Gujarat High Court

Arunaben Atmaram Dudhrejiya And 16 Ors. vs Union Of India (Uoi) And 4 Ors. on 9 January, 2007

Equivalent citations: (2007)1GLR865

Author:
H.K. Rathod

Bench:
H.K. Rathod

ORDER

H.K. Rathod, J.

1. Heard the learned advocates appearing for the respective parties.

2. The petitioners were appointed by respondents in the post of Female Health Worker for a period of 11 months w.e.f. 4.2.2004 and they remain continued upto 6.1.2007. Last order (Annexure-Q, Page-92) issued by the respondents on 3.2.2006 for a period of 11 months as ad-hoc, Hangami and Kamchalau in favour of petitioners in the scale of Rs. 3050-4590. The condition incorporated in the order dated 3.2.2006 is that service of the petitioners can be terminated at any time without issuing notice to the petitioners. The petitioners have to give an undertaking before the authority in a prescribed proforma that their service is ad-hoc and Hangami and the service can be terminated without issuing notice to the petitioners by the respondents. The duration of service is for a fixed period of 11 months being a contractual appointment. This Court has passed the order in aforesaid group of petitions on 3.1.2007, which is quoted as under:

1. Draft amendment is allowed.

2. NOTICE returnable on 09.01.2007.

3. It is contention on behalf of the respondents that the term of the petitioners expires on 06.01.2007. However, when the matters are adjourned to 9.1.2007 without expressing any opinion on merits in favour of the petitioners, the respondents are directed to continue the petitioners till 09.01.2007 on condition that the petitioners shall not claim any equity for the period after 06.01.2007. Direct service is permitted.

3. This Court has directed the respondents to continue the petitioners till 9.1.2007 on condition that the petitioners shall not claim any equity for the period after 6.1.2007. Mr. Sunit Shah, learned Government Pleader, submitted that till date, respondents have not issued any order in favour of petitioners for a further period of 11 months. He also submitted that till date, the State Government / respondents has not issued any order of fixed salary in favour of petitioners. So, on 6.1.2007, period of 11 months has come to an end which automatically terminated the service of petitioners and for which, no separate order is required to be passed by the respondents. Therefore, the question of fixed salary or further appointment does not arise.

4. Learned advocate, Mr. Mishra, has argued the matter at length. He pointed out various paragraphs of the petitions, circulars, decision of this Court as well the Division bench of this Court. But, the main question is that whether the petitioners are having any legal right or any statutory right or constitutional right to remain continued in service or not, has not been answered by him. When contractual appointment is made by State authority and period mentioned in the order comes to an end, then, service of such employee is automatically terminated by operation of contract. Therefore, challenge of fixed salary looking to the prayer made in the petitions in absence of the order of fixed salary, petitions cannot be entertained by this Court. Looking to the prayers as well as amendments made by petitioners in the petitions, the entire prayers based on challenging the order of fixed salary of Rs. 2500/-. But, no offer / order has been made by respondents to the petitioners to work in a fixed salary till date. After 6.1.2007, no fresh order of appointment has been issued by respondents in favour of petitioners. So, in absence of further order of appointment, this Court cannot extend the contract between the parties by issuing interim direction in favour of petitioners. Therefore, the prayer made in Para.19(A) to (E) are totally irrelevant in absence of order of fixed salary appointment and in absence of further order of appointment. Law on the subject has been examined by the Apex Court recently in various decisions.

5.
In case of
Surendra Prasad Tewari v. Uttar Pradesh Raiya Krishi Utpadan Mandli Parishad and Ors.
reported in 2006(8) Supreme 29, the Apex Court has observed as under:

SERVICE LAW - Constitution of India -
Articles 14
, 16
, and
309 -
Appointments to public offices - Claim of regularization in public employment - It would be improper for courts to give directions for regularization of services of the person who is working either as daily wager, ad hoc employee, probationer, temporary or contractual employee, not appointed following the procedure laid down - Appellant was appointed for a period of three months on contractual basis for conducting a survey - Renewal of contract from time to time - Appellant aggrieved by the oral termination and/or non continuation in service filed a writ petition - According to respondents, appellant's appointment being on contractual basis, his services came to an end after the period of contract was completed- Appellant submitted that he has been working continuously for 14 years and was entitled to be regularized in service - Whether High Court was justified in dismissing appellant's claim observing that he has no right to the post - (Yes) - There is no infirmity in the impugned judgment of the High Court.

