Aditya Shankar Singh vs Union Of India
2021 Latest Caselaw 4891 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                     Civil Writ Jurisdiction Case No.7703 of 2020
     ======================================================

Aditya Shankar Singh S/o Late Jagdish Singh, Resident of Mohalla- A.G. Colony, House No.- A/ 219, Ashiyana Nagar, Post Office - Shastri Nagar, Police Station - Shastri Nagar, District- Patna.

... ... Petitioner Versus

1. Union of India represented through Secretary, Ministry of Human Resources Development, Government of India, Shastri Bhawan, New Delhi. PIN - 110001.

2. Indira Gandhi National Open University, Maidan Garhi, New Delhi.

3. The Vice-Chancellor, Indira Gandhi National Open University, Maidan Garhi, New Delhi.

4. The Registrar, Indira Gandhi National Open University, Maidan Garhi, New Delhi.

5. The Registrar, Indira Gandhi National Open University, Regional Centre, Patna Institutional Area, Mithapur, Patna - 800001, Bihar (India).

6. Regional Director, Indira Gandhi National Open University, Regional Centre, Patna Institutional Area, Mithapur, Patna - 800001, Bihar (India).

7. Dr. Meeta Assistant Regional Director, Indira Gandhi National Open University, Regional Centre, Patna Institutional Area, Mithapur, Patna - 800001, Bihar (India).

... ... Respondents ====================================================== Appearance :

     For the Petitioner       :    Mr.Ajit Kumar, Advocate
     For the State            :    Ms.Shilpa Singh, Adv. with
                              :    Ms.Abhanjali, Adv.
     For the Union of India   :    Mr.Dr. K.N. Singh (Addl. S.G.) with
                              :    Mr.Tuhin Shankar. Adv.

====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL JUDGMENT Date : 06-10-2021

Heard learned counsel for the parties.

2. Following is the relief, which the petitioner is

seeking:-

"(i) For issuance of appropriate Writ/Writs, direction/directions in the Patna High Court CWJC No.7703 of 2020 dt.06-10-2021

nature of Certiorarified mandamus calling for the connected records and to hold/declare the Termination Order as bad in law, Communicated to the petitioner in person on 01.03.2020, on the ground that the action is opposed to Public Policies besides being in the teeth of settled Legal Position by which Temporary Employees having worked for more than a decade has been removed/replaced by another set of Temporary person, without any rhyme or reason and in consequent thereto, be pleased to direct the respondents to reinstate the Petitioner on the post falling in the Ministerial Cadre, for which engagement was made in the year 2007 for providing Ministerial and Orderly Services vide Decision as contained in F.No.-

IG/RC/05/2007/Pers/5130 dated 14/15.12.2007, with all consequential benefits.

(ii) For further kind indulgence of this Hon'ble Court to direct appointment in the ministerial cadre be made permanent and due preference/weightage to the person already under Temporary Employment and being conversant with the working pattern be extended as against the candidates from the open category to bring quietus to the ongoing exploitation of ministerial staffs working on Temporary basis and further be pleased to direct stay of impugned Patna High Court CWJC No.7703 of 2020 dt.06-10-2021

termination including interim financial relief to the petitioner during the Pandemic period to maintain his family members, which in the opinion of the Hon'ble Court is found fit and proper during the pendency of the writ application.

(iii) For any other relief/reliefs which the Hon'ble Court may grant in the interest of the petitioner that may be deemed appropriate and necessary in this case."

3. It is the petitioner's case that by an order dated

15.12.2007 issued under the signature of the Regional Director,

Regional Center, Indira Gandhi National Open University (in short

IGNOU), respondent no. 6, the petitioner was engaged for

providing ministerial and orderly services for a period of 80 days,

starting from the date of his joining. The said letter dated

15.12.2007 has been brought on record by way of Annexure-1 to

the writ application. It is his further case that the petitioner used to

receive fixed remuneration in his Bank account and account with

Employees Provident Fund Organization (EPFO) was also opened

vide (UAN) 100027877256. The petitioner has brought on record

copy of his passbook to demonstrate that he was regularly

receiving remuneration from the IGNOU.

4. The petitioner has further pleaded that the IGNOU

was earlier functioning from BISCOMAUN building. The Patna High Court CWJC No.7703 of 2020 dt.06-10-2021

functioning of the IGNOU was subsequently shifted to

institutional area in 2018, when petitioner's service was

discontinued for 12 months but on intervention of the Regional

Director, the matter was resolved and the petitioner was taken back

in the service of IGNOU. It is also the petitioner's case that in the

month of March, 2020, the petitioner has been removed from

service along with other persons, though no formal letter of

termination has been issued and two persons have been appointed

on temporary basis against the vacancy so created, they being

"blue-eyed" persons of Respondent No. 7. It is his further case that

because the petitioner had health issues, he could not approach this

Court immediately thereafter. Further, since lockdown was

announced because of COVID-19 pandemic soon afterwards, the

petitioner could not make any representation before the authorities.

