Patel Ajaykumar Chaganbhai vs Surat Municipal Corporation
2021 Latest Caselaw 7400 Guj

    C/SCA/8069/2017                                  ORDER DATED: 01/07/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 8069 of 2017

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              PATEL AJAYKUMAR CHAGANBHAI & 21 other(s)
                              Versus
                  SURAT MUNICIPAL CORPORATION
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Appearance:
MR NAVIN N CHAUHAN(2255) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,3,4,5,6,7,8,9
MR SP MAJMUDAR(3456) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,3,4,5,6,7,8,9
MR KAUSHAL D PANDYA(2905) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                              Date : 01/07/2021

                               ORAL ORDER

1. On 15th June, 2021 the following order was passed:

"Heard learned advocate Mr. Shakti Jadeja for learned advocate Mr. S.P. Majmudar for the petitioners and learned Senior Advocate Mr. Prashant Desai assisted by learned advocate Mr. Kaushal Pandya for the respondent-Surat Municipal Corporation through video conference. Arguments are concluded.

To be listed for dictation of order on 24th June, 2021 at 2:30 pm."

2. On 24th June, 2021 due to paucity of time, the matter was adjourned today.

3. By this petition under Article 226 of the

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Constitution of India, the petitioners have prayed 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 directions holding and declaring that oral termination of the Some of the of the petitioners mentioned in para 8 of the present petition, made by the respondent-Corporation is absolutely illegal, unjustified and further be pleased to quash and set aside such oral termination of the petitioners, who were serving as contractual third grade computer operator (clerk);

(B) 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-Corporation to reinstate the petitioners with full backwages and all consequential benefits in their original posts;

(c) 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 directions directing the respondent-Corporation to regularize the service of the petitioners;

ALTERNATIVELY

(C) YOUR LORDSHIPS may be pleased the issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions directing the respondent-Corporation to treat the petitioners as regular appointees in the post of computer operator (clerk) class third grade and continue the petitioners in the said posts on the regular basis at par with another permanent employees of the corporation and to extend then the

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benefits and status of permanent employees retrospectively from the date of completion of 240 days of service from their dates of joining.

(D) 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-Corporation to permanently restraining the respondent from recruiting or appointing any employee to any of vacant posts of computer operator, which are fallen vacant due to termination of the some of the petitioners;

(E) During pendency and final disposal of the present applications, YOUR LORDSHIPS may be pleased to direct the respondent-Corporation to permit the terminated petitioners to serve on their original posts as a computer operator (clerk) with the respondent-Corporation;

(F) Pass any such other and/ or further orders that may be thought just and proper, in the facts and circumstances of the present case;"

4. Learned advocate Mr. Shakti Jadeja has tendered the draft amendment to add the name of one Pinky Ashokbhai Parmar as petitioner which is granted.

5. Brief facts of the case are that the petitioners were working on the post of Computer Operator (Clerk) through contractor with the respondent Surat Municipal Corporation for different years ranging from 1.5 years to 12 years and the services of some of the petitioners were orally terminated as mentioned in the statement at Annexure-A to the petition.

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5.1) It is the case of the petitioners that the petitioners were working through contractor namely Akar HR Management Pvt. Ltd., Shiv Sai computers with the respondent Corporation. The respondent Corporation had issued advertisement in the year 2013 for various posts including 404 posts of Clerk (Grade-III). Pursuant to such advertisement, against 404 regular posts, total 774 persons were given appointment and waiting list of 888 persons was published.

5.2) Some of the petitioners appeared in the examination conducted pursuant to Staff Selection Committee reports dated 13.12.2016 and 15.12.2016 but failed to clear such examination.

5.3) The petitioners have successfully completed the computer course and are having enough experience as per the requirement mentioned in the advertisement and are more technically sound as required for the said post compared to other candidates who are selected pursuant to the said advertisement.

5.4) It is the case of the petitioners that since the petitioners are working since many years; they are required to be continued in services; their services are required to be regularised and their oral termination is required to be set aside by reinstating the

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petitioners with full back-wages and all consequential benefits.

5.5) It is also the case of the petitioners that respondent Corporation is also maintaining attendance sheet and provident fund accounts of the petitioners which show that the petitioners have rendered services of more than 240 days in every year of their respective services. The petitioners have therefore, approached this Court by filing the present petition with the aforesaid prayers.

6. Learned advocate Mr. Shakti Jadeja appearing for learned advocate Mr. S.P. Majmudar submitted that the respondent Corporation has adopted unfair practise while employing the petitioners by recruiting them through outsourcing agency, though there is requirement in the Corporation for Computer Operators, only with a view to deny the legitimate benefits and rights of the petitioners as the employee of the Corporation so as to exploit the petitioners.

6.1) It was submitted that the petitioners are working on the post of Computer Operators (Clerk) Grade-III on temporary contracts and fixed' term basis though there is permanent set- up as proposed and approved by the respondent- Corporation. It was therefore, submitted that the petitioners ought to have been regularly

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appointed giving them all the benefits of a regular employee instead of taking their services through contractors on contractual basis for a fixed period on fixed salary.

6.2) Learned advocate Mr. Jadeja further submitted that after terminating the services of the petitioners, the respondent Corporation have again appointed fresh Computer Operators (Clerks) Grade-III as contract employees and therefore, action of the respondent Corporation is arbitrary and illegal.

