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Chief Executive Officer, Zila Parishad, Thane Vs. Santosh Tukaram Tiware [24/11/2022]

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Chief Executive Officer, Zila Parishad, Thane Ors. Vs. Santosh Tukaram Tiware Ors.

[Civil
Appeal No. of 2022 @ Special Leave Petition (C) No. 3466 of 2022]

M. R.
Shah, J.

1. Leave
granted.

2. Feeling
aggrieved and dissatisfied with the impugned judgment and order dated
16.12.2021 passed by the High Court of Judicature at Bombay in Writ Petition
No. 4731/2021, by which, the High Court has set aside the order of termination
issued to respondent No. 1 herein – original writ petitioner and directed the
appellant – Zila Parishad to grant him the benefits as regular employee from
the date of termination i.e., 15.07.2021, the Zila Parishad, Thane has
preferred the present appeal.

3. The
facts leading to the present appeal in a nutshell are as under: –

3.1 That
the Zila Parishad, Thane issued communication dated 29.03.2010 to the Block
Development Officer, Panchayat Samiti requesting for immediate recruitment of
ambulance drivers at primary health centres on contractual basis till the
tender process for supplying/providing driver on contract basis is completed.
It was directed to complete the process of appointing the drivers on contract
basis locally and on the maximum honorarium of Rs. 7,600/- for each driver.

Pursuant to
the said communication, the Block Development Officer initiated the process. Vide
office order dated 24.05.2010, respondent No. 1 – original writ petitioner was
appointed temporarily and on contract basis as a driver for a period of two
months and an agreement was executed between respondent No. 1 and Health
Officer, Primary Health Centre agreeing with the terms and conditions of the
employment. One of the conditions was that the appointment of candidate is on
the contract basis and is exclusively temporary in nature.

That
another condition was that if at the appointed place appointment of zila
parishad driver is done then the appointment of concerned driver will be
terminated. As it took time in completing tender process the tenure/engagement
of respondent No. 1 was extended from time to time but for every two months on
the same terms and conditions on which earlier he was engaged.

Thereafter,
respondent No. 1 in the year 2019 gave a representation to the Zila Parishad for
permanency on the post of driver and the concerned medical officer issued the
experience certificate. That thereafter Taluka Health Officer issued order
dated 18.08.2020 for re-employment of respondent No. 1 for temporary basis from
01.11.2019 to 30.09.2020. Again, in the year 2020 respondent No. 1 was
re-appointed on contractual basis for a period of 11 months. That respondent
No. 1 again submitted his representation and prayed for permanency submitting,
inter-alia, he has been working approximately for nine years.

That
thereafter respondent No. 1 – original writ petitioner filed Writ Petition No.
4731/2021 before the High Court on 31.07.2021 and prayed for regularization and
to confer permanency. Before that by order dated 15.07.2021 and in compliance
with order dated 06.07.2021 of CEO, Zila Parishad, Thane, Taluka Health
Department terminated the appointment of respondent No. 1 and appointed an outsourcing
agency. At this stage, it is required to be noted that appointment of
respondent No. 1 as contractual driver was put to an end as by that time the
tender process was completed and the contract for providing contractual driver was
given to one M/s Rakshak Security Services and Systems Pvt. Ltd., Pune.

That the
High Court issued the notice in Writ Petition on 30.08.2021 and by an interim order
the High Court allowed the original writ petitioner to sign the muster roll and
to continue his work. That thereafter by the impugned judgment and order the
High Court has not only set aside order of termination dated 15.07.2021 though
no such prayer was made, but has ordered regularization and permanency on the
ground that he has been continued in service for more than nine years as a
driver without break and/or with artificial break.

3.2 Feeling
aggrieved and dissatisfied with the impugned judgment and order passed by the
High Court, Zila Parishad has preferred the present appeal. By order dated 07.03.2022
while issuing the notice this Court stayed the operation of the impugned
judgment and order passed by the High Court. 4. Shri A. Karthik, learned
counsel appearing on behalf of the appellants has vehemently submitted that in
the facts and circumstances of the case the Hon’ble High Court has seriously
erred in directing to regularize services of respondent No. 1.

4.1 It is
submitted by learned counsel appearing on behalf of the appellants that the
Hon’ble High Court has not properly appreciated the fact that the initial
appointment of respondent was on contractual basis and till the tender process
for providing services of the driver is completed.

