SCA/9262/1994 1/26 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9262 of 1994 with Special Civil Application No.4050 of 1992 with Special Civil Application Nos. 5631 of 1992 to 5638 of 1992 with Special Civil Application Nos. 5099 of 1992,5150 of 1992, 5548 of 1992, 5892 of 1997, 7195 of 1992, 7646 of 1992, 7647 of 1992, 2903 of 1996, 6940 of 1992, 6941 of 1992 with Civil Application No.5532 of 2003 in Special Civil Application No.5892 of 1997 For Approval and Signature: HONOURABLE MR.JUSTICE ANANT S. DAVE ====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== DIPAKBHAI R PATEL & OTHERS Versus D. D. O. & OTHERS ====================================== Appearance : Mrs. Ketty A. Mehta, with Ms. Sangeeta N. Pahwa with Ms. Vinita Vinayak, and Ms. Sejal Mandavia for the petitioners SCA/9262/1994 2/26 JUDGMENT Mr. Mihir Joshi, Additional Advocate General, with Ms. Asmita Patel, Assistant Government Pleader for the respondents Mr. Harin P. Raval, Assistant Solicitor General with Ms. M.N. Ukani, Central Government Counsel, for respondent No.5-Union of India Mr. A.K. Clerk for Rajkot Municipal Corporation ====================================== CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date :16/06/2008 COMMON CAV JUDGMENT 1 At the outset, it is to be noted that all these Special Civil Applications preferred by the petitioners have common identical question and the subject matter to be decided by this Court in exercise of power under Article 226 of the Constitution of India and, with the consent of the learned counsel appearing for the parties, they are heard together and disposed of by this common judgment. Arguments advanced and submissions made by learned counsel Mrs. Ketty A. Mehta have been adopted by all other learned counsel appearing for the petitioners in the cognate matters. Even the nature, tenure and terms of appointment and other service conditions of the petitioners under a project of the scheme framed by the Union of India in collaboration with the State Government are also same and none of the learned counsels appearing for the petitioners has disputed this aspect. 2 The genesis of the rehearing of all these petitions has in the order dated 30th March 1998 passed by the Apex Court in Petitions for Special Leave to Appeal [Civil] Nos.5516-5532 of 1998, which reads as under: SCA/9262/1994 3/26 JUDGMENT “Learned counsel for the petitioners submits that the High Court has not considered the fact that the petitioners were employed under the Non-Formal Education Scheme which still continues to operate and that the timings of employment were regular. On his application, the SLPs are dismissed as withdrawn to enable him to move the High Court in review.” 3 The above Special Leave Petitions were preferred by the petitioners herein against the Oral Judgment dated 26th December 1997 delivered by the Division Bench of this Court [Coram: C.K. Thakker [as His Lordship then was] & R.P. Dholakia, JJ.] in Special Civil Application No.1499 of 1987 and cognate matters, whereby, all the writ petitions came to be dismissed and the claim of the petitioners, who were appointed temporarily on the respective posts under the Scheme, for regularization and permanent absorption and for 'equal pay for equal work' came to be negatived. However, in view of the statement made by the learned counsel for the petitioners before the Apex Court that the petitioners were employed under 'Non-Formal Education Scheme' which continued to operate and the timings of the employment were regular and, while dismissing the Special Leave Petitions, the Apex Court permitted the petitioners to file an application for review. Thus, the grounds and principles, on which the Special Civil Application No.1499 of 198 and allied matters were dismissed, were not disturbed by the Apex Court. 4 However, later on, review applications came to be filed before the Division Bench of this Court and, by order dated 10th July 1998 passed in Misc. Civil Application Nos. 703 to 719 of1998 in Special Civil Application No.9261 of 1994, the Division Bench recalled the judgment and order dated 26th December 1997 and clarified that the said judgment would not apply to the applicants [the petitioners herein] of the Review Applications and the Review Applications came to be allowed. SCA/9262/1994 4/26 JUDGMENT 5 Initially, the petitioners had challenged the apprehended order of termination in the group of petitions and the orders of termination came to be stayed by this Court and the said interim relief continued even by the Division Bench while rejecting the group of petitions by judgment and order dated 26th December 1997 and by order dated 12th January 1998 the interim relief was continued upto 28th February 1998 which later on continued upto 6th April 1998. The applications for review were filed on 13th April 1998 and they came to be allowed on 10th July 1998 and, in the meanwhile, during pendency of the review petitions, the termination orders came to be passed on 25th & 30th June 1998, which came to be challenged by filing Civil Applications in respective Special Civil Applications and, by Oral Order dated 22nd September 1998 in all the Civil Applications, the stay order was passed against operation of termination order dated 25th & 30th June 1998 with similar such orders passed in the cases of all the petitioners and, by virtue of operation of the stay order passed in the Civil Applications, the petitioners have continued to receive fixed amount of salary every month till today. 