IMPORTANT POINT

The Courts cannot encourage appointments which are made outside the constitutional scheme and it is improper for the courts to give any direction for regularization of the person who has not been appointed by following the procedure laid down under
Articles 14
, 16
and
of the Constitution.

5.2 In case of
Indian Drugs & Pharmaceuticals Ltd. v. Workman, Indian Drugs & Pharmaceuticals Ltd.
reported in 2006 AIR SCW 5994., the Apex Court has observed as under:

(A) Industrial Disputes Act
(14 of 1947), Sch.2, Item 6 - Temporary workmen claim for regularization of service - Appointment of temporary workmen was without following statutory rules - They had no right to post and claim regularization - There was no vacancy and company was in poor financial position and declared sick - Labour Court / Tribunal or High Court can not give direction to continue temporary workmen till they attain age of superannuation - It would impliedly amount to regularization of services which is not permissible.

(B) Constitution of India,
Article 141 -
Precedent - Mere direction by Supreme Court without laying down any principle - Is not precedent

5.3 In case of
Chief Commissioner of Income-tax, Bhopal and Ors. v. Leena Jain and Ors.
reported in 2006 AIR SCW 6066, the Apex Court has observed as under:

Constitution of India,
Article 16 -
Regularization of service - Temporary employee i.e. Casual/ contractual - Cannot claim regularization merely on basis of long rendition of service.

5.4 In case of Account Officer (A&I) A.P.SRTC and Ors. v. P. Chandra Sekhara Rao and Ors. reported in 2006 III LLJ 1055, the Apex Court has observed as under:

That the appointments made on contract or daily wage basis and in violation of statutory rules or rules framed under the proviso of
Article 309
of the Constitution of India were void ab initio and nullities. Hence the question of regularizing the services of respondents who did not fulfill the requirement of the guidelines issued by the appellant - Corporation would not arise.

The impugned direction for such regularization was consequently set aside.

6. The High Court did not have the benefit of considering the recent decisions of this Court including the Constitution Bench judgment in
Secretary, State of Karnataka v. Umadevi
. In
the said decision
it has categorically been held that the appointments made on a contract basis or on daily wages and in violation of the statutory rules or the Rules framed under the proviso appended to
Article 309
of the Constitution of India, being void ab initio and thus nullities and hence the question of regularizing their services would not arise.

7. The Constitution Bench in its judgment approved another Division Bench decision of this Court in
A. Umarani v. Registrar, Co-op. Societies
wherein this Court opined at Page 787 of LLJ.

31. No regularization is, thus, permissible in exercise of the statutory power conferred under
Article 162
of the Constitution if the appointments have been made in contravention of the statutory rules.

In view of the aforementioned authoritative pronouncements of this Court, therefore, even no direction for regularization could have been made on the basis of any guidelines issued by the Andhra Pradesh State Road Transport Corporation. Such guidelines, in any event, could not have been made event in terms of
Article 162
of the Constitution of India.

5.5 In case of
R.S. Garg v. State of UP and Ors.
, the Apex Court has, in para.16, observed as under:

16. Even the State cannot make rules or issue any executive instructions by way of regularization of service. It would be in violation of the rules under
Article 309
of the Constitution of the India and opposed to the constitutional scheme of equality clauses contained in
Articles 14
and
16.
(See :
A. Umarani v. Registrar, Cooperative Societies and Ors.
and
National Fertilizers Ltd and Ors. v. Somvir Singh, JT
2006 (11) SC 279.

