ appointment has been extended as Additional Honorary Medical Officer and honorarium is revised. This is also well accepted by the petitioner, which is not in dispute. Even a communication dated 29.10.1991 on page 52­ a communication written by the petitioner has also clearly indicated that the petitioner's

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contractual appointment as Additional Honorary Medical Officer is extended with a basic terms unchanged. There are several such other communications available on record, which indicate that the petitioner is merely Honorary Medical Officer attached to the Institute and nowhere there is an indication that his status as such which may be treated as akin to any regularly or permanent recruited officer.

(7) Apart from that, when the timings are fixed, as indicated in the communication dated 15.3.2000, on page 55, in which the petitioner's monthly honorarium has been revised and timings which have been mentioned were from 8.00 a.m. till 1.00 p.m. and from 3.30 p.m. to 6.30 p.m. and beyond this period, nowhere the Institute has prevented the petitioner from carrying out his own activity in the field of medicine and as such, from the basic documents, it appears that the petitioner was not treated at any time by the Institute as an employee regularly selected nor even petitioner claimed prior to this. Even it has been indicated in the correspondence that the petitioner has never raised any voice at any time before the recent grievance to the effect that he should be treated as a permanent employee and to be paid all benefits as if he is a permanent employee of the Institute. It is only at the fag­end when an indication was given that his tenure may not be extended, this grievance is tried to be voiced out and as such the honorary status being merely a contractual Medical Officer has remained unchanged throughout.

(8) Apart from that, the circular which is tried to be relied upon is referred to by the Ministry of Health and Family Welfare of CGHS Division of the Government of India and same is made applicable only to the contractual doctors who continued under CGHC and their age of continuance is provided at 70 years.

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Whereas, this Institute is an autonomous body, is having its own terms prescribed to the petitioner firth from very beginning and as such, passage of time which has been passed on in the Institute will not give any leverage to the petitioner to claim to be treated as permanent fill­time Resident Medical Officer and that too from the date of joining of the service. This appears to be an afterthought grievance tried to be voiced out when the petitioner realized that his tenure may not be continued any further.

(9) It also appears to this Court that there is a specific case made out by the respondent undisputedly against the petitioner that the petitioner is having his own medical practice, is having his own pathological laboratory and having the other source of income in addition to this part­time honorary service and throughout, the petitioner has never been prevented to carry out such other source of income. That being the position, the petitioner cannot be treated as permanent regular Medical Officer in the Institute.

(10) Even the pay slip, which is issued in favour of the petitioner is also indicating that it is not a salary but even an honorarium and as such, to raise this claim and to indicate all niceties at the fag­end of the service, no extraordinary equitable jurisdiction deserves to be exercised in favour of the petitioner.

13. In the backdrop of the aforesaid factual position prevailing on record, while examining the submissions of learned counsel for the petitioner, the Court deems it proper to examine the issue of part­time honorary services. Shorter Oxford dictionary meaning of 'Honorarium' is an honorary reward, a fee for professional service rendered and cannot prima facie be equated with salary. The Court is having an assistance of some of the decisions delivered by the Hon'ble Apex

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Court on the issue of honorary status in the employment.

(1) In the case of State of Karnataka Vs. C.K. Pattamashetty and Another reported in (2004)6 SCC 685, while dealing with an issue related to an honorary visiting professor to participate in teaching work, without any financial commitment, the Apex Court has observed in para 14 and 15 as under:­

14. A bare perusal of the aforementioned definition would, thus, clearly show that the appointed teachers with the University have been categorised in two categories; one who are salaried employees and the others who work on honorary basis. Those who were appointed to work on honorary basis, therefore, cannot be placed in the same class as that of the salaried employees. In that view of the matter, we are of the opinion that the respondent herein, who was appointed to work as visiting Professor on honorary basis, could not claim the financial benefits of the salaried employee of the University as a Lecturer or other teachers of the University.

15. Furthermore, if the respondent herein was not appointed as a member of the teaching staff by the University, the High Court, in our opinion, committed a manifest error in directing the University to treat the post held by him to be a teaching post. Such a direction by the High Court was unwarranted. If the respondent had undertaken the teaching work voluntarily knowing fully well that he would not be entitled to have any financial gain thereby, he cannot be granted the same benefits only because he undertook teaching job pursuant thereto. He, thus, could not be given any financial benefit of a teacher, including the benefit of age of superannuation.