6 In the backdrop of the above legal proceedings, as on date, the petitioners have voiced their grievances about their right to continue to serve with the respondents in view of number of years of service rendered by them initially in the scheme of 'Non-Formal Education' [NFE] and, subsequently, continuation of above scheme under different nomenclature from time to time, but the object of providing primary education to the children belonging to below age-group of 14 years by non-formal stream as a part of national policy of education has continued and, therefore, considering the perennial nature of work, the submission is made basically to direct the respondents to absorb petitioners in service either of the State Government or under the SCA/9262/1994 5/26 JUDGMENT scheme of providing such informal education for primary students and to grant all other benefits including 'equal pay for equal work' on par with the primary teachers and similarly situated employees in the service of Education Department of the State of Gujarat. 7 Before adverting to the nature of the scheme of 'Non-Formal Education' and other schemes subsequently introduced by the Government of India in collaboration with the Government of Gujarat, basically with a view to provide non-formal education to elementary age- group of children, as a part of policy, it is necessary to look at the basic prayers of the petitioners including the amended prayer clause in the present proceedings, namely, issuance of a writ of mandamus or any other appropriate writ, order or direction to quash and set aside the impugned action of the respondents in denying 'equal pay for equal work' and also to quash and set aside the action of the respondents in giving artificial breaks and further restraining the respondents from terminating the service of the petitioners and to permit them to discharge duties on the respective posts and subsequently amended prayer for declaration of termination orders passed by the respondents later on as illegal, ultra vires, bad and violative of Articles 14 and 16 of the Constitution of India. 8 The petitioners were originally appointed as Project Officer, Peon, Account Clerk, Divisional Clerk on the project of the non-formal education scheme of the respondents and, according to the petitioners, their names were invited from the Employment Exchange. At the relevant point of time, the basic purpose of the above Scheme was to provide education to illiterate children of tribal, hilly and urban slums areas of the State, to be carried out by various projects, which were financed by the Central Government and the State Government and, SCA/9262/1994 6/26 JUDGMENT therefore, the petitioners prayed for permanent absorption and regularization in service and also claimed for 'equal pay for equal work'. From the record, it appears that the petitions came to be amended by order dated 22nd September 1998 and various grounds have been incorporated qua their claims and prayers for setting aside the subsequent orders of termination which came to be passed after rejection of Special Leave Petitions by the Apex Court and, during pendency of the Review Applications, which were subsequently allowed, in a group of Civil Applications, as stated earlier, this Court stayed the orders of terminations. The grounds incorporated by way of amendment are: [i] the scheme is funded by the Central Government to the extent of 60% of the total expense of the project to be borne by the Central Government and 40% of the expenses to be borne by the State Government; [ii] the nature of work under the scheme is from 10.30 a.m. to 6.10 p.m. [iii] though the appointments were for temporary and fixed period and considering perennial and continuous nature of work under the scheme, the petitioners claimed parity with full-time employees of different departments of the State government; [iv] by relying upon the decision of Bhagwan Das [AIR 1987 SC 2049] and C.A. Shanker Prasad vs. Karnataka State Adult Education Council & others, AIR 1994 SC 216, the petitioners submitted that, even after NFE, in other