Subsequently, however, he made representation to the authorities,

copies of which have been brought on record by way of Annexure-

4 (series).

5. A counter affidavit has been filed on behalf of the

IGNOU wherein it has been stated that the petitioner was initially

engaged for a period of 80 days for providing ministerial and

Orderly services as daily wage staff. The IGNOU had hired his

service from time to time through three manpower supplying Patna High Court CWJC No.7703 of 2020 dt.06-10-2021

agencies during different phases of engagement. It is the case of

respondent IGNOU that three manpower supplying agencies

namely (i) Popular Sainik Securities Agency, (ii) M/s Intelligence

Security of India and (iii) M/s Kumar Shri Vikash had been

supplying manpower to the University. In that course, the

petitioner's services were made available by the agency. It is

specifically stated that the petitioner was employee of the said

agencies and removal/replacement can/could be done by the

aforesaid agencies and not by the IGNOU. It has also been stated

that the petitioner never worked for a full month for the University

but on daily wage, depending on his placement/replacement by the

said agencies. It has been reiterated that the petitioner was neither

an employee of IGNOU nor was given any temporary employment

in the ministerial cadre at the time since when according to the

petitioner, his services have been discontinued. It has further been

stated that the petitioner was receiving remuneration from his

employer i.e. manpower supplying agencies namely Popular

Sainik Securities Agency, M/s Intelligence Security of India and

M/s Kumar Shri Vikash.

6. In a supplementary affidavit filed on behalf of the

petitioner, it has been stated that during the pendency of this writ

application, the petitioner was asked by P.A. to Respondent No. 6 Patna High Court CWJC No.7703 of 2020 dt.06-10-2021

to see Respondent No. 6. According to the petitioner, he had gone

to see the Regional Director and when he met the Regional

Director, he was given an offer to join the duty from the very next

day but declined to issue any formal order in that regard. The

petitioner is said to have requested Respondent No. 6 to issue

some office order, as the matter was subjudice. The said statement

made in the supplementary affidavit has been described in the

counter affidavit, as false. It has been specifically stated that

though the petitioner did meet the Regional Director but no offer

or assurance was given by the Regional Director for the petitioner

to join rather a categorical inability was shown to the petitioner's

request for joining.

7. It may be noticed at this stage that that learned

counsel for the petitioner was unable to point out any document to

substantiate the pleadings and his contention that the petitioner

was being regularly paid daily wages right from his initial

engagement. On 26.03.2021, learned counsel for the petitioner had

sought adjournment to file a supplementary affidavit to bring on

record the statements and documents in support of his contention

that the petitioner was being regularly paid by the IGNOU. A

supplementary affidavit has been filed stating therein that the

IGNOU was deliberately not bringing on record the relevant Patna High Court CWJC No.7703 of 2020 dt.06-10-2021

record through which the petitioner and other ministerial staffs

were being paid salary, which was later on channelized through

private agencies, just to jeopardize the rights of the petitioner and

other similarly situated persons. The petitioner has stated that these

agencies were neither the employers of the petitioner nor the

petitioner was ever appointed by them in their establishment for

sponsoring to any organization. It has further been stated that the

IGNOU adopted this device to make payment through these

agencies and during the period when the agencies stopped working

for IGNOU, the IGNOU used to pay salary/remuneration to the

petitioner, which goes to suggest that the petitioner was engaged

by IGNOU. The petitioner has brought on record the entries in the

passbook from 2017 till the date of his termination. The petitioner

has further stated that he could not get the print out of the

passbook for the period prior to 2017 but the passbook entries do

reflect the transfers made by the IGNOU on various occasions,

though entries of payment of salary by agencies are also being

reflected.

8. Mr. Ajit Kumar, learned counsel for the petitioner has

relied on Supreme Court's decision in case of State of Haryana

and Ors v. Piara Singh reported in (1992) 4 SCC 118 to contend

that long continuance of the petitioner's service in the University Patna High Court CWJC No.7703 of 2020 dt.06-10-2021

raises a presumption for regular need of his service and, therefore,

it is incumbent upon the IGNOU to consider his case for

regularization. He has also placed reliance on another Supreme

Court's decision in case of BALCO Captive Power Plant

Mazdoor Sangh and Anr. reported in (2007) 14 SCC 234 to

contend that this being an admitted fact that the petitioner was

working for the IGNOU which is state within the meaning of

Article 12 of the Constitution of India, after long years of

continuous service, it cannot discontinue the petitioner's services

by bringing in other persons in his place. He has submitted relying

on decision in case of BALCO Captive Power Plant Mazdoor

Sangh (supra) that discontinuing the services of the petitioner, in

the facts and circumstances of the case would be violative of

Article 14 of the Constitution of India. Reliance has also been

placed on the Supreme Court's decision in case of Secretary, State

of Karnataka and Ors. v. Umadevi (3) and Ors. reported in (2006)

