The High Court of Gujarat recently comprising of a bench of Justices Nath and Ashutosh J. Shastri observed that Since the case is Not a case of replacement of ad hoc by ad hoc, appellants period of contractual engagement ended, hence there is no illegality in discontinuing their services. (Patel Savan Bharatbhai vs State Of Gujarat)
The bench observed that the question is as to whether the work exists for which services would be required or not would be a question of fact and can be only decided by leading evidence by the parties. Such disputed question or issue cannot be decided under Article 226 of the Constitution.
Facts of the case
The present appellants were appointed on contractual basis for a period of 11 months on non-teaching post on completely ad hoc / temporary basis against an advertisement.
Thereafter, they were given a further appointment for a fixed period against fixed salary of Rs.13,200/. The University took a decision to fill up the ad hoc / temporary contractual non-teaching posts through outsourcing. This would result into discontinuance of the appellants.
The learned Single Judge vide judgment dated 08.10.2020 dismissed the writ petitions filed by the appellants challenging the decision of the University. Aggrieved by the said judgment of the learned Single Judge the present appeals have been filed.
Contention of the Parties
It was submitted by Mr. Syed that ad hoc /temporary / contractual employees cannot be replaced by another set of ad hoc /temporary / contractual employees and such replacement can be only made by way of regularly selected candidates.
It was next submitted by Mr. Syed that there are vacancies existing in the University, but despite the same they have discontinued the appellants. The stand of the University that the services of the appellants are not required where they were earlier working is misleading and fallacious.
Further submission on behalf of the appellants was that persons junior to the appellants, who have been engaged on non-teaching posts similar to that of the appellants although on contract basis and much after engagement of the appellants are being continued and as such the action of the University is arbitrary and illegal.
It was lastly submitted that the appellants have been appointed after following selection procedure against an open advertisement, and therefore, discontinuing them from service by treating them to be contractual employees is contrary to public policy and amounts to clear exploitation.
The hire and fire policy of the University is in violation of Articles 14 and 16 of the Constitution of India. Reliance has been placed upon the decision of the Apex Court in the case of State of Punjab vs. Jagjit Singh & Ors. Reported in (2017) 1 SCC 248.
Mr. Mitul Shelat, learned counsel for the respondent University submitted that the judgment of the learned Single Judge does not suffer from any infirmity.
According to him, the scope of the present appeals is only to test the correctness of the judgment of the learned Single Judge based upon the material which was available before him. It is further submitted that the challenge by way of the Civil Applications to the advertisement inviting e-tenders to engage an outsourcing agency is beyond the scope of these appeals.
It was further submitted that the appellants’ appointment being contractual in nature they had no right to challenge the said tender and even if they have any right the same would be a separate cause of action and cannot form part of these appeals.
Mr. Shelat very emphatically submitted that the work for which the appellants were engaged no longer existed as such their engagements were not continued any further. According to him it is not a case of replacement of ad hoc / temporary / contractual by another set of ad hoc /temporary / contractual employees. It is a clear case of not required. The submission to the contrary according to Mr.Shelat is misconceived and is being misrepresented.
Courts Observation and Judgment
Rejecting the contentions of the appellants, the Court remarked, “This is not a case of replacement of temporary ad hoc employees by another set of ad hoc or temporary employees. The appellants were engaged on contractual basis and their period of engagement having come to an end there is no illegality in discontinuing their services. If the appellants were engaged for a specific work and their requirement was for a fixed period and if the same is disputed, apparently such disputed facts cannot be resolved under writ jurisdiction”.
Furthermore, the Court said, “the specific stand of the University is that the work which was being performed by the appellants was no longer required by the University to be continued and as such there was no question of any replacement of the present appellants by the University through an outsourcing agency for carrying the work which they were doing. The requirement of the University is for other posts, but not for the work which was being carried out by the appellants”.
The bench dismissing the petition remarked, "None of the other judgments relied upon by Shri Syed has any applicability to the facts of the present case in view of the specific stand of the University that the work for which the appellants had been engaged no longer exist and as such there would no case of any replacement of the appellants by a fresh set of contractual employees.
On the other hand, the judgments relied upon by Mr. Shelat on different aspects may have some relevance, but once we have held that the appellants have not been able to make out a case in order to find any fault with the judgment of the learned Single Judge, we do not propose to burden this judgment by referring to the case law relied upon by Mr. Shelat. We, thus do not find any infirmity in the judgment of the learned Single Judge warranting interference in appeals. 12 For all the reasons recorded above, both the appeals lack merit and accordingly they are dismissed.
Connected Civil Applications also stand disposed off."
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