Gujarat High Court
Vijay Bharatbhai Sachdev vs State Of Gujarat on 13 February, 2025
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/10346/2014 JUDGMENT DATED: 13/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10346 of 2014
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R/SPECIAL CIVIL APPLICATION NO. 15071 of 2014
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R/SPECIAL CIVIL APPLICATION NO. 15190 of 2014
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R/SPECIAL CIVIL APPLICATION NO. 15290 of 2014
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R/SPECIAL CIVIL APPLICATION NO. 16660 of 2014
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R/SPECIAL CIVIL APPLICATION NO. 16815 of 2014
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R/SPECIAL CIVIL APPLICATION NO. 10670 of 2014
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R/SPECIAL CIVIL APPLICATION NO. 7217 of 2015
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R/SPECIAL CIVIL APPLICATION NO. 4956 of 2015
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R/SPECIAL CIVIL APPLICATION NO. 6017 of 2015
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R/SPECIAL CIVIL APPLICATION NO. 8466 of 2015
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R/SPECIAL CIVIL APPLICATION NO. 9614 of 2015
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R/SPECIAL CIVIL APPLICATION NO. 3509 of 2015
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R/SPECIAL CIVIL APPLICATION NO. 8740 of 2015
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R/SPECIAL CIVIL APPLICATION NO. 11828 of 2016
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R/SPECIAL CIVIL APPLICATION NO. 16446 of 2016
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R/SPECIAL CIVIL APPLICATION NO. 17552 of 2016
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R/SPECIAL CIVIL APPLICATION NO. 19988 of 2016
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R/SPECIAL CIVIL APPLICATION NO. 20545 of 2016
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R/SPECIAL CIVIL APPLICATION NO. 1574 of 2017
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R/SPECIAL CIVIL APPLICATION NO. 7178 of 2017
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R/SPECIAL CIVIL APPLICATION NO. 8456 of 2017
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R/SPECIAL CIVIL APPLICATION NO. 10007 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 16179 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 17709 of 2017
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R/SPECIAL CIVIL APPLICATION NO. 15507 of 2017
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R/SPECIAL CIVIL APPLICATION NO. 1597 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 12773 of 2019
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R/SPECIAL CIVIL APPLICATION NO. 4949 of 2019
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R/SPECIAL CIVIL APPLICATION NO. 11235 of 2019
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R/SPECIAL CIVIL APPLICATION NO. 22086 of 2019
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R/SPECIAL CIVIL APPLICATION NO. 3770 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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Approved for Reporting Yes No
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VIJAY BHARATBHAI SACHDEV & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
DELETED for the Petitioner(s) No.
106,110,114,119,145,146,148,150,153,166,198,210,212,242,243,34,50,52,53
,58,60,61,62,70
MR YATIN OZA, SENIOR COUNSEL with MR HJ DHOLAKIA(5862) for the
Petitioner(s) No.
1,10,100,101,102,103,104,105,106,107,108,109,11,110,111,112,113,114,115
,116,117,118,12,120,121,122,123,124,125,126,127,128,129,13,130,131,132,
133,134,135,136,137,138,139,14,140,141,142,143,144,145,146,147,148,149,
15,150,151,152,154,155,156,157,158,159,16,160,161,162,163,164,165,167,1
68,169,17,170,171,172,173,174,175,176,177,178,179,18,180,181,182,183,18
4,185,186,187,188,189,19,190,191,192,193,194,195,196,197,198,199,2,20,2
00,201,202,203,204,205,206,207,208,209,21,211,213,214,215,216,217,218,2
19,22,220,221,222,223,224,225,226,227,228,229,23,230,231,232,233,234,23
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5,236,237,238,239,24,240,241,242,243,244,245,246,247,248,249,25,250,251
,252,253,254,26,27,28,29,3,30,31,32,33,34,35,36,37,38,39,4,40,41,42,43,44,
45,46,47,48,49,5,51,53,54,55,56,57,58,59,6,63,64,65,66,67,68,69,7,70,71,72,
73,74,75,76,77,78,79,8,80,81,82,83,84,85,86,87,88,89,9,90,91,92,93,94,95,9
6,97,98,99
MS MANISHA LAVKUMAR, ADDITIONAL ADVOCATE GENERAL with MR
JAY TRIVEDI, AGP for the Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 13/02/2025
ORAL JUDGMENT
1. Since the issue involved in all the captioned petitions is
identical, are heard analogously and are being disposed of by
this common order. The Special Civil Application No.10346 of
2014 is treated as the lead matter and the decision in the said
petition shall govern captioned petitions.
The learned advocates appearing for the petitioners in the
respective petitions have adopted submissions advanced by Mr.
Oza, the learned Senior Counsel and in view thereof separate
contentions are not recorded.
2. By way of present petitions the petitioners herein
challenge the action of the respondent authorities who rather
then treating the service of the petitioners as regular work
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from the date of their appointment are in process of
terminating the petitioners upon completion of 03 years
contract period, though all the petitioners are appointed after
following the regular process of selection by competitive
method and the petitioners have also gone through the various
training from time to time on their respective posts. Upon
successful completion of probation period, the petitioners
cleared the performance appraisal, however the petitioners are
not only denied regular pay-scale but also not accorded fixed
scale as per the Government Resolution.
2.1 The petitioners herein are appointed with the respondent
No.2 for a period of three years pursuant to the advertisement
published in the newspaper in accordance with the G. R. dated
16.11.2010. The petitioners herein are aggrieved by the
communication dated 11.6.2014. The respondent No.2 informed
all the District Development Officers by letter dated 11.6.2014
that the services of the 300 employees will be availed only
upto 31.7.2014 which amounts to complete exploitation of the
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petitioners' herein which has resulted in filing of the present
petition and the petitioners herein have prayed for the
following reliefs :-
"(A) Your Lordships may be pleased to admit and allow this
petition.
(B) Your Lordships may be pleased to issue a writ of
Mandamus by holding that the selection of the petitioners to
their respective posts was a regular selection, after following
the regular process of selection and that they are entitled for
regular pay scale from the date of their appointment and their
services stood confirm on their satisfactorily clearing probation
period and that their services cannot be terminated in any
manner contrary to one by which services of a permanent
employee can be terminated.
(C) Your Lordships may be issue a writ of certiorari or any
other appropriate writ, order and/or direction quashing and
setting aside the impugned order of termination dated
11/06/2014 to terminate the services of the petitioners from
31/07/2014 passed by the respondent No.2 and further be
pleased to regularize the service of the petitioners from the
date of their appointment and further be pleased to give all
consequential benefits, monitory and non-monitory inclusive of
the full back wages.
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(D] Pending admission, hearing and final disposal of this
petition, Your Lordships may be pleased to stay the execution,
operation and implementation of the termination order dated
11/06/2014 passed by the respondent No.1 which is to come
into the effect from 31/07/2014, as if the same is not passed,
and to restrain them to terminate the service or to
discontinue them from 31/07/2014 and further be pleased to
grant the regular pay scale or at least may be given as per to
the Government Resolution dated 16/11/2010.
(E) Such other and further reliefs as may be deemed just
and expedient may be granted."
3. Brief facts leading to the filing of the present petition
read thus :-
3.1 The respondent No.1 passed the Government Resolution
dated 16.11.2010 (Annexure-A) by which the Scheme "Mission
Mangalam" enforced by the respondent No.1 and also
approved the organizational structure of the respondent No.2
by creating the following posts :-
(i) General Manager (State)
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(ii) Project Manager (State)
(iii) District Livelihood Manager
(iv) Asstt. Project Manager (District)
(v) Taluka Livelihood Manager
(vi) Asstt. Project Manager (Taluka)
The respondent No.2 is a legal person and a separate
legal entity. The setup of the staff and employees instead of
being governed by its own Resolutions or Articles or
Memorandum of Association, the respondents have chosen to
do the same by way of government resolution.
3.2 The respondent No.2 modified the recruitment procedure
by way of different methods in the said G.R. data 16.11.2010.
In the instant recruitment, process method-two as envisaged is
applied, which is more competitive and transparent. As per the
method, public advertisement was issued in January 2011. As
per method open advertisement followed by proficiency test, as
prescribed in the G.R. dated 16.11.2010 and so also as
procedure which was followed.
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3.3 The petitioners applied for various posts according to
their qualifications. The minimum qualification even for the
lowest post is a master degree and bachelor degree. Upon
applying the petitioners had to clear entire recruitment process
which includes written examination, group discussion and
personal interview. Upon passing all the three examinations, as
per the procedure prescribed in the G.R. dated 16.11.2010
those candidates who cleared the same will be
given/appointment letters strictly in accordance with merit
prepared by the respondent No.2 by way of contract for the
respective posts.
3.4 The petitioners were neither paid salary as per the
regular pay-scale of pay or even as per the G. R. dated
16.11.2010. Reliance is placed on the appointment letters of
contracts for various posts which are duly produced at an
Annexure-C (page-44).
