HIGH COURT OF UTTARANCHAL AT NAINITAL (Court’s order whether the case is or not approved for reporting.) (Chapter VIII Rule 32 (2)(b) Description of the case. W.P. No. 53 (SB) of 2003 Smt. Bandana Joshi vs. Milk Commissioner and others. Approved for reporting. _______________________ Date of decision: 06.05.2004 Initial of Judge 1 In the High Court of Uttaranchal at Nainital. Civil Misc. Writ Petition No. 53(S/B)/2002 Smt. Bandana Joshi …….Petitioner. Vs. Milk Commissioner Government of Uttaranchal Dehradun and 6 others .Respondents. Sri B.S. Khanka, and Sri M.C. Kandpal learned counsel for the petitioners. Sri V.K. Bisht learned counsel for the respondents. Date of Judgment: 6-5-2004 Hon’ble Rajesh Tandon, J. By the present writ petition the petitioner has challenged the order dated 8-7-2002 by which the services of the petitioner have come to an end by reason of the project having been closed from 14th of June 2002. 2- Brief facts giving rise to the present writ petition are that the petitioner was appointed as field supervisor in Mahila Dairy Vikas Project, Uttaranchal District Udham Singh Nagar on a fixed pay of Rs. 2,250/- per month and the conditions of appointment were also was attached to SEPSA office situated in Mangal Padao, Haldwani District Nainital and she was directed to join on 27.1.1998. On 26-1- 1998 the petitioner was released from Dugdh Utpadak Sahkari Sangh Ltd. Rudrapur, District Udham Singh Nagar to join her duties in SEPSA office at Mangal Padao, Haldwani and she joined her duties there on 27.1.1998. On 12.2.1998 the petitioner has been assigned the work in SEPSA office, Mangal Padao, Haldwani as Health Supervisor. In the month of September 1999, the petitioner has given a representation to Mahila Dairy Vikas Project, Jakhan Devi, District Almora for her transfer to Almora or Bageshwar. She also gave another representation dated 17.6.2002 to Director, Mahila Dairy 2 Vikas Project, Jakhan Devi, District Almora for her grievance. The Assistant Project Director, Rural Family Welfare Project, District Nainital by order dated 8-7-2002 stated that due to closer of SEPSA project on 8.7.2002 the services of all the persons working in the project, have come to an end. 3- Thereafter again the petitioner has given representation dated 16.7.2002 to Director Mahila Dairy Vikas Project, Uttaranchal, Jakhan Devi, District Almora for taking her in Mahila Dairy Vikas Project. 4- As will appear from the aforesaid facts that the petitioner has worked in the department from 27-9-1997 and thereafter she was attached with Rural Family Welfare Project and she was also directed to take training of Health Supervisor. The copy of the order is quoted below:- vkns'k xzkeh.k ifjokj dY;k.k ifj;kstuk ds dk;ksZa ds lQy lEiknu gsrq nqX/k la?k uSuhrky@ m/keflag uzj esa rSukr fQYM Ik;Zos{kdkvksa dks vfxze vkns'k rd xzkeh.k ifjokj dY;k.k ifj;kstuk ls lEc) fd;k tkrk gS] tgka ij os izf'k{k.k ds mijkUr LokLF; Ik;Zosf{kdk ds :i esa xzkeh.k ifjokj dY;k.k ifj;kstuk esa dk;Z djsxhA fnukad 03-01-99 ls gksus okyh ,d lIrkg ds izf”k{k.k esa leLr fQYM Ik;Zosf{kdkvksa e.Myh; izf”k{k.k dsUnz eksrhuxj ¼gY}kuh½ esas Hkkx ysxhA Øekad uke in 1 Jhefr xhrk tks'kh QhYM i;Zosf{kdk 2 dqekjh fdju lEHky ** 3 dqekjh yhyk dksjaxk ** 4 Jherh iq’ik ik.Ms ** 5 Jherh eatw xksLokeh ** 6 Jherh iq’ik nsch ** 5- The petitioner has stated that the Pariyojan of Gramin Praivar Kalyan is run by the world bank and ultimately the Yojna was closed 3 as will appear from the order itself dated 8th July 2002. The copy of the said order is reproduced as under:- xzkeh.k ifjokj ifj;kstuk& uSuhrky vkns”k lkekU; izcU/kd ¼xzk0ls0½ flQek ds dk;kZy; i=kad flQek # ih0oh0Vh0@ 96&97@,l 99 twu] 25] 2002 ds }kjk ,oa nqX/k”kkyk fodkl vf/kdkjh m0iz0] jkT; nqX/k ifj’kn ds i=kad 176@nq0ifj0@flQlk@fnukad 14 twu 2003 ds }kjk xzk0i0d0 ifj0 nqX/k la?k dh vuqcfU/kr vof/k fnukad 8&7&2002 dks lekIr gksus ds dkj.k cUn dh tk jgh gSA mijksDr vkns”k ds Øe esa xzk0i0d0 esa dk;Zjr leLr dkfeZdksa ¼oh0,p0oh0] Lok0 i;Zosf{kdk lgk;d ifj0le0] ,e0vkbZ0,l0] lg;ksxh½ dh m0iz0 jkT; nqX/k ifj’kn y[kuÅ ls fd;s x;s vuqcU/k ds vuqlkj lsok;sa fnukad 9&7&2002 ls Lor% gh lekIr gks tkrh gSA mDr vof/k mijkUr fdlh Hkh deZpkjh dks fdlh izdkj dk ekuns; ns; ugha gksxkA** 6- The petitioner has submitted that she was employed as a field supervisor of Udham Singh Nagar Dugdh Utpadak Sahkari Sangh Ltd and since she was sent on deputation on 18-12-2002 with the Parivar Kalyan Yojna, and at the close of the Pariyojna she should have been sent back to her parent department. The petitioner has submitted that on the basis of the letter dated 6th May 1997 the General Manager Nainital, Dugdh Utpadak Sahkari Sangh Lalkuwa Nainital has adjusted to 42 field