5.6 In the case of
Ekta Shakti Foundation v. Government of NCT of Delhi
, the Apex Court has held that the High Court under
Article 226
having limited power of judicial review against the administrative action. The scope of judicial inquiry confined the question whether action taken is against the statute, fundamental right or constitutional provisions. The Court is not an appellate authority. The relevant observations in
the said judgment
is quoted as under:

While exercising the power of judicial review of administrative action, the Court is not the appellate authority and the Constitution does not permit the Court to direct or advise the executive in matter of policy or to sermonize any matter which under the Constitution lies within the sphere of the Legislature or the executive, provided these authorities do not transgress their constitutional limits or statutory power. The scope of judicial enquiry is confined to the question whether the decision taken by the Govt. is against any statutory provisions or is violative of the fundamental rights of the citizens or is opposed to the provisions of the Constitution. Thus, the position is that even if the decision taken by the Govt. does not appear to be agreeable to the Court it cannot interfere. The correctness of the reasons which prompted the Govt. in decision making is not a matter of concern in judicial review and the Court is not the appropriate forum for such investigation. In matter of policy decisions or exercise of discretion by the Govt. so long as the infringement of fundamental right is not shown Courts will have no occasion to interfere and the Court will not and should not substitute its own judgment for the judgment of the executive in such matters. In assessing the propriety of a decision of the Govt the Court cannot interfere even if a second view is possible from that of the Govt.

5.7 The policy decision of the State Government if it is changed, the power of judicial review cannot be exercised if such change is not ex-facie contrary to any statute or against the public policy. The aforesaid aspect has been considered by the Apex Court in the case of
Ramchandra Murarilal Bhattad and Ors. v. State of Maharashtra and Ors.
reported in 2006 AIR SCW 6304. The Apex Court has, in Para.63, observed as under:

63. It is not a case where the Court is called upon to exercise its equity jurisdiction. It is also not a case where ex facie the policy decision can be held to be contrary to any statute or against a public policy. A policy decision may be subjected to change from time to time. Only because a change is effected, the same by itself does not render a policy decision to be illegal or otherwise vitiated in law.

5.8 The Apex Court in the case of
Indian Financial Assn., Seventh Day Adventists v. M.A. Unneerikutty and Anr. Reported
in 2006 AIR SCW 5470, has observed as under:

The doctrine of public policy may be summarized thus : Public policy or the policy of the law is an illusive concept it has been described as 'untrustworthy guide', 'variable quality', 'uncertain one', 'unruly house', etc., the primary duty of a Court of a law is to enforce a promise which the parties have made and to uphold the sanctity of contract which form the basis of society, but in certain cases, the Court may relieve them of their duty on a rule founded on what is called the public policy, but the doctrine is extended not only to harmful tendencies. The doctrine of public policy is only a branch of common law, and just like any other branch of common law it is governed by precedents. The principles have been crystallized under different heads and though it is permissible for Courts to expound and apply them to different situations, it should only be invoked in clear and uncontestable cases of harm to the public.

5.9 The policy decision of Government is not to be lightly interfered with as considered by the Apex Court in the case of State of Orrisa v. Gopinath Dash and Ors. Reported in 2005 AIR SCW 6536. Relevant observations are in Para.5, 6, 7 and 8 which are quoted as under:

5. While exercising the power of judicial review of administrative action, the Court is not the appellate authority and the Constitution does not permit the Court to direct or advise the executive in matter of policy or to sermonize any matter which under the Constitution lies within the sphere of the Legislature or the executive, provided these authorities do not transgress their constitutional limits or statutory power.(See Ashif Hamid v. State of J & K. ,
Shri Sitaram Sugar Co. v. Union of India
). The scope of judicial enquiry is confined to the question whether the decision taken by the Government is against any statutory provisions or it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution. Thus, the position is that even if the decision taken by the Government does not appear to be agreeable to the Court it cannot interfere.

6. The correctness of the reasons which prompted the Government in decision making taking one course of action instead of another is not a matter of concern in judicial review and the Court is not the appropriate forum for such investigation.

7. The policy decision must be left to the Government as it alone can adopt which policy should be adopted after considering all the points from different angles. In matter of policy decisions or exercise of discretion by the Government so long as the infringement of fundamental right is not shown Courts will have no occasion to interfere and the Court will not and should not substitute its own judgment for the judgment of the executive in such matters. In assessing the propriety of a decision of the Govt the Court cannot interfere even if a second view is possible from that of the Govt.

