Gujarat High Court
Umesh Lallubhai Rathod vs State Of Gujarat on 22 April, 2025
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/9700/2016 JUDGMENT DATED: 22/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9700 of 2016
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2020
In
R/SPECIAL CIVIL APPLICATION NO. 9700 of 2016
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2021
In
R/SPECIAL CIVIL APPLICATION NO. 9700 of 2016
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2022
In
R/SPECIAL CIVIL APPLICATION NO. 9700 of 2016
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2023
In
R/SPECIAL CIVIL APPLICATION NO. 9700 of 2016
With
CIVIL APPLICATION (FOR DIRECTION) NO. 2 of 2018
In
R/SPECIAL CIVIL APPLICATION NO. 9700 of 2016
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 2 of 2019
In
R/SPECIAL CIVIL APPLICATION NO. 9700 of 2016
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 2 of 2022
In
R/SPECIAL CIVIL APPLICATION NO. 9700 of 2016
With
CIVIL APPLICATION (FOR DIRECTION) NO. 3 of 2018
In
R/SPECIAL CIVIL APPLICATION NO. 9700 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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Approved for Reporting Yes No
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Page 1 of 42
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UMESH LALLUBHAI RATHOD & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR GM JOSHI(370) SENIOR ADVOCATE for the Petitioner(s) No. 17,26,36
VYOM H SHAH(9387) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,18,19,2,20,21,22,23,24,25,27,28,29,3,30,31,32,33,34,
35,37,38,39,4,5,6,7,8,9
MR SIDDHARTH RAMI, AGP for the Respondent(s) No. 1
MR PRASHAN DESAI, SENIOR ADVOCATE with MR KAUSHAL D
PANDYA(2905) for the Respondent(s) No. 3,4
MS E.SHAILAJA(2671) for the Respondent(s) No. 5
REFUSED SERVED (R)(70) for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 22/04/2025
ORAL JUDGMENT
1. Heard Mr. G. M. Joshi, the learned Senior Counsel
assisted by Mr. Vyom H. Shah, the learned advocate appearing
for the petitioners, Mr. Siddharth Rami, the learned AGP
appearing for the respondents No.1 and 2, Mr. Prashant Desai,
the learned Senior Counsel assisted by Mr. Kaushal D. Pandya,
the learned advocate appearing for the respondents No.3 and 4
and Ms. E. Shailaja, the learned advocate appearing for the
respondent No.5.
2. By way of present petition the petitioners herein have
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prayed for following reliefs :-
"(A) Be pleased to award the cost of this petition.
(B) This Hon'ble Court may be pleased to issue writ of
mandamus or in the nature of mandamus or an directing the
respondents to treat the petitioners as permanent regular
employees of the State / Municipal Corporation and be further
pleased to direct the respondents to pay regular salary and
allowances to the petitioners in the pay scale of Rs.5200-20200
and all other benefits available to regular employees of the
Surat Municipal Corporation from their original date of
appointment and continue to pay the same;
(C) During the admission, pendency and final disposal of this
petition be pleased to restrain the respondent Municipal
Corporation from changing the present service conditions of
the petitioners and/or introducing any outside agency for
either diverting the services of the petitioners or for engaging
counselors at the health centers of Surat Municipal
Corporation;
(D) During the admission, pendency and final disposal of this
petition be pleased to direct the respondent Municipal
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Corporation to start paying the petitioners salary and
allowances in the pay scale of Rs.5200-20200/-.
(E) Any other and/or further relief/s that may deem fit looking
to the facts and circumstances of the case may be granted to
the petitioner."
3. The petitioners are all having the qualifications of either
Master of Social Welfare or M.A. with Sociology or M.A. with
Psychology as the case may be. All the petitioners are
appointed as Counselors pursuant to a regular process of
selections that commenced upon issuance of the advertisement
followed by interview which resulted in the appointment of the
petitioners. It is stated that the appointment orders of the
petitioners was as back as in January 2000 (page-14) pursuant
to an advertisement that was issued in November 1999. The
advertisement and the appointment orders are duly produced at
Annexure-A and B page at 22 and 23 respectively.
4. At the relevant time, i.e. up to 2008, the funds were
allotted from the State Government and as the State
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Government decided to discontinue funding of the programs,
the respondent No.3 - Surat Municipal Corporation (for short '
SMC') decided to continue funding the program from its own
funds, in view of the fact that Surat had maximum incidence
of HIV related issues and has maximum number of
workmen/employees coming from other States/regions. The
said Resolution is duly produced at Annexure-C.
