Patel Savan Bharatbhai vs State Of Gujarat
2021 Latest Caselaw 5263 Guj

      C/LPA/776/2020                                        CAV JUDGMENT




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/LETTERS PATENT APPEAL NO. 776 of 2020
          In R/SPECIAL CIVIL APPLICATION NO. 6526 of 2020
                                With
              CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
             In R/LETTERS PATENT APPEAL NO. 776 of 2020
                                With
          CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2021
             In R/LETTERS PATENT APPEAL NO. 776 of 2020
                                With
              R/LETTERS PATENT APPEAL NO. 777 of 2020
            In SPECIAL CIVIL APPLICATION NO. 6981 of 2020
                                With
          CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2021
             In R/LETTERS PATENT APPEAL NO. 777 of 2020
           In SPECIAL CIVIL APPLICATION NO. 6981 of 2020
                                With
              CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
             In R/LETTERS PATENT APPEAL NO. 777 of 2020
           In SPECIAL CIVIL APPLICATION NO. 6981 of 2020

FOR APPROVAL AND SIGNATURE:

HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH
and

HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
==========================================================

1 Whether Reporters of Local Papers may be allowed to Yes see the judgment ?

2 To be referred to the Reporter or not ? Yes

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

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

========================================================== PATEL SAVAN BHARATBHAI Versus STATE OF GUJARAT ==========================================================

Appearance:

MR IH SYED, SENIOR ADVOCATE with MR MEET A SHAH for the Appellant(s) No. for the RESPONDENT(s) No. MR MITUL SHELAT ADVOCATE for MS DISHA N NANAVATY for the Respondent(s) No. ==========================================================

CORAM: HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH and HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

Date : 27 /04/2021

CAV JUDGMENT (PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH)

1 By means of these appeals under Clause 15 of

the Letters Patent, both the appellants have prayed for

setting aside order passed by learned Single Judge dated

08.10.2020 and to further quash and set aside the

termination / relieving order dated 08.10.2020 passed by

the respondent University i.e. Babasaheb Ambedkar Open

University (hereinafter referred to as "the University").

2 The present appellants were appointed on

contractual basis for a period of 11 months on non-teaching

post on completely ad hoc / temporary basis against an

advertisement dated 31.08.2016. They were appointed as

Assistants vide orders dated 06.06.2017 and 03.07.2017 for

a fixed salary of Rs.12,000/- on ad hoc / temporary basis

for the period of contract. Thereafter on 25.05.2018 they

were given a further appointment for a fixed period against

fixed salary of Rs.13,200/-.

3 The competent body of the University in its

meeting held on 09.10.2019 and 24.10.2019 took a decision

to fill up the ad hoc / temporary contractual non-teaching

posts through outsourcing. This would result into

discontinuance of the appellants. Further in continuation of

the earlier meetings, the competent body of the University

on 10.12.2019 is said to have taken decision to discontinue

the appellants and other contractual employees. It is further

stated that the Board of Management of the University vide

resolutions dated 18.01.2020 and 24.01.2020 resolved to

approve the earlier decisions of the Committee of the

University dated 09.10.2019 and 10.12.2019. It is further

case of the appellants that the University gave further

appointment to the appellants vide letter dated 17.02.2020

for a fixed salary of Rs.13,200/-.

4 The appellants approached this Court by way of

Special Civil Application Nos. 6981 and 6526 of 2020

challenging the decision of the Committee of the University

and Board of Management dated 24.10.2019 and all

subsequent decisions. After exchange of affidavits, learned

Single Judge vide judgment dated 08.10.2020 dismissed the

writ petitions. Aggrieved by the said judgment of the learned

Single Judge dated 08.10.2020 the present appeals have

been filed.

5 During the pendency of the appeals, the

University issued an advertisement inviting e-tenders for

engaging an outsourcing agency to provide non-teaching

staff on temporary / contractual basis for the post of

Assistant, Data Entry Operator, Clark cum Sahayak cum

Computer Typist, etc. through outsourcing. Challenging the

said advertisement dated 01.12.2020, the appellants

preferred Civil Application No.1 of 2021 in both the appeals.

6 During the hearing of the Civil Applications, the

learned counsels for the parties agreed that the main Letters

Patent Appeals may be heard and decided rather than

deciding the Civil Applications alone. Thus, with the consent

of the learned counsels for the parties, we have heard the

appeals. Learned counsels for the parties were given

opportunity to provide their written briefs which also they

have provided and we have perused the same.

