Not a case of replacement of ad hoc by ad hoc, appellants period of contractual engagement ended, hence no illegality in discontinuing their services: Gujarat High Court
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. This was said in the case of Patel Savan Bharatbhai vs State Of Gujarat [C/LPA/776/2020] by Mr. Justice Nath, Ashutosh J. Shastri in the High Court of Gujarat. The facts of the case are that 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 dated 08.10.2020 the present appeals have been filed. The appellants contended that the University is deliberately not appointing regular staff and continuing with contractual employees and exploiting them time and again for vested reasons. It was also contended that the appellants have been appointed after following selection procedure against an open advertisement, and therefore, discontinuing them from service is contrary to public policy and amounts to clear exploitation under Articles 14 and 16 of the Constitution of India. On the other hand, the respondents contended 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. Secondly, 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. The work for which the appellants were engaged no longer existed as such their engagements were not continued any further. Rejecting the contentions of the appellants, the Court opined that “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 that “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”. Hence, the appeals lack merit and they are dismissed.
 on : Tue Apr 27 21:07:03 IST 2021 C LPA 776 2020 CAV JUDGMENTIN THE HIGH COURT OF GUJARAT AT AHMEDABADR LETTERS PATENT APPEAL NO. 7720In R SPECIAL CIVIL APPLICATION NO. 65220With CIVIL APPLICATIONNO. 20 In R LETTERS PATENT APPEAL NO. 7720With CIVIL APPLICATIONNO. 21 In R LETTERS PATENT APPEAL NO. 7720With R LETTERS PATENT APPEAL NO. 7720 In SPECIAL CIVIL APPLICATION NO. 69820With CIVIL APPLICATIONNO. 21 In R LETTERS PATENT APPEAL NO. 7720 In SPECIAL CIVIL APPLICATION NO. 69820With CIVIL APPLICATIONNO. 20 In R LETTERS PATENT APPEAL NO. 7720 In SPECIAL CIVIL APPLICATION NO. 69820 FOR APPROVAL AND SIGNATURE: HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH andHONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI==========================================================1 Whether Reporters of Local Papers may be allowed to see the judgment Yes2 To be referred to the Reporter or not Yes3 Whether their Lordships wish to see the fair copy of the judgment No4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder No==========================================================PATEL SAVAN BHARATBHAI VersusSTATE OF GUJARAT ==========================================================Page 1 of 20 on : Tue Apr 27 21:07:03 IST 2021 C LPA 776 2020 CAV JUDGMENTAppearance:MR IH SYED SENIOR ADVOCATE with MR MEET A SHAH for the Appellant(s) No. for the RESPONDENT(s) No. MR MITUL SHELAT ADVOCATE for MS DISHA N NANAVATY for the Respondent(s) No. ==========================================================CORAM: HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATHandHONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI Date : 27 04 2021 CAV JUDGMENT 4 SCC 118.[ii]Kanubhai Karshanbhai Bhava vs. State of Gujarat & Ors.1741 2014 C.M. No.3645 2014].Page 8 of 20 on : Tue Apr 27 21:07:03 IST 2021 C LPA 776 2020 CAV JUDGMENT[viii]Pradeep Navinbhai Patel & Ors. vs. State of Gujarat3 SCC 291.9.4It is next submitted that the action of the University in discontinuing the present appellants is malafide and is actually exploitation. The University is deliberately not appointing regular staff and continuing with contractual employees and exploiting them time and again for vested reasons. On this point reliance is placed on the following judgments:[i]C M Lala Babu Baijal Memorial Inter College & Anr. vs. State of U.P. & Anr.4 SCC 118.9.5It is 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 in1 SCC 248. 10Mr. Mitul Shelat learned counsel for the respondent University submitted that the judgment of the Page 11 of 20 on : Tue Apr 27 21:07:03 IST 2021 C LPA 776 2020 CAV JUDGMENTlearned 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 is 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. 10.1Mr. 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.Page 12 of 20 on : Tue Apr 27 21:07:03 IST 2021 C LPA 776 2020 CAV JUDGMENT10.2Mr. Shelat further submitted that the findings of the learned Single Judge being pure finding of facts the same could not be looked into these appeals and the appeals deserve to be dismissed.10.3It is also submitted that the appellants if aggrieved by their discontinuance being illegal they may agitate the same before appropriate forum by drawing appropriate proceedings. 