4.2 It is
submitted that the Hon’ble High Court has not properly appreciated that fact
that respondent No. 1 was neither appointed on regular basis nor was appointed
after following due procedure as required and was appointed as stopgap and on
contractual basis. It is submitted that merely because it took a longer time to
complete the tender process and that respondent No. 1 continued for a long time
on contractual/temporary basis, the respondent has not acquired any right to
get his services regularized.

4.3 It is
vehemently submitted by learned counsel appearing on behalf of the appellants
that the post of driver was vacant at Primary Health Centre, Sendrun.
Considering the fact that the medical service is an emergency service and for
24 hours and the ambulance cannot be without any driver, the service of driver
was temporarily required and therefore, the applications for the post of
temporary driver on the contract basis was called by the panchayat samiti
office from District Health Officer, Zila Parishad, Thane.

It is
submitted that respondent No. 1 applied for the post of driver on temporary
contract basis and his application for the said post was considered and the direction
was given to appoint him on the post of driver only for temporary contract
period. It is submitted that in the appointment order itself it is specifically
mentioned that he is appointed as a driver on temporary basis and his services
shall be put to an end as and when the appointment of the driver is made by the
Zila Parishad.

4.4 It is
further submitted that thereafter the tender process to award the contract
commenced in the month of March, 2021 and having come to know about the tender
process respondent No. 1 filed the writ petition before the High Court praying
for the regularization. It is submitted that the same petition was filed on
31.07.2021. But by the time the contract was given/awarded to one M/s Rakshak Security
Services and Systems Pvt. Ltd., Pune and therefore, by order dated 15.07.2021
the services of respondent No. 1 along with other similar situated contractual
drivers were put to an end. It is submitted that though order dated 15.07.2021
was not specifically challenged before the High Court and it was also brought to
the notice of the High Court by way of counter, without any challenge the
Hon’ble High Court has set aside order dated 15.07.2021 and thereafter, has
ordered regularization which is impermissible.

4.5 Making
the above submissions it is prayed to allow the present appeal. 5. Present
appeal is vehemently opposed by Mrs. V. Mohana, learned Senior Advocate
appearing on behalf of respondent No. 1.

5.1 It is
submitted that in the facts and circumstances of the case and more
particularly, when respondent No. 1 was continued in service for more than ten
years the Hon’ble High Court has not committed any error in ordering regularization
of his services.

5.2 It is
submitted that before appointing respondent No. 1 applications were invited by
the District Health Officer, Zila Parishad, Thane and thereafter, respondent
No. 1 was appointed in the year 2010 and thereafter, his services have been
continued from time to time by giving him artificial break which continued up
to July, 2021. It is submitted that therefore in the above facts and circumstances
no error has been committed by the High Court in ordering regularization.
Reliance is placed upon the decisions of this Court in the case of Pandurang Sitaram
Jadhav and Ors. Vs. State of Maharashtra; (2020) 17 SCC 393 as well as on the
decision of this Court in the case of Sheo Narain Nagar and Ors. Vs. State of
Uttar Pradesh and Anr.; (2018) 13 SCC 432.

5.3 Making
the above submissions and relying upon the above decisions it is prayed to
dismiss the present appeal. 6. We have heard learned counsel appearing on
behalf of the respective parties at length. At the outset, it is required to be
noted that by the impugned judgment and order the High Court has directed the
appellants – Zila Parishad to regularize the services of respondent No. 1 as a
driver. However, it is required to be noted that when respondent No. 1 was
initially appointed in the year 2010, he was appointed on temporarily
contractual basis till the tender process to award the contract for availing
the services of the driver is completed. In communication dated 29.03.2010, the
District Health Officer, Zila Parishad communicated to the Block Development
Officer as under: –

“HEALTH
DEPARTMENT, ZILLA PARISHAD, THANE Outward No. ZP/AV/Vehicle/Vshi/68 Health
Department, Zilla Parishad, Thane Date: 29.03.2010 To, Block Development
Officer Panchayat Samiti———(concerned) Subject: In respect of appointment
of driver on contractual basis. Within your jurisdiction, new TATA Sumo ambulance
are provided to primary health centre through this office. And those public
health centres which has been provided with new ambulance, the old vehicle of
that place is given to other primary health centre. Those primary health centre
were the posts of drivers are vacant, at those primary health centres, for supplying
/ providing drivers on contract basis society the procedure for tender is being
done at the department level. For this tender process, minimum two month period
may be required.