7 We have heard Mr. I.H.Syed, learned Senior

Advocate assisted by Mr. Meet Shah, learned counsel for the

appellants and Mr. Mitul Shelat, learned counsel appearing

for the University in both the appeals.

8 The learned Single Judge dismissed the writ

petitions on the following findings:

[1] The writ petitioners - appellants were engaged on

contractual basis as was clearly evident from the above

judgment.

[2] The appellants having accepted such employment

cannot claim as a matter of right that they were

appointed against a post.

[3] The arguments of the petitioners that they had

earlier worked from 2008 to 2017 and as such they

had a right to be continued in employment had no legs

to stand as the subsequent appointment w.e.f. 2017

was against an advertisement and would thus be as

per the terms of the contract.

[4] There were disputed questions of facts as would

be evident from the pleadings on record and as such

the same could be examined only by a competent

forum and not under Article 226 of the Constitution.

[5] The learned Single Judge however observed that

the respondent University may consider the case of re-

engaging the petitioners, if it is ultimately found

suitable for the University in the event their

engagements are replaced by outsourcing agency.

With the above observations, both the writ petitions

were dismissed.

9 Mr. Syed, learned Senior Advocate appearing for

the appellants has raised several grounds in these appeals

and placed reliance upon number of judgments.

9.1 It is submitted by Mr. Syed that ad hoc /

temporary / contractual employees cannot be replaced by

another set of ad hoc / temporary / contractual employees

and such replacement can be only made by way of regularly

selected candidates. In support his submission Mr. Syed

has relied upon the following judgments:

[i] State of Haryana & Ors. Vs. Piara Singh & Ors.

Reported in (1992) 4 SCC 118.

[ii] Kanubhai Karshanbhai Bhava vs. State of

Gujarat & Ors. [order dated 23.09.2015 rendered in

Special Civil Application No.8588 of 2015 and

allied matters].

[ii] Navinbhai Dhirajbhai Kambli & Ors. vs. State

of Gujarat [judgment dated 02.09.2014 in Special

Civil Application No.2155 of 2013].

[iii] Gujarat Pollution Control Board vs. Navinbhai

Dhirajbhai Kambli [judgment dated 11.03.2015

rendered in Letters Patent Appeal No.1203 of 2014

in Special Civil Application No.2155 of 2013].

[iv] Ruchi Sanatkumar Joshi & Ors. vs. State of

Gujarat & Ors. [order dated 03.02.2020 in Special

Civil Application No.5965 of 2017 and allied

matters].

[v] Prajapati Hitesh Mohanlal & Ors. vs. State of

Gujarat & Ors. [judgment dated 01.07.2016 in

Special Civil Application No.13621 of 2014 and

allied matters].

[vi] State of Gujarat vs. Prajapati Hitesh Mohanlal

[order dated 24.04.2018 in Letters Patent Appeal

No.983 of 2017].

[vii] Narinder Singh Ahujna & Ors. vs. The

Secretary, Ministry of Health and Family Welfare &

Ors. [order dated 03.11.2014 in W.P.(C) 1741/2014,

C.M. No.3645/2014].

[viii] Pradeep Navinbhai Patel & Ors. vs. State of

Gujarat [judgment dated 31.01.2014 in Special

Civil Application No.13200 of 2013].

[ix] State of Gujarat & Anr. Vs. Jain Sumit

Rajeshbhai & Ors. [judgment dated 18.02.2015 in

Letters Patent Appeal No.1046 of 2014 and allied

matters].

9.2 It is next submitted by Mr. Syed that there are

vacancies existing in the University, but despite the same

they have discontinued the appellants. The stand of the

University that the services of the appellants are not

required where they were earlier working is misleading and

fallacious.

9.3 Further submission on behalf of the appellants is

that persons junior to the appellants, who have been

engaged on non-teaching posts similar to that of the

appellants although on contract basis and much after

engagement of the appellants are being continued and as

such the action of the University is arbitrary and illegal.

Reliance has been placed upon the judgment in the case of

Om Prakash Goel vs. Himachal Pradesh Tourism

Development Corporation Ltd. Shimla & Anr. Reported

in (1991) 3 SCC 291.

9.4 It is next submitted that the action of the

University in discontinuing the present appellants is

malafide and is actually exploitation. The University is

deliberately not appointing regular staff and continuing with

contractual employees and exploiting them time and again

for vested reasons. On this point, reliance is placed on the

following judgments:

[i] C/M Lala Babu Baijal Memorial Inter College &

Anr. vs. State of U.P. & Anr. [judgment dated

21.03.2012 in WRIT - C No. - 11760 of 2011].