8. The Court should constantly remind itself of what the Supreme Court of the United States said in Metropolis Theatre Company v. City of Chicago (1912) 57 L ED 730. SThe problems of Government are practical ones and may justify, if they do not require, rough accommodations, illogical it may be, and unscientific. But even such criticism should not be hastily expressed. What is the best is not always discernible, the wisdom of any choice may be disputed or condemned. Mere errors of Government are not subject to our judicial review.

5.10 The Apex Court in the case of Banarsidas and Ors. v. State of Uttar Pradesh and Ors. reported in AIR 1956 Sc 520, has held as under:

(A) Constitution of India,
Article 16 -
EQUALITY IN PUBLIC EMPLOYMENT - Equality of opportunity - Entry in government service - Power of Government to prescribe rules of selection of candidates.

It is open to the appointing authority to lay down the requisite qualifications for recruitment to Government service and it is open to that authority to lay down such prerequisite conditions of appointment as would be conducive to the maintenance of proper discipline amongst Government servants. If persons already under Government employment on part time basis have shown themselves not to be amenable to proper discipline in Government offices, it is open to Government not to appoint such persons to the permanent cadre of service because such persons cannot be said to be as efficient as those who have excellent records of service and have shown greater sense of responsibility to their employers.

Article 16
of the Constitution is an instance of the application of the general rule of equality laid down in
Article 14
, with special reference to the opportunity for appointment and employment under the Government . Like all other employers, Government are also entitled to pick and choose from amongst a large number of candidates offering themselves for employment under the Government.

5.11 The Apex Court in the case of
National Fertilizers Ltd. and Ors. v. Somvir Singh
, has observed as under:

(C) Constitution of India,
Article 16 -
Recruitment - Found to be illegal in view of ban on such recruitment by policy decision of Govt. company - Fact that some other workmen were also employed illegally - Employee cannot claim any legal right on such basis.

(D) Constitution of India -
Article 16-
Appointment - Made without following relevant rules - Question of confirmation of employee upon expiry of purported period of probation would not arise.

(E) Constitution of India -
Article 16 -
Regularization of service - Employees appointed only on basis of their applications - Recruitment Rules not followed - Section Committee not prop0erly constituted - No appointment was permissible as there was ban on such appointment as per policy of Govt. company - Reservation policy adopted by Govt. company not maintained - Cases of minority not given due consideration - Held, appointments were illegal and not irregular and therefore, cannot be regularized - Only because employees have worked for some time , same by itself would not be a ground for directing regularization of their services.

5.12 This Court, in the case of Pratapji Nathaji Thakore v. State of Gujarat and Ors. Reported in 2006 (2) GLR 1751, has observed as under:

SERVICE LAW - Regularization - Constitution of India, 1950 - Arts. 14, 16 and 226 - petitioners employed as 'Nakal Karkoon' (Copy Clerks) on ad hoc basis, for over 20 years, without there being any post and without selection, terminated - Held, appointment or regularization of petitioner's services would 'prima-facie' violate Arts. 14 and 16 - Mere long period of services cannot confer any right and Government cannot be directed to employ someone unless he has a legal right to employment.

5.13 The Apex Court in the case of
Principal, Mehar Chand Polytechnic and Anr. v. Anu Lamba and Ors. Reported
in , has observed as under :

Constitution of India, 1950

Articles 14
and
16 -

Employment Exchanges (Compulsory Notification of Vacancies) Act,1959
- Temporary appointments - Right to be regularized in services - Judicial Intervention - Scope - Appellant institution undertaking a community polytechnic project under the scheme framed by the Central Government - Government providing funds for the said project - For the purposes of the scheme appellant appointing instructors (respondents) purely on temporary basis on consolidated salary - Appointment letter clearly stating that the appointment was temporary - prior to their appointment no such post existed - Also respondents not appointed in terms of any statutory rules - No advertisement also issued prior to their appointment - Respondents making a representation for grant of regular scale of pay but appellant rejecting the same - On a writ filed by the respondents High Court directing the appellant to create suitable posts and consider regularization of the services of the respondents within three months - Validity - Whether the High Court was justified in giving such a direction - Whether the temporary appointees entitled for regularization and regular scale of pay. Allowing the appeal held, that the respondents did not have any legal right to be observed in regular service since they were appointed purely on temporary basis. Moreover there were no sanctioned posts. The scheme framed by the Central Government was intended to be a time bound one for providing technical education to the agriculturist and not meant for employment generation. High Court, therefore, erred in issuing a writ of mandamus directing the appellant to create posts and regularize the services of respondents.