supervisors in the district Nainital and Udham Singh Nagar as will appear from the order Annexure-11 and as such since the work is going on, the petitioner should have been sent back and adjusted after the closer of the Pariyojna. The list of the said persons has been annexed as Annexure-11 to the writ petition. However the context of the order is reproduced as under:- ^^vkns”k orZeku le; esa uSuhrky nqX/k la/k ykydqWvk esa dk;Zjr QhYM i;Zos{kd@ QhYM lgk;d dks la?k fgr esa nqX/k la?k ds dk;Z{ks= esa fuEuor rSukr fd;k tkrk gS rFkk funsZf”kr fd;k tkrk gS fd og rRdky rqjUr izHkko ls uo fu;qDr LFkku ij viuk ;ksxnku nsuk lqfuf”pr djsa rFkk ,d lIrkg ds Hkhrj vius fuokl ds iRrs 4 dks fyf[kr lwpuk izHkkjh ¼,Q0dvks0½ ,.M ,0,p0 ,oa v/kksgLrk{kjh dks nsuk lqfuf”pr djsaA** 7- The petitioner has stated that she has given a representation in this regard but the same has not been considered at all. 8- A counter affidavit has been filed by the respondents and in paragraph-4 it has been stated that the engagement of the petitioner as field supervisor under Nainital Dugdh Utpadak Sahkari Sangh Ltd. Lalkuan was on consolidated salary on contract basis and their engagement was extended from time to time. However it has been stated that the petitioner has been relieved from the Pariyojna. Further in paragraph no. 14 of the counter affidavit following averments have been made:- “That in reply to paragraph 13 of the writ petition it is stated that vide order dated 29-12-1998 the petitioner were relieved from the pariyojana. This letter never meant that petitioners were being relieved from Dugdh Utpadak Sahkari Sangh Ltd. Rudrapur as regular employees.” 9- As will appear from paragraph no. 14 of the counter affidavit that it was never intended that the petitioner was being relieved from Dugdh Utpadak Sahkari Sangh, Rudrapur as regular employees. Petitioner has filed rejoinder affidavit and in paragraph – 5 of the rejoinder affidavit she has stated that since the petitioner was appointed with the Dugdh Utpadak Sahkari Sangh Ltd and the Dugdh Utpadak Sahkari Sangh Ltd. has sent the petitioner on deputation under the Gramin Parivar Kalyan Pariyojana and their services can not be treated to have ceased and she was required to be sent back to her parent department. 10- Right to work has been held to be a fundamental right under Articles 41 and 42 of the Constitution of India. The same are quoted below:- “41. Right to work, to education and to public assistance in certain cases. – The State shall, within the limits of its economic capacity and development, make effective 5 provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of underserved want. 42. Provision of just and humane conditions of work and maternity relief. – The State shall make provision for securing just and humane conditions of work and for maternity relief.” 11- The aforesaid Articles 41 and 42 have also been taken into consideration in the case of Inder Pal Yadav and others (Supra) by the Apex Court. 12- The petitioner has also referred the judgment reported in (1985) 2 S.C.C. 648 (Inder Pal Yadav and others Vs. Union of India and others). Paragraphs 1 and 6 of the observations are quoted below:- “Articles 41 and 42 of the Constitution notwithstanding, there are certain grey areas where the rule of hire and fire, a legacy of laissez faire, even in Government employment still rules the roost. Casual labour employed on projects also known as ‘project casual labour’ is one such segment of employment where one may serve for years and remain a daily-rated worker without a weekly off, without any security of service, without the protection of equal pay for equal work. In short at the sweet will and mercy of the local satraps. Even the formidable railwaymen’s unions least cared for these helpless and hapless workmen. Suddenly a torrent of writ petitions and petitions for special leave awakened this Court to the plight of these workmen. In quick succession, 48 writ petitions and 32 petitions for special leave flooded this Court. In each writ petition/Special Leave Petition, the grievance was that even though the workmen styled as ‘project casual labour’ had put 6 in continuous service for years on end to wit ranging from 1974 till 1983, yet their services were terminated with impunity under the specious plea that the project on which they were employed has been wound up on its completion and their services were no more needed.” 