Satish Kumar and Others vs Union of India and Others

B. Amit Sthalekar, J.—1. The controversy involved in all the above writ petitions is identical, therefore, the above writ petitions are being decided by this common order.

Heard Shri Vishnu Shanker Gupta, learned counsel for the petitioner and Shri Mata Prasad, learned Addl. Chief Standing Counsel for the State respondents and Shri Udayan Nandan, learned counsel appearing for the respondent No. 8.

The petitioners of W.P. No. 47580 of 2015 who are 25 in number, seeking quashing of the order dated 5.8.2015 and also the selection/Contract of Avani Paridhi Energy & Communication (P) Ltd. Lucknow-respondent No. 8. They are also seeking quashing of the advertisement dated 11.8.2015 notified for filling up the post of Block Technology Manager (B.T.M.) and Assistant Technology Manager (A.T.M.).

The petitioners of W.P. No. 43515 of 2015 who are 27 in number are seeking a direction to the respondents not to interfere in their peaceful working and to pay them salary w.e.f. October, 2014 onward. It is not disputed that the petitioners have been appointed through the service provider-respondent No. 6-B.V.I.H.R. as Soil Analysis Technician Assistant. Their posting orders have been filed collectively as Annexure-2 to the writ petition. In some cases, the orders have been passed by the authorized signatory for the respondent No. 6-Service Provider and in some cases, the orders have been passed by the Joint Director, Agricultural, Agra Division, Agra which is also the posting orders but it is not disputed that the appointment of the petitioners have been made by the Service Provider and they remained the employees of the Service Provider and not of the State Government.

The petitioners of W.P. No. 44966 of 2015 who are 9 in numbers are seeking quashing of the advertisement dated 16.6.2015 issued by the Joint Director of Agriculture, Agra Region, Agra inviting application from service providers for filling up the various posts mentioned in the advertisement and a direction to the respondents not to interfere in their peaceful working on the post of Block Technical Manager (B.T.M.) and Assistant Technical Manager (A.T.M.) under the Scheme of ATMA and to pay them salary. The petitioners are also seeking quashing of the advertisement dated 9.8.2015 issued by the Jupiter Administrative and Security Services Pvt. Ltd. -respondent No. 8.

The petitioners of W.P. No. 47981 of 2015, who are 7 in number are seeking a direction to the respondents not to interfere in their peaceful working and to pay them salary w.e.f. October, 2014 onward. It is not disputed that the petitioners have been appointed through the service provider-respondent No. 6-B.V.I.H.R. as Soil Analysis Technician Assistant. Their posting orders have been filed collectively as Annexure-2 to the writ petition. It is not disputed that the appointment of the petitioners have been made by the Service Provider and they remained the employees of the Service Provider and not of the State Government.

The petitioners of W.P. No. 39183 of 2015, who are 44 in number are seeking quashing of the advertisement dated 16.6.2015 issued by the Joint Director of Agriculture, Agra Region, Agra inviting applications from service providers for filling up the various posts mentioned in the advertisement and a direction to the respondents not to interfere in their peaceful working on the post of Block Technical Manager (B.T.M.) and Assistant Technical Manager (A.T.M.) under the Scheme of ATMA and to pay them salary. The petitioners are also seeking quashing of the advertisement dated 9.8.2015 issued by the Jupiter Administrative and Security Services Pvt. Ltd. -respondent No. 8. It is not disputed that the appointment of the petitioners have been made by the Service Provider and they remained the employees of the Service Provider and not of the State Government.