schemes, which were subsequently introduced, namely, 'Education Guarantee Scheme' [EGS] and 'Alternative Innovative Education System' [AIE] and, thereafter, SCA/9262/1994 7/26 JUDGMENT 'Sarva Seva Abhiyan' [SSA], the petitioners were required to be continued on permanent basis and the termination orders were in violation of Section 25F of the Industrial Disputes Act, 1947; [v] the petitioners relied on various communications addressed by the Ministry of Human Resources & Development to the State of Gujarat with regard to different scheme, to show that, with the change of nomenclature, the scheme as its basic purpose to provide informal education to children belonging to the age-group of 6-14 continued from time to time. 9 In the back drop of the above facts, Mrs. Ketty A. Mehta, learned counsel for the petitioners, has invited the attention of this Court to various orders including the letters of appointment of the petitioners and the purpose of the scheme, operation of such scheme in various districts and by the Municipal Corporations or Local Authorities, ultimately, scrutinized and controlled by the Director of Adult Education of the State of Gujarat and submitted that the orders of termination impugned are to be quashed and set aside as unjust, unreasonable, arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution of India. 9.1 Mrs. Ketty A. Mehta, learned counsel for the petitioners, has submitted that, though the appointment of the petitioners was purely on temporary basis and honorary salary was paid every month and the petitioners were to be relieved automatically on completion of the project, without claiming any right, in view of the nature of scheme which continued from time to time, with the change of nomenclature, powers under Article 226 can be exercised by giving appropriate directions to the respondents-Authorities in respect of the relief made by SCA/9262/1994 8/26 JUDGMENT the petitioners in the prayer clauses. 9.2 Mrs. Ketty A. Mehta, learned counsel for the petitioners, has relied upon the communication dated 5th February 1998, by which the Surat Municipal Corporation has granted Rs.5 lakhs for continuing 100 classes for providing non-formal education to children of age-group of 9-14 pursuant to the policy of the Government and the grant of approval by letter dated 11th March 1996 by the same Authority on certain conditions. The letter dated 17th April 1996 by the Ministry of HRD, Government of India, to the Director of Education, State of Gujarat, about implementation of the NFE during the 8th Five Year Plan and the scope of the scheme was being discussed on 9th Five Year Plan and, thereafter, deliberation of State Authorities for implementation of the scheme. She has further relied upon the qualification of the petitioners that they are qualified to hold the post in question and, subsequently, release of grant by the Education Department of the State in the year 2002-2003 onwards covered by the salary to be paid to the petitioners. 9.3 Thus, according to Mrs. Ketty A. Mehta, learned counsel for the petitioners, collectively considering the communication of the Ministry of HRD addressed from time to time to the State of Gujarat, the respondents be directed to absorb petitioners in service either of the State Government or under the scheme of providing such informal education for primary students and to grant all other benefits including 'equal pay for equal work' on par with the primary teachers and similarly situated employees in the service of Education Department of the State of Gujarat. 10 Mr. Mihir Joshi, learned Additional Advocate General, assisted by Ms. Asmita Patel, learned Assistant Government Pleader, for the SCA/9262/1994 9/26 JUDGMENT respondents, has vehemently opposed grant of any of the prayers as claimed by the petitioners. He has submitted that, as per the nature of appointment of the petitioners on the respective posts, it was on a project under the scheme for a fixed tenure and honorarium without creating any right in their favour with regard to absorption and/or regularization and, considering the nature of the employment of the petitioners as above, the recruitment was not in accordance with any rules or regulations and, therefore, no relief, as claimed by the petitioners, can be granted. 