(2) Yet another decision of a recent time delivered by the Apex Court in the case of Sushilaben Indravadan Gandhi Vs. New India Assurance Company Limited reported in AIR 2020 SC 1977, wherein while examining the issue about liability of insurer, the Apex Court had an occasion to observe the status of honorary employment and while dealing with the issue, of­ course in the context of liability to be fixed under the Motor Vehicles Act, but few observations which are related to honorary

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status in the service, the Court has considered, hence the relevant paragraphs the Court deems it proper to reproduce hereunder:­

26. Looked at in this light, let us now examine the agreement between Dr. Alpesh Gandhi and the Respondent No. 3. The factors which would lead to the contract being one for service may be enumerated as follows:

(i) The heading of the contract itself states that it is a contract for service.

(ii) The designation of Dr. Gandhi is an Honorary Ophthalmic Surgeon.

(iii) INR 4000 per month is declared to be honorarium as opposed to salary.

(iv) In addition to INR 4000 per month, Dr. Gandhi is paid a percentage of the earnings of the Respondent No. 3 from out of the OPD, Operation Fee component of Hospitalization Bills, and Room Visiting Fees.

(v) The arbitration clause which speaks of disputes arising in the course of the tenure of this contract will be referred to the Managing Committee of the Institute, the decision of the Managing Committee being final, is also a clause which is unusual in a pure master­servant relationship.

(vi) The fact that the appointment is contractual - for 3 years - and extendable only by mutual consent, is another pointer to the fact that the contract is for service, which is tenure based.

(vii) The fact that termination of the contract can be by notice on either side would again show that the parties are dealing with each other more as equals than as master­servant.

(viii) Clause XI of the agreement also makes it clear that the earlier appointment that was made of Dr. Gandhi would cease the moment this contract comes into existence, Dr. Gandhi no longer remaining as a regular employee of the Institute.

27. As against the aforesaid factors which would point to the contract the contract being a contract for service, the following factors would point in the opposite direction:

(i) The employment is full­time. Dr. Gandhi can do no other work, and apart from the seven types of work that Dr. Gandhi is to perform under Clause IV, any other assignment that may get created in the course of time may also be assigned to him at the employer's discretion.

   C/SCA/1024/2021                                          JUDGMENT



       (ii)    Dr. Gandhi is to work on all days except weekly offs and

holidays that are given to him by the employer. However, what is important is that though governed by the leave rules of the Institute as in vogue from time to time, Dr. Gandhi will not be entitled to any financial benefit of any kind as may be applicable to other regular employees of the Institute under Clause V.

(iii) Dr. Gandhi will be governed by the Conduct Rules of the Institute as invoked from time to time and as applicable to regular employees of the Institute.

(iv) That in the event of a proven case of indiscipline or breach of trust, the Institute reserves a right to terminate the contract at any time without giving any compensation whatsoever.

28. If the aforesaid factors are weighed in the scales, it is clear that the factors which make the contract one for service outweigh the factors which would point in the opposite direction. First and foremost, the intention of the parties is to be gathered from the terms of the contract. The terms of the contract make it clear that the contract is one for service, and that with effect from the date on which the contract begins, Dr. Gandhi shall no longer remain as a regular employee of the Institute, making it clear that his services are now no longer as a regular employee but as an independent professional. Secondly, the remuneration is described as honorarium, and consistent with the position that Dr. Gandhi is an independent professional working in the Institute in his own right, he gets a share of the spoils as has been pointed out hereinabove. Thirdly, he enters into the agreement on equal terms as the agreement is for three years, extendable only by mutual consent of both the parties. Fourthly, his services cannot be terminated in the usual manner of the other regular employees of the Institute but are terminable on either side by notice. The fact that Dr. Gandhi will devote full­time attention to the Institute is the obverse side of piece­rated work which, as has been held in some of the judgments hereinabove, can yet amount to contracts of service, being a neutral factor. Likewise, the fact that Dr. Gandhi must devote his entire attention to the Institute would not necessarily lead to the conclusion that de hors all other factors the contract is one of service. Equally important is the fact that it is necessary to state Dr. Gandhi will be governed by the Conduct Rules and by the Leave Rules of the Institute, but by no other Rules. And even though the Leave Rules apply to Dr. Gandhi, since he is not a regular employee, he is not entitled to any financial benefit as might be applicable to other regular employees. Equally, arbitration of disputes between Dr. Gandhi and the Institute being referred to the Managing Committee of the Institute would show that they have entered into the contract not as master and servant but as employer and independent professional. A conspectus of all the above would certainly lead to the conclusion, applying the economic reality