6. To avoid violation of Article 14, the scientific and equitable way of implementing the scheme is for the Railway administration to prepare, a list of project casual labour with reference to each division of each railway and then start absorbing those with the longest service. If in the process any adjustments are necessary, the same must be done. In giving this direction, we are considerably influenced by the statutory recognition of a principle well known in industrial jurisprudence that the men with longest service shall have priority over those who have joined lateron. In other words, the principle of last come first go or to reverse it first come last go as enunciated in section 25-G of the Industrial Disputes Act, 1947 has been accepted. We direct accordingly.” 13- In Kumari Shrilekha Vidyarthi etc. Vs. State of U.P. and others A.I.R. 1991 Supreme Court 537 the Apex Court has taken into consideration that even where there is a contract of service application of mind is required as to whether the services of the petitioners have to be continued or not. The observations made are under: “28. Even assuming that it is necessary to import the concept of presence of some public element in State action to attract Art. 14 and permit judicial review, we have no hesitation in saying that the ultimate impact of all actions of the State or a public body being undoubtedly on public interest, the requisite public element for this purpose is present also in contractual matters. We, therefore, find it difficult and unrealistic to exclude the State actions in contractual matter, after the contract has been made, from the purview of judicial review to test its validity on the anvil of Art. 14. 7 29. It can no longer be doubted at this point of time that Art. 14 of the Constitution of India applies also to matters of governmental policy and if the policy or any action of the Government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitution. (See Ramana Dayaram Shetty V. The Internation Airport Authority of India (1979) 3 SCR 1014: (AIR 1979 SC 1628) and Kasturi Lal Lakshmi Reddy Vs. State of Jammu and Kashmir (1980) 3 SCR 1338: (AIR 1980 SC 1992). In Col. A>S. Sangwan v. Union of India 1980 (Supp) SCC 559: (AIR 1981 SC 1545), while the discretion to change the policy in exercise of the executive power, when not tramelled by the statute or rule, was held to be wide, it was emphasized as imperative and implicit in Art. 14 of the Constitution that a change in policy must be made fairly and should not give the impression that it was so done arbitrarily or by any ulterior criteria. The wide sweep of Art. 14 and the requirement of every State action qualifying for its validity on this touch-stone, irrespective of the field of activity of the State, has long been settled. Later decisions of this Court have reinforced the foundation of this tenet and it would be sufficient to refer only to two recent decisions of this Court for this purpose. “......Where there is arbitrariness in State action, Art. 14 springs in and judicial review strikes such an action down. Every action of the executive authority must be subject to rule of law and must be informed by reason. So, whatever be the activity of the public authority, it should meet the test of Art. 14....” 14- Admittedly the petitioner were employed as a field supervisor on contract basis and according to both the parties the said contract was being extended from time to time an assuming that the Pariyojna came to an end even then the petitioner should have been considered by their parent department as to whether they are required or not. 8 Petitioners also made a representation and said representation is still pending. 15- Although there is no lien of the petitioner in her parent department because she was working on contract basis only but before passing the order that the work of the petitioner have ceased, the petitioner should have sent to parent department. 16- Admittedly petitioner was initially appoint4ed as field supervisor in the services of the respondent no.2, the respondent no.2 is the best person to consider the continuation of the petitioner. Since the respondent no.2 has not yet considered the claim of the petitioner whereas the attachment having ceased to take effect by reason of the project having been completed on 14.6.2002, the respondent no.2 therefore should have considered afresh with regard to the continuation of the petitioner as the case may be after considering the same by way of reasoned order considering the representation of the petitioner. 17- In view of the aforesaid observations, the petition is disposed of and the matter is remitted back to the parent department for passing appropriate orders. Liberty is given to the parent department to pass appropriate orders considering the exigency and suitability of the petitioner. Orders may be passed within six weeks after filing of the certified copy of this order. No order as to costs. (Rajesh Tondon, J.)