5.14 The Apex Court, in the case of
State of West Bengal and Anr. v. Alpana Roy and Ors.
, has observed as under:

Constitution of India,
Article 16 -
Regularization of service - petitioner included in list of unapproved teachers for long time - that by itself does not gave her right of regularization in service when her appointment was made de hors the recruitment rules - Also, merely because School Management required more teachers, there would not be deemed acceptance of appointment of petitioner whose initial appointment was illegal.

(2004) 4 Cal H N 455 : (2004) 3 Cur LR 415, Reversed.

6. Learned advocate, Mr. Mishra, challenges the Government Policy dated 16.2.2006 and also relied upon various decision of this Court in SCA No. 12243 of 1994 dated 11.9.1998, Page-55, SCA Nos. 12217 to 12233 of 2006 dated 17.11.2006, Page-71, Government Resolution dated 14.12.2004, Page-82, SCA No. 12031 of 2004 dated 18.2.2005, Page-84 and decision of Division Bench of this Court in LPA No. 677 of 2006 dated 1.6.2006, Page-87, in support of his submissions.

7. I have perused the relevant decision which are annexed to the petitions and GR
referred above
by learned Advocate, Mr. Mishra. Except that, no other decision has been cited and relied by him in support of his submissions. The decision taken in the case of Medical Officer which was relied by learned Advocate, Mr. Mishra, is also not applicable because
in that case
, their services were not terminated or come to an end as per terms and conditions incorporated in appointment order. But, such Medical Officers were remained continued in service without break for more than 5 to 8 years. That is how in that background, this Court has passed the order which is not applicable to the facts of this case. The decisions referred to and relied upon by learned advocate, Mr.Mishra, are not applicable to the facts of this case because in none of the decision, question with regard to giving appointment on fixed salary and whether after completion of the period of contractual appointment, the High Court can compel the State authority to issue further order on the same terms and conditions on regular scale, have been examined. These are the questions not examined in the decisions which have been relied by learned advocate, Mr.Mishra. The submission of learned advocate, Mr.Mishra is that Government policy dated 16.2.2006 is opposed to the public policy but, he is not able to demonstrate that how it opposed to public harm (policy).
The said aspect of public policy has been examined by Apex Court in case of
Indian Financial Association
(Supra) wherein it is held that such policy giving appointment on fixed salary is not opposed to public policy. It is a prerogative of employer to offer the employment to the candidate in a fixed salary or regular salary or in a fixed term or on regular basis. If candidate is prepared to accept the terms, he may join on same terms. But, if the candidate is not accepting the terms, he may not allow to join the service. In facts of this case, each petitioner has given undertaking to the respondents while accepting the terms and conditions incorporated in the order dated 3.2.2006. Therefore, now, to oppose such terms and conditions being contradictory to public policy, it cannot be entertained by this Court. The High Court having very limited jurisdiction and power while examining the administrative action / order under
Article 226
of the Constitution of India. The High Court cannot compel or issue writ of mandamus against the State authority to issue a fresh order of contractual appointment on the same terms and conditions on regular salary when period of contract of employment has already come to an end on 6.1.2007. The High Court cannot compel the respondents to continue such petitioners in service though contract of employment has come to an end and no fresh order till date issued by the respondents in favour of petitioners. The writ of mandamus can be issued by the High Court only when the petitioners establish legal right to have such relief before the High Court. In this case, petitioners failed to establish legal right to have such relief from the High Court.