The Central Government created a Scheme known as National Mission on Agricultural Extension and Technology for implementation during the XII plan for carrying out various programmes in the field of agriculture. The Scheme was to be financed by the Central Government and State Government in the ratio of 90:10. The Scheme was to be managed by the Agricultural Technology Management Agency (ATMA) but it is stated that the name of the Scheme has since been changed to National Mission of Agricultural Extension Technology (NMAET). It is stated that in order to engage persons for carrying out the various works under the Scheme a service provider, namely, B.V.I.H.R. Practice Ltd., Noida (hereinafter referred to as the Service Provider only) and others were authorized to provide workers for the Scheme. The petitioners are stated to have been selected by the Service Provider on merit and thereafter the petitioners were issued appointment letters dated 1.4.2011 and joined their work on 1.4.2011 itself. Copies of the joining letters have been filed as Annexure-1 to the writ petition No. 47580 of 2015. The petitioners No. 20 to 25 were appointed on the post of Block Technology Manager with the honorarium of Rs. 15000/- + Rs. 5000/- per month whereas the petitioners No. 1 to 19 were appointed as Assistant Technology Manager with honorarium of Rs. 5000/- + Rs. 3500/- per month. It is stated that there has been no complaint of any kind against the working of the petitioners. The Scheme was extended from time to time and has also been extended for the year 2015 - 16. It is also stated that according to the guidelines issued by the Central Government in 2014 honorarium for the post of Block Technology Manager has been fixed at Rs. 20,000/- + Rs. 5000/- per month and for the post of Assistant Technology Manager it has been fixed at Rs. 11,000/- + Rs. 4000/-. A complaint was made by some employees working in the Soil Testing Laboratory, Saharanpur also engaged through the service provider that their honorarium was not being paid to them. The matter was investigated and ultimately the Service Provider was black listed by order dated 5.8.2015 and the security deposit of the Service Provider has also been forfeited and orders were passed for initiating legal action against the said firm. In paragraph 28 of the writ petition it is stated that before passing the impugned order no opportunity of hearing has been provided to the petitioners and that the said order is an ex-parte order, therefore, is in violation of the principles of natural justice. It is submitted that the result of the black listing of the Service Provider would be that the services of the petitioners would also stand terminated although in paragraph 36 of the writ petition it is stated that under the ATMA guidelines the State Government should ensure that the existing and experienced contractual manpower will be retained and the Contractor shall not terminate their service without assigning reason. The guidelines referred to by the petitioners have been filed as Annexure-1 to the rejoinder affidavit wherein it is stated that while renewing the contract the State Government should ensure that the existing experienced manpower is retained and the Contractor does not terminate their services without assigning any reason.

Learned counsel for the petitioner has also referred to the letter of the Ministry of Agriculture, Government of India dated 16.2.2015 which mentions that the manpower deployed may continue for the year 2015-16. Reference has also been made to the letter of the Department of Agriculture U.P. dated 16.4.2015 wherein the working staff has been referred to as the supporting staff and it is mentioned therein that the Scheme shall continue for the year 2015-16 and the supporting staff shall continue to work.

A counter affidavit has been filed on behalf of the State respondents wherein it has been stated that the petitioners are the employees of the Service Provider and that they are not employees of the State Government or Central Government. The petitioners are contractual employees appointed under a contract entered into by them and their Service Provider. There is no such contract with any Government Agency between the petitioners and the State Government. It has been admitted that the contract of the Service Provider was canceled on 5.8.2015 on account of the Service Provider being black listed and, therefore, if the Service Provider itself is black listed the question of retaining the petitioners in service does not arise. In paragraph 12 of the counter affidavit it is also stated that no advertisement has been issued by the State Government for engaging new workers but actually after black listing of the Service Provider it is the new Service Provider that has issued the advertisement and the same has no concern with the Government.

A counter affidavit has been filed by the Service Provider-respondent No. 8 which is the new Service Provider wherein it has been stated that after the previous Service Provider was black listed, the respondent No. 8-new Service Provider-Avani Paridhi Energy & Communication (P) Ltd. Lucknow submitted an application in the prescribed form in pursuance of an advertisement issued to the Joint Director of Agriculture, Agra dated 16.6.2015 for appointment of the fresh Service Provider and after being found eligible and selected as Service Provider, the respondent No. 8 entered into an agreement with the Joint Director of Agriculture dated 25.8.2015 for providing workers on contract basis.

