Gujarat High Court
Jani Chintan Hareshkumar vs Managing Director - Paschim ... on 18 November, 2021
Bench: A.S. Supehia
C/SCA/3623/2013 JUDGMENT DATED: 18/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
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R/SPECIAL CIVIL APPLICATION NO. 3632 of 2013
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R/SPECIAL CIVIL APPLICATION NO. 6953 of 2013
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CIVIL APPLICATION (FOR FIXING DATE OF HEARING) NO. 1 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 6953 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA
==========================================================
1 Whether Reporters of Local Papers may be allowed NO
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 ?
==========================================================
JANI CHINTAN HARESHKUMAR
Versus
MANAGING DIRECTOR - PASCHIM GUJARAT VIJ CO LTD (PGVCL) & 3
other(s)
==========================================================
Appearance:
MR PREMAL NANAVATI FOR MS.DILBUR CONTRACTOR(6388) for the
Petitioner(s) No. 1
MR DIPAK R DAVE(1232) for the Respondent(s) No. 1,2
RULE SERVED(64) for the Respondent(s) No. 1,2,3,4
==========================================================
CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 18/11/2021
COMMON ORAL JUDGMENT
1. Since the common issue is involved in the
present writ petitions, the same are heard and
C/SCA/3623/2013 JUDGMENT DATED: 18/11/2021
decided analogously by the common judgement and
order.
2. All the writ petitioners were appointed as
Vidhyut Sahayak (Junior Engineers) in the
respondent-Company on contractual basis/ the
petitioners have prayed for directions directing
the respondent-Company to permanently appoint them
on the post of Vidhyut Sahayak (Junior Engineers)
and restrain the respondent-Company from relieving
them from the service.
3. It is the case of the petitioners that the
respondent-Company had appointed them through the
recruitment process, after issuance of
advertisement on contractual basis and they could
not have been relieved from service without prior
notice.
4. Learned advocate Mr.Nanavati appearing for the
petitioners has submitted that the petitioners were
selected in the selection process conducted
pursuant to the advertisement issued in 2010 and
their contract was subsequently extended / renewed,
establishes the fact that the petitioners are
qualified for the selection/recruitment and there
is no justification in terminating the service of
the petitioners. It is submitted that an assurance
was given by the respondent-Company that they were
appointed after giving artificial break. It is
further submitted that the respondents are adopting
unfair practice. He has submitted that at regular
C/SCA/3623/2013 JUDGMENT DATED: 18/11/2021
interval, the respondents kept on engaging persons
on contract basis even on the posts, which are
vacant and thereby replacing the contract based
employees by other contract based employees.
Learned advocate also submitted that in giving the
appointments to the candidates selected pursuant to
the advertisement issued in 2010 i.e. from the
common list, which was prepared on the basis of the
selection process conducted pursuant to the
advertisement issued in 2010, the respondents have
adopted pick and choose policy and certain persons,
whose names were below the petitioners in the
selection list, have been given appointments as
Vidhyut Sahayak, whereas some petitioners'
engagement on contract base was renewed/extended.
It is also submitted that the petitioners possessed
the qualification and they fulfilled the criteria
prescribed by the respondents to the post in
question. In support of his submissions, the
learned advocate has placed reliance on the
decision of the Apex Court in the case of State of
Hariyana & Ors. Vs. Piara Singh & Ors., AIR 1991 SC
2130 and has submitted that an ad hoc employee
cannot be replaced by another ad hoc employee.
4.1 Thus, he has submitted that a specific
project, for which the petitioners were engaged,
has been continued and there was no occasion for
the respondent-Company to terminate the petitioners
form service.
C/SCA/3623/2013 JUDGMENT DATED: 18/11/2021
5. In response to the aforesaid submissions,
learned advocate Mr.Dipak Dave has submitted that
it is not disputed that the petitioners were
appointed on the contractual basis for 11 months
and have accepted the conditions of the contract.
He has submitted that condition No.7 of the
appointment letter specifically states that such
appointment will not confer any right to them on
the regular post of Junior Engineer and after the
project work was over, all the petitioners were
terminated. He has disputed the submission made by
the learned advocate Mr.Nanavati with regard to
continuation of the project.
5.1 While referring to the reply, he has submitted
that though it cannot be denied that the
petitioners were appointed on the post of Vidhyut
Sahayak by the respondent-Company however, the same
were contrary to the rules and merely because on
the earlier occasion, an irregularity is committed
the same would not give any right in favour of the
petitioners for claiming the regular post of
Vidhyut Sahayak since such post is required to be
filled in as per General Standing Order No.333. It
is submitted that the issue of artificial break
raised by the petitioner is incorrect inasmuch as
when the project was over, the petitioners were
relieved from service. He has submitted that the
petitioners were re-engaged only after they were
relieved after completion of the service of 11
months and it cannot be said that the same is an
artificial break since the project was already
C/SCA/3623/2013 JUDGMENT DATED: 18/11/2021
over. It is submitted that the petitioners cannot
claim of being appointed permanently on the basis
of earlier panel list since validity of panel list
is of one year and the same had expired.
