Hariom and others vs State of MP

This petition under Article 226 of the Constitution of India has been filed seeking the following relief(s):-

That, the impugned order dated 27-6-2020 (Annexure P/1) 29-8-2019 (Annexure P/2) and order dated 13-8-2019 (Annexure P/3) be directed to be quashed and set aside.

That, the respondents be directed to continue petitioners on their respective post.

That, other relief which is just and proper in the facts and circumstances of the case may also be granted.

The necessary facts for disposal of the present petition in short are that the petitioners had applied for grant of appointment on the post of Caretaker, Cook and Sweeper respectively and consequent thereupon they were permitted to appear in the selection process and on the basis of their merits, they all were appointed on their respective post for a period of 1 year on contractual basis. The name of the post and the date of appointment of the petitioners has been disclosed  in  para  5.3  of  the  petition,  according  to  which  the petitioner no.1 was appointed for a period of 1 year on contractual basis on the post of caretaker, whereas the petitioners no. 2 to 6 were appointed on contractual basis for a period of one year on different posts as mentioned in the said para. It is the claim of the petitioners that their contractual appointment for a period of one year has been renewed on yearly basis and they are still working. The petitioners have filed the copies of their appointment order which were either issued in the year 2018, or 2010 or 2017 and all the contractual appointments were for a period of 1 year. It is submitted that although the term of one year from the date of their written contractual appointment has already been over, but under the verbal orders, they are still continuing, and the petitioners expressed their inability to file any written appointment order on contractual basis, from which they can demonstrate that their contractual appointment is still in existence. It appears that without there being any written contractual appointment order, the petitioners have been allowed to continue to work verbally. It is submitted that in the year 2017, the respondents had issued a direction to transfer the services of the petitioner from NRHM to Rogi Kalyan Samiti, which is a Society and the said decision was challenged by filing W.P. No. 5697 of 2017 and this Court by order dated 1-5-2018 directed the respondents to assess the work of the petitioners in the light of policy decision of the Govt. dated 1-4-2015. It is submitted that instead of assessing the work of the petitioners, now the respondents have directed that the support staff shall be employed through outsource agency, which amounts to change in service condition of the petitioners. It is further submitted that since, the petitioners are working for the last several years, therefore, the order of outsourcing cannot be passed as they have acquired the right for their renewal under the policy as directed by this Court in the earlier round of litigation. It is further submitted that a co-ordinate bench of this Court by order dated 14-11-2019 passed in Sahma Maravi Vs. State of M.P. in W.P. No. 21775 of 2019 (Principal Seat at Jabalpur) has passed an interim order. Hence, this petition has been filed.

Per contra, it is submitted by the Counsel for the respondent no.2, that the petitioners are getting the monthly salary of Rs. 5,500/-. Now the Ministry of Health and Family Welfare, Govt. of India has directed the respondent no. 2 to employ the staff through outsource agency and accordingly, a budget of Rs. 2520.00 lacs has been sanctioned/approved for support staff, which may be outsourced, to the extent possible. It is further submitted that in the order dated 13-8-2019 (Annexure P/3) it has been specifically provided that preference would be given to that support staff which is already working. It is further submitted that since, all the petitioners were working on contractual basis for a period of one year, therefore, they donot have any substantive right and thus, they cannot claim that by appointing the outsourcing agency, the conditions of services of the petitioners have been changed. So far as the order passed in W.P. No. 5697 of 2017 is concerned, it was based on the concessional statement. It is further submitted that a co-ordinate bench of this Court by order dated 7-12-2016 passed in Ram Kumar Yadav Vs. State of M.P. in W.P. No. 6186 of 2016 (Principal Seat at Jabalpur) has held that the employees appointed on contractual basis have no right.

Heard the learned Counsel for the parties.