[ii] Navinbhai Dhirajbhai Kambli & Ors. vs. State

of Gujarat Through Secretary & Ors. [judgment

dated 02.09.2014 rendered in Special Civil

Application No.2155 of 2013].

[iii] Gujarat Pollution Control Board vs. Navinbhai

Dhirajbhai Kambli & Ors. [judgment dated

11.03.2015 rendered in Letters Patent Appeal

No.1203 of 2014 in Special Civil Application

No.2155 of 2013].

[iv] State of Haryana & Ors. Vs. Piara Singh & Ors.

Reported in (1992) 4 SCC 118.

9.5 It is lastly submitted that the appellants have

been appointed after following selection procedure against

an open advertisement, and therefore, discontinuing them

from service by treating them to be contractual employees is

contrary to public policy and amounts to clear exploitation.

The hire and fire policy of the University is in violation of

Articles 14 and 16 of the Constitution of India. Reliance has

been placed upon the decision of the Apex Court in the case

of State of Punjab vs. Jagjit Singh & Ors. Reported in

(2017) 1 SCC 248.

10 Mr. Mitul Shelat, learned counsel for the

respondent University submitted that the judgment of the

learned Single Judge does not suffer from any infirmity.

According to him, the scope of the present appeals is only to

test the correctness of the judgment of the learned Single

Judge based upon the material which was available before

him. It is further submitted that the challenge by way of the

Civil Applications to the advertisement inviting e-tenders to

engage an outsourcing agency is beyond the scope of these

appeals. It is further submitted that the appellants'

appointment being contractual in nature they had no right

to challenge the said tender and even if they have any right

the same would be a separate cause of action and cannot

form part of these appeals.

10.1 Mr. Shelat very emphatically submitted that the

work for which the appellants were engaged no longer

existed as such their engagements were not continued any

further. According to him it is not a case of replacement of

ad hoc / temporary / contractual by another set of ad hoc /

temporary / contractual employees. It is a clear case of not

required. The submission to the contrary according to Mr.

Shelat is misconceived and is being misrepresented.

10.2 Mr. Shelat further submitted that the findings of

the learned Single Judge being pure finding of facts, the

same could not be looked into these appeals and the

appeals deserve to be dismissed.

10.3 It is also submitted that the appellants if

aggrieved by their discontinuance being illegal, they may

agitate the same before appropriate forum by drawing

appropriate proceedings.

10.4 It is also submitted by Mr. Shelat that the

standard of review to be applied in intra court appeal is well

settled in a number of judgments of the Supreme Court and

the High Courts. It would not be proper for appellate court

to substitute its views with the views of the learned Single

Judge merely because another view or better view is

possible, unless the finding of the Single Judge is perverse.

10.5 It is next submitted that the appellants are

contractual employees and a contractual employee has no

right to continue in contractual employment. It is further

submitted that a writ petition seeking such relief is not

maintainable.

10.6 Mr. Shelat has relied upon the following decisions

in support of his submissions:

[i] Management of Narendra & Company Private

Limited vs. Workmen of Narendra & Company

reported in (2016)3 SCC 340.

[ii] Mahavirsinh Narapatsinh Jadeja vs.

Saurashtra University [Oral judgment dated

28.07.2020 rendered in Letters Patent Appeal

No.337 of 2020]

[iii] Uttar Pradesh Cooperative Spinning Mills

Federation Limited & Ors. Vs. Amar Nath Dwivedi

and Anr. Reported in (2018) 16 SCC 451.

[iv] Yogesh Mahajan vs. Professor R.C.Deka,

Director, All India Institute of Medical Sciences

reported in (2018) 3 SCC 218.

[v] Rajasthan State Roadways Transport

Corporation vs. Paramjeet Singh reported in (2019)

6 SCC 250.

[vi] Sunil Kumar Biswas vs. Ordnance Factory

Board and Ors. Reported in (2019) 15 SCC 617.

[vii] Union of India & Ors. Vs. Lieutenant Colonel

Dharamvir Singh reported in (2019) 15 SCC 793.

[viii] Sanjay Kumar & Ors. Vs. Narinder Verma

& Ors. Reported in (2006) 6 SCC 467.