5. Out of 60 centers in the State of Gujarat, 43 Urban
Health Centers are established in Surat itself. The petitioners
herein are Counselors working in these centers and rendering
services at these centers. Under the guidelines issued by NACO,
it is made compulsory to give counseling to expectant mothers
in such areas before they are subjected to HIV tests. The
counseling is also made compulsory for TB patients and for
those patients who are already suffering from STD. The
petitioners are also required to give counseling when there is
an epidemic of malaria in the city as well as work for polio
eradication program.
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6. The petitioners are also giving counseling to adolescent
school children making them aware about various aspects of
sexually related issues. The work of the petitioners is
permanent in nature and they are performing regular duties at
the heath centers established by Surat Municipal Corporation
and in the field also. A proposal was made by the
administrative of Surat Municipal Corporation to absorb the
petitioners in permanent establishment as back as in the year
2009 considering the nature of work performed by the
petitioners being that of permanent nature of work and that
there was need to continue the Counselors on the project.
7. The Counselors working at the relevant time and those
engaged subsequently are performing duties on regular basis,
but on contract. It is the case of the petitioners that till 2012,
the petitioners were given orders continuously but thereafter,
they are issued orders every year by giving them an artificial
break of one day. In view of such artificial break the
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petitioners are treated to be not on duty for that particular
day. Lastly, the petitioners are engaged till March 2017 with
effect from April 2016. The administration i.e. the Accounts
Department raised objections with respect to the nature of
payment made to the petitioners by treating as contractors and
the petitioners learnt that instead of making them permanent,
the administration is contemplating introduction of an outside
contractor through which the petitioners would be paid. The
said objections are duly produced at Annexure-E.
8. The respondent Corporation is already exploiting the
petitioners inasmuch as the maximum pay drawn by the oldest
petitioners is Rs.16,000/-, whereas, the peon in the same
center is drawing a salary of Rs.36,280/-. In all other
programs, employees with same qualifications rendering the
same services are given the nomenclature of either medical
social workers or community organizers are paid salary and
allowances in the pay scale of Rs.5200-20200 with grade pay
of Rs.2,800/-.
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9. The moment, an outside contractor is introduced, the
petitioners would lose whatever benefit they are getting and
would be subjected to further exploitation. The aforesaid has
given rise to filing of the present petition invoking Article 226
of the Constitution of India for the reliefs, as referred above.
Submissions on behalf of the petitioners :-
10. Mr. G. M. Joshi, the learned Senior Counsel appearing
for the petitioners relied on the aforesaid facts and submitted
that the establishment setup by the urban health
centers/maternity homes is permanent in nature inasmuch as
there are all full time employees like a doctor, a pharmacist, a
nurse, mid-wives, female health worker, sanitary inspector
(health inspector), sanitary health sub-inspector, a peon, a
gardener and a counselor. All the employees except the
counselor are treated as regular employees and are paid
regular salary and allowances.
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10.1 It is submitted that though the petitioners herein are
post graduate in Social Welfare Sociology and Psychology as
the case may be and are performing the duties which are
mandatory in nature, are paid less than a peon or a gardener,
which is nothing but exploitation and such action suffers from
arbitrariness, unreasonableness and is clearly violative of
Articles 14, 16 and 21 of the Constitution of India.
10.2 It is submitted that the respondent Corporation itself
accepted that, the services of the petitioners are required for a
long term basis, acknowledging the fact that in the event of
discontinuing the petitioners, there is a likelihood of outburst
of HIV related cases and therefore, conscious decision was
taken as back as in the year 2008 to continue the program by
funding the same.
10.3 It is submitted that such proposal was made by the
administration the same has not resulted in positive decision. It
is submitted that suddenly, the respondent Corporation wants
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to get rid of the present petitioners by introducing an outside
agency.
10.4 It is submitted that similarly situated employees in other
programs such as TB program or the employees employed as
medical social workers or community organizers who are
performing voluntary duties as compared to mandatory
functions performed by the petitioners are not only engaged on
permanent basis but are paid regular salary and allowances
with terminal benefits available to them.
10.5 It is submitted that one of the counselors who had died
in harness didn't get anything much less any terminal benefits.
It is submitted that such action or inaction on the part of the
respondent Corporation as 'State' and an ideal employer is such
that the respondent cannot treat its employee in the manner in
which it is demonstrated above.
10.6 It is submitted that upon making inquiries with the
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respondent corporation, the petitioners are informed that the
State Government is not granting any funds for the program
and therefore, petitioners are not made permanent. It is
submitted that the excuse is lacking any logic or foundation on
the part of the respondent Corporation which is a profit
making body and taking work from the petitioners which is
permanent in nature. It is submitted that it does not lie in the
mouth of body like the respondent corporation that in absence
of the funds from the State Governments, petitioners may
suffer.