Recently, this aspect has also been examined by the Apex Court in the case of
Gangadhar Pillai v. Siemens Ltd.
reported in 2006 AIR SCW 6414. Relevant observations made by Apex Court in the aforesaid decision are quoted as under :

The contract awarded in favour of respondent by its various clients had not only been in different parts of the country but also outside the country. The respondent used to employ the employees on temporary basis as it was not getting the contract from different clients on regular basis, the name of appellant used to be recommended by the Head Office of respondent but for employing him, a telegram used to be sent from the site office, in response whereto he would report at the place specified in the telegram and would be offered appointment in the prescribed pro forma. The period of employment had all along been commensurate with the period of work undertaken by respondent under the respective contracts. It may be a small contract or it may be a big one. Period of contract in each case was indeed bound to be different. Each site office of respondent-company is also a separate establishment. Services of the employees engaged on such terms would come to an end of completion of the period of contract.

Held that, such retrenchment would come within the purview of
Section 2(oo)(bb)
of the Industrial Disputes Act. Once the period of contract was fixed and the same was done keeping in view the nature of job, it cannot be said that the act of the employer in terminating the services of appellant was actuated by any malice. Such an act on the part of the employer cannot be said to have been resorted to for defrauding an employee. The object of such temporary employment was bona fide and not to deprive the concerned employee from the benefit of a permanent status and could not be called as unfair labour practice.

7.1 In view of the aforesaid observations made by Apex Court and considering the facts which are on record almost are undisputed. The submissions made by learned advocate, Mr. Mishra, cannot be accepted and, therefore, same are rejected. The petitioners are not entitled to any relief as their services come to an end on the basis of contract of employment on 6.1.2007. Their appointments were not made on regular basis by following statutory recruitment rules under
Article 309
of the Constitution of India. It was merely an interim arrangement made by State authority, therefore, such petitioners, those who are appointed on the basis of the terms which have been accepted by them, come to an end on 6.1.2007 and now, to have prayer to direct the State authority to continue the petitioners in service amounts to interference by this Court in a administrative matters / action as an appellate authority which cannot be granted by this Court. Therefore, the submissions made by learned advocate, Mr.Mishra, is rejected.

8. In light of the aforesaid observations made by the Apex Court, if the facts of this case are considered, the initial appointment of the petitioners for 11 months dehors the statutory rules under
Article 309.
Meaning thereby that the petitioners were not appointed under the Recruitment Rules framed by the respondent State Government under
Article 309
of the Constitution of India. But, ad-hoc appointments were made by ad-hoc selection for a limited period of 11 months which comes to an end after completion of the aforesaid period. Therefore, after a period of 11 months, service of the petitioners comes to an end automatically. Similar type of orders on same condition, second order was issued in their favour and thereafter, 3rd order was also issued in their favour which comes to an end on 6.1.2007. Therefore, when petitioners were not appointed on regular basis against the permanent post under the recruitment rules framed under
Article 309
of the Constitution of India, then, such appointment itself is ab-initio void and nullity. Therefore, petitioners have no legal right and statutory right or constitutional right to challenge any of the condition mentioned in the appointment order. Not only that, petitioners are also not entitled the regularization in service because their appointments are void ab-initio and dehors the statutory rules.

9. In the facts of this case, there is no further appointment order issued by respondents in favour of petitioners either in fixed salary or any regular scale. So, in absence of order being a contractual appointment comes to an end after completion of 11 months period, petitioners have no legal right statutory right or constitutional right to claim regularization or permanent job or continuation in service in a regular scale, therefore, in absence of legal right or statutory right, writ of mandamus cannot be issued against the respondents while exercising the power under
Article 226
of the Constitution of India. Therefore, according to my opinion, petitioners are not having any legal right to remain continued in service in absence of further order as their contract period has come to an end on 6.1.2007, therefore, petitioners cannot claim continuation in service in absence of further fresh order to be issued by respondents in favour of petitioners. Therefore, according to my opinion, there is no substance in the present petitions. Accordingly, present petitions are disposed of. Ad-interim relief granted by this Court on 3.1.2007 stands vacated.

10. The request made by learned advocate, Mr. Mishra, to extend the ad-interim order for a further period. That request is rejected only on the ground that petitioners have no legal right to remain continued in service as their terms of contract comes to an end on 6.1.2007. This Court has no jurisdiction / power to extend the contract between the parties which comes to an end on 6.1.2007.