3.5 It is the case of the petitioners that all the petitioners are
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working in various districts in the State and performing their
duties with utmost sincerity, honesty and upto the satisfaction
of their seniors. The respondent No.2 has apprised the
petitioners on the basis of their performance. Though the
petitioners have been apprised twice, salaries of the petitioners
were never paid as per the regular pay-scale or as per the
G.R. dated 16.11.2010.
3.6 It is further the case of the petitioners that in the year
2012-13, some districts were covered under Central
Government scheme, namely, National Rural Livelihood Project
- NRLP and National Rural Livelihood Mission NRLM. Salary of
those petitioners, whose districts have been covered under the
Central Government schemes will be paid from the fund of the
NRLM, but will remain as employees of the respondent No.2
only. As the petitioners were to complete three years term
which is camouflaged as a contract, the respondent No.2
addressed a letter to the District Development Officers of all
the districts on 31.3.2014 that the service of the petitioners
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shall continue and no order of termination shall be passed till
further orders in light of the code of conduct due to the Lok-
Sabha Elections.
3.7 Some of the petitioners filed applications under the
Right to Information Act 2005 dated 13.1.2014 and 21.3.2014
seeking some detailed information regarding the respondent
No.2 company and its actions to which the respondent No.2
sent a reply on 23.4.2014, wherein some shocking facts came
to the knowledge of the present petitioners.
3.8 Even after completion of three years, the respondent
No.2 has not made its human resources manual, which is in
fact prior requirement as per the G.R. 16.11.2010. It has also
come to the knowledge of the petitioners that the respondent
No.2 has stated that all the employees are being given salaries
as per the G.R. dated 16.11.2010 which is also incorrect
looking into the contracts of the petitioners which is duly
produced at Annexure-E. After the election was over, the
respondent No.2 informed the Senior General Manager and
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Director, District Rural Development Agency that since contract
of the employees has been renewed for one year from
1.4.2014, all the employees are eligible for casual leave for the
current year as also the remaining casual leaves of the
previous years which is produced at Annexure-F. To the utter
shock and surprise of the present petitioners in not more than
11 days, the responded No.2 requested to grant casual leaves
by the letter dated 30.5.2014, again wrote a letter on
11.6.2014 to the District Development Officer of all districts
that all those employees whose contract expired on 31.3.2014,
their services will be availed only till 31.7.2014. The said
letter is duly produced at Annexure-G.
3.9 The petitioners filed representations to various
authorities requesting not to terminate their service as
respondents have invested crores of rupees behind them for the
purpose of their training and when they are trained, services
of the petitioners are likely to be terminated and any fresh
recruitment for the said posts will increase burden on the State
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exchequer. The said representations have not been decided by
the authorities and therefore the action of terminating the
service of petitioners is also against the settled principles of
natural justice. The representations are produced at Annexure-
H to the petition.
3.10 Being aggrieved and dissatisfied by the order of
termination dated 11.6.2014, Annexure-G to the petition, the
petitioners herein are constrained to approach this Court
invoking Article 226 of the Constitution of India and has
prayed for the reliefs as referred above.
Submissions on behalf of the petitioners :-
4. Heard Mr. Y. N. Oza, the learned Senior Counsel assisted
by Mr. H. J. Dholakia, the learned advocate appearing for the
petitioners.
4.1 Mr. Oza, the learned Senior Counsel submitted that
the petitioners herein are appointed upon issuance of public
advertisement in the newspaper as per method two, "open
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advertisement followed by proficiency test" as prescribed in
the G. R. dated 16.11.2010. The petitioners herein applied for
the said post and cleared written examination, group discussion
and personal interview. The selection process and the
procedure undertaken by the respondent No.2 is similar to that
of the process of selection of regular employees and not only
that the posts for which the petitioners applied also can be
considered as regular posts and may be declared as regularized
posts in light of the betterment of the society.
4.2 It is submitted that after passing three examinations,
those candidates who cleared the said examinations are offered
appointment letters by way of contract for their respective
posts. The salary which is stated in the contract is not as per
the government resolution and, therefore, the respondent No.2
is required to give salary either as per the regular pay-scale of
the employees working under the respondent No.2 or at least
as per the G. R. dated 16.11.2010. The petitioners, selected
candidates, have also undergone various training from time to
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time as per the requirement of the respective posts.
4.3 It is submitted that the petitioners were sent to other
States such as Andhra Pradesh, Kerala etc., for different
training programs for which the respondents have spent crores
of rupees. The respondents are spending minimum one lakh
rupees per employee per training program. Qua some of the
petitioners, airfares are also borne by the respondents. It is
submitted that the respondents were in the process of
terminating the service of the petitioners and some of the
employees were also in the midst of the training from various
institutions, like Sardar Patel Institute of Public Administration
(SPIPA) and also from out States.
4.4 It is submitted that the petitioners are performing their
duties for upliftment and betterment of the needy, illiterate
and poor women of the society, coming from remote areas of
the State. The petitioners are working as a bridge between the
Government organizations / activities and needy women. The
petitioners are helping them to reach out to their needs and
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therefore trained employees are required to be continued on
their services and their posts are required to be regularized
and hence the impugned orders are required to be quashed
and set aside and all the petitioners are required to be
regularized.
4.5 It is submitted that the respondent No.2 has apprised
the petitioners on the basis of their performance. Though the
petitioners are apprised twice, the petitioners' salaries are
never paid as per the regular pay-scale or increased even as
per the government resolution by the respondent authority so
also against the interest of the petitioners herein who are
working day-in and day-out for the betterment of the society
on behalf of the respondent authority. It is submitted that no
steps have been taken to increase the salary of the petitioners,
but those candidates who could not clear the appraisal
procedure, their services came to be terminated by the
respondent authority.
4.6 It was submitted that it has come to the knowledge of
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the petitioners that the respondent No.2 has stated that all the
employees are being paid salaries as per the Government
Resolution dated 16.11.2010 which is also incorrect. It is
submitted that even after completion of three years the
respondent No.2 has not made its human resources manual
which is in fact a prior requirement as per the Government
Resolution dated 16.11.2010.
4.7 It is further submitted that on one hand the respondent
No.2 informed all the District Development Officers by
communication dated 30.5.2014 to grant the benefit of casual
leaves for a current year and remaining earned leaves for the
previous years as the contract has been extended for another
tenure of one year and on the other hand, within next 11 days
the respondent No.2 overruled its own letter by letter dated
11.6.2014 that the service of 300 employees will be availed
only upto 30.7.2014 which amounts to complete exploitation of
the petitioners herein and in view thereof, the said action is
illegal and arbitrary.
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4.8 It is submitted that as per the Government Resolution
dated 16.11.2010, minimum experience require for the lowest
post is two to five years, therefore for all the petitioners who
applied for said post must have left their previous job and
have joined the respondent No.2 and therefore these are not
the posts which can be said to be a time being posts, but it
requires qualified and trained candidates like the present
petitioners.
4.9 It is submitted that without terminating the services of
the petitioners the posts are required to be regularized. It is
submitted that during the selection process there are no
allegations of malpractice or deficiency in the recruitment
process and therefore there is no requirement to discontinue
the service of the petitioner and to initiate fresh recruitment
procedure. It is submitted that not a single petitioner is facing
departmental inquiry or even a criminal case of moral
turpitude or even otherwise which may lead to respondent
authorities to discontinue the services of the petitioners herein.
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4.10 It is submitted that it is in the benefit of the respondent
State to continue and regularize the services of the petitioners
having spent crores of rupees in training the present petitioners
at the cost of the State exchequer. It is also submitted that the
process of declaring fresh recruitment on the posts will also
cause further expense of crores of rupees and that it would
further burden the State exchequer, therefore also the services
rendered by the petitioners are to be continued and
regularized.
4.11 It is submitted that the petitioners' from top level to
bottom level posts as on today have become over-aged and
may not be able to find another job which may amount to
ruin their family life also and on humanitarian grounds also
the services of the petitioners herein are such that the same be
regularized.
4.12 Mr. Oza, the learned Senior Counsel submitted that the
Government Resolution dated 16.11.2010 has been brought into
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existence for implementation of a scheme named 'Mission
Mangalam' and another scheme named 'National Rural Lively
Mission' (for short NRLM). It is submitted that the scheme
'Mission Mangalam' is a permanent scheme which is a
benevolent Scheme with the noble objective to touch large
number of downtrodden and underprivileged people.
4.13 It is submitted that instead of one department of the
government looking after it so as to disturb its regular work, a
company has been created which will as limb of government
undertake implementation of 'Mission Mangalam'. Such concept
is not new and relied on the creation of Statute such as
Gujarat Civil Supplies Corporation, Gujarat Water Supply and
Sewerage Board and Gujarat Water Resources Development
Corporation as also GSFC and GIDC Act.
4.14 It is submitted that the task to carry out the Scheme of
'Mission Mangalam' wherein the respondent No.2 has
established a company is similar to that of the aforesaid
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Statutes which are also the creature of the respondent No.2. It
is submitted that rather than forming a separate corporation
which is governed by its Statute, after passing the legislative
assembly, to discharge its duties now the State has started
adopting a new practice of creating company just like the
respondent No.2 company who is appointing employees like
the present petitioners on contract basis only with a view to
deny the regular scale of pay which otherwise the State
Government is paying as a regular scale to other concerned
department.