The Counsel for the petitioners could not point out that the petitioners have any Constitutional or Statutory Right. It is submitted by the Counsel for the petitioners, that since, the appointment of the petitioner on contractual basis was after an advertisement, therefore, it cannot be said that they have taken a back door entry in the employment, however, in the light of the judgment passed by the Supreme Court in the case of State of Karnataka Vs. Uma Devi reported in (2006) 4 SCC 1, the Counsel for the petitioners failed to point out any right of the petitioner to get regularization of their services. Merely because, the petitioners were selected on contractual basis after due advertisement, it would not mean that the petitioners had secured a regular appointment, for the simple reason, that lot of eligible candidates may not have applied for appointment on contractual basis. The Supreme Court in the case of Uma Devi (Supra) has held as under :

What is sought to be pitted against this approach, is the so-called equity arising out of giving of temporary employment or engagement on daily wages and the continuance of such persons in the engaged work for a certain length of time. Such considerations can have only a limited role to play, when every qualified citizen has a right to apply for appointment, the adoption of the concept of rule of law and the scheme of the Constitution for appointment to posts. It cannot also be forgotten that it is not the role of the courts to ignore, encourage or approve appointments made or engagements given outside the constitutional scheme. In effect, orders based on such sentiments or approach would result in perpetuating illegalities and in the jettisoning of the scheme of public employment adopted by us while adopting the Constitution. The approving of such acts also results in depriving many of their opportunity to compete for public employment. We have, therefore, to consider the question objectively and based on the constitutional and statutory provisions. In this context, we have also to bear in mind the exposition of law by a Constitution Bench in State of Punjab v. Jagdip Singh. It was held therein: (SCR pp. 971-72)

"In our opinion where a government servant has no right to a post or to a particular status, though an authority under the Government acting beyond its competence had purported to give that person a status which it was not entitled to give he will not in law be deemed to have been validly appointed to the post or given the particular status."

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The concept of "equal pay for equal work" is different from the concept of conferring permanency on those who have been appointed on ad hoc basis, temporary basis, or based on no process of selection as envisaged by the rules. This Court has in various decisions applied the principle of equal pay for equal work and has laid down the parameters for the application of that principle. The decisions are rested on the concept of equality enshrined in our Constitution in the light of the directive principles in that behalf. But the acceptance of that principle cannot lead to a position where the court could direct that appointments made without following the due procedure established by law, be deemed permanent or issue directions to treat them as permanent. Doing so, would be negation of the principle of equality of opportunity. The power to make an order as is necessary for doing complete justice in any cause or matter pending before this Court, would not normally be used for giving the go-by to the procedure established by law in the matter of public employment. Take the situation arising in the cases before us from the State of Karnataka. Therein, after Dharwad decision the Government had issued repeated directions and mandatory orders that no temporary or ad hoc employment or engagement be given. Some of the authorities and departments had ignored those directions or defied those directions and had continued to give employment, specifically interdicted by the orders issued by the executive. Some of the appointing officers have even been punished for their defiance. It would not be just or proper to pass an order in exercise of jurisdiction under Article 226 or 32 of the Constitution or in exercise of power under Article 142 of the Constitution permitting those persons engaged, to be absorbed or to be made permanent, based on their appointments or engagements. Complete justice would be justice according to law and though it would be open to this Court to mould the relief, this Court would not grant a relief which would amount to perpetuating an illegality.

While directing that appointments, temporary or casual, be regularised or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain- not at arm's length-since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succour to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution.

Learned Senior Counsel for some of the respondents argued that on the basis of the doctrine of legitimate expectation, the employees, especially of the Commercial Taxes Department, should be directed to be regularised since the decisions in Dharwad , Piara Singh, Jacob and Gujarat Agricultural University and the like, have given rise to an expectation in them that their services would also be regularised. The doctrine can be invoked if the decisions of the administrative authority affect the person by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there have been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or ( ii) he has received assurance from the decision-maker that they will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn. [See Lord Diplock in Council for Civil Services Union v. Minister of Civil Service, National Buildings Construction Corpn. v. S. Raghunathan and Chanchal Goyal (Dr.) v. State of Rajasthan.] There is no case that any assurance was given by the Government or the department concerned while making the appointment on daily wages that the status conferred on him will not be withdrawn until some rational reason comes into existence for withdrawing it. The very engagement was against the constitutional scheme. Though, the Commissioner of the Commercial Taxes Department sought to get the appointments made permanent, there is no case that at the time of appointment any promise was held out. No such promise could also have been held out in view of the circulars and directives issued by the Government after Dharwad decision. Though, there is a case that the State had made regularisations in the past of similarly situated employees, the fact remains that such regularisations were done only pursuant to judicial directions, either of the Administrative Tribunal or of the High Court and in some cases by this Court. Moreover, the invocation of the doctrine of legitimate expectation cannot enable the employees to claim that they must be made permanent or they must be regularised in the service though they had not been selected in terms of the rules for appointment. The fact that in certain cases the court had directed regularisation of the employees involved in those cases cannot be made use of to found a claim based on legitimate expectation. The argument if accepted would also run counter to the constitutional mandate. The argument in that behalf has therefore to be rejected.