10.7 Placing reliance on the aforesaid submissions, it is
submitted that the prayers as prayed for in the present petition
be allowed and the petitioners herein be treated as regular
permanent employees of the State or Surat Municipal
Corporation and that be paid regular salary and allowances in
the pay scale of Rs.5200-20200 and other benefits available to
the regular employees of the Surat Municipal Corporation from
the original date of appointment. It is also submitted that the
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respondent Corporation be restrained from changing the present
service conditions of the petitioners and/or introducing an
outside agency for either diverting the services of the
petitioners or for engaging counselors in the Health Centers of
the Surat Municipal Corporation.
10.8 To substantiate the aforesaid submissions, Mr. Joshi, the
learned Senior Counsel relied on the ratio laid down in the
following decisions:-
(a) In the case of Ghanshyam M. Pandya vs. State of
Gujarat, reported in 1985 GLH (U.J.) page-51.
(b) In the case of Jaggo vs. Union of India, reported in AIR
2025 SC 296 paragraphs 22 and 23
(c) In the case of Shripal and Anr. vs. Nagar Nigam,
Ghaziabad, reported in 2025 SCC OnLine SC 221
Mr. Joshi, the learned Senior Counsel in the course of
hearing has also placed on record an order dated 9.11.2022
issued by the National AIDS Control Organization, Ministry of
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Health & Family Welfare, Government of India(for short
NACO). The said order provides revised integrated terms of
reference (for short 'TOR') for the counselors under National
AIDS control programme NACP phase.
10.9 Placing reliance on the aforesaid it is submitted that
NACO has also passed an order of continuing the programme.
Reliance is also placed on the order passed in the Special Civil
Application No.9828 of 2022 and it is submitted that though
the said petition is disposed of, the employees of STD care
project are treated as employees of the Surat Municipal
Corporation. It is fairly submitted that the dispute is pending
before the competent forum for adjudication, the dispute is
regarding provident-fund.
Submissions on behalf of the respondent - SMC :-
11. Mr. Prashant Desai, the learned Senior Counsel
appearing for the respondent Corporation relied on the
affidavit-in-reply filed which is duly produced at page-61.
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Placing reliance on the said reply Mr. Desai, the learned
Senior Counsel submits that the petitioners are HIV Counselors
and are not part of the SMC Health Center. Reliance is placed
on the Staff Pattern of the SMC Health Centre duly produced
at Annexure-R-1 (page-69). It is submitted that the STD care
project since its inception from Jan 2000 to 31 st Dec 2007 was
working under technical guidance of National Aids Control
Organization (NACO) and under direct supervision of Gujarat
State AIDS Control Society (GSACS).
11.1 It is submitted that the project initially started in 08
urban health centres of SMC, later it was extended to 28 urban
health centres till Dec 2007. The Counselors were appointed on
contractual basis since beginning and were paid from the
grants of Central & State Government.
11.2 It is submitted that upon discontinuation of grant to this
project from NACO vide letter of Gujarat State AIDS Control
Society No.GSACS/NGO/DISNT/17254/65/2007, the respondent -
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SMC continued the project looking to the prevalence of HIV in
Surat city at that time and hopping grant from the
Government. Reliance is placed on Resolutions passed by the
Standing Committee from time to time to continue the said
project which read thus :-
(1) SMC standing committee resolutions no 176/2008 Dt.
18/01/2008 from 01/01/2008 to 31/12/2008 with annual
amount Rs. 42 lakh.
(2) SMC standing committee resolutions no 17/2009 Dt.
02/01/2009 from 01/01/2009 to 31/03/2009 with Rs. 10.50
lakh.
(3) SMC standing committee resolutions no 394/2009 Dt.
27/02/2009 from 01/04/2009 to 31/03/2010 with Rs. 42 lakh.
In year 2010-11 the project continued under receiving grant of
Rs. 59.20 lakh from Reproductive Child Health (RCH), Govt. of
Gujarat.
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(4) Same way in year 2011-12 the project continued on grant
of Rs. 60 lakh from RCH, Govt. of Gujarat.
(5) In year 2012-13 grant from RCH, not sanctioned hence
again under SMC standing committee resolution no 2372/2012
Dt. 03/10/2012 the project continued with Rs. 53 lakh per year
from 01/04/2012 to 31/03/2013.
(6) In year 2013-14 with standing committee resolution no.
468/2013 Dt. 22/02/2013. Project continued till date with 5 %
rise in counselors wages every year.