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test, that the contract entered into between the parties is one between an Institute and an independent professional.

14. From the aforesaid observations which have been made by the Apex Court on the status of honorary employment in the service, it appears to this Court that it is not open for the petitioner to claim any relief, as tried to be sought in the present proceedings. Since throughout has accepted the status as honorary Medical Officer purely on contractual basis with open eyes and continued to discharge without any demur and throughout even during the extended period of his contract, the basic terms and conditions have remained unchanged. That being the position, it appears to this Court that hardly any case is made out by the petitioner to call for any interference to grant any relief as prayed for.

15. Additionally, it is a settled position of law that the contractual employment has no any vested right to continue nor normally it is open for the Court to give any mandate to an employer to continue the contract or to change the status of the contractual employment in any manner. Once the same having been accepted by consent of both the sides without any demur and as such, the relevant observations contained in the following decisions of the Apex Court with regard to the status of even contractual employment, the Court would like to incorporate hereunder some of the relevant observations mentioned in the following decisions:­

(1) In the case of Yogesh Mahajan Vs. Professor R.C. Deka, Director, All India Institute of Medical Sciences, reported in (2018) 3 SCC 218, Hon'ble the Apex Court has observed in para 6,7 and 8 as under:­

6. It is settled law that no contract employee has a right to have his or her contract renewed from time to time. That being so, we are in agreement with the Central

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Administrative Tribunal and the High Court that the petitioner was unable to show any statutory or other right to have his contract extended beyond 30th June, 2010. At best, the petitioner could claim that the concerned authorities should consider extending his contract. We find that in fact due consideration was given to this and in spite of a favourable recommendation having been made, the All India Institute of Medical Sciences did not find it appropriate or necessary to continue with his services on a contractual basis. We do not find any arbitrariness in the view taken by the concerned authorities and therefore reject this contention of the petitioner.

7. We are also in agreement with the view expressed by the Central Administrative Tribunal and the High Court that the petitioner is not entitled to the benefit of the decision of this Court in Uma Devi. There is nothing on record to indicate that the appointment of the petitioner on a contractual basis or on an ad hoc basis was made in accordance with any regular procedure or by following the necessary rules. That being so, no right accrues in favour of the petitioner for regularisation of his services. The decision in Uma Devi does not advance the case of the petitioner.

8. Insofar as the final submission of the petitioner to the effect that some persons were appointed as Technical Assistant (ENT) in May 2016 is concerned, we are of the view that the events of 2016 cannot relate back to the events of 2010 when a decision was taken by the All India Institute of Medical Sciences not to extend the contract of the petitioner. The situation appears to have changed over the last six years and the petitioner cannot take any advantage of the changed situation. There is no material on record to indicate what caused the change in circumstances, and merely because there was a change in circumstances, does not mean that the petitioner is entitled to any benefit. On the other hand, it might have been more appropriate for the petitioner to have participated in the walk­in interview so that he could also be considered for appointment as Technical Assistant (ENT), but he chose not to do so.

(2) In the case of Oshiar Prasad and others vs. Employers in Relation to Management of Sudamdih Coal Washery of M/s. Bharat Coking Coal Ltd., Dhanbad, Jharkhand reported in (2015) 4 SCC 71, Hon'ble Apex Court has observed in para 25 as under:­

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25. It is a settled principle of law that absorption and regularization in the service can be claimed or/and granted only when the contract of employment subsists and is in force inter se employee and employer. Once it comes to an end either by efflux of time or as per the terms of the Contract of employment or by its termination by the employer, then in such event, the relationship of employee and employer comes to an end and no longer subsists except for the limited purpose to examine the legality and correctness of its termination.