11 None of the arguments advanced by Mr. Syed,

learned Senior Advocate appearing for the appellants appeal

to us. This is not a case of replacement of temporary ad hoc

employees by another set of ad hoc or temporary employees.

The appellants were engaged on contractual basis for fixed

period at fixed pay for specific work. Their period of

engagement having come to an end there is no illegality in

discontinuing their services. The appellants enjoyed the

extension as and when the University thought it proper to

grant them depending upon the requirement of work.

11.1 The submissions of Mr. Syed would only attain

significance only if it is established that the work which was

taken from the appellants is now being outsourced through

an agency for fresh engagement. But, according to the

University, as per the stand taken in the affidavit filed by it

that the work which the appellants were discharging at the

respective center is no longer required.

11.2 This is not a case of ad hoc replacing ad hoc

employee. If the appellants were engaged for a specific work

and their requirement was for a fixed period and if the same

is disputed, apparently such disputed facts cannot be

resolved under writ jurisdiction.

11.3 The next submission that there are vacancies in

the University against which the appellants could be

continued also fails for the above reason. Lastly that the

University is exploiting by not filling up the regular posts

would be a policy decision of the University and this Court

cannot enter into that aspect. Insofar as Civil Applications

are concerned, the challenge to the e-tender for engaging an

outsourcing agency cannot be entertained for the reason

that it was not the subject matter before the learned Single

Judge.

11.4 The judgment in the case of State of Haryana

and others vs. Piara Singh and others (supra), would

have any application to the facts of the present case. It was

a case considering the regularization of the ad hoc /

temporary employees and the observations made in

paragraphs 46 and 47 to the effect that an ad hoc or

temporary employee should not be replaced by another ad

hoc or temporary employee but should be replaced by a

regularly selected candidate in order to avoid arbitrary

action on the part of the employer. In the present case, the

stand of the University is that the University does not

require any further services in the office / department

where the appellants were working. So it is not a case of

replacement of ad hoc by ad hoc or contractual by

contractual. The question is as to whether the work exists

for which services would be required or not would be a

question of fact and can be only decided by leading evidence

by the parties. Such disputed question or issue cannot be

decided under Article 226 of the Constitution.

11.5 The other judgments viz. [i] Pradeep Navinbhai

Patel and others (supra), [ii] State of Haryana and others

vs. Piara Singh and others (supra), [iii] Kanubhai

Karsanbhai Bhava (supra), [iv] Navinbhai Dhirajbhai

Kambli and others (supra), [v] Ruchi Sanatkumar Joshi

and others (supra), [vi] Prajapati Hitesh Mohanlal

(supra), [vii] Narinder Singh Ahuja (supra), and [viii]

Committee of Management Lala Babu Baijal Memorial

Inter College and another (supra) relied upon by Mr.

I.H.Syed relate to replacement of ad hoc / temporary /

contractual employees by a fresh set of ad hoc /

temporary / contractual employees. In none of the cases it

was an issue as to whether the services of those who are

being replaced or that the work which was being performed

by those, who were discontinued was still required or not?

In the present case, the specific stand of the University is

that the work which was being performed by the appellants

was no longer required by the University to be continued

and as such there was no question of any replacement of

the present appellants by the University through an

outsourcing agency for carrying the work which they were

doing. The requirement of the University is for other posts,

but not for the work which was being carried out by the

appellants. As such, none of the judgments relied upon by

the appellants would have any application to the facts of the

present case.

11.6 In the case of State of Punjab vs. Jagjit Singh

and others (supra), it related to the applicability of the

principles of equal pay for equal work and thus will have no

application to the facts of the present case.

11.7 None of the other judgments relied upon by Shri

Syed has any applicability to the facts of the present case in

view of the specific stand of the University that the work for

which the appellants had been engaged no longer exist and

as such there would no case of any replacement of the

appellants by a fresh set of contractual employees.

11.8 On the other hand, the judgments relied upon by

Mr. Shelat on different aspects may have some relevance,

but once we have held that the appellants have not been

able to make out a case in order to find any fault with the

judgment of the learned Single Judge, we do not propose to

burden this judgment by referring to the case law relied

upon by Mr. Shelat. We, thus do not find any infirmity in

the judgment of the learned Single Judge warranting

interference in appeals.

12 For all the reasons recorded above, both the

appeals lack merit and accordingly they are dismissed.

Connected Civil Applications also stand disposed off.

(VIKRAM NATH, CJ)

(ASHUTOSH J. SHASTRI, J) GAURAV J THAKER /P. SUBRAHMANYAM