11.3 It is submitted that the appointment order and TOR of
the petitioners provide that the appointments are contractual in
nature. It is submitted that the State Government after 2008
abandoned the project of HIV Counselors and the respondent
SMC from it's own funds continued the project and the
petitioners on their contractual appointment in light of the
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situations of HIV in the city of Surat with an expectation that
the State might re-grant in future. Reliance is placed on the
appointment memo and TOR duly produced at Annexure R-2
page-71.
11.4 It is submitted that the appointment order and TOR
clearly mention that the petitioners would not be considered as
permanent employee of SMC in future and that the respondent
- SMC has right to change the terms and conditions of TOR
without giving prior notice to the employee. All appointed
employees had signed on their TOR after reading these terms
& conditions.
11.5 It is submitted that the services of the petitioners are
not used daily. The petitioners are paid remuneration as per
the services rendered. The same type of work is undertaken
from other contractual workers of departments like TB and
RCH.
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11.6 It is submitted that proposal was made to absorb (page-
64) to continue the project and not to absorb the councilors in
permanent establishment and accordingly the Standing
Committee vide Resolution No.17 of 2009 dated 02.01.2009
approved continuation of the project up to 31.03.2009.
Reliance is placed on the resolution passed by the Standing
Committee dated 02.01.2009.
11.7 It is submitted that it is not true that the petitioner
were not given any break till 2012. Reliance is placed on the
order giving compulsory one day break from the year 2014 till
2016. It is submitted that the said break is not an artificial but
it is a compulsory break at the end of every contractual period
(page-65).
11.8 It is submitted that it is denied that the Account
Department of the Surat Municipal Corporation raised objection
about the nature of payment to the petitioners to introduce
out-sourcing. It is submitted that after discontinuing of the
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grant from the respondent - State, the Account Department
raised a query seeking details of amount of grant received by
Surat Municipal Corporation and the details of various NGOs
doing similar work counseling and amount of grant received by
those NGOs from the State Government.
11.9 It is submitted that the allegation for pay scale of Rs.
5200 - 20,200/- and grade pay of Rs.2800 for other similar
program by the similar qualified workers has to be proved by
the petitioners. It is submitted that the respondent - Surat
Municipal Corporation published an advertisement for
recruitment and appointed the petitioners and other similarly
situated employees as contractual employees, therefore they
cannot be made permanent employee. The petitioners are paid
as per the work and there is no exploitation at the end of the
respondent - Corporation and the allegation levelled against the
respondent Corporation are such that the same are denied.
11.10 It is reiterated that the Counselors are not under the
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schedule of the Corporation and hence are not considered as
permanent employees as per the scheme of the establishment
of Health Centers of Surat Municipal Corporation.
11.11 It is submitted that the Counselors are not only the
reason for reduction of HIV cases in the area of Surat, there
are other reasons also enumerated in paragraph-3.2 of the
reply which have resulted in reduction of HIV cases in the
city of Surat. Another agency such as District AIDS Control
Society, other public awareness programs for protection of
sexual disease have also played an important role in reducing
the said HIV disease.
11.12 Placing reliance on the aforesaid submissions, it is
submitted that originally fund was provided by the State.
The appointments are also contractual in nature and that the
same is based on the work which may or may not be required.
It is submitted that the petitioners have no right to claim
permanency especially when the State stopped the fund in the
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entire State, the SMC is continuing them for work against the
HIV. The petitioners were fully aware when they joined
originally and also subsequent to the stoppage of the funds by
SMC, that they are contractually working and the tackling of
HIV shall not be a permanent nature job.
11.13 Placing reliance on the aforesaid contentions, it is
submitted that the present petition is devoid of merit and the
same be dismissed.
11.14 It is lastly submitted that the respondent do not want to
continue with the Scheme, however in light of the order of
status-quo by order dated 27.6.2016 the respondent authorities
are continuing with the Scheme. It is also upon instructions
submitted that once the Scheme ends, there would be no
outsourcing by the respondent - Corporation and in view
thereof the apprehension of the petitioners is such that the
same is without any base.
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11.15 Reliance is placed on the following decisions :-
(1) Judgment dated 20.3.2025 passed in the Special Civil
Application No.21920 of 2005.
(2) In the case of Union of India vs. All India trade Union
Congress, reported in 2019 (5) SCC 773.
