CHIEF EXECUTIVE OFFICER, ZILA PARISHAD, THANE & ORS. versus SANTOSH TUKARAM TIWARE & ORS. on 24 November 2022

1. Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 16.12.2021 passed by the High Court of Judicature atBombay in Writ Petition No. 4731/2021, by which, the High Court hasset aside the order of termination issued to respondent No. 1 herein –original writ petitioner and directed the appellant – Zila Parishad to granthim 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 asunder: - A

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3. The facts leading to the present appeal in a nutshell are asunder: - A

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A3.1 That the Zila Parishad, Thane issued communication dated29.03.2010 to the Block Development Officer, Panchayat Samitirequesting for immediate recruitment of ambulance drivers at primaryhealth centres on contractual basis till the tender process for supplying/providing driver on contract basis is completed. It was directed tocomplete the process of appointing the drivers on contract basis locallyBand on the maximum honorarium of Rs. 7,600/- for each driver. Pursuantto the said communication, the Block Development Officer initiated theprocess. Vide office order dated 24.05.2010, respondent No. 1 – originalwrit petitioner was appointed temporarily and on contract basis as adriver for a period of two months and an agreement was executedCbetween respondent No. 1 and Health Officer, Primary Health Centreagreeing with the terms and conditions of the employment. One of theconditions was that the appointment of candidate is on the contract basisand is exclusively temporary in nature. That another condition was thatif at the appointed place appointment of zila parishad driver is done thenthe appointment of concerned driver will be terminated. As it took timeDin completing tender process the tenure/engagement of respondent No.1 was extended from time to time but for every two months on the sameterms and conditions on which earlier he was engaged. Thereafter,respondent No. 1 in the year 2019 gave a representation to the ZilaParishad for permanency on the post of driver and the concerned medicalEofficer issued the experience certificate. That thereafter Taluka HealthOfficer issued order dated 18.08.2020 for re-employment of respondentNo. 1 for temporary basis from 01.11.2019 to 30.09.2020. Again, in theyear 2020 respondent No. 1 was re-appointed on contractual basis for aperiod of 11 months. That respondent No. 1 again submitted hisrepresentation and prayed for permanency submitting, inter-alia, he hasFbeen working approximately for nine years. That thereafter respondentNo. 1 – original writ petitioner filed Writ Petition No. 4731/2021 beforethe High Court on 31.07.2021 and prayed for regularization and to conferpermanency. Before that by order dated 15.07.2021 and in compliancewith order dated 06.07.2021 of CEO, Zila Parishad, Thane, Taluka HealthGDepartment terminated the appointment of respondent No. 1 andappointed an outsourcing agency. At this stage, it is required to be notedthat appointment of respondent No. 1 as contractual driver was put toan end as by that time the tender process was completed and the contractfor providing contractual driver was given to one M/s Rakshak SecurityServices and Systems Pvt. Ltd., Pune. That the High Court issued theH

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

3.2 Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court, Zila Parishad has preferred thepresent appeal. By order dated 07.03.2022 while issuing the notice thisCourt stayed the operation of the impugned judgment and order passedby the High Court.

4. Shri A. Karthik, learned counsel appearing on behalf of theappellants has vehemently submitted that in the facts and circumstancesof the case the Hon’ble High Court has seriously erred in directing toregularize services of respondent No. 1.

4.1 It is submitted by learned counsel appearing on behalf of theappellants that the Hon’ble High Court has not properly appreciated thefact that the initial appointment of respondent was on contractual basisand 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 properlyappreciated that fact that respondent No. 1 was neither appointed onregular basis nor was appointed after following due procedure as requiredand was appointed as stopgap and on contractual basis. It is submittedthat merely because it took a longer time to complete the tender processand that respondent No. 1 continued for a long time on contractual/temporary basis, the respondent has not acquired any right to get hisservices regularized.

4.3 It is vehemently submitted by learned counsel appearing onbehalf of the appellants that the post of driver was vacant at PrimaryHealth Centre, Sendrun. Considering the fact that the medical service isan emergency service and for 24 hours and the ambulance cannot bewithout any driver, the service of driver was temporarily required andtherefore, the applications for the post of temporary driver on the contractbasis was called by the panchayat samiti office from District HealthOfficer, Zila Parishad, Thane. It is submitted that respondent No. 1 applied AB

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Afor the post of driver on temporary contract basis and his application forthe said post was considered and the direction was given to appoint himon the post of driver only for temporary contract period. It is submittedthat in the appointment order itself it is specifically mentioned that he isappointed as a driver on temporary basis and his services shall be put toan end as and when the appointment of the driver is made by the ZilaBParishad.

4.4 It is further submitted that thereafter the tender process toaward the contract commenced in the month of March, 2021 and havingcome to know about the tender process respondent No. 1 filed the writpetition before the High Court praying for the regularization. It is submittedCthat the same petition was filed on 31.07.2021. But by the time the contractwas given/awarded to one M/s Rakshak Security Services and SystemsPvt. Ltd., Pune and therefore, by order dated 15.07.2021 the services ofrespondent No. 1 along with other similar situated contractual driverswere put to an end. It is submitted that though order dated 15.07.2021Dwas not specifically challenged before the High Court and it was alsobrought to the notice of the High Court by way of counter, without anychallenge the Hon’ble High Court has set aside order dated 15.07.2021and thereafter, has ordered regularization which is impermissible.

4.5 Making the above submissions it is prayed to allow the presentEappeal.

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 caseand more particularly, when respondent No. 1 was continued in serviceFfor more than ten years the Hon’ble High Court has not committed anyerror in ordering regularization of his services.

5.2 It is submitted that before appointing respondent No. 1applications were invited by the District Health Officer, Zila Parishad,Thane and thereafter, respondent No. 1 was appointed in the year 2010Gand thereafter, his services have been continued from time to time bygiving him artificial break which continued up to July, 2021. It is submittedthat therefore in the above facts and circumstances no error has beencommitted by the High Court in ordering regularization. Reliance is placedupon the decisions of this Court in the case of Pandurang SitaramJadhav and Ors. Vs. State of Maharashtra; (2020) 17 SCC 393 asH

well as on the decision of this Court in the case of Sheo Narain Nagarand Ors. Vs. State of Uttar Pradesh and Anr.; (2018) 13 SCC 432.

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5.