10.4It is also submitted by Mr. Shelat that the standard of review to be applied in intra court appeal is well settled in a number of judgments of the Supreme Court and the High Courts. It would not be proper for appellate court to substitute its views with the views of the learned Single Judge merely because another view or better view is possible unless the finding of the Single Judge is perverse.10.5It is next submitted that the appellants are contractual employees and a contractual employee has no right to continue in contractual employment. It is further submitted that a writ petition seeking such relief is not maintainable.Page 13 of 20 on : Tue Apr 27 21:07:03 IST 2021 C LPA 776 2020 CAV JUDGMENT10.6Mr. Shelat has relied upon the following decisions in support of his submissions:[i]Management of Narendra & Company Private Limited vs. Workmen of Narendra & Company reported in[iii]Uttar Pradesh Cooperative Spinning Mills Federation Limited & Ors. Vs. Amar Nath Dwivedi and Anr. Reported in16 SCC 451.[iv]Yogesh Mahajan vs. Professor R.C.Deka Director All India Institute of Medical Sciences reported in3 SCC 218.[v]Rajasthan State Roadways Transport Corporation vs. Paramjeet Singh reported in6 SCC 250.Page 14 of 20 on : Tue Apr 27 21:07:03 IST 2021 C LPA 776 2020 CAV JUDGMENT[vi]Sunil Kumar Biswas vs. Ordnance Factory Board and Ors. Reported in15 SCC 617.[vii]Union of India & Ors. Vs. Lieutenant Colonel Dharamvir Singh reported in15 SCC 793.[viii]Sanjay Kumar & Ors. Vs. Narinder Verma & Ors. Reported in6 SCC 467.11None of the arguments advanced by Mr. Syed learned Senior Advocate appearing for the appellants appeal to us. 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 for fixed period at fixed pay for specific work. Their period of engagement having come to an end there is no illegality in discontinuing their services. The appellants enjoyed the extension as and when the University thought it proper to grant them depending upon the requirement of work.11.1The submissions of Mr. Syed would only attain significance only if it is established that the work which was Page 15 of 20 on : Tue Apr 27 21:07:03 IST 2021 C LPA 776 2020 CAV JUDGMENTtaken from the appellants is now being outsourced through an agency for fresh engagement. But according to the University as per the stand taken in the affidavit filed by it that the work which the appellants were discharging at the respective center is no longer required.11.2This is not a case of ad hoc replacing ad hoc employee. 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.11.3The next submission that there are vacancies in the University against which the appellants could be continued also fails for the above reason. Lastly that the University is exploiting by not filling up the regular posts would be a policy decision of the University and this Court cannot enter into that aspect. Insofar as Civil Applications are concerned the challenge to the e tender for engaging an outsourcing agency cannot be entertained for the reason that it was not the subject matter before the learned Single Judge.Page 16 of 20 on : Tue Apr 27 21:07:03 IST 2021 C LPA 776 2020 CAV JUDGMENT11.4The judgment in the case of State of Haryana and others vs. Piara Singh and otherswould have any application to the facts of the present case. It was a case considering the regularization of the ad hoc temporary employees and the observations made in paragraphs 46 and 47 to the effect that an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee but should be replaced by a regularly selected candidate in order to avoid arbitrary action on the part of the employer. In the present case the stand of the University is that the University does not require any further services in the office department where the appellants were working. So it is not a case of replacement of ad hoc by ad hoc or contractual by contractual. 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. 11.5 The other judgments viz.Pradeep Navinbhai Patel and others[ii] State of Haryana and others Page 17 of 20 on : Tue Apr 27 21:07:03 IST 2021 C LPA 776 2020 CAV JUDGMENTvs. Piara Singh and others[iii] Kanubhai Karsanbhai Bhava[iv] Navinbhai Dhirajbhai Kambli and others[v] Ruchi Sanatkumar Joshi and others[vi] Prajapati Hitesh Mohanlal[vii] Narinder Singh AhujaandCommittee of Management Lala Babu Baijal Memorial Inter College and anotherrelied upon by Mr. I.H.Syed relate to replacement of ad hoc temporary contractual employees by a fresh set of ad hoc temporary contractual employees. In none of the cases it was an issue as to whether the services of those who are being replaced or that the work which was being performed by those who were discontinued was still required or not In the present case 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 Page 18 of 20 on : Tue Apr 27 21:07:03 IST 2021 C LPA 776 2020 CAV JUDGMENTappellants. As such none of the judgments relied upon by the appellants would have any application to the facts of the present case.11.6In the case of State of Punjab vs. Jagjit Singh and othersit related to the applicability of the principles of equal pay for equal work and thus will have no application to the facts of the present case.11.7None 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.11.8On 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 Page 19 of 20 on : Tue Apr 27 21:07:03 IST 2021 C LPA 776 2020 CAV JUDGMENTburden 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.12For all the reasons recorded above both the appeals lack merit and accordingly they are dismissed. Connected Civil Applications also stand disposed off.(VIKRAM NATH CJ)GAURAV J THAKER P. SUBRAHMANYAMPage 20 of 20 