16. On the basis of the aforesaid proposition of law laid down by the Apex Court as well as on the basis of the terms and conditions visible on record coupled with the honorary status having been accepted throughout by the petitioner, in the considered opinion of this Court, it is not open for the petitioner now to approach the Court with a request to treat him to be a permanent full time Resident Medical Officer irrespective of the fact as to whether he is continued for quite some time. Mere continuance in service as an honorary would not give any leverage to the petitioner to claim as if he is a permanent employee and seek all attached benefits.

17. Now, coming to the issue which has been tried to be raised by learned senior counsel Mr. Shalin Mehta for the petitioner that the petitioner is sought to be discontinued and some new Medical Officer is to be introduced again on contract basis, which is impermissible. But, looking to the correspondence, which took place between the petitioner and the respondent Institute, there is hardly any point available for the petitioner to agitate the grievance at this stage. Time and again, the petitioner himself made requests for renewal of contract, but the basic terms have not been changed, which is well accepted by the petitioner and apart from that, in one of the communications attached to the affidavit­in­reply on page 62, it has been categorically mentioned that no further extension would be considered and it was categorically mentioned that this request for final extension is allowed to enable the petitioner to plan out of his

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settlement which was already discussed and continued in the meeting with the Director. So, here is a case where the petitioner being highly educated Medical Officer himself was quite conscious about his honorary status in the service with the respondent Institute and as such, with open eyes, having accepted the terms, he cannot claim as if there is a vested right in him to be continued and it is open for the autonomous body to continue the contract or to make an alternate arrangement in place of such contract by further contract and in absence of any malice or arbitrariness, it is not open for the Court just to give a mandate upon the Institute to continue the contract, which is not inclined to be continued. From the pleadings, as indicated above, and from the basic averments which are made in the affidavit­ in­reply, it appears to this Court that there is no case made out by the petitioner to call for any interference.

18. The judgments have been cited by learned counsel for the petitioner to contend that it is not open for the respondent to replace the petitioner by another contractual person. No­doubt, the law is well settled but, in respect of different factual scenario and that too, in State Government and not in an autonomous body, like the respondent Institute. So, keeping in view the well settled principle of precedent in mind, this Court is of the opinion that the said decisions which have been relied upon are in different contextual circumstance and cannot be made applicable as a straitjacket formula. A slight change in the fact would make a world of difference in applying the principle as a precedent and that has been clearly mentioned in one of the decisions delivered by the Apex Court, in the case of State of Madhya Pradesh Vs. Narmada Bachao Andolan and Another reported in (2011) 7 SCC 639, Since the Court would like to rely upon the said decision, the relevant observations contained in para 64 are quoted hereunder:­

64. The Court should not place reliance upon a judgment without

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discussing how the factual situation fits in with a fact­situation of the decision on which reliance is placed, as it has to be ascertained by analyzing all the material facts and the issues involved in the case and argued on both sides. A judgment may not be followed in a given case if it has some distinguishing features. A little difference in facts or additional facts may make a lot of difference to the precedential value of a decision. A judgment of the Court is not to be read as a statute, as it is to be remembered that judicial utterances have been made in setting of the facts of a particular case. One additional or different fact may make a world of difference between the conclusions in two cases. Disposal of cases by blindly placing reliance upon a decision is not proper. (Vide MCD v. Gurnam Kaur, Govt. of Karnataka v. Gowramma and State of Haryana v. Dharam Singh)

19. Keeping in mind the aforesaid principle, while going through the decisions delivered by the Division Bench of this court in Letters Patent Appeal No.983 of 2017 decided on 24.4.2018, Hon'ble Division Bench was dealing with an issue in which the authority under the State has not regularized the contractual services and made the employee permanent. Now, for that purpose, in the very said judgment in para 52.6 from the decision of Hon'ble Apex Court reported in (2006)4 SCC 1, it has been clearly clarified that in absence of any policy of the State to grant permanency in any of the cadres at the District, Taluka or Gram Panchayat level, the issue of length of service of the petitioner deserves no adjudication, however in future if the State is coming out with some policy, petitioner shall be at liberty to raise the contentions with regard to the length of service from the date of initial appointment. Now, in this very decision of Hon'ble Division Bench, it has been stated that the prayer of writ petitioners to regularize their contractual services and grant of permanency came to be rejected. While hearing this appeal, a request was made by learned Assistant Government Pleader to deliberate upon the order and direction contained in para 52 of the impugned judgment and limited relief granted to the writ petitioners, so that without replacement of the other set of contractual employee, they can be permitted to continue as such on contractual employment and as such while going through the said decision, it appears that it is almost in a different