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It is contended that the State action in not regularising the employees was not fair within the framework of the rule of law. The rule of law compels the State to make appointments as envisaged by the Constitution and in the manner we have indicated earlier. In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedings in tribunals and courts initiated at the instance of the employees. Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, the people of India. It is therefore not possible to accept the argument that there must be a direction to make permanent all the persons employed on daily wages. When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution.

The petitioners after having applied for their appointment on contractual basis, cannot claim the benefit of legitimate expectation on the ground that they have worked for a long period, therefore, they have acquired the right to continue to work under the National Health Mission only.  The petitioners donot have a right of regularization.

The Petitioners could not point out any Constitutional or Statutory right to continue to work under the National Health Mission.

It is submitted by the Counsel for the petitioners, that this Court in W.P. No. 5697 of 2017 passed on 1-5-2018 had directed the respondents to consider the case of the petitioners as per the policy dated 1-4-2015, but the respondents, instead of complying the said order, has decided to outsource the services of the support staff, and thus, in the light of the aforesaid order, the decision of the respondents is bad in law.

Considered the submissions made by the Counsel for the petitioners.

From para 2 of order dated 1-5-2018 passed in W.P. No. 5697 of 2017, it is clear that the respondents had decided to outsource the services of class III and IV employees for better management of health services at every District and therefore, it was decided to transfer the existing employees to the Rogi Kalyan Samiti. Thus it is clear that the respondents did not decide to stop renewing the contractual employment of the support staff, but they had decided to transfer the contract employees to Rogi Kalyan Samiti, therefore, the petitioners had a right to submit that they donot want to work under Rogi Kalyan Samiti.

However, in the present case, now the respondent no.2 has decided to outsource the employment of support staff through private agencies. Once, the respondents have decided not to renew any contractual employment and has decided that now onwards they would employ the support staff through outsourced agency, then the petitioner could not point out that how such a decision of the respondents is violative of Constitutional or Statutory rights of the petitioners.

Further, it is the case of the Petitioners, that the Ministry of Health and Family Welfare, Govt. of India has taken a decision to outsource the employment of support staff and accordingly, has also allocated the fund of Rs. 2520.00 lacs, then this Court cannot look into the decision of the Ministry of Health and Family Welfare, Govt. of India for the simple reason, that neither the Union of India through Ministry of Health and Family Welfare, has been made a party to the petition, nor the decision of the Govt. of India has been put to challenge. Further, in absence of any right, the petitioners also cannot dictate that the respondent no.2 must employ the support staff in any particular manner.

Further, as per the provisions of Section 4 of M.P. Contractual Appointment of Civil Post Rules, 2017 (In short Rules, 2017), it is clear that a contractual appointment can be made for a period of one year subject to further renewal however, in view of Section 11 (1) of Rules, 2017, the maximum term of contractual appointment would be 5 years only.

Thus, the petitioners cannot claim that once they have been given appointment on contractual basis for a period of one year and the said contractual appointment was renewed either by written order or by verbal order, therefore, they are entitled to continue in the said capacity, till they attain the age of superannuation. Further, the respondents have taken care of the interest of the existing support staff and therefore, in the impugned order dated 13-8-2019 (Annexure P/3), it has been directed that preference would be given to the existing employees.

So far as the interim orders passed in other cases is concerned, the Counsel for the petitioners could not point out that the interim order passed in another case has binding force as a precedent.

Accordingly, this Court is of the considered opinion, that since, the petitioners have failed to establish any right to either continue to work on contractual basis or for regularization, therefore, it is incorrect to say that by taking a decision to outsource the employment of support staff, the respondent no.2 has changed the service conditions of the petitioners.

Ex Consequenti, the petition fails and is hereby Dismissed.