4.15 It is submitted that 'Mission Mangalam' is a dream
project of the State Government and the Union Government
came out with the scheme known as NRLM. Even the Union
Government has delegated its powers to respective State
Governments to achieve the object and in pursuance thereof
the State of Gujarat has come up with a scheme called
'Mission Mangalam'. The fact again can be seen from the
preamble (at page-33) of the petition that the company has
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been created even to carry out NRLM. It is submitted that the
plain reading of the vision and mission of GLPC and
introduction would show that it is a permanent creation like
Gujarat State Water supply Corporation Limited or Gujarat
Water Resources Development Corporation Ltd. Instead of
creating a Corporation, in the instant case, the respondent
No.1 has created a company that is the respondent No.2
herein, thus it is not for a temporary period or for a particular
goal of a temporary nature which is sought to be achieved by
the State Government that the respondent No.2 has been
created.
4.16 It is submitted that the State has adhered to unfair
labour practice and most unfair practice, if not labour practice
in treating the subject. It is only and only with a view to deny
the regular scale of pay. At page-36 there is a provision that it
will be a fixed tenure appointment for three years. It is
submitted that the organization which is permanent and
perennial would have single post as sanction. It is submitted
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that at page-36 in Clause (5) it clearly states that all the posts
shall be governed by the Recruitment Rules which would be
specified under the human resource manual, however all the
recruitment have taken place under Chapter-3 at Schedule-1
which can be seen at page-39. Though the human resources
manual is not made out, the sanction has been given to the
Recruitment Rules.
4.17 It is submitted that at page-33 five government
resolutions have been referred to. At Sr. No.1 there is a
reference to Government Resolution dated 31.3.2010 which
clearly and without any doubt would go to suggest that the
respondent No.2 is brought into existence for carrying out the
projects of 'Mission Mangalam' which otherwise would be
carried out by the State Government, a copy of which is relied
upon at Annexure-M. It is submitted that rest of the
government resolutions referred to at Sr. Nos.2, 3, 4 and 5 are
in furtherance of the resolution No.1 and though the
petitioners do not have a copy of the same, but reliably learnt
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that the government resolutions No.2, 3, 4 and 5 are issued to
make functioning of the scheme and functioning of the
respondent No.2 on a stronger footing.
4.18 Placing reliance on the aforesaid submissions, it is
submitted that the prayers as prayed for in the present petition
be allowed.
Submissions on behalf of the respondent No.2 :-
5. Heard Mr. H. S. Munshaw, the learned advocate
appearing for the respondent No.2. Mr. Munshaw, the learned
advocate relied on the affidavit-in-reply which is duly
produced at page-138 and raised preliminary objection with
respect to maintainability of the petition and submitted that no
fundamental rights of the petitioners have either been infringed
or abridged by any of the action on part of the respondent
No.2, as the petitioners were appointed on contractual basis
only for implementing the project which is of a limited
duration. It is also submitted that having accepted the fixed
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term appointments with open hands, it now cannot turn
around and challenge the same, inter alia praying for
absorption as government servant.
5.1 It is submitted that the project itself is of a limited
duration and posts not being of a perennial in nature, it is not
permissible for the petitioners to claim parity with the
government servants. It is further submitted that the petitioners
herein were appointed on fixed term employment of three
years in the year 2011. The grievance raised on behalf of the
petitioners' alleging that the services of the petitioners came to
be terminated by communication dated 11.6.2014 is baseless in
light of the fact that the appointment orders of the petitioners
automatically come to an end upon expiry of the contract
period of three years. On the basis of the aforesaid contractual
appointment it is not open for the petitioners to seek
continuance of contractual period by praying for direction to
the respondent No.2 not to terminate the services of the
petitioners in any manner and to treat them at par with the
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regularly selected government employees in the government
service.
5.2 It is submitted that the main objective of the 'Mission
Mangalam' is eradication of poverty by adopting public private
partnership model in coordination with various institutions like
banks, financial institutions, livelihood oriented institutions,
industrial undertaking, etc. Since the said 'Mission Mangalam'
was never envisaged as a project having permanent and
perennial type of activity vide another Government Resolution
dated 16.11.2010, it has been provided that appointment of
various personnel with different designations would be on
contractual basis for a fixed term of three years. It is
submitted that the said 'Mission Mangalam' is fully aided by
the State budget after deducting the amount received from
other sources including the Government of India. Reliance is
placed on the same government resolutions duly produced at
page-149 collectively dated 31.3.2010 and 16.11.2010.
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5.3 It is submitted that the Central Government came out
with a similar project called NRLM at National level to achieve
similar objective like the project of 'Mission Mangalam' by
districts and the country by the end of the twelfth five year
plans i.e. by 2017 with the arrangement of financing the said
project between the Central and State Governments in the ratio
of 75 is to 25. The aforesaid is discernible from the overview
of the project published by the Ministry of Rural Development,
Government of India which is relied upon and duly produced
at Annexure-II at page-159.
5.4 It is submitted that the respondent No.2 has been
formed on 31.3.2000 under the provisions of the Companies
Act to run, establish and encourage and carry on various
activities as the corporation to provide, develop and promote
livelihood and eradicate poverty through concerted community
action by facilitating organization of the poor for combining
self-help with demand-led conversions of available services and
resources to tackle multiple dimensions and manifestations of
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poverty holistically.
5.5 It is submitted that advertisements were issued inviting
applications for various posts, as stated in the said Government
Resolution dated 16.11.2010. Pursuant to the said
advertisement petitioners herein came to be appointed by
issuing appointment letters, carrying a specific condition to the
effect that the appointment would be of a fixed term
employment contract that is FTE contract inclusive of three
months probation period up to 31.3.2014.
5.6 Reliance is placed on the requirement of qualification
and experience vis-a-vis fixed monthly salary payable to the
incumbent against each of the aforesaid designations as set out
in the said table duly produced at paragraph-6. It is submitted
that during the course of conduct of the aforesaid two projects
i.e. the 'Mission Mangalam' project and NRLM project it was
realized that there is an earnest need to improve skills sets of
organization of requisite human resources. As the respondent
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No.2 has now a further requirement of 350 persons in various
designations, as referred above, a decision has been taken to
provide for requirement of higher qualification as compared to
the original contractual appointment of the petitioners on
various posts. Reliance is placed on paragraph-7 of the reply
filed by the respondent No.2 to substantiate the aforesaid
contention.
5.7 It is submitted that in view of aforesaid, the respondent
No.2 has now come out with issue of development for
recruiting 350 personnel in various designations. It is submitted
that it is quite likely that many of the petitioners may require
higher qualification as required during the course of the
interregnum, whereby they may be in a position to compete in
the matter of contractual appointment of 350 vacancies,
however it is legally not feasible to continue the petitioners in
the aforesaid projects as much as it would ultimately invite
discrimination affecting the whole working atmosphere in both
the projects.
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5.8 It is submitted that the services of the petitioners have
come to an end by efflux of time and in absence of there
being any fresh appointment orders in favour of the
petitioners, the petitioners cannot claim it as a matter of right
to claim continuance over contractual posts in question. The
petitioners are continued by virtue of the interim order passed
by the court, however the service of the petitioners have come
to an end on 31.7.2014. It is denied that the respondent No.2
has taken a separate/ different stand within a short span of 11
days as alleged.
5.9 It is submitted that the tenure of employment of the
petitioners had come to an end on 31.3.2004, however in view
of the ensuing general elections, while internal communication
later on 31.3.2014 it was addressed to various District
Development Officers that the contractual appointment of such
appointees including the petitioners working in State, District
and Taluka levels be continued till further orders. Thereafter
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dealing with aspect of relating to casual leave and earned
leave in internal communication dated 30.5.2014 addressed to
all the concerned authorities at the district level it was
conveyed that decision has been taken to extend the tenure on
contractual appointees which was expiring on 31.3.2014 by
further period of one year w.e.f. 1.4.2014.
5.10 It is submitted that it was a said internal communication
under mistaken belief, but the same was never meant for any
of the contractual employees including the petitioners. In fact,
there was no reason for the respondent No.2 to extend the
tenure for a further period of one more year, particularly when
the respondent No.2 was to scout for similar persons with
higher qualifications and experience, as submitted above. It is
submitted that under the circumstances vide further internal
communication dated 11.6.2014 addressed to all the concerned
District Development Officers, it was conveyed that the tenure
of contractual appointees numbering 300 including the
petitioners whose three years tenure came to an end on
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31.3.2014 should be allowed only upto 31.7.2014.
5.11 It is submitted that accidental extension of four months
came to be available to the petitioners cannot be and should
not by itself give rise to any favour to the petitioners to
invoke Article 14, 19(1)(a) and 21 of the Constitution of India,
more particularly when the petitioners accepted the terms of
appointment with open eyes and it is now not permissible to
turn around and brand the letter of extension as termination
and challenge the same before the court.