5.2 In support of his submissions, he has placed
reliance on the judgement of the Constitutional
Bench of the Apex Court in the case of Satish
Chandra Anand Vs. Union of India, AIR 1953 SC 250,
judgement of the Division Bench of the Apex Court
in the case of Gridco Limited and Anr. Vs.
Sadananda Daloi and Ors., 2011 (15) SCC 16 and
judgement of the Division Bench of the Apex Court
in the case of Yogesh Mahajan Vs. Prof R.C.Deka,
Director, All India Institute of Medical Sciences,
2018 (3) SCC 218.
Thus, he has submitted that the present writ
petitions may be dismissed.
6. In rejoinder, learned advocate Mr.Nanavati has
further submitted that an application was made by
the petitioners under the Right to Information Act
seeking details with regard to contractual
appointments from 01.01.2009 however, an evasive
reply has been given by the respondent-Company.
7. The submissions canvassed by the learned
advocates appearing for the respective parties are
thoughtfully considered by me. The documents as
pointed out are also perused.
C/SCA/3623/2013 JUDGMENT DATED: 18/11/2021
8. The appointment letters annexed in the writ
petition(s) reveal that the petitioners were
appointed on contractual basis as Junior Engineers
for the period of 11 months on consolidated salary
of Rs.13,000/- per month.
9. The condition No.7 of the appointment letters
specifically states that such appointments will not
give any right for appointment to the regular post
to the Junior Engineers. All the petitioners were
continued for 11 months and thereafter, they were
relieved and again appointed for another project
for 11 months and after completion of the said
project, they were relieved again from service.
Thus, the status of the petitioners as contractual
employees is not disputed. All the petitioners have
also accepted the conditions of the appointment.
There is also dispute with regard to subsistence of
the projects since the petitioners are asserting
that the project was continued whereas, a specific
denial has been made by the respondent-Company that
the said project is over.
10. At this stage, it would be apposite to refer
to the judgement of the Constitutional Bench of the
Apex Court in the case of Satish Chandra Anand
(supra), wherein the Apex Court has observed thus:
"Article 16 (1) is equally inapplicable. The whole matter
rests in contract. When the petitioner's first contract
(the five year one) came to an end, he was not a
permanent Government servant and Government was not bound
either to re-employ him or to continue him in service. On
the other hand, it was open to Government to make him the
C/SCA/3623/2013 JUDGMENT DATED: 18/11/2021
offer it did of a continuation of his employment on a
temporary and contractual basis. Though the employment
was continued, it was in point of fact, and in the eyes
of the law, under a new and fresh contract which was
quite separate and distinct from the old even though many
of its terms were the same. Art. 16 (1) deals with
equality of opportunity in all matters relating to
employment or appointment to any office under the State.
The petitioner has not been denied any opportunity of
employment or of appointment. He has been treated just
like any other person to whom an offer of temporary
employment under these conditions was made. His
grievance, when analysed, is not one of personal
differentiation but is against an offer of temporary
employment on special terms as opposed to permanent
employment. But of course the State can enter into
contracts of temporary employment and impose special
terms in each case, provided they are not inconsistent
with the Constitution, and those who chose to accept
those terms and enter into the contract are bound by
them, even as the State is bound. When the employment is
permanent there are certain statutory guarantees but in
the absence of any such limitations Government is,
subject to the qualification mentioned above, as free to
make special contracts of service with temporary
employees."
Thus, the Apex Court has held that the
employee, who chooses to accept the terms of
contract and enter into contract, is bound by such
terms.
11. In the case of Yogesh Mahajan(supra), the Apex
Court has observed thus:
"It is settle law that no contract employees has a
right to have his or her contract renewed from time to
time. That being so, we are in agreement with the
Central Administrative Tribunal and the High Court that
the petitioner was unable to show any statutory or
other right to have the 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
give 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
C/SCA/3623/2013 JUDGMENT DATED: 18/11/2021
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."