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background of facts in which the Court was dealing with the State authorities being a model employer and dealing with the writ petitioners of that judgment who were serving under Government. Whereas, here is a case in which the respondent is having a different status and being an autonomous body and undisputedly stated that its autonomy in respect of employment/ Recruitment has not been taken away, there is hardly any case made out by the petitioner to compel the respondent to grant the relief as prayed for by the petitioner and hence with due respect to the said judgment of the Division Bench, the Court is respectfully of the opinion that the said decision is not possible to be applied here on a different factual background as a straitjacket formula. Almost similar is the case with respect to another group of Letters Patent Appeals, headed by Letters Patent Appeal No.1155 of 2019 and allied matters decided on 9.5.2019, wherein also, the employees were serving in Health Department of the State of Gujarat at various health centers and were continued for quite some time. Hence, when factual background is altogether different in those two decisions which are sought to be relied upon by learned senior counsel for the petitioner, this Court is in respectful disagreement to apply the same here in the case on hand. Apart from this, what is the status of part­time employee is also well defined by yet another decision of the Apex Court in the case of State of Tamila Nadu, Through Secretary to Government, Commercial Taxes and Registration Department, Secretariat and Another Vs. A. Singamuthu reported in (2017)4 SCC 113, in which, some of the relevant observations, significant to the issue in question, are worth to be taken note of. Hence, having relied upon, the Court deems it proper to reproduce the relevant observations contained in para 15 and 16 hereunder:­

15. In a similar issue, concerning part­time sweepers, the State of Tamil Naduhas filed an appeal before this Court, and those appeals were allowed by this Court by judgment dated 21.02.2014

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in Secretary to Government, School Education Department, Chennai vs. Thiru. R. Govindasamy and Others (2014) 4 SCC 769. After referring to various judgments on this issue, in paras (5) to (7), this Court held as under:­

"5. The issue involved here remains restricted as to whether the services of the part­time sweepers could have been directed by the High Court to be regularised. The issue is no more res integra.

6. In State of Karnataka v. Umadevi (3) this Court held as under: "48. ... There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules."

7. In Union of India v. A.S. Pillai (2010) 13 SCC 448 this Court dealt with the issue of regularisation of part­time employees and the Court refused the relief on the ground that part­timers are free to get themselves engaged elsewhere and they are not restrained from working elsewhere when they are not working for the authority/employer. Being the part­time employees, they are not subject to service rules or other regulations which govern and control the regularly appointed staff of the department. Therefore, the question of giving them equal pay for equal work or considering their case for regularisation would not arise."

16. In State of Rajasthan and Others Vs. Daya Lal and Others(2011) 2 SCC 429, this Court has considered the scope of regularisation of irregular or part­time appointments in all possible eventualities and this Court clearly laid down that part­time employees are not entitled to seek regularisation as they do not work against any sanctioned posts. It was also held that part­time employees in government­run institutions can in no case claim parity in salary with regular employees of the government on the principle of equal pay for equal work. Relevant excerpt from the said judgment is as under:

"12. We may at the outset refer to the following well settled principles relating to regularization and parity in pay, relevant in the context of these appeals:

(i) High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularization,

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absorption or permanent continuance, unless the employees claiming regularization had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles14 and 16 should be scrupulously followed and courts should not issue a direction for regularization of services of an employee which would be violative of constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularized, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularized.

(ii) Mere continuation of service by a temporary or ad hoc or daily­wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be 'litigious employment'. Even temporary, ad hoc or daily­ wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularization, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularization in the absence of a legal right.

