Abhishek Pravinkumar Thakor vs State Of Gujarat
2022 Latest Caselaw 9772 Guj

     C/SCA/22526/2019                               ORDER DATED: 02/12/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/SPECIAL CIVIL APPLICATION NO. 22526 of 2019
                              With
CIVIL APPLICATION (FIXING DATE OF EARLY HEARING) NO. 1 of 2022
        In R/SPECIAL CIVIL APPLICATION NO. 22526 of 2019
==========================================================
                        ABHISHEK PRAVINKUMAR THAKOR
                                    Versus
                              STATE OF GUJARAT
==========================================================
Appearance:
MR RUTVIJ S OZA(5594) for the Petitioner(s) No. 1,10,11,2,3,4,5,6,7,8,9
MR RONAK RAVAL, AGP for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1,2
==========================================================
 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                               Date : 02/12/2022
                                ORAL ORDER

1. Rule. Learned AGP waives service of notice of rule for and on behalf of the respondent-State.

2. The present writ petition has been filed for the following prayer:

"8(B) This Honourable Court may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any appropriate writ, order or direction directing the respondent State authorities to forthwith re-appoint in service to the petitioners on thepost of Gram Rojgar Sevak considering the Government Resolution dated 20.05.2019."

3. Thus, the prayer clause would suggest that the petitioners are seeking re-appointment to the post of Gram Rojgar Sevak considering the Government Resolution dated 20.05.2019. The reliance is mainly placed by the petitioners on

C/SCA/22526/2019 ORDER DATED: 02/12/2022

the judgement dated 24.04.2018 passed in Letters Patent Appeal No.983 of 2017 in support of their submissions.

4. The petitioners were initially appointed on contractual basis, which came to an end in the month of September, 2015.

5. Learned advocate Mr.Oza appearing for the petitioners has submitted that the petitioners would be entitled to the similar benefits, which are arising from the judgement dated 24.04.2018 passed in Letters Patent Appeal No.983 of 2017, pursuant to which the State has issued the Government Resolution dated 20.05.2019, whereby the tenure of such employees, who are engaged in the "Manrega Scheme" have been extended.

6. This Court has perused the judgement dated 24.04.2018 passed in Letters Patent Appeal No.983 of 2017 as well as the Government Resolution dated 20.05.2019. A close perusal of the both reveal that the same will not apply in the present case since when the said judgement was declared, such petitioners were already continued in service. The Resolution also refers that the employees, whose tenure was over on 31.12.2018 would be eligible for further renewal through outsource agency, whereas the contract of the petitioners was already over n September, 2015

C/SCA/22526/2019 ORDER DATED: 02/12/2022

and they did not think appropriate to challenge the same.

7. In the present case, as per the averments made in paragraph No.3.1 of the memo of the writ petition, the petitioners contract has already been over in the year 2015.

8. At this stage I may with profit refer to the judgment of the Apex Court in the case of Gridco Limited And Anr. Vs. Sadananda Daloi And Ors., (2011) 15 SCC 16, wherein the Apex Court 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

C/SCA/22526/2019 ORDER DATED: 02/12/2022

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."

9. In a recent decision in the case of Patel Savan Bharatbhai Vs. State of Gujarat , 2021 (2) G.L.H. 682, the Division Bench of this Court 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:

"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

C/SCA/22526/2019 ORDER DATED: 02/12/2022

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

C/SCA/22526/2019 ORDER DATED: 02/12/2022

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."

10. 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

C/SCA/22526/2019 ORDER DATED: 02/12/2022

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 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."

11. Thus, the proposition of law is well established that the contractual employees are only governed by the contract and they have no right to claim to be continued in service. 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

C/SCA/22526/2019 ORDER DATED: 02/12/2022

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 State of Haryana and Ors. Vs. Piara Singh and Ors., 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 fact and can be only decided by leading evidence by the parties. Thus, the petitioners, who are engaged as contractual employees under MANREGA have no right to continue on a post which is neither a statutory post nor is of a permanent nature.

12. Hence, the writ petition fails. The same is

summarily rejected. Rule is discharged.

13. As a sequel, the connected civil application stands disposed of.

Sd/-

(A. S. SUPEHIA, J) NVMEWADA