5.12 It is submitted that the communication dated 11.6.2014
is an order of termination is absolutely devoid of substance. It
is submitted that in the year 2011 itself when the petitioners
were appointed for the first time on contractual basis a further
period of three years with fixed monthly installments their
services or otherwise would come to an end by efflux of time
and therefore there arises no question of alleged illegal
termination of services of the petitioners. It is submitted that
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this court may not exercise extraordinary jurisdiction and
Article 226 of the Constitution of India to interfere with the
policy decision taken for implementing the project of mission
'Mission Mangalam' and NRLM, whereby contractual
appointments of the petitioners were effected for a fixed period
of three years, and it was unconditionally accepted by the
petitioners without any protest.
5.13 It is submitted that none of the projects have been a
permanent creation requiring the services of regular employees.
It is submitted that the projects are of limited duration and
with budgetary finances for which it is not possible to create
permanent posts with prescribed pay-scale like employment in
the government services. It is submitted that the State has
adhered to infallible practice. It is submitted that the
respondent No.2 is neither permanent nor perpetual and the
aforesaid projects are conceived by the State Government and
Central Government and are of limited duration and that to as
per the discretion of the respective government wherein the
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respondent No.2 is playing a limited role facilitating the
execution of the said projects.
5.14 Reliance is placed on the ratio down in case of State of
Karnataka vs. Uma devi, reported in (2006) 4 SCC 1, wherein
it is held that protection of provisions of Articles 14, 16, 19(1)
(a) and 21 are not available to the petitioners since the
appointment of the petitioners were for a limited tenure under
a project and the petitioners have never been appointed on
regular establishment in the government service in regular pay-
scale. It is submitted that without prejudice to the rights and
contentions that are taken even if the petitioners have a right
to continue over the posts even then the appointments will not
only being violation of provisions of Articles 14 and 16 of the
Constitution, but also against the provisions of the Bombay
Industrial Employment Standing Orders applicable to the
appointments of the respondent company. Placing reliance on
the aforesaid submissions, it is submitted that the present
petition be dismissed, the same being devoid of merits.
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Submissions on behalf of the respondent No.1 - State:-
6. Ms. Manisha Lavkumar, the learned Additional Advocate
General assisted by Mr. Jay Trivedi, the learned AGP
appearing for the respondent No.1 - State relied on the
Government Resolution dated 16.11.2010 (Page-36 para-5) and
submitted that the recruitment process of the petitioners is as
specified under the Human Resource Manual approved by the
board of GLPC, Chapter-3 Recruitment and Induction Rules
which are annexed at Schedule-1 (page-39). Reliance was
placed on the appointment order duly produced at page-44
Annexure-C, Page-44 - appointment order for the post of
General Manager, at page-51 Project Manager and Page-58 -
appointment order for the post of District Livelihood Manager.
Placing reliance on the appointment orders duly produced at
Annexure-C (Colly.) at pages 44, 51 and 58 submitted that it is
a mode of assignment for a fixed term of three years upon
various terms and conditions. It was submitted that the
petitioners would be on probation for three months upon
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satisfactory performance upon review during the said period, if
it is found that the performance is unsatisfactory on review
during the probation period the services may be terminated
without notice or assigning any reasons or compensation. It
was submitted that on successful completion of probation
period three years fixed term employment FTE contract shall
commence. The said contract would be inclusive of three
months. The contract shall also be renewable as may be
decided by the management on the basis of mutual agreement.
6.1 It is submitted that for the purpose of remuneration the
petitioners are governed by standing orders, service rules and
regulations of GLPC in force as may be formed/modified from
time to time without prejudice to any provision under the
contract. Placing reliance on the aforesaid, it is submitted the
respondent - State has established the respondent No.2 GLPC
to implement the State's livelihood initiative "Mission
Mangalam" and NRLM with an objective to provide sustainable
livelihoods to poor-households in accordance with the goals of
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the "Mission Mangalam" and NRLM. To achieve the said
purpose necessary human resources are required to be provided
to the GLPC and after careful consideration the respondent
State has approved the organizational structure of GLPC
respondent No.2 herein. It is resolved to fulfill the said
structure under the terms and conditions specified in the said
resolution. It is submitted that the emoluments against the said
posts annually are such that the same cannot be equated with
any sanctioned post and analogous pay-scale to any such
sanctioned posts in the State Government and in view thereof
the contention of the petitioners to regularize the service of
the petitioners in accordance with the pay-scale of a regularly
appointed employee is such that the same cannot be
considered. Even as per the case of the petitioners as pleaded
in the memo of petition, more particularly para-2, it is the
case of the petitioners themselves that there is no permanent
post in the Company and, therefore, there is no question of
regularization.
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6.2 It is submitted that all the posts are on contractual
basis for a fixed tenure of three years. It is submitted that the
Selection Committee under the Chairmanship of the Managing
Director of the GLPC is constituted for the purpose of
recruitment of the personnel consisting of the committee as
stated in Sachedule-1 Chapter-3 of the Government Resolution
dated 16.11.2010. It is also submitted that the board of GLPC
shall approve three to four levels under each category to
attract experienced persons in the company. The levels along
with compensation levels are reflected as per the human
resource manual of the company. It is submitted that support
services at State, District and Taluka level and positions of
Assistant Project Manager, if require at State level would be
approved through out-sourcing as stated in Schedule-1 (page
39).
6.3 It is also submitted that the expenditure on the
establishment of the GLPC would be provided as grant-in-aid
from the State budget after deducting amounts received, if
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any, from other sources including the Government of India. It
is also submitted that GLPC shall develop an incentive program
for its employees separately which shall be submitted to the
State Government for its approval and the GLPC also to submit
proposal in respect of service conditions and allowances of
employees separately for the approval of the respondent State.
It is submitted that it is expected of the GLPC to formulate its
organizational goals and verifiable targets which forms the
basis of MOU with the State Government. It is submitted that
the advertisement is also issued by the GLPC.
6.4 In view of the aforesaid submissions, Ms. Shah, the
learned Additional Advocate General placed reliance on the
following decisions :-
(a) In the case of State of Karnataka vs. Umadevi (2006) 4
SCC 1, (paras 35 to 92)
(b) In the case of S. Sodhi vs. National Council of State
Agricultural Marketing Board, 1997 (2) SCT 475
(c) In the case of State of Manipur and Anr. vs. Ksh.
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Moirangninthou Singh and Ors., (2007) 10 SCC 544
(d) In the case of Union of India vs. Indian Navy Civilian
Design Officers Association and Anr., 2023 SCC Online SC 173.
Rejoinder of behalf of the petitioners :-
7. Mr. Oza, the learned Senior Counsel in rejoinder
reiterated the contentions raised earlier and submitted that the
core issue involved in the present petitions is that the
respondent authorities, who rather than treating the service of
the petitioners as regular from the date of appointment are in
process of terminating the services of the petitioner upon
completion of the three years' contract. That the petitioners
herein are appointed after following the regular process of
selection by competitive method and that the petitioners have
undergone various training from time to time for the respective
posts.
7.1 It is submitted that the petitioners have successfully
completed probation period and have cleared appraisal,
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however the petitioners are not only denied regular pay-scale,
but are not even accorded fixed scale as per the government
resolution. It is submitted that the respondent No.2 is in
process of recruiting some more employees with higher
quantification in place of the present employees and for that
an advertisement is given wherein the respondent No.2 is in
process of recruitment of contractual employees. It is submitted
that contractual employees cannot be replaced against
contractual employees and in the instant case the respondent
No.2 has done exactly the same. The project Mission
Mangalam is an ongoing and never ending process and is not
for a limited period. The work is of perennial nature. Though
the respondent No.2 is registered under Section 617 of the
Companies Act, meaning thereby hundred percent owned by
the State Government wherein the respondent No.2 is acting as
a private company. It is must for the respondent No.2 to
follow the human resource manual, however the same is not
complied with.
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7.2 To substantiate the aforesaid contentions Mr. Oza, the
learned Senior Counsel relied on the following decisions :-
(a) CAV judgment dated 24.7.2020 passed in the LPA
No.1225 of 2019,
(b) SLP (Civil) No.30976 of 2017,
(c) AIR 1982 SC 879, Paragraphs 1, 2 and 8,
(d) 1986 (1) SCC 637 and
(e) 1986 (1) SCC 639
The principles laid down by the Hon'ble Apex Court in
Jagu's case, Shivnarayan case and Somesh Thapliyal are
reiterated and placing reliance on the aforesaid it is submitted
that the prayers as prayed for in the present petition be
allowed.
Analysis :-
8. The respondent No.1 - State by Government Resolution
dated 31.3.2010 established a company named Gujarat
Livelihood Promotion Company Ltd., herein (for short 'GLPC')
- respondent No.2 herein. The Company is registered under the
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provisions of the Indian Companies Act, 1956 to implement the
State's livelihood initiative "Mission Mangalam' (Annexure-I
page-128) and the National Rural Livelihood Mission - NRLM
(Annexure-J page-130).
8.1 The aforesaid is with a view to bring the critical mass
of resources, on a single platform of stake-holders like the
banks, industries partners, micro-finance institutes and skill-
imparting institutes etc., to deliver desired outcomes,
formulating strategies towards achieving the goals of 'Missions
Mangalam', improving the human index by empowering
women and improving the living standards of the poor in the
State.