Annexure-1 (colly) to the writ petition are the contract of employment dated 1.4.2011 entered into between the petitioners and the Service Provider-respondent No. 7. The terms and conditions of the contract as accepted by the petitioner No. 1 clearly mentions that during his service with the company, it is expected that as a full time employer of the company he will not be interested in, employed, or indulge in any trade or business or other occupation at any time whether directly or indirectly. The terms and condition of the other petitioners which has been filed as Annexure-1 collectively are also in the same language and clearly demonstrate that the petitioners are actually full time contract employees of the Service Provider Company and they are not the employees of the State Government or Central Government. There is no contract of appointment or employment between the State Government and the petitioners. It is not disputed between the parties that the Service Provider has been black listed and thereafter when advertisement for new Service Provider was issued by the Joint Director of Agriculture, Avani Paridhi Energy & Communication (P) Ltd. Lucknow-respondent No. 8 applied and was selected as the Service Provider and has signed its own agreement with the Joint Director of Agriculture, Agra. The letter of March, 28th, 2014 Annexure-4A to the writ petition clearly mentions that the work of the Scheme for the year 2014-15 shall be carried on through the employees engaged by the Service Provider. Merely because the letter of the Government of India dated 16.2.2015 mentions that the manpower may also be continued for 2015-16 does not mean that the work is to be taken from the petitioners even if their Service Provider has been black listed. The engagement of the petitioners is through the Service Provider and the Scheme of the Government of India and State Government contemplates that the workers engaged for the purposes of the Scheme shall be provided by the Service Provider. Similar is the language of the letter dated 16.4.2015 issued by the Director of Agriculture, U.P. Annexure-7 to the writ petition wherein it is stated that the Scheme will continue for 2015 -16 through the supporting staff. The words ''supporting staff'' does not make the petitioners employees of the State Government or the Central Government. They are staff of the Service Provider and they are full time employees of the Service Provider. Even otherwise the terms and conditions of the employment of the petitioners is purely contractual and if the Service Provider has been black listed the services of the petitioners would cease automatically and the State Government has no role to play in the matter as it does not come into picture between the Service Provider and the contractual employees provided by it. The honorarium paid under the Scheme is also paid to the Service Provider who pays it to its contract employees. Such honorarium is only fixed under the Scheme by the Government but it is not paid by the Government to the contract employees directly. The petitioners being contractual and employees of the Service Provider Company, there is no master servant relationship between the petitioners and the State Government. Besides before passing the impugned order black listing the first Service Provider it is not necessary to give any show cause notice or opportunity of hearing to the petitioners as they have no role to play in the matter nor can the petitioners through the writ petition challenge the order black listing the Service Provider. The petitioners have no locus to challenge the order dated 5.8.2015 black listing the first Service Provider.

On behalf of the petitioners reference has been made to a Division Bench judgment of this Court reported in , 2009 (1) ADJ 379 (DB) Meena Srivastava v. State of U.P. and others. That was a case where the petitioner was the Shiksha Mitra appointed on contract basis. The writ petition filed by her challenging the advertisement was rejected by the learned Single Judge as being not maintainable since the appointment of the petitioner was purely contractual. The Division Bench taking the view that the petitioner had been selected as Shiksha Mitra and her case was that there was no occasion issuing a fresh advertisement inviting application for the post of Shiksha Mitra and that being the fact situation the writ petition could not have been dismissed as not maintainable. In the case of Meena Srivastava (supra) the petitioner was a Shiksha Mitra appointed on contract basis by the State Government she was neither appointed through a Service Provider nor a full time employee of the Service Provider and, therefore, the said judgment has no application to the facts of the present case.

The next case referred to by the petitioners is , (1991) 1 SCC 212 Kumari Shrilekha Vidyarthi v. State of U.P. and others. That was a case of termination of the contract employment of District Government Counsel in the State en bloc. The submission of the State Government was that the Government Counsel were engaged purely on contractual basis like the engagement of a counsel by a private party who can be changed at any time at the will of the litigant. The Supreme Court, however, referring to the provisions of Legal Remembrancer''s Manual 1975 held that though the initial appointment of the Government Counsel is for a period of one year during which they work and their contract is to be watched for judging their suitability, such engagement will be for a term not exceeding 3 years. The Supreme Court also referred to the provisions of the Code of Criminal Procedure relating to the Public Prosecutors and held that the Government Circular dated 6.2.1990 terminating the appointment of all the Government Counsel in the district of State of U.P. by an omnibus order even though the appointments were of individual appointment was arbitrary. No common reasons applicable to all of them justifying their termination in one stroke on a reasonable ground has been shown. Paragraph 21 of the said judgment reads as under:

"21. Viewed in any manner, the impugned circular dated 6.2.90 is arbitrary. It terminates all the appointments of Government Counsel in the districts of the State of Uttar Pradesh by an omnibus order, even though these appointments were all individual. No common reason applicable to all of them justifying their termination in one stroke on a reasonable ground has been shown. The submission on behalf of the State of Uttar Pradesh at the hearing that many of them were likely to be re-appointed is by itself ample proof of the fact that there was total non-application of mind to the individual cases before issuing the general order terminating all the appointments. This was done in spite of the clear provisions in the L.R. Manual laying down detailed procedure for appointment, termination and renewal of tenure and the requirement to first consider the existing incumbent for renewal of his tenure and to take steps for a fresh appointment in his place only if the existing incumbent is not found suitable in comparison to more suitable persons available for appointment at the time of renewal. In the case of existing appointees a decision has to be first reached about their non-suitability for renewal before deciding to take steps for making fresh appointments to replace them. None of these steps were taken and no material has been produced to show that any existing incumbent was found unsuitable for the office on objective assessment before the decision to replace all by fresh appointees was taken. The prescribed procedure laid down in the L.R. Manual which has to regulate exercise of this power was totally ignored. In short, nothing worthwhile has been shown on behalf of the State of U.P. to support the impugned action as reasonable and non-arbitrary. The impugned circular must, therefore, perish on the ground of arbitrariness which is an available ground for judicial review in such a situation.

The judgment in Shrilekha Vidyarthi (supra) therefore has no application to the facts of the present case.

The other case referred to by the petitioners is the order of the learned Single Judge of this Court in W.P. No. 8248 of 2016 (Radhey Shyam Chaudhari v. Union of India and others) decided on 23.2.2016 where the writ petition was filed by the petitioners seeking a direction to the respondents not to interfere in their peaceful working on the post of Block Technology Manager under the Scheme of Agricultural Technology Management, Agency. The said order of the Court does not lay down any law and only disposes of the writ petition with a direction to the Commissioner, Basti Region, Basti to decide the representation of the petitioners therein and, therefore, in my opinion the said order has no application in the present case. No law has been laid down in that case and therefore that case cannot be cited as a precedence.

The next judgment referred to by the petitioner is of a learned Single Judge of this Court reported in , 2000 (1) UPLBEC 777 C/M A.K. College Shikohabad District Firozabad and another v. State of U.P. and others. That was a case relating to the registration of the A.K. Society and the question therein was as to when does the term of Committee of Management or of a Degree College begin and does a Committee of Management of a College become defunct after expiry of its term. This judgment has absolutely no application to the facts of the present case.

The other judgment referred to by the petitioners is in W.P. No. 7998 of 2013 Sanjay Kumar and others v. State of U.P. and others alongwith other connected writ petitions decided on 26.8.2013. That was a case relating to appointment of persons under the National Rural Employment Guarantee Scheme where the Court held that insisting upon the contractual employees to execute another contract without cancelling the earlier contract has no sanction of law. The Court itself observed that "I do not doubt the contention of the learned Standing Counsel that petitioner''s engagement is contractual and they are paid only honorarium, therefore, they have no right to insist for continuance of contract for any length of period but once the respondents themselves have chosen not to revoke earlier contract during continuance of earlier contract the petitioners cannot be compelled to come forward to execute another contract." This judgment also has absolutely no application to the facts of the present case since in the present case the contract of the employment is not between the petitioners and the State but between the petitioners and the Service Provider-respondent No. 7 and the petitioners are full time employees of the respondent No. 7-Service Provider as per the terms and conditions of the contract of employment.

Learned counsel for the respondents has placed reliance upon a judgment of this Court in W.P. No. 37903 of 2015 Km. Seema Kaushal v. State of U.P. and others decided on 10.7.2015. This Court while deciding the said writ petition in the matter of contractual employment held that such appointment is purely temporary and as per the terms and conditions of the contract the petitioner has no right to claim that she should be allowed to continue in service till regular appointment is made and therefore no direction can be given to continue the petitioner till a regular appointment is made. A reference has also been made to the judgment of the Constitution Bench of the Supreme Court in the case of Secretary, State of Karnataka v. Uma Devi reported in , (2006) 4 SCC 1. The Supreme Court in the said judgment has held in paragraph 43 as under:

"43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because, an employee had continued under cover of an order of the Court, which we have described as ''litigious employment'' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates."

The view taken by the Supreme Court in the case of Uma Devi (supra) has been reiterated by the Supreme Court in the case of State of Karnataka v. G.V. Chandrashekhar , (2009) 4 SCC 342.

For the reasons aforesaid I find no illegality or infirmity in the impugned orders.

The writ petitions lack merit and are accordingly dismissed.

Interim order, granted earlier stands vacated.