12. The Apex Court in the case of Gridco Limited
and Anr. (supra) has observed thus:
"26. A conspectus of the pronouncements of this court
and the development of law over the past few decades
thus show that there has been a notable shift from the
stated legal position settled in earlier decisions,
that termination of a contractual employment in
accordance with the terms of the contract was
permissible and the employee could claim no protection
against such termination even when one of the
contracting parties happened to be the State. Remedy
for a breach of a contractual condition was also by way
of civil action for damages/compensation. With the
development of law relating to judicial review of
administrative actions, a writ Court can now examine
the validity of a termination order passed by public
authority. It is no longer open to the authority
passing the order to argue that its action being in the
realm of contract is not open to judicial review. A
writ Court is entitled to judicially review the action
and determine whether there was any illegality,
perversity, unreasonableness, unfairness or
irrationality that would vitiate the action, no matter
the action is in the realm of contract. Having said
that we must add that judicial review cannot extend to
the Court acting as an appellate authority sitting in
judgment over the decision. The Court cannot sit in the
arm chair of the Administrator to decide whether a more
reasonable decision or course of action could have been
taken in the circumstances. So long as the action taken
by the authority is not shown to be vitiated by the
infirmities referred to above and so long as the action
is not demonstrably in outrageous defiance of logic,
the writ Court would do well to respect the decision
under challenge."
12.1 In a recent decision in the case of Patel
Savan Bharatbhai vs. State of Gujarat, 2021 (2)
G.L.H. 682, the Division Bench has examined a
similar issue with regard to the termination of the
contractual employee, who was appointed for 11
months. The Division Bench has held thus:
C/SCA/3623/2013 JUDGMENT DATED: 18/11/2021
"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
C/SCA/3623/2013 JUDGMENT DATED: 18/11/2021
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."
12.2 The Apex Court in the case of Vidyavardhaka
Sangha vs. Y.D.Deshpande 2006 (12) S.C.C. 482 has
reiterated the law and has held thus:
"4.It is now well-settled principle of law that the
appointment made on probation/ad hoc basis for a
specific period of time comes to an end by efflux of
time and the person holding such post can have no right
to continue on the post. In the instant case as noticed
above, the respective respondents have accepted the
appointment including the terms and conditions
stipulated in the appointment orders and joined the
posts in question and continued on the said post for
some years. The respondents having accepted the terms
and conditions stipulated in the appointment order and
allowed the period for which they were appointed to have
been elapsed by efflux of time, they are not now
permitted to turn their back and say that their
appointments could not be terminated on the basis of
C/SCA/3623/2013 JUDGMENT DATED: 18/11/2021
their appointment letters nor they could be treated as
temporary employee or on contract basis. The submission
made by the learned counsel for the respondents to the
said effect has no merit and is, therefore, liable to be
rejected. It is also well-settled law by several other
decisions of this Court that appointment on ad hoc
basis/temporary basis comes to an end by efflux of time
and persons holding such post have no right to continue
on the post and ask for regularisation etc."
12.3 Thus, the proposition of law is well
established that the contractual employees are only
governed by the contract and they have no right to
permanency and they cannot claim regularization.
The Apex Court has declared that the termination of
the contractual employee in accordance with the
terms of contract is permissible and employee can
claim no protection against such termination even
when one of the parties happen to be the State and
remedy for breach of a contractual condition is
also by way of civil action for damages/
compensation. The Division Bench has held that "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."
While dealing with the issue of replacing an ad
hoc employee by another ad hoc, and after
considering the judgment of the Apex Court in case
of Piara Singh (supra), the Division Bench has held
that 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
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fact and can be only decided by leading evidence by
the parties. In the present case, there is also
dispute with regard to the continuation of the
project. The petitioners have also alleged unfair
practice. The re-engagement of the petitioners
after the first contractual period was over will
not amount to unfair practice. Even otherwise the
foregoing observations of the Apex Court and the
Division Bench fortify that such disputed questions
or issues cannot be decided under Article 226 of
the Constitution.
13. Thus, in the present case, it cannot be said
that the respondent-Company has acted illegally
since the petitioner are relieved after the
contract period was over. Merely because they were
engaged again for 11 months by fresh appointment
order, the same would not confer any right to claim
permanency since in the subsequent appointment
orders, which was on contractual basis; they have
accepted the conditions as mentioned therein. As it
is no more res integra that the regularization or
seeking permanency is not the mode of appointments
and the High Court, acting under Article 226 of the
Constitution of India, cannot issue direction for
regularization, permanency or continuation unless
there are rules and regulations asserting such
right.
14. The writ petitions are bereft of merits and
the same are dismissed. RULE is discharged.
C/SCA/3623/2013 JUDGMENT DATED: 18/11/2021
15. As a sequel, the Civil Applications will not
survive hence, disposed of.
16. Registry to place a copy of this order in each
of the connected matters.
Sd/- .
(A. S. SUPEHIA, J)
NVMEWADA