4 SCC 1.

9. Mr. Tuhin Shankar, learned counsel appearing on

behalf of the respondent IGNOU, on the other hand, has submitted

that this writ application under Article 226 of the Constitution of

India is not maintainable inasmuch as the petitioner has not been

able to demonstrate any material in support of his plea that he was Patna High Court CWJC No.7703 of 2020 dt.06-10-2021

engaged by IGNOU on the date w.e.f. which his service came to

be discontinued. He has argued that, the IGNOU had outsourced

all its stopgap/temporary work to a work contractor-cum-

manpower service agency in July, 2009 which system is

continuing till date. The petitioner was on the rolls of the

manpower service agencies since July, 2009 and was being

deployed by the agencies from time to time, depending on work

requirement by the IGNOU. He has argued that all such daily

wage employees were deployed at the discretion of the said

manpower service agency, as per work requirement and the

IGNOU did not have any choice of the person to be deployed or

withdrawn. Referring to the petitioner's own averment made in

paragraph 9 of the writ application, he has argued that the

petitioner himself has admitted that in the year 2018, the

petitioner's service was discontinued for almost 12 months but

with the intervention of respondent no. 6, it was resolved. He has

argued that the petitioner has attempted to mislead this Court by

asserting that he was engaged by the IGNOU knowing well that he

was being engaged by private agencies for serving IGNOU on

requirement basis from time to time. He continued with the said

system without any dispute for 11 long years. He has further

submitted that the petitioner does not have any cause of action Patna High Court CWJC No.7703 of 2020 dt.06-10-2021

against the IGNOU and the two daily wagers, as referred to by the

petitioner, have also been deployed by the said manpower service

agency. According to him, there is no termination order nor any

communication/decision of the IGNOU in respect of the petitioner.

Petitioner's salary and provident fund contributions also were

being paid by the agencies. He has placed reliance on Supreme

Court's decisions in case of Mathura Refinery Mazdoor Sangh v.

Indian Oil Corporation reported in (1991) 2 SCC 176 and Dena

Nath and ors. v. National Fertilizers Ltd. and Ors. reported in

(1992) 1 SCC 695 in support of his submission to counter the

petitioner's claim.

10. In view of the certain admitted facts, which have

emerged from the materials on record, this Court is not required to

the address unnecessary issues which have been raised while

making submissions on behalf of the parties. The petitioner has

brought on record his passbook of the savings Bank account

maintained with Andhra Bank in support of his pleading that he

was regularly receiving his emoluments from the IGNOU for the

services rendered by him. The entries in the said passbook do not

support the petitioner's case rather they contradict them. The

amounts were credited in the petitioner's account as salary from

the account of 'intelligence' for certain period. It is true that in the Patna High Court CWJC No.7703 of 2020 dt.06-10-2021

months of March and May sums of Rs. 8,000/- and Rs.10,400/-

appear to have been credited in the petitioner's account by

IGNOU. In the month of June, 2019 also, a sum of Rs. 2000/- was

deposited in the petitioner's account by IGNOU through NEFT.

Barring these payments for the months noted above, there is

nothing to show that IGNOU had made any payment to the

petitioner. It is clear from the entries that amounts were transferred

and credited in the petitioner's account through NEFT from the

account of M/s Kumar Shri Vikash. In December, 2012, an amount

of Rs. 1200/- was transferred by IGNOU in the petitioner's

account.

11. In my opinion, on the basis of aforesaid facts, the

petitioner has not been able to make out a case for of relief, as

sought in the writ application. On the assertion that for some point

of time, the petitioner was given employment on daily wage, he

cannot claim for regularization in a proceeding under Article 226

of the Constitution of India. He has not been able to make out a

case that the petitioner rendered uninterrupted service to IGNOU

for a considerable period of time on engagement by IGNOU. It is

clear from the pleadings and materials on record that the petitioner

was rather engaged by a private agency/body, with whom, the

IGNOU had agreement to supply manpower.

Patna High Court CWJC No.7703 of 2020 dt.06-10-2021

12. Reliance on the decisions on behalf of the petitioner

in case of Piara Singh (supra), Balco Captive Power Plant

Mazdoor Sangh (supra) and Umadevi (supra) are wholly

misplaced in the given facts and circumstances of the case.

13. This writ application is meritless and is accordingly

dismissed.

14. There shall be no order as to costs.

(Chakradhari Sharan Singh, J) AKASH/-

AFR/NAFR               NAFR
CAV DATE               N/A
Uploading Date         09.10.2021
Transmission Date      N/A