Placing reliance on the aforesaid decisions, it is submitted
that the petitioners herein are contractual employees and do
not have any legal right to seek permanency or regular pay-
scale. It is submitted that even if the petitioners are continued
for a considerable period of time, the same cannot be a reason
to regularize their services. It is submitted that this Court in
light of the aforesaid may not exercise extraordinary
jurisdiction under Article 226 of the Constitution of India, the
petitioners herein having been engaged on contractual basis
and the respondent Corporation wanting to end the Scheme.
Submissions on behalf of the respondent No.5 :-
12. Ms. E. Shailaja, the learned advocate appears for newly
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added respondent No.5 - Employees Provident-Fund
Organization. Reliance is placed on the affidavit-in-reply duly
produced at page-120. Placing reliance on para-5 of the said
affidavit it is submitted that it transpires that an inspection
had been assigned through Shram Suvidha portal to
Enforcement Officer (EO) and the said EO submitted report
dated 11.4.2018. On the basis of inspection report, a show
cause notice dated 24.7.2018 was issued against M/s.STD Care
Project and copy was served to the Dy. Commissioner, SMC
being principal employer for its submission with the requisite
returns.
12.1 It is submitted that M/s.STD Care Project got itself
covered under EPF & MP Act, 1952 and has taken a PF Code
No.SR/SRT/1973538000 dated 1.7.2019 through OLRE i.e.
Online Registration of Establishments as a new registration
under Section 2A of the Act.
12.2 It is submitted that subsequently when the compliance
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was not shown, a show cause notice dated 1.10.2019 was
issued against M/s. STD Care Project for depositing the
statutory dues of Rs.46,44,866/- for the period April, 2013 to
March, 2018.
12.3 It is submitted that the M/s. STD Care Project, SMC
replied through a letter dated 22.10.2019 which was received
by the office on 25.10.2019. In the said response, it was
submitted that status quo is granted with respect to the service
condition of the petitioners. The inquiry initiated by the
competent authority under Section 7A of the Act to assess the
PF and allied dues payable by M/s. STD Care Project was
concluded by order dated 14.3.2022 upon affording reasonable
opportunity of hearing to the said establishment. An Appeal
being EPF Appeal No.21 of 2022 filed by M/s. STD Care
Project challenging the said assessment is pending before the
Appellate Authority.
12.4 Placing reliance on the aforesaid submissions, it is
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submitted that the respondent No.5 has acted in conformity
with the mandatory provisions and in view thereof, there is
room for granting any relief as sought for in the facts of the
present case.
Analysis :-
13. Having heard the learned advocates appearing for the
respective parties, it emerges that the petitioners herein applied
for the post of Counselors pursuant to the advertisement issued
for the post as stated in the said advertisement duly produced
at Annexure-A (page-22). Upon perusal of the said
advertisement, it emerges that the same is issued for the
project managed by SMC through network of Government and
Non-Government Organization. The said project is a
partnership for sexual health (PSH) project which is a major
STD/HIV prevention project in Surat city funded by DEIO Gov.
of U.K. The project requires the personnel on contract basis for
a period from October, 1999 to July, 2000.
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14. The petitioners herein, as referred above, applied
pursuant to the said advertisement and came to be appointed
on contractual basis. The appointment memo of the petitioners
dated 2.7.2001 are placed on record from pages-23 to 52 at
Annexure-B Collectively and the same is also produced by the
respondent Corporation vide Annexure-R2 page-71. One such
appointment memo is reproduced for the sake of brevity which
reads thus :-
"Appointment Memo:-
This is to inform you that you are selected for the post of
"Project Coordinator" in "SMC- STD Care Project" on purely
temporary basis with Total Emoluments of 6,000/-fixed per
month. You have to join your duty within 7 days.
You have to submit your all original certificates / documents
with joining report to the undersigned.
Project In charge
SMC-STD Care Project
To,
Mr. Umesh. L. Rathod
77, Nandi Park Society,
Piplod, Surat-7
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Copy C.C.to : Dy. Comm. (H&H),Jt. Project Director shri, SMC.
for information please.
Project Manager shri, PCO, for information please."
Various orders are produced on record with respect to
the petitioners herein.
15. It is apposite to refer to the appointment order duly
produced at page-84 which reads thus :-
"Appointment Memo
To,
Patel Bijal P.
At Po : Vasan
Ta :- Gandovi
Dist :- Navasari
Sub: Appointment memo cum ToR in STD Care Project Run by
RCH Project.
You are appointed as Counselor in ' STD Care Project' with
consolidated fixed salary Rs.6,500/- per month.
Your appointment is purely on contract basis in this project
from 10th November 2010 lo 31st March 2011. Your service will
end on 31" March 2011. In case of early termination
/resignation one month prior written notice is must.