6.3) In support of his submissions, learned advocate Mr. Jadeja relied upon the following decisions :

i) In case of Mukundbhai Mangaldas Shrimalai v. State of Gujarat reported in 2016(3) LLJ 700 [Judgment dated 30.06.2016 rendered in Special Civil Application No.11028/2001], wherein this Court applying the provisions of Section 25F of the Industrial Disputes Act, 1947 held the oral termination to be null and void.

ii) In case of Makwana Sankarbhai Parshottambhai v. AMC reported in CLR 2016 3 924 (Judgment dated 05.08.2016 rendered in Special Civil Application No.6871/2002), wherein the termination orders passed by the respondent Ahmedabad Municipal Corporation was held to be

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in violation of the provisions of section 25F of the Industrial Disputes Act, 1947.

iii) In case of Amarkant Rai v. State of Bihar reported in 2015 (8) SCC 265, wherein the Apex Court considering the facts and circumstances of the case that the appellant had served the University for more than 29 years on the post of Night Guard and he has served the college on daily wages, in the interest of justice, directed the authorities to regularise the services of the appellant retrospectively relying upon the exception carved out in paragraph no. 53 of the decision in case of Secretary, State of Karnataka & ors. v. Umadevi (3) & ors. reported in (2006) 4 SCC 1.

iv) In case of State of Karnataka v. M.L. Kessari reported in 2010 (9) SCC 247, wherein the Apex court ordered to regularise the service as one time measure by the State of Karnataka.

v) In case of State of Haryana v. Piara Singh reported in 1992(4) SCC 118, wherein the Apex Court directed to regularise the services on the ground that the employees were daily wagers and casual workers and had completed services of four to five years.

7. On the other hand, learned Senior Advocate Mr. Prashant Desai assisted by learned advocate Mr.

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Kaushal Pandya for the respondent Surat Municipal Corporation submitted that the petitioners are not the employees of the respondent Corporation as they are employed by the contractor providing man-power resource to the respondent Corporation and such contractor/ agency to supply man-power was appointed after following due procedure including issuance of tender and work order to supply the man-power for a particular job of Computer Operators required in addition to regular staff for the work like professional tax collection, civic centre work etc.

7.1) It was submitted by the learned Senior Advocate Mr. Desai that the respondent Corporation is making payment to the agency and the agency in turn pays the salary to the petitioners and so the petitioners are not getting the salary from the respondent Corporation and as such, the petitioners cannot be said to be employees of the respondent Corporation and are not entitled for the relief as prayed for.

7.2) The learned Senior Advocate Mr. Desai relied upon the following averments made in the affidavit in reply filed on behalf of the respondent Corporation :

"10. I submit that the as soon as contract gets over the respondent corporation

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initiates the fresh tender procedure as per requirement. so, Respondent Corporation never terminates the services of petitioners as they are not appointed by the respondent corporation. It is further submitted that the recently respondent corporation has entered in to agreement/contract with m/s. Akar H.R. Management Pvt.Ltd.For providing computer operator for the period of 01.08.2017 to 31.07.2018 as the tenure of earlier contract was over.The copy of the work order dtd.26.07.2017 annexed herewith as annexure:R/II

11. I submit that the appointment of petitioner was not regular appoint by following recruitment Rules therefore, the relief as prayed for may not be granted and petition may be dismissed.

12. I submit that in the year 2013 the respondent corporation had invited application for the post of class-III clerk through advertisement dtd.14.05.2013 it is submitted that 12 petitioners had applied in response to advertisement however, they failed to clear the written test. The list of the unsuccessful petitioners annexed herewith as annexure:R/III.

13. I submit that SMC has entered in to agreement with M/s, Sukani H.R Management Pvt.Ltd, M/s,Akar H.R Management Pvt.Ltd., Akar Computer software management and services, M/s., Shiv sai computer to supply computer operators,I further submit that some of the petitioners were working and some of them are still working under these contractor . I submit that the petitioners have not joined the contractor as party to this proceeding therefore; only on this ground the present petition may be dismissed by this Hon'ble court."

Relying upon above averments, the learned

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Senior Advocate Mr. Desai therefore, submitted that the petition is required to be dismissed.

8. Having heard the learned advocates for the respective parties and having gone through the materials on record, it is not in dispute that the petitioners were appointed by the contractor/agency who had been entrusted with the work of supply of man-power to the respondent Corporation. As the contract was over, respondent Corporation initiated fresh tender procedure as per the requirement and therefore the say of the petitioners that respondent Corporation has terminated the services of the petitioners is not true and correct as the petitioners were never appointed by the respondent Corporation.

9. It is also not in dispute that the petitioners are not regularly appointed by following the recruitment rules of the respondent corporation. Out of 22 petitioners, 12 petitioners had applied pursuant to the advertisement issued by the respondent Corporation in the year 2013 but they failed to clear the written test and as such the petitioners now cannot claim for regularisation of their services by relying upon the various judgments rendered by this Court as well as Apex Court in relation to the provisions of Section 25F of the Industrial Disputes Act, 1947. Reliance placed on behalf of the

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petitioners on the decisions of Apex Court also cannot help the petitioners because such decisions are rendered in case of the employees who are employed by the respective State Government either as daily wager or on temporary basis and who were rendering their services for sufficient number of years more particularly, more than 10 years as per the exception carved out in paragraph no. 53 of the decision of Apex Court in case of Uma Devi (supra) which reads as under :

"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be

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set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."

10. In facts of the case, the petitioners who are not employed by the Surat Municipal Corporation cannot claim regularisation or any benefit as prayed in this petition as they were employed by the contractor or agency through the respondent Corporation which was entrusted the work to supply man-power. Merely because the petitioners are working for the respondent Corporation, they are not entitled to get the benefits of regular employees as held by the Apex Court in the decision in case of Uma Devi (supra) as under :

"47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot

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also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post."

11. In view of the settled legal position, no case is made out by the petitioners to grant any of the reliefs prayed by them in this petition. Petition is accordingly dismissed. Notice is discharged. No order as to costs.

(BHARGAV D. KARIA, J) RAGHUNATH R NAIR