10.1 According to learned Additional Advocate General, in view of the stay order granted by this Court against apprehended termination of service, subsequently sanction of grant was also given by the Government of Gujarat which continued from time to time. In the affidavit in reply filed on behalf of the State of Gujarat, it is denied that NFE is renamed as SSA and, in fact, NFE came to be closed with effect from 1st April 2001 for all purposes and it is not in existence in any form whatsoever. So far as the new schemes called EGS and AIE are concerned, they are not operative under SSA with effect from 1.4.2001 and no funds are provided by the Central Government even on the basis of sharing funding pattern under NFE. Separate selection of education volunteers/instructors is mentioned in the hand-book of EGS and AIE schemes and number of NGOs are involved in the implementation of the new scheme. Therefore, no funding is made available nor any assistance is given by the Central Government. Special budgetary provision is made only because of stay order granted by this Court in the group petitions. 10.2 The learned Additional Advocate General has further submitted that earlier all these petitions were rejected on merits. Since the statement made by the learned counsel before the Apex Court in the SCA/9262/1994 10/26 JUDGMENT Special Leave Petitions, all the writ petitions have been revived and, subsequently, even the stay has also been granted against termination, the fact remains that, on principle, the grounds raised in respect of the prayers made in these petitions and the issue are no more res-integra and the Division Bench, in its Oral judgment dated 26.12.1997, clearly negatived the claim of similarly situated appointees under a scheme and held that such appointees under the scheme have no right for regularization, absorption, or any other benefits of regular employee recruited under the Rules in different Departments of the State or even the claim for equal pay for equal work also cannot be granted after relying upon various judgments of the Apex Court and, therefore, on the same principle and in view of the subsequent decisions of the Apex Court including the decision of the Constitution Bench in the the case of Secretary, State of Karnataka vs. Uma Devi, reported in [2006] 4 SCC 1, no right has accrued in favour of the petitioners. 10.3 Even according to the learned Additional Advocate General, the petitioners cannot be given the benefit of paragraph 53 of the above judgment in view of their continuance in service by virtue of the interim orders passed by this Court. 10.4 He has further submitted that, by the communications addressed by the Ministry of HRD, Government of India to the Government of Gujarat dated 16th January 2001, 31st March 2001, 22nd June 2001, 15th March 2002, it is clearly indicated the discontinuation of NFE and nothing more than that. On the contrary, the said letters clearly convey in terms that NFE scheme was already discontinued and new schemes EGS and AIE became part of SSA, where, involvement of NGO was envisaged. Not only that, but, under the SSA, new staff was recruited and, as per the affidavit filed on 25th October 2004 by the Assistant SCA/9262/1994 11/26 JUDGMENT Director of Directorate of Literacy and Continuing Education, 129 posts have been filled in for SSA as per the scheme and, therefore, even continuation of the petitioners under that scheme is also not feasible. 10.5 He has further submitted that the appointments of all the petitioners were made only for a particular Scheme sponsored by the Central Government and implemented by the State Government. Such appointments would automatically come to an end on completion of the scheme. That, all the petitioners were aware that they were to be appointed on a project of a particular Scheme for a fixed period. In the appointment orders themselves, it was stated that the appointments were in pursuance of NFE Scheme. The appointments were of a temporary nature and even the period was also mentioned. That, once the petitioners have accepted the employment under the respondents which was temporary in nature with an open eye, it was not open to them to contend that the action of termination of their services was improper or illegal. That, the appointments of petitioners were not made under any recruitment rules. The Scheme itself suggested that it was non-formal primary education at elementary level and such persons could be imparted education only for a few hours. That, the doctrine of "equal pay for equal work" cannot be pressed in service by the petitioners inasmuch as the petitioners were neither appointed on regular basis nor for full-time under any recruitment rules framed under Article 309 of the Constitution of India. It was specifically stated in the appointment orders that they would be entitled to a fixed amount of honorary salary in aggregate and not on pay-scale basis. That, the Scheme for which appointments were made has come to an end. The petitioners, thereafter had no right to remain in service. Hence, even if any other Scheme is introduced and/or implemented by the State, the petitioners cannot get right to continue in SCA/9262/1994 12/26 JUDGMENT that Scheme. That, NFE Scheme was initially upto 1991-1992 but it was continued for some time. The petitioners have not been continued under the same Scheme for ten years as asserted by them. Their continuance in service is due to interim orders passed by this Court from time to time. Those orders cannot come in the way of respondents in taking an action in accordance with law nor the petitioners can claim regularisation, as held by the Apex Court in Uma Devi [supra]. 