Place: Surat. Project In charge
Date : 04/11/2010 SMC-STD Care Project
I, the undersigned hereby acknowledge that the above
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mentioned Appointment-cum-Tor letter is received by me on
4/11/2010."
The said appointment memo dated 4.11.2010 is for a
contractual appointment from 10.11.2010 to 31.3.2011. The
service of such candidate would end on 31.3.2011. In case of
early termination or resignation one month prior written notice
is a must. On perusal of such appointment order placed on on
record, it is not in dispute that the petitioners herein are
appointed on contractual basis.
16. Considering the reply filed by the respondent
Corporation, from page-64 para 2.3 it emerges that services of
the petitioners are not used daily. Whenever services are
required, the petitioners are paid remuneration accordingly as
per the services rendered. It also emerges that similarly
situated employees in the TB Department and the RCH
Department are also continued on contractual basis.
17. The contention raised by Mr. Joshi, the learned Senior
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Counsel that those employees in the TB Department and the
RCH Department are regularized, is such that the same is
negated in light of the clarification issued in the affidavit-in-
reply which remains uncontroverted.
18. This Court has perused staff pattern of the STD Care
Project which is reproduced at page-69 Annexure-R1. From the
aforesaid, it also emerges that the said posts to which the
petitioners are claiming permanency are not in the sanctioned
setup. Those posts which are duly sanctioned or is part of the
setup, such employees are receiving regular pay-scale.
19. Upon perusal of the communication dated 17.12.2009
(page-58/A) 2009 on the administrative side, it emerges that
the proposal was made for continuation of the project and not
for absorption of the Counselors in the permanent
establishment and accordingly Standing Committee of the
respondent Corporation vide Resolution No.17 of 2009 dated
2.1.2009 approved continuation of the project upto 31.3.2009.
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The said proposal relied upon by the petitioners is duly
produced at page-54. The same is also produced by the
respondent Corporation at page-112 and the Resolution No.17
of 2009 passed by the respondent Corporation dated 6.1.2009
is duly produced at page-116 Annexure-R4.
20. It appears that the petitioners apprehended that the
petitioners would be substituted by outsource agency and in
view thereof the petitioners approached this Court seeking
regularization, permanency and that the petitioners may not be
replaced by outsourcing agency and that the respondent
Corporation be restrained from undertaking outsourcing and/or
for engaging Counselors at the Health Centers at the Surat
Municipal Corporation.
21. Upon issuance of notice, status-quo was granted. The
petitioners herein are continued in light of the status-quo dated
27.6.2016 till today.
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22. In light of the aforesaid, it is apposite to deal with the
judgments relied upon by Mr. Joshi, the learned Senior
Counsel appearing for the petitioners :-
(A) In the case of Ghanshyam M. Pandya vs. State of Gujarat
and Ors., reported in 1985 GLH (U.J.) 51, in the said case the
petitioners had acquired temporary status. The petitioners were
terminated orally, such oral termination was held to be
arbitrary and violative of Articles 14 and 16 of the Constitution
of India.
(B) In the case of Jaggo vs. Union of India, reported in AIR
2025 SC 296, in the said judgment, the appellant assailed the
order passed by the Tribunal wherein the claim of the
petitioners to be regularized in the services was negated by the
Tribunal in terms of the DOP and TOM dated 11.12.2006
issued in compliance with the directions of the Hon'ble
Supreme Court in case of Umadevi, reported in 2006 (4) SCC
page-1.
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In the said judgment the petitioners were appointed as
Safaiwalis in the years 1993, 1998 and 1999 respectively
whereas the petitioners No.4 and 5 were appointed as Mali
and Khalasi in the years 2000 and 2004 respectively in the
Central Water Commission on ad hoc basis and they were paid
lumpsum monthly emolument.
Considering the long span of service, the Hon'ble Apex
Court held that irrespective of the department or office or the
nature of work, the petitioners were performing essential duties
that were indispensable in the day-to-day functioning of the
CWC's. Irrespective of the department or office, the nature of
work remained the same which did not require any specific
academic qualification. In the said Commission itself Safaiwalis
with lesser number of years were regularized and, therefore,
the Hon'ble Apex Court held that the aforesaid was clear
violation of Article 14 of the Constitution of India.
In the facts of the present case, the petitioners are
appointed on contractual basis and are continued in service in
light of the STD Care project which was initiated under the
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technical guidance of the National AIDS Control Organization
(for short 'NACO') and under direct supervision of the Gujarat
State AIDS Control Society (for short 'GSACS'). It was initially
funded by the State Government, however the State
Government also abandoned the project in the year 2009,
however the same is continued by the respondent Corporation
SMC.