Therefore,
on your level, the process of appointing driver may be done locally. The
monthly 41 honorarium maximum limit will be amount of Rs. 7600/- for each
driver. Any more amount than this will not be payable. For inviting quotation,
driving license of the driver, insurance of the vehicle etc record should be
included. Before this, the contract of vehicles taken on lease in the financial
year 2009-10 is expiring on 31.03.2010. Therefore, vehicle of medical aid squad
is being closed. However, those primary health centres / squad who has not been
provided with government vehicle till today, those health centres and squad are
hereby permitted to ply vehicle on lease basis until further orders. The list
of said societies is annexed herewith.

Those
primary health centres where the posts of drivers are to be filled on
contractual basis, the list of those primary health centres is annexed
herewith.

Sd/-

District Health officer,

Zilla Parisahd,

hane”

That
thereafter only applications were invited and the appointment of driver of
ambulance on contractual basis was made.

6.1 In the
appointment order itself it was specifically provided that if at the said place
appointment of Zila Parishad driver is done then the appointment of concerned
driver will be terminated. Therefore, at the relevant time neither there was
any selection process followed nor it can be said that the appointment of
respondent as driver was made after following due procedure as required. It
appears that at the relevant time the appointment on contractual basis was made
looking to the public interest and to see that the ambulance is not without any
driver. At this stage, it is required to be noted that after G.O. issued by the
Government, the regular appointments were banned and services of the driver
were to be provided by the contractor/agency.

It is true
that for whatever reason the tender process to award the contract could not be completed
and therefore, respondent No. 1 continued to render services as a driver on
contractual basis. That the further tender process was started in the month of
March, 2021 which was awarded in the month of July, 2021 and therefore, as the
contract was awarded to the agency to provide services of the drivers, the
services of respondent No. 1 along with other similarly situated drivers were
put to an end by order dated 15.07.2021.

That
thereafter respondent No. 1 filed a writ petition before the High Court praying
for regularization which was filed on 31.07.2021, and by that time vide order
dated 15.07.2021 the services of respondent No. 1 was put to an end. Despite
the above and solely on the ground that respondent No. 1 has rendered his
services for longer period the High Court has ordered regularization. The High
Court has also set aside order dated 15.07.2021 though the same was not challenged
before the High Court. Without challenging order dated 15.07.2021 the High
Court ought not to have set aside order dated 15.07.2021 which was on the award
of the contract to the agency.

6.2 Merely
because respondent No. 1 continued in service for longer period on contractual
basis the High Court ought not to have passed the order of regularization more particularly,
when a policy decision was taken to avail the services of the driver by the
agency/contractor and that the appointment of respondent No. 1 and other
similarly situated drivers was not made after any selection procedure. The
appointment of respondent No. 1 was purely on stopgap and on contractual basis.
Under the circumstances, the High Court has committed a very serious error in
ordering regularization as well as quashing and setting aside order dated
15.07.2021 by which on the contract being awarded to M/s Rakshak Security
Services and Systems Pvt. Ltd., the services of respondent No. 1 was put to an
end.

6.3 Now so
far as the reliance placed upon the decision of this Court in the case of Pandurang
Sitaram Jadhav (supra) is concerned, on facts the said decision shall not be applicable
to the case on hand and/or of any assistance to respondent No. 1. It was a case
where this Court found an unfair labour practice. It was found that employees similarly
situated working in the same establishment were granted regularization.
Similarly, the decision of this Court in the case of Sheo Narain Nagar (supra)
also shall not be applicable to the facts of the case on hand.

It was a
case where the authorities conferred temporary status and it was found that
there was requirement of work and availability of posts too, and it was found
that it was not a case of back-door entry, the services of the concerned employees
were directed to be regularized w.e.f., 02.10.2002 from the date on which the
authorities conferred the temporary status. Therefore, on facts the said
decision shall not be applicable to the facts of the case on hand.

7. In view
of the above and for the reasons stated above the impugned judgment and order
passed by the High Court quashing and setting aside communication dated 15.07.2021
putting an end to services of respondent No. 1 on the contract being awarded to
M/s Rakshak Security Services and Systems Pvt. Ltd., and the order directing
the appellants to regularize the services of respondent No. 1 as a driver
deserves to be quashed and set aside and is accordingly quashed and set aside.
Consequently, writ petition preferred by respondent No. 1 stands dismissed. Present
appeal is accordingly allowed. In the facts and circumstance of the case there
shall be no order as to costs.

…………………………………J. (M. R. SHAH)

…………………………………J. (M.M. SUNDRESH)

NEW DELHI,

NOVEMBER 24, 2022.

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