(iii) Even where a scheme is formulated for regularization with a cut­off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut­off date), it is not possible to others who were appointed subsequent to the cut­off date, to claim or contend that the scheme should be applied to them by extending the cut­off date or seek a direction for framing of fresh schemes providing for successive cut off dates.

(iv) Part­time employees are not entitled to seek regularization as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularization or permanent continuance of part time temporary employees.

(v) Part time temporary employees in government run institutions cannot claim parity in salary with regular employees of the government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute.

[See State of Karnataka v. Uma Devi (3), M. Raja v. CEERI Educational Society, S.C. Chandra v. State of Jharkhand, Kurukshetra Central Coop. Bank Ltd. v. Mehar Chand and Official Liquidator v. Dayanand]

20. Considering the overall aforesaid background of facts as well as the observations made by several decisions, as discussed above, this

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Court is of the clear opinion that the petitioner is not entitled to seek any relief as prayed for in the present petition. About applicability of the circular, as already discussed above, there is no vested right of the petitioner to stick to the employment upto the age which is mentioned by the circular for a different scheme altogether,which scheme has undisputely never been adopted or enforced on the respondent Institute. That being so, to continue in the honorary service even upto the age of 70 years, the Court is not impressed by the claim put forth by the petitioner, hence the same is devoid of any merit.

21. Additionally, it clearly appears from the record that from the beginning, when the petitioner was appointed as Part­time Medical Officer throughout till the contract is continued to be extended by the authority, he has not raised any grievance of whatsoever nature and now, at the fag­end on account of some change in the circumstance, has come out with a plea that he should be regularized and to be treated as if a permanent appointed employee and give all consequential benefits from date of joining, which are sought in the relief. To this submission, there is a clear answer from the decision delivered by Hon'ble the Apex Court in the case of State of Maharashtra and others Vs. Anita and Another reported in (2016) 8 SCC 293, wherein it was observed by the Apex Court that looking to the nature of appointment having duly accepted the terms of it, the petitioner is estopped from challenging the nature of appointment at the fag­end of service. Few observations contained in para 15 of the said decision, since relevant, the Court deems it proper to reproduce hereunder:­

15. The above terms of the agreement further reiterate the stand of the State that the appointments were purely contractual and that the respondents shall not be entitled to claim any right or interest of permanent service in the government. The appointments of respondents were made initially for eleven months but were renewed twice and after serving the maximum contractual period, the services of the respondents came to an end and the

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Government initiated a fresh process of selection. Conditions of respondents' engagement is governed by the terms of agreement. After having accepted contractual appointment, the respondents are estopped from challenging the terms of their appointment. Furthermore, respondents are not precluded from applying for the said posts afresh subject to the satisfaction of other eligibility criteria.

In addition to this, the Court is also of the opinion that had the petitioner been aggrieved by his nature of appointment as purely part­ time Medical Officer on contractual basis, he could have raised his grievance well within the time when his contract was extended from time to time upon his own request and ought not to have waited till the end of the situation, where the contract is extended only for the last time. The Court found that there is a gross unexplained laches and inordinate delay in raising this grievance by the petitioner and seeking the relief now to be treated as permanent employee. Right from beginning, the position is well accepted by the petitioner with open eyes being a highly literate fellow and conveniently, has stepped out to claim the reliefs mentioned in the petition having realized that his contract is not to be extended. Additionally, the Court found that there must exist a power of regularization in the respondent which the petitioner has not remotely pointed out before the Court about such kind of existing of power. Neither any reference is projected before this Court nor any supportive material is addressed to the Court to justify the reliefs claimed in the petition and as such, the petitioner has miserably failed in making out the case of seeking the relief of this nature. For pretty long period, being a professional qualified person, the petitioner has satisfied himself with the status of his employment as part­time Medical Officer on contractual basis in the Institute and as such, has acquiesced his right of agitating such kind of grievance which is tried to be voiced out in the year 2021.

22. Keeping in view the propositions of law laid down, as discussed above in the judgments, it appears that the petitioner has failed to

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establish any right to claim the reliefs as prayed for in the petition. Hence, the petition being devoid of any merit, stands DISMISSED with no order as to costs. Notice is discharged.

Sd/­ (ASHUTOSH J. SHASTRI, J.) OMKAR