8.2 The respondent No.1 - State vide Government
Resolution dated 16.11.2010 approved the organizational
structure of the GLPC. The GLPC works through strategic
partnership between large industries and Sakhi Mandals / Self
Help Groups / Producer Groups / Service Groups / Collectives
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of the poor, through decentralized Micro Enterprise Ventures.
The promoting companies / entrepreneurs redesign the process
where intensive tasks as job-works are undertaken by Self Help
Groups in their respective homes or villages as self-employment
activities. The main objectives of GLPC reads thus :-
(a) Empowering the Poor by organizing them into
SHGs/Federations/other Collectives.
(b) Empower the poor through ensuring access to Financial
Services.
(c) Augmenting existing livelihoods and enhancing incomes
(d) Explore livelihood opportunities through newer ventures
in rural service sector
(e) Developing Inclusive Value Chains
8.3 The vision and mission of GLPC (Annexure-L page-
133) :-
"Create a socio-economically developed Gujarat through
inclusive growth strategies for empowering the
underprivileged members of vulnerable
communities/groups, resulting in them leading a dignified
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life."
The GLPC while working towards the challenging vision
of empowerment of poor women, has to ensure realization of
this vision through participatory means and by convergence of
prevalent government developmental schemes. The mission of
the company could be stated as :
"We strive to serve the underprivileged women as well as
members of vulnerable communities/groups in the state by
organizing and capacitating their Groups and creating
sustainable livelihoods. We ensure convergence of
prevalent development programmes and schemes as well
as forge partnerships with other non-government
organizations and corporate houses for inclusive growth
and the empowerment of the members of the groups
served. In order to provide quality member-services, we
strive to remain financially sound and secure. We will
work towards establishing ourselves as a unique
organization with deep abiding human values and
maintaining the same."
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8.4 In the facts of the present case, upon issuance of the
public advertisement in January 2011 duly produced at page-
43 (Annexure-B) the petitioners herein applied under the said
advertisement and are appointed on various posts as per the
Government Resolution dated 16.11.2010 on contractual basis
for a fixed term of three years on various terms and conditions
as provided in the Schedule-1 Chapter-3 of the human resource
manual approved by the Board of GLPC.
8.5 As averred by the petitioners approximately 254 in
number are appointed by the respondent No.2 GLPC in the
year 2011. The tenure of the appointment expired on
31.3.2014 upon completion of three years. By virtue of
communication dated 11.6.2014 four months extension was
granted to all the employees whose tenure lapsed by afflux of
time. No details with regard to the appointment orders of the
petitioners are either furnished or pleaded in the petition. No
details emerge with regard to the position held by each of the
petitioners. There are also no details with regard to the
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emolument received / receivable by the petitioners. There is no
receipt on record of the consolidated pay received by any of
the petitioners. Upon perusal of the record it emerges that
there is also no order terminating the services of the
petitioners. The same is not disputed by Mr. Oza, the learned
Senior Counsel that the communication dated 11.6.2014 is not
an order of termination. The petitioners approached the Court
before expiry of their term of three years wherein by way of
ad-interim relief the respondents are directed to maintain
status-quo qua the petitioners by order dated 25.7.2014 which
has continued till date.
8.6 It is the case of the petitioners that they were appointed
as per Clause (3.3) method two; open advertisement followed
by proficiency test (page 40). The petitioners herein
successfully completed the requisite steps and are appointed in
the respondent No.2. That the petitioners applied upon
issuance of the advertisement in January 2011 (Annexure-B
page 43).
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8.7 Upon perusal of the said advertisement it emerges that, it
was open for retired persons from Government/Banks with
experience and aptitude can also apply. No written test will be
conducted for such candidates.
For the above-mentioned posts, it is requested to verify
the details including job profile, eligibility criteria, salary
package and other conditions as also to visit the website:
www.sid.co.in/glpc. Only the candidates who are eligible on
the basis of merit will be included in the selection process.
8.8 This Court has perused the general appointment orders
placed on record at Annexure-C (Collectively) which read
thus :-
(a) Officer of appointment on fixed term employment basis -
General Manager (page-44)
(b) Officer of appointment on fixed term employment basis -
Project Manager (page-51)
(c) Officer of appointment on fixed term employment basis -
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District Livelihood Manager (page-58)
From the aforesaid appointment orders, it emerges that
the appointment is on contractual basis of three years and
upon terms and conditions of the said contract. The terms and
conditions of appointment order read as under:-
(a) On successful completion of probation period of three
months, if performance is found to be unsatisfactory, on
reviewing during the probation period the service may be
terminated without notice or assigning any reasons or
compensation.
(b) Upon successful completion of probation period, the three
years fixed term employment FTE shall commence contract
which include three months probation period.
(c) The said contract shall be renewable on satisfactory
performance including achievement of target or such other
criteria that may be decided by the management on the basis
of mutual agreement.
(d) Unless renewed, the contract shall stand automatically
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terminated on expiry of the period of contract without any
notice or compensation.
8.9 Reliance is placed by the petitioners on an internal
communication dated 31.3.2014 addressed to all the District
Development Officers that the contractual appointment of such
appointee including the petitioners working in State, District
and Taluka levels to be continued till further orders.
It is pertinent to note that by further internal
communication dated 11.6.2014 addressed to all District
Development Officers, it was conveyed that the tenure of
contractual appointees numbering 300 (including the
petitioners, whose three years tenure came to an end on
31.3.2014 should be allowed only upto 31.7.2014).
9. Considering the case of the petitioners as it is the
emoluments against various posts as provided in the
Government Resolution dated 16.11.2010 reads thus :-
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Designation Experience Annual CTC Rs.
(years)
L5 General Manager State 10 to 15 7,20,000
L4 Manager District 06 to 10 6,00,000
L3 Project Officer State 2 to 06 4,80,000
L2 Asst. Project Officer 02 to 06 3,60,000
Dist.
L1 Project Officer Taluka 2 to 05 2,40,000
In the opinion of this Court, the petitioners herein are
entitled to the said emoluments qua the relevant post held by
the petitioners.
9.1 Upon perusal of the G.R. dated 16.11.2010 it also
emerges that considering the emoluments qua the relevant
posts nothing is produced on record for the Court to arrive at
a decision that the petitioners herein be granted the pay scale
of a regular employee. The petitioners have failed to fortify
their claim to seek parity with regularly appointed employees
seeking equivalence as to which post and which pay-scale
under Article 309 of the Constitution of India and the
petitioners not being government employees as per the Gujarat
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Civil Service (Discipline and Appeals) Rules, 1971.
The engagement of the petitioners is governed Chapter-3
of the Human Resource Manual approved by the Board of
GLPC and the terms of the appointment orders. The petitioners
are otherwise governed by the Bombay Industrial Employment
Standing Orders applicable to the respondent No.2 for the
purpose of appointment.
It is apposite to refer to Rule 1(c) of the Gujarat Civil
Service (Discipline and Appeals) Rules, 1971 which reads
thus :-
"They shall apply to all persons appointed to civil
services and posts in connection with the affairs of the
State of Gujarat whose conditions of services are regulated
in accordance with the rules made under Article 309 of
the Constitution."
Admittedly the petitioners are not regularly appointed
employees under Article 309 of the Constitution of India and
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therefore, the petitioners cannot be said to be governed by the
the Gujarat Civil Service (Discipline and Appeals) Rules, 1971.
9.2 Considering the aforesaid Government Resolution dated
16.11.2010 the question of parity in pay-scale of regular
employee is out of question qua retired persons.
10. It emerges that the petitioners herein have neither
challenged any of the Government Resolutions or the Standing
Orders or Chapter-3 of the Human Resource Manual.
10.1 In the opinion of this Court, the petitioners herein are
appointed in accordance with the Government Resolution dated
16.11.2010, in view thereof, there is no question of
considering the case of the petitioners as irregularly appointed
employees. The petitioners have failed to make out a case
though having placed reliance on catena of judgments with
respect to equal pay for equal work, as referred above, as to
how the petitioners claim equal pay for equal wages in terms
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of the following :-
a. Method of recruitment.
b. Level at which recruitment is made
c. Hierarchy of service in a given cadre.
d. Minimum educational and technical qualification.
e. Avenues of Promotion.
f. The nature of duties and responsibilities.
g. Satisfaction level.
10.2 The contention raised by Mr. Oza, the learned Senior
Counsel that "Mission Mangalam" is not a temporary scheme,
however it is a permanent scheme and that the respondent
No.2 is in process of recruiting more employees with higher
qualifications in place of the present employees and for that
the respondent No.2 has given advertisement also wherein the
respondent No.2 is in process of recruitment of contractual
employees. Reliance is placed on the advertisement issued
which is duly produced at page-179 for the year 2014-15.
The aforesaid would not in any manner change the
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nature of the employment qua the petitioners herein having
been appointed on contractual basis. It is always open for the
respondent No.2 to enhance the qualifying criteria for the
employment.