10.6 Learned Additional Advocate General has further submitted that there is no question of applicability of Section 25F of the Industrial Disputes Act, 1947 in view of the temporary appointment of the petitioners on a project and, even otherwise also, no material is produced to bring the petitioners within the purview of the above provisions of the said Act. 10.7 According to learned Additional Advocate General, in view of the above facts and circumstances and position of law, no relief can be granted in these petitions and the present petitions deserve to be rejected. 11 Heard the learned advocates for the parties and perused the record. 12 It is necessary to advert to the scheme of NFE. Pursuant to the Universalisation of Elementary Education [UEE], it was one of the goals of educational development as a part of the Minimum needs Programme as well as the 20-point Programme, 1986. The National Policy on Education 1986 [NPE] also gives an unqualified priority to UEE. Pursuant to that policy, it was ensured that all children who attain the SCA/9262/1994 13/26 JUDGMENT age of about 11 years by 1990 will have had five years of schooling or its equivalent through the non-formal stream and like-wise by 1995 all children will be provided free and compulsory education upto 14 years of age. Thus, the non-formal education scheme was being operated on share basis of grants by the Government of India and the Government of Gujarat initially under the general patterns of grants shared by the both the governments on equal basis which was reduced subsequently to 60:40 and for girl child the grant pattern was 90:10 respectively for the Government of India and the Government of Gujarat. Therefore, the scheme was for assistance to voluntary agencies for non-formal education for elementary age-group of children under the programme of UEE and it was to be implemented in project format by active participation of voluntary agencies and Panchayat Raj Institutions. Accordingly, the grant was given initially for two years during 1990- 1991 to 1991-1992. Therefore, the entire project, as indicated above, of the scheme has been evolved under which the service conditions of the petitioners were being governed. 13 A bare perusal of the record clearly reveals that the entry and appointment of all the petitioners was purely temporary for a fixed time on a project under a scheme pursuant to a policy decision of the Governments without creating any legal right, whatsoever, in their favour with regard to permanency, absorption, regularisation or any other benefits of permanent in nature including 'equal pay for equal work. The above facts remained undisputed and only submissions are canvassed to the extent that, in view of length of service, nature of duties discharged by the petitioners and continuity of the scheme for providing non-formal education for elementary age group of children by evolving new scheme with basic object remaining the same, the relief claimed by petitioners with regard to regularization and absorption in service with SCA/9262/1994 14/26 JUDGMENT the respondents, deserves consideration. 14 The law in this regard, as laid down by the Apex Court, is no more res-integra, in view of Uma Devi [supra] and as observed by the Division Bench in the judgment dated 26th December 1997 in the group of writ petitions, being Special Civil Application Nos. 1499 of 1987 and allied matters. After referring to the judgment in the case of Bhagwan Das [supra], the Division Bench observed at page 12 of the judgment as under: “Now it appears that almost in similar circumstances, a question came to be considered by the Hon'ble Supreme Court in Bhagwan Das referred to earlier, which was also a case relating to Adult Education Scheme. In that case, appointments of petitioners were made under the Scheme and their services were sought to be terminated. They approached the Apex Court by invoking Article 32 of the Constitution. Similar prayers were made as made in the present petition. The Hon'ble Supreme Court, considering the pleadings and contentions of the parties, held that the appointments of the petitioners in Education Department were made for a temporary period as the Scheme itself was of a temporary nature. They were, therefore, not entitled to absorb as regular employees on a permanent basis from the date of their initial appointment. In paragraph 15, the Court stated:- "We are now faced with