(C) In the case of Shripal and Anr. vs. Nagar Nigam,
Ghaziabad, reported in 2025 SCC OnLine SC 221, in the facts
of the said case, appellants were workmen in the Ghaziabad
Nagar Nigam having approached the Labour Court, Ghaziabad,
wherein the Labour Court in one set reinstated some workmen
with partial back-wages and in another set denied relief
together to similarly placed workmen.
The Hon'ble Apex Court intervened and held that the
impugned action of terminating the services of the appellants
workmen was violative of Section 6E and 6N of the U.P.
Industrial Disputes Act, 1947 and in lieu thereof all the
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appellants workmen were ordered to be treated as continued in
regular service from the date of their termination for all the
purposes including seniority and continuity of service.
Upon bare perusal of the aforesaid judgment relied upon
by Mr. Joshi, the learned Senior Counsel it emerges that the
petitioners herein are appointed on purely contractual basis
and in view thereof the petitioners are governed by the terms
of contract. Admittedly the petitioners are not appointed
regularly by the respondent SMC.
Position of Law :-
23(A) In light of the aforesaid, it is apposite to refer to
the decision in the case of Union of India vs. All India Trade
Union Congress, reported in 2019 (5) SCC 773, wherein
paragraph-13 reads thus :-
"13. That was also a case where the Union of workers namely
"Vartak Labour Union" had claimed a relief of regularization of
the services of the casual workers who were working in BRO
for a considerable period in construction activities undertaken
by BRO in the State of Assam. The Union of workers,
therefore, filed a writ petition against the Union of India in the
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Gauhati High Court. The High Court allowed the writ petition
and directed the Union of India to regularize the services of all
such casual workers. The Union of India felt aggrieved and
filed special leave to appeal in this Court against the judgment
of the Gauhati High Court. This Court allowed the appeal and
set aside the order of the Gauhati High Court with the
following observations:
"17. We are of the opinion that the respondent Union's claim
for regularisation of its members merely because they have
been working for the BRO for a considerable period of time
cannot be granted in light of several decisions of this Court,
wherein it has been consistently held that casual employment
terminates when the same is discontinued, and merely
because a temporary or casual worker has been engaged
beyond the period of his employment, he would not be
entitled to be absorbed in regular service or made permanent,
if the original appointment was not in terms of the process
envisaged by the relevant rules. [See State of Karnataka v.
Umadevi (3); Official Liquidator v. Dayanand; State of
Karnataka v. Ganapathi Chaya Nayak; Union of India v.
Kartick Chandra Mondal; Satya Prakash v. State of Bihar and
Rameshwar Dayal v. Indian Railway Construction Co. Ltd.]
22. Therefore, in the facts and circumstances of the instant
case, where members of the respondent Union have been
employed in terms of the Regulations and have been
consistently engaged in service for the past thirty to forty
years, of course with short breaks, we feel, the Union of
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India would consider enacting an appropriate
regulation/scheme for absorption and regularisation of the
services of the casual workers engaged by the BRO for
execution of its ongoing projects.
23. In the final analysis, the appeals are allowed, and the
impugned judgments and orders are set aside. However, in
the circumstances of the case, the parties are left to bear
their own costs."
The petitioners herein are in litigious employment. It is
submitted by Mr. Desai, the learned Senior Counsel appearing
for the respondent Corporation that the respondent Corporation
intends to close the Scheme.
(B) It is apposite to refer to the ratio laid down in
Federation Of All India Customs And Central Excise
Stenographers (Recognised) Versus Union Of India, reported in
(1988) 3 SCC 91 wherein paragraphs 7 and 11 read thus :-
"7. Equal pay for equal work "is a fundamental right. But
equal pay must depend upon the nature of the work done, it
cannot be judged by the mere volume of work, there may be
qualitative difference as regards reliability and responsibility.
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Functions may be the same but the responsibilities make a
difference. One cannot deny that often the difference is a
matter of degree and that there is an element of value
Judgment by those who are charged with the administration
in fixing the scales of pay and other conditions of service. So
long as such value judgment is made bona fide, reasonably on
an intelligible criterion which has a rational nexus with the
object of differentiation, such differentiation will not amount
to discrimination. It is important to emphasise that equal pay
for equal work is a concomitant of Art. 14 of the Constitution.
But it follows naturally that equal pay for unequal work will
be a negation of that right.
11. In this case the differentiation has been sought to be
justified in view of the nature and the types of the work
done, that is, on intelligible basis. The same amount of
physical work may entail different quality of work, some more
sensitive, some requiring more tact, some less - it varies from
nature and culture of employment. The problem about equal
pay cannot always be translated into a mathematical formula.
If it has a rational nexus with the object to be sought for, as
reiterated before a certain amount of value judgment of the
administrative authorities who are charged with fixing the pay
scale has to be left with them and it cannot be interfered with
by the Court unless it is demonstrated that either it is
irrational or based on no basis or arrived at mala fide either
in law or in fact. In the light of the averments made and in
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the facts mentioned before, it is not possible to say that the
differentiation is based on no rational nexus with the object
sought for to be achieved. In that view of the matter this
application must fail and it is accordingly dismissed without
any order as to costs."
(C) In the Letters Patent Appeal No.378 of 2025 and allied
matters in the judgment dated 18.3.2025, paragraphs 11, 12
and 13 read thus :-
"11. Thus, the aforesaid clauses of the contractual
appointment manifest that on a successful completion of
probation period of a candidate, i.e. 3 months, the contractual
appointment for three years of fixed term of employment i.e.,
(FTE contract) shall commence. It is further clarified that "this
contract shall be renewable on satisfactory performance
including achievements of targets and/or such other criteria as
may be decided by the management and on the basis of
mutual agreement". It is pertinent to note that, it is further
provided that "Unless renewed, the contract shall stand
automatically terminated on the expiry of period of contract
without any notice or compensation". Thus, the contract
between the appellants and the Respondent no.2 is governed
by the terms and conditions of the resolution and the
appointment order. The appellants cannot, as a matter of
right, insist to continue in service beyond the period of three
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years, till the existence of the Company even if their service is
found unsatisfactory. Having accepted the conditions of the
appointment, they have to undergo assessment of their work
performance.
12. The prayer clauses mentioned in the writ petitions, as
mentioned hereinabove, relate to the regularization of the
services of the appellants and also for quashing and setting
aside the order of termination dated 11th June, 2014.
However, the undisputed fact remains that, when the writ
petition was filed, there was no termination, but the
respondent no.2 had extended the contractual appointment till
31st July, 2014, and this Court had passed an interim order
protecting their services, which has continued for all these
years.
13. We are in complete agreement with the findings recorded
by the learned Single Judge so far as the denial of the prayers
of regular pay scale to the appellants are concerned since the
appellants are appointed by the respondent no.2 on contractual
basis and they cannot claim regular pay scale or regularization
on a contractual post, even if the same is sanctioned, as the
contractual appointment is only confined for a period of 3
years subject to further assessment of their work performance.
Only in case the respondent no.2 - company finds that they
have performed satisfactorily including achievements of targets
and/or such other criteria as decided by the management,
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their contract can be renewed."
24. Mr. Joshi, the learned Senior Counsel submits that the
advertisement is issued by the Gujarat State AIDS Control
Society on 11.3.2025 and placing reliance on the said
advertisement submits that the Scheme be continued by the
respondent State.
Upon perusal of the said advertisement which is placed
on record by Mr. Joshi, the learned Senior Counsel it emerges
that qua Surat at Serial No.22 there is one post of Counselor
at Navi Civil Hospital, Surat and the aforesaid is also on
contractual basis for eleven months on fixed remuneration.
25. Mr. Joshi, the learned Senior Counsel relies on the
Human Immunodeficiency Virus and Acquired Immune
Deficiency Syndrome (Prevention and Control) Act, 2017 and
submits that the action of the respondent in not regularizing
the services of the petitioners is nothing but exploitation at the
hands of the authorities. The aforesaid act clearly mentions
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role of the counselors and the petitioners herein be regularized
in light of the aforesaid Act.
Upon perusal of the Act which is placed on record, Mr.
Joshi, the learned Senior Counsel is not in a position to assist
the Court with respect to nature of appointment of the
counselors as provided under Section 9 of the Act and as to
how the petitioners seek parity.
26. In light of the aforesaid position of law, as referred
above, this Court is not inclined to exercise extraordinary
jurisdiction under Article 226 of the Constitution of India qua
the prayer of the petitioners to regularize the services of the
petitioners, however it is clarified with respect to Prayer (C)
that the petitioners be continued till the Scheme continues
subject to the Service and Disciplinary Rules as may be made
applicable to them.
27. Mr. Joshi, the learned Senior Counsel requests that the
order of status-quo dated 27.6.2016 be continued for a period
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of six weeks.
The status quo that is granted by order dated 27.6.2016
be extended for a period of four weeks.
28. In view of above, the present petition stands disposed of.
Consequently all the civil applications stand disposed of.
(VAIBHAVI D. NANAVATI,J)
K.K. SAIYED