It is also contended that it is not possible to build repo
with new employees recruited by the respondent No.2 whereas
the petitioners have already reached to the remote areas and
have started working with them for a long period of time.
The aforesaid contention cannot be a reason not to
enhance the eligibility criteria for the appointment in the
respondent No.2 Company. It is within the domain of the
competent authority to lad down the qualifying criteria.
11. The submissions made by Ms. Shah, the learned
Additional Advocate General requires consideration that the
petitioners are in fact getting more remuneration than the
government employees, the petitioners having pleaded that the
petitioners are not getting minimum wages under the Minimum
Wages Act, 1948.
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12. At this stage, it is apposite to deal with the judgments
relied upon by Mr. Oza, the learned Senior Counsel appearing
for the petitioners :-
(a) Letters Patent Appeal No.1225 of 2019, judgment dated
24.7.2020, wherein the issue was with respect to order of
sudden dismissal of an employee after exemplary service from
the appellant. The Hon'ble Division Bench was dealing with
two questions, as stated in paragraph-15 of the said judgment;
one whether termination of services of the respondent is a
simplicitor termination as sought to be worded in the
termination order or is it found on well established designed to
achieve the said end ? If so, whether adequate opportunity
was afforded to the petitioner and whether the principles of
natural justice and fair play as would not have been attracted
in such a situation was adhered to or not. Second question
was, whether in the facts and circumstances of the case, the
order of termination though worded as termination simplicitor
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was in fact tainted by extraneous consideration.
The aforesaid judgment is not applicable in the facts of
the present case, wherein in absence of any order of
termination and the petitioners herein having been appointed
on contractual basis for fixed period of three years.
(b) Letters Patent Appeal No.712 of 2005 wherein the
petitioners were employees of border wing of the home-guard,
who were working full-time round the clock and throughout
the year. The Hon'ble Division Bench considering the nature of
their service held that, the benefits in the peculiar facts and
circumstances of the said case, as held in paragraph-9, relevant
part read thus :-
"Therefore, under the peculiar facts and circumstances, the
directions contained in the impugned judgments to give to the
BWHGs concerned all benefits available to the State
Government's servants and absorb them in its service with
effect from 30.7.2003, the date of filing of the petition, are
not required to be interfered in these appeals. In fact, the
State Government has itself made a Scheme dated 06.4.2009
for absorption of the part-time BWHGs in the regular
establishment of State Reserve Police Force (S.R.P.F.)
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conferring all the benefits of pay scale, allowances etc.; but
the BWHGs could not avail of that Scheme due to pendency of
these proceedings and their claims based on very long past
service. It was pointed out on behalf of 1285 BWHGs
concerned that they stood to lose more than 30 crore rupees
of arrears on account of the appointed date of absorption
ignoring their services for the period prior to the year 2002,
and the calculation of their retiral benefits will also be
affected. That point and grievance was not pressed expressly
in consideration of the prospects of the BWHGs getting all the
benefits, with arrears, immediately with effect from the
aforesaid date. In view of the unnecessarily prolonged
pendency of these appeals, it has to be clarified and directed,
in the interest of justice, that the arrears payable to all the
1285 BWHGs concerned in these appeals shall be counted and
calculated on the basis of their absorption in full-time
permanent service on the equivalent posts with effect from
30.7.2003 and the amounts of difference of salary and unpaid
allowances due at the end of every year, i.e. 30.7.2004,
30.7.2005, 30.7.2006 et. al, shall be capitalized and paid with
interest @ 7.5% p.a. The current wages of the BWHGs
concerned shall be calculated on the basis of their absorption
in service of the State since 30.7.2003 and paid accordingly
with all the increments and admissible allowances at par with
the State armed police. The total amounts due as aforesaid
towards increments, unpaid allowances and arrears with
interest due upto the date of payment as also the benefits at
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par with the State armed police shall be paid within two
months from the date of this order, failing which, the total
amount due as on 01.06.2011 to each of the BWHGs
concerned shall have to be paid with interest @ 9% p.a. for
the subsequent period. The other BWHGs whose petitions and
appeals are already disposed by earlier orders and who have
availed the benefit of the Scheme of their absorption in
regular service shall not be, as declared on their behalf by
learned senior Advocate Mr.Y.N.Oza, entitled to any relief on
the basis of this judgment. Accordingly, subject to the
clarifications and directions as aforesaid, all the appeals are
dismissed and all the civil applications made therein are
disposed as not surviving, with no order as to costs."
The petitioner working as part-time border wing home-
guard could not be treated differently from the permanent
staff.
In the facts of the present case, no details with respect to
any permanent employee are placed on record. The aforesaid
judgment is not applicable in the facts of the present case.
(c) In the case of State of Punjab and Ors., vs. Jagjit Singh
and Ors., reported in 2017 (1) SCC 148, wherein the Hon'ble
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Apex Court was considering the principle of "equal pay for
equal work" and held that temporary employee possessing
requisite qualification and appointed against the posts which
were also available in regular cadre, performing similar duties
and responsibilities as being discharged by regular employees
holding same/corresponding posts, were entitled to claim wages
on a par with minimum pay scale of regular employees
holding the same posts.
The aforesaid judgment is not applicable in the facts of
the present case, the petitioners having not placed on record at
to how their duties and responsibilities are same as other posts
with different designation and that the petitioners herein are
placed in a lower scale by the GLPC.
(d) In the case of Mahanadi Coalfields Ltd., vs. Brajrajnagar
Coal Mines Workers' Union in the Civil Appeal No.4092-4093
of 2024, wherein the Hon'ble Supreme Court was considering
the case of a daily-wager who was working for more than 10
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years for the period from 1984 to 1994. Considering Clauses
11.5.1 and 11.5.2 of the National Coal Wage Agreement-IV
dated 27.7.1989, wherein it was agreed that the employer shall
engage contract labour with respect to jobs which are
permanent. The Hon'ble Supreme Court observed not to
engage contract labour with respect to jobs which are of
permanent and perennial in nature. It was further observed
that such jobs shall be executed through regular employees.
The Hon'ble Supreme Court held in para-20 that the remaining
workers also stand on the same footing as regularized
employees, and therefore they are wrongly not granted the
benefit of regularization.
In the facts of the present case, the petitioners herein are
appointed for a period of 03 years on contractual basis are
governed by the Government Resolution dated 16.11.2010.
The petitioners have not pleaded as to how the petitioners are
similarly placed to other employees working in the GLPC
having extended the benefit of regular employees.
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(e) In the case of Vadodara Municipal Corporation vs.
Manishbhai Mayanbhai Mod in Letters Patent Appeal No.189 of
2018, the Hon'ble Division Bench in para-4.1 at page-9 of the
judgment held that termination of an employee upon issuance
of show cause notice was held to be unjust, unreasonable,
arbitrary and in breach of the Gujarat Civil Services
(Discipline & Appeal) Rules, 1971 and the same is also
violative of the principles of natural justice.
In the facts of the present case, the petitioners herein are
not government employees and are not governed by Rules,
1971. The aforesaid judgment is not applicable in the facts of
the present case.
(f) In the case of Pranjit Taluka Education Society vs.
National Council for Teachter Regional Director in Special Civil
Application No.3205 of 2009 and allied matters, the Hon'ble
Division Bench was considering the case of an education
institution whereby by order passed by the NCTE, whereby the
NCTE cancelled the recognition of the petitioner Society,
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having engaged professors, lacking in qualifications,
subsequently. The Hon'ble Division in para-23 held that the
regulations framed by the NCT from time to time make
changes in qualification of teaching and non-teaching staff will
also be applicable with respect to the existing staff.
The aforesaid judgment is not applicable in the facts of
the present case wherein the petitioner herein are governed by
the terms and conditions of the G.R. 16.11.2010.
(g) In the case of Randhir Singh Versus Union Of India,
reported in 1982 (1) SCC 618, equal pay of equal work, the
Hon'ble Supreme Court in the aforesaid judgment was dealing
with the principles of equal pay for equal work. The Hon'ble
Supreme Court considering the pay scale between drivers in
Delhi police force working in Delhi administration and Central
Government. In para-2, the Hon'ble Supreme Court has
recorded the case of the petitioners as regards violation of
Article 14 and the petitioners have demonstrated as to how the
petitioners are getting lower pay-scale compared to similarly
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situated employees.
In the facts of the present case, the petitioners herein
have not placed on record any document to show as to how
the petitioners are paid lower pay-scale.
(h) In the case of Dhirendra Chamoli Versus State Of Uttar
Pradesh, reported in 1986 (1) SCC 637, in the said judgment
the Hon'ble Supreme Court was considering pay-scale of Class-
IV employees working in Nehru Yuvak Kendra as a daily-wager
with the Ministry of Education. In para-3, the Hon'ble
Supreme Court has recorded that the petitioners are working as
Class-IV employees for more than 12 years and are seeking
equal pay for equal work with other Class-IV employees of
other department of the State Government.
The aforesaid judgment is not applicable in the facts of
the present case, wherein the petitioners herein have failed to
place on record any document to show that the petitioners
herein are discriminated and failed to show any such
discrimination with respect to pay-scale.
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(i) Mr. Oza, the learned Senior Counsel appearing for the
petitioners strenuously relied on the ratio laid down by the
Hon'ble Apex Court in the case of SLP (C) No.5880 of 2024,
Jaggo vs. Union of India.
In the said judgment the petitioners No.1, 2 and 3 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 (for short CWC)
on ad hoc basis and they were paid lumpsum monthly
emolument. The petitioners claimed their service to be
regularized before the Tribunal in terms of 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.
The Hon'ble Supreme Court taking into consideration that
long span of service held that, irrespective of the department
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or office the nature of work, the petitioners were performing
essential duties that were indispensable in day-to-day
functioning of the offices of CWC. Irrespective of the office of
department or office, the nature of work remained the same,
not requiring any specific academic qualifications. In the said
commission itself Safaiwalis with lesser number of years have
been regularized and therefore Hon'ble Supreme Court held
that there was clear violation of Article 14 of the Constitution
of India.
In the facts of the present case, the petitioners are
governed by the Government Resolution dated 16.11.2010,
having been appointed for a period of three years, which upon
passage of time has lapsed. There is no order on record
extending the contract of the petitioners herein, having
approached the Court before expiry of their terms and are
continued by the interim order dated 25.7.2014. The
petitioners herein are in receipt of requisite qualifications and
have been appointed on contractual basis in accordance with
the human resource manual. The aforesaid judgment in view
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thereof does not come to the rescue of the present petitioners.
There is nothing on record to show that the petitioners herein
are discriminated by any action at the instance of the
respondents herein.
(j) In the case of Sheo Narain Nagar and Ors., vs. State of
Uttar Pradesh and Ors in Civil Appeal No.18510 of 2017 the
petitioners were appointed as daily-wagers, later on appointed
on contractual basis. In the year 2000, the services of the
petitioners came to be regularized on minimum pay-scale. The
Hon'ble Apex Court held that, by order dated 25.7.2006 the
said petitioners were conferred the status of temporary
employees with retrospective effect from 1.10.2002. However,
the services of the said petitioners were not regularized. The
Hon'ble Apex Court considering the ratio down in Umadevi
(Supra) held that the ratio laid down in Umadevi is used as a
tool for not regularizing the services of the incumbent. It is
held that the petitioners herein are not backdoor entries and in
view thereof it was held that there was a direction issued way
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back in the year 1999 to consider the regularization of the
appellants, however the regularization was not done in view
thereof the appellants were directed to be regularized from
the date when they were appointed as temporary workers with
effect from 2.10.2002.
The aforesaid judgment is not applicable in the facts of
the present case wherein petitioners herein are appointed on a
contract period of 03 years in accordance with the G.R. dated
6.11.2010.
(k) In the case of Bangalore Water Supply & Sewerage Board
Versus A.Rajappa, reported in 1978 (2) SCC 213.
Mr. Oza, the learned Senior Counsel relied on para-22 of
the aforesaid judgment. In the aforesaid judgment the Hon'ble
Supreme Court considered the meaning and scope of industry
under Section 2(j) - what the term includes and excludes with
respect to charitable institution, clubs, educational institutions,
municipalities, research institutes, cooperative societies,
establishment in liberal professions, if industry - Agencies and
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departments of the Government engaged in any non-sovereign
functions when deemed to be industry indicated.
The Hon'ble Supreme Court in the aforesaid judgment
decided the scope, meaning and ambit of "industry" under
Section 2(j) of the Industrial Disputes Act, 1947 which define
"industry" to mean any business, trade, undertaking,
manufacture or calling of employers and includes any calling,
service, employment, handicraft or industrial occupation or
avocation of workmen. On the question as to what falls within
and what falls outside the statutory concept of "industry".
Considering the aforesaid issue, the Hon'ble Supreme
Court opined as under :-
"12. The functional focus of this industrial legislation and
the social perspective of Part IV of the Paramount Law drive
us to hold that the dual goals of the Act are contentment of
workers and peace in the industry and judicial interpretation
should be geared to their fulfilment, not their frustration. A
worker-oriented statute must receive a construction where,
conceptually, the keynote thought must be the worker and the
com-munity, as the Constitution has shown concern for them,
inter alia, in Articles 38, 39 and 43.
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In paragraph-187 the Hon'ble Supreme Court held that,
"in view of the difficulty experienced by all of us in defining
the true denotation of the term "industry" and divergence of
opinion in regard thereto -- as has been the case with the said
Bench also - it is opined that, it is high time that the
Legislature steps in with a comprehensive bill to clear up the
fog and remove the doubts and set at rest once for all the
controversy which crops up from time to time in relation to
the meaning of the aforesaid term rendering it necessary for
larger Benches of this Court to be constituted which are driven
to the necessity of evolving a working formula to cover
particular cases."
The aforesaid judgment extensively deals with the
definition of term "industry" under Section 2(j) of the
Industrial Disputes Act and opines that the Large Bench be
constituted to resolve the ambiguity with respect to true
denotation of the said term "industry".
(l) In the case of Somesh Thapliyal and Anr. vs. Vice
Chancellor, H.N.B. Garhwal University and Anr., in Civil
Appeal Nos.3922-3925 of 2017 was filed by teachers, who were
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substantively appointed after going through selection process
under the Uttar Pradesh State Universities Act, 1973. The
Hon'ble Apex Court held that such appellants were entitled to
claim appointment to be in substantive capacity against the
permanent sanctioned post and become a member of teaching
faculty of central university under the Act 2009.
The aforesaid judgment is not applicable in the facts of
the present case.
(m) In the case of Rajkaran Singh and Ors., vs. Union of
India and Ors., arising out of SLP No.30976 of 2017, the
appellant in the said Appeal were appointed to manage the
Compulsory Saving Scheme Deposits Fund of the Special
Frontier Force in various positions such as Junior Accountant,
Accountant, Upper Division Clerk (UDC) and Lower Division
Clerk (LDC) on running pay-scales. The SSD fund was the
welfare initiative funded through personal contributions of the
SFF funds from their salaries. Upon having been engaged as
above the appellants also received T.A. D.A., H.R.A. Special
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Security Allowance, Gratuity, Bonus, Winter Allowances and all
the other benefits such as fourth and fifth Pay Commission.
The Hon'ble Apex Court in para-33 held that the appellants
were formerly classified as temporary employees, however
bears the substantial hallmarks of a regular government
employee. Denial of pensionary benefits solely on the basis of
the temporary status without due consideration of such factors,
as referred, is held to have been over simplification of their
employment relationship with the government. It is held that
the aforesaid runs risk of creating a class of employees who
despite serving the government for decades in manner
indistinguishable from regular employees are deprived of the
benefits and protections typically accorded to government
servants.
The Hon'ble Apex Court in the aforesaid set of facts
directed that the aforesaid was violative of Articles 14 and 16
of the Constitution of India and that such employees were
directed to be granted the benefit of Sixth CPC, Sixth Pay
Commission and the RP Rules to the appellants shall not form
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a precedent so as to have a detrimental effect on the financial
help of the SSD Fund. The Sixth Pay Commission including
pensionery benefits under the revised Pay Scale Rules, 2008 to
the appellants in the said Appeal in the same terms and
conditions being afforded to their peers in the Account Section
of SSF HQ Estt. No.22.
13. In the facts of the present case, the petitioners herein
have not placed on record any documents to show as to
consider the case of the petitioners as regular employees and
the petitioners herein are in service by interim order dated
25.7.2014 and can be said to be "litigious" employment.
14. The right of regularization of a person appointed on
contractual basis depends on the express and/or implied terms
of contract. It is well settled principle of law that where the
appointment is contractual and the appointment comes to an
end by efflux of time, the appointee has no right to continue
in the post and the fact that even after expiry of the original
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period the services are continued from time to time, the same
would not confer any such right. There can be no
regularization of a contractual employee upon
completion/expiry of contract.
The petitioners herein appointed purely on a contractual
basis by the respondents on specific/express conditions that the
appointment of the petitioners is for a limited period of three
years and the same is also on certain terms and conditions and
have no right to be absorbed permanently in regular cadre.
15. Position of law :-
In the facts of the present case, the petitioners herein are
appointed on contractual basis under the Government
Resolution dated 16.11.2010 for a period of three years upon
certain terms and conditions, however the petitioners are
seeking the pay-scale of regular government employees.
(a) In the opinion of this Court, decision reported in AIR
2016 SC 3333 in the case of State of Maharashtra and ors., vs.
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Anita and Anr., wherein the Hon'ble Apex Court considered an
identical facts held in paragraphs 16 and 17 that once the
appointments were purely contractual, the respondent shall not
be entitled to claim any right or interest of a permanent
service in government. In the facts before the Hon'ble Apex
Court the appointment of the respondents also were made
initially for 11 months but were renewed twice and after
serving for maximum contractual period the services of the
respondents came to an end and the government initiated the
process of fresh selection.
The Hon'ble Apex Court held that after having accepted
the contractual appointment the respondents are estopped from
challenging the terms of their appointment. It is further held
that the respondents are not precluded from applying for the
said post afresh subject to the satisfaction of the other
eligibility criteria. It is apposite to refer to paragraphs 11 to 17
of the said judgment which read thus :-
"11. We have carefully considered the rival submissions made
by learned counsel for the parties and perused the impugned
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judgment and the material on record.
12. In the Government Resolution dated 21.08.2006 while
creating 471 posts in various cadres including Legal Advisors,
Law Officers and Law Instructors in clause (3) of the said
Resolution, it was made clear that the posts created ought to
be filled up on contractual basis. Clause (3) reads as under:-
"The said posts instead of being filled in the regular manner
should be kept vacant and should be filled on the contract
basis as per the terms and conditions prescribed by the
government or having prepared the Recruitment Rules should
be filled as per the provisions therein."
13. Subsequently, the said Resolution was modified by
Government Resolution dated 15.09.2006. In the said
Resolution, the column specifying "Pay Scale" was substituted
with column "Combined Permissible Monthly Pay + Telephone
& Travel Expenses". However, there was no change in the
decision of the government on filling up the posts on
contractual basis. Government Resolution dated 15.09.2006
stipulates the terms and conditions of the contractual
appointments. Clauses 'A', 'B', 'C' and 'D' read as under:-
"A) The appointment of the said posts would be completely on
contractual basis. These officers/employees would not be
counted as government employees.
B) The said appointments should be made on contract basis
firstly for 11 months. After 11 months the term of the
agreement could be increased from time to time if necessary.
Whereas, the appointing authority would take the precaution
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while extending the terms in this manner that, at one time this
term should not be more than 11 months. The appointment in
this way could be made maximum three times. Thereafter, if
the competent authority is of the opinion that the
reappointment of such candidate is necessary then such
candidate would have to again face the selection process.
C) The concerned appointing authority at the time of the
appointment would execute an agreement with the concerned
candidate in the prescribed format. The prescribed format of
the agreement is given in Appendix 'B'. It would be the
responsibility of the concerned office to preserve all the
documents of the agreement.
D) Except for the combined pay and permissible telephone and
travel expenses (more than the above mentioned limit) any
other allowances would not be admissible for the
officers/employees being appointed on contract basis."
14. The intention of the State Government to fill up the posts
of Legal Advisors, Law Officers and Law Instructors on
contractual basis is manifest from the above clauses in
Government Resolutions dated 21.08.2006 and 15.09.2006.
While creating 471 posts vide Resolution dated 21.08.2006, the
Government made it clear that the posts should be filled up on
contractual basis as per terms and conditions prescribed by the
Government. As per clause 'B' of the Government Resolution
dated 15.09.2006, the initial contractual period of appointment
is eleven months and there is a provision for extension of
contract for further eleven months. Clause 'B' makes it clear
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that the appointment could be made maximum three times and
extension of contract beyond the third term is not allowed. If
the competent authority is of the opinion that the
reappointment of such candidates is necessary then such
candidates would again have to face the selection process.
15. It is relevant to note that the respondents at the time of
appointment have accepted an agreement in accordance with
Appendix 'B' attached to Government Resolution dated
15.09.2006. The terms of the agreement specifically lay down
that the appointment is purely contractual and that the
respondents will not be entitled to claim any rights, interest
and benefits whatsoever of the permanent service in the
government. We may usefully refer to the relevant clauses in
the format of the agreement which read as under:-
"1. The First Party hereby agrees to appoint Shri/Smt._________
(Party No. II) as a ________ on contract basis for a period of 11
months commencing from __________ to __________ (mention
date) on consolidated remuneration of Rs.___________ (Rupees
_____________ only) per month, and said remuneration will be
payable at the end of each calendar month according to British
Calendar. It is agreed that IInd party shall not be entitled for
separate T.A. and D.A. during the contract period..
2. ........
3. .......
4. .........
5. Assignment of 11 months contract is renewable for a further two
terms of 11 months (i.e. total 3 terms), subject to the satisfaction
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of Competent Authority, and on its recommendations.
6. The Party No. II will not be entitled to claim any rights,
interest, benefits whatsoever of the permanent service in the
Government."
16. The above terms of the agreement further reiterate the
stand of the State that the appointments were purely
contractual and that the respondents shall not be entitled to
claim any right or interest of permanent service in the
government. The appointments of respondents were made
initially for eleven months but were renewed twice and after
serving the maximum contractual period, the services of the
respondents came to an end and the Government initiated a
fresh process of selection. Conditions of respondents'
engagement is governed by the terms of agreement. After
having accepted contractual appointment, the respondents are
estopped from challenging the terms of their appointment.
Furthermore, respondents are not precluded from applying for
the said posts afresh subject to the satisfaction of other
eligibility criteria.
17. The High Court did not keep in view the various clauses in
the Government Resolutions dated 21.08.2006 and 15.09.2006
and also the terms of the agreement entered into by the
respondents with the government. Creation of posts was only
for administrative purposes for sanction of the amount towards
expenditure incurred but merely because the posts were
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created, they cannot be held to be permanent in nature. When
the government has taken a policy decision to fill up 471 posts
of Legal Advisors, Law Officers and Law Instructors on
contractual basis, the tribunal and the High Court ought not to
have interfered with the policy decision to hold that the
appointments are permanent in nature."
(b) The Hon'ble Apex Court in the case of Secretary, State
of Karnataka and Ors., vs. Umadevi and Ors., reported in 2006
(4) SCC 1, while considering the case of temporary employees
engaged on daily-wages in the commercial tax-department in
some of the districts of State of Karnataka having worked in
the said department on such engagement for more than ten
years and were held to be entitled to be made permanent
employees of the department and were held to be entitled to
the benefits of regular employees.
In the facts of the present case, the petitioners herein are
contractual employees having been appointed as per
Government Resolution dated 16.11.2010.
(c) In the case of State of Gujarat and Anr. vs. P. J.
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Kampavat and Ors., reported in AIR 1992 SC 1685, wherein
the Supreme Court held that, where the Chief Minister and
Ministers appointed persons of their choice in their respective
establishments and the order appointing the employees
expressly stated not only that their services shall be terminated
at any time without giving any notice and without assigning
any reason but also that their appointment is for a limited
period conterminous with the concerned minister's tenure and
they were also asked to execute an undertaking in the above
terms which they did the appointment was purely a contractual
appointment conterminous with the tenure of the Minister's
establishment, at whose choice and instance they were
appointed.
It was held bythe Hon'ble Supreme Court that the said
appointees in question could not be deemed to be temporary
Govt. servants within the meaning of the Bombay Civil Service
Rules inasmuch as the terms of their appointment clearly
amount to an otherwise provision within the meaning of the
non obstante clause ("except where it is otherwise expressed or
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implied") with which Rule 2 begins and procedure in Rule 33
for terminating services of temporary servants was not
attracted.
The Hon'ble Supreme Court in para-11 held that the
appointment of the respondent was pure and simple contractual
appointment and that such appointment does not attract and is
outside the purview of the Bombay Civil Service Rules, 1959.
Since he tenure of the Ministers at whose instance and on
whose recommendations they were appointment has come to
an end on 10.11.1989 and their service also came to an end
simultaneously. No order of termination as such was necessary
for putting an end to their service much less a prior notice.
They ought to go out in the manner they come in.
16. In light of the aforesaid discussion and the position of
law, as referred above, in the opinion of this Court, the
petitioners herein are appointed by Government Resolution
dated 16.11.2010 under the "Mission Mangalam" Scheme. The
petitioners herein are governed by the human resources manual
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approved by the Board of GLPC Chapter-3 page-36. The
eligibility criteria of each of the position is prescribed by the
respondent No.2 GLPC wherein even the retired person is
eligible to apply. Evaluation of the petitioners is undertaken by
external expert and the petitioners herein are not governed by
the Gujarat Civil Services Rules, 1971 which are statutory rules
governing the employees in the government service. The
communication dated 11.6.2014 impugned herein not being an
order of termination of the services of the petitioners, the
prayer (C) as such would not survive.
17. No legal right accrues in favour of the petitioners herein
to be granted the regular pay-scale of a regularly appointed
employee in the facts of the present case. The prayer to
regularize the services of the petitioners fail in light of the
aforesaid observations.
18. In the opinion of this Court, having considered the
prayers as prayed for in the present petition, the petitioners
herein are entitled to emoluments against the post as stated in
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para-4 of the Government Resolution dated 16.11.2010.
19. In view of the aforesaid discussion and observations, no
case is made out to exercise extraordinary jurisdiction under
Article 226 of the Constitution of India. The present petitions
stand dismissed.
(VAIBHAVI D. NANAVATI,J)
K.K. SAIYED
After pronouncement of the judgment Mr. H. J. Dholakia,
the learned advocate appearing for the petitioners has
requested to continue status-quo granted by order dated
25.7.2014 for eight weeks. Ms. Manisha Lavkumar, the learned
Additional Advocate General has objected to such request.
Considering the aforesaid request, the status-quo granted
by order dated 25.7.2014 to continue for a period of four
weeks from receipt of this order.
(VAIBHAVI D. NANAVATI,J)
K.K. SAIYED
