Jharkhand High Court
Joyanaz Bano vs Union Of India Through Indian ... on 10 September, 2024
Author: Deepak Roshan
Bench: Deepak Roshan
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 3826 of 2023
--
Joyanaz Bano, Aged about 31 years, Daughter of Md.
Shahzad, Resident of Shastri Nagar, Giridih, P.O. & P.S.-
Giridih, District-Giridih
.....Petitioner
Versus
1. Union of India through Indian Statistical Institute,
having its Head office at: 203, B.T, Road, P.O. & P.S.-
Barrackpor, District-24-Pargana, Kolkata-700 108
(West Bengal),
2. Director, Indian Statistical Institute att 203, B., Road,
P., B., Barrackpor, District-24-Pargana, Kolkata-700
100(West Bengal)
3. Chief Executive (Administration and Finance) Indian
Statistical Institute, at 203, B.T. Road, P.O. & P.S.-
Barrackpor, District-24-Pargana, Kolkata-700 108
(West Bengal).
4. In-Charge, Indian Statistical Institute, Giridih, Rose
Villa, New Barganda, P.O & P.S.-Giridih, District
Giridih,
....Respondents、
--
CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN
--
For the Petitioner : Mrs. Rashmi Kumar, Advocate
For the Respondents : Mrs. Bakshi Vibha, Advocate
--
C.A.V ON 08/08/2024 PRONOUNCED ON 10/09/2024
Heard learned counsel for the parties.
2. The instant writ application has been preferred by
the petitioner praying therein for quashing and setting
aside the order dated 06.06.2023 being No. CAF/20-1/63
(Annexure-17), passed by respondent no. 3, in pursuant
to the judgment dated 05/13-04-2023 passed in W.P.(S)
No. 3329/2020; whereby the petitioner redressal that she
should be allowed to work on the post of Skilled Cook
under Indian Statistical Institute (herein to be referred as
IBI) on contractual basis as they have been working since
2015-2020, after physical fitness and medical test by ISI,
but without any reason, petitioner services has been
terminated though she is working under Indian
Statistical Institute, but through agency and thereby
petitioner should work under ISI as previously and not
under the contractor from the fold of ISI, or in alternative
to grant and pay equal pay for equal work till petitioner is
appointed directly contractual basis.
3. The brief facts of the case is that the petitioner
was appointed on the post of Assistant Cook on the
consolidated pay in Indian Statistical Institute [in short
'ISI') vide Office Order no. 191 dated 23.03.2015. On
25.03.2015, petitioner submitted her joining before the
respondent no.4, which was duly accepted. Her services
were extended from time to time on different consolidated
pay.
4. Mrs. Rashmi Kumar, learned counsel for the
petitioner submits that without any notice of termination
vide letter no. 07 dated 14.09.2020, respondent no. 2
intimated the petitioner about her selection on the post of
Skilled (Cook) through an agency.
Learned counsel further submits that with
mala-fide intention to deprive the petitioner from certain
benefits, respondents have employed her through agency;
whereby her salary has been reduced and certain leave
was also curtailed.
Though, the petitioner made several
representations before the concerned respondent in order
to take her on the post of Assistant Cook under the
respondents directly and not through agency, but no
action has been taken by the respondents and she has
been compelled to move this Court.
5. Mrs. Bakshi Vibha, representing the
respondents submits that the petitioner was earlier
engaged as a contractual worker at ISI-Giridih from 25th
March 2015. The final extension of her tenure was till
30/09/2020, after which the contract of the petitioner
expired due to efflux of time. Further, the support
services at ISI-Giridih were outsourced with effect from
01/10/2020 onward.
She further submits that the contractual
appointments automatically come to an end at the end of
the contract and it is within the legal and administrative
jurisdiction of the Institute; whether to extend the
contracts or not and the petitioner had accepted the re-
engagement or re- appointment, which clearly indicates
that she herself had admitted and believed that the
contract came to an end after its expiry.
6. Further, the provisions contained in the
General Financial Rules (GFR-2017) are applicable to ISI.
Rule 229 (ix) (e) of the GFR provides that the
administrative Ministry will review the Autonomous
Bodies on regular basis every three or five years.
One of the aspects of such review is that
whether the total staff complement of the concerned
Autonomous Body at the support level is kept at a
minimum and whether the facilities for outsourcing of
work contract basis has been availed or not. ISI, being an
Autonomous Body funded by the Government of India, is
bound to follow the guidelines specified in GFR-2017
Rule 197 to 206.
7. Learned counsel further contended that any
policy decision should not be interfered on flimsy ground
as laid down by Hon'ble Supreme Court passed in Civil
Appeal Case No. 1892 of 2007 [ Directorate of Film
Festivals & Ors. vs Gaurav Ashwin Jain & Ors.] wherein
it has been held that the Court cannot interfere with
policy decision either on the ground that it is erroneous
or on the ground that a better, fairer or wiser alternative
is available.
The Hon'ble Supreme Court in Civil Appeal No.
001111/1998, dated 26/02/1998 in the case of State of
Punjab & Ors. Vs. Ram Lubhaya Bagga, wherein it has
been observed that when the Government forms its
policy, it is based on number of circumstances on facts,
law including constraints based on its resources. It is
also based on expert opinion.
Further, the Hon'ble Supreme Court in Civil
Appeal Nos. 3595-3612 of 1999 in the case of Secretary,
State of Karnataka Vs Uma Devi & Ors., has held that
contractual appointments comes to an end at the end of
the contract. A temporary employee could not claim to be
made permanent on the expiry of his term of
appointment.
8. Having heard learned counsel for the parties
and after going through the relevant documents annexed
with the respective affidavit and the averments made
therein it appears that as per the Recruitment Rules of the
Respondent-Institute, the petitioner does not possess the
required qualification for appointment to the position of
Cook on direct recruitment basis. She was initially
engaged as Assistant Cook on contract basis irregularly
because there is no such post as "Assistant Cook" in ISI.
Her initial engagement as contractual Assistant Cook was
also irregular in the sense that the relevant advertisement
was published only in a local newspaper; whereas
appointments in ISI, which is a national Institute with pan
India presence, are made through newspaper
advertisement on all-India basis.
9. It further transpires from record that the
Petitioner was never engaged with ISI as a regular
employee and it is well within the rights of ISI to outsource
the services of a private contractor in compliance with the
directions issued by the Govt. of India.
Further, a temporary employee could not claim
to be made permanent on the expiry of his term of
appointment. It needs to be mentioned that the
Outsourcing Committee of ISI is not statutory committee
and constituted only with the motive to assist the ISI
Administration in matters relating contractual engagement
and outsourcing of services. The recommendations of the
said Committee are not decisions on itself but subject to
approval of the competent authority.
ISI Council is the governing body of the
Institute and all policy matters are required to be
approved by the Council. The recommendation of
Outsourcing Committee inter alia for incorporating the
suggested change in the recruitment policy of contractual
workers of extending contracts till the contractual worker
attained 59 years of age, was never placed to the Council
for approval and hence, never implemented. It was
indicated that the appointment on contractual basis would
not confer any right for claiming regular appointment/
employment to the post or any other post in the Institute.
The recommendation of the Outsourcing Committee by
meeting held on 25/11/2016 cannot be relied upon to
establish the claim of the Petitioner.
10. Learned counsel for the Petitioner strenuously
relied to the judgment dated 14/01/2022 of the Calcutta
High Court in WPA No. 692 of 2022, wherein the Court
had ordered engagement to continue the contractual
engagement of the petitioners, i.e., gardeners (contractual)
at ISI Kolkata. After going through the said judgment is is
evident that the cause of action in the referred judgment
dated 14/01/2022 of the Calcutta High Court is different
from the instant case.
In WPA 692 of 2022, the petitioners were
continuing their contractual service at ISI and the
Calcutta High Court had ordered ISI to continue with such
contractual engagement of the petitioners. But in the
instant case, the Petitioner is no longer engaged at the
respondent Institute ISI Branch at its Giridih as direct
contractual worker.
The support services at ISI-Giridih were already
outsourced with effect from 01/10/2020. The petitioner's
contractual tenure expired on 30/09/2020 due to efflux of
time and the contract was not extended further.
Thereafter, the services were outsourced to a contractor
selected through a due tendering process observing all
Government norms.
11. It is further evident that all the workers who
were earlier engaged on contractual basis were given a
chance to work with the outsourced agency in order to
maintain their means of livelihood and the Petitioner was
offered employment by the contractor as a cook in the
skilled category, which she accepted. So, admittedly; the
situation of the petitioners in WPA no. 690 of 2022 was
completely different from that of the petitioner in the
instant matter and hence, the order dated 14/01/2022 of
the Calcutta High Court does not apply to this petitioner.
12. So far as the grievance of the petitioner that
she is now getting reduced salary and she should be given
equal salary to that of regular employee; this claim of the
petitioner is misconceived, inasmuch as, she is a
temporary employee of the Contractor and she will be
entitled only to payment of minimum wages as notified by
the Ministry of Labour Employment Gov. of India. From
record, it is clear that the petitioner is working under the
contractor and getting the same payment which is
admissible by the Ministry of Labour.
13. Having regards to the aforesaid discussion,
there is no infirmity in the order dated 06.06.2023
(Annexure-17), passed by respondent no. 3 and no relief
can be granted to this petitioner. As a result, the instant writ
application stands dismissed. Pending I.A., if any, is also
closed.
(Deepak Roshan, J.)
Jk/
NAFR
