Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2022
(@ SPECIAL LEAVE PETITION (C) NO. 3466 OF 2022)
Chief Executive Officer, .Appellant(S)
Zila Parishad, Thane & Ors.
Versus
Santosh Tukaram Tiware & Ors. ..Respondent(S)
J U D G M E N T
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
Signature Not Verified
Digitally signed by
Neetu Sachdeva
Date: 2022.11.24
12:53:48 IST
Reason:
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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
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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
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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.
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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
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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
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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
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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
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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
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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.
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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,
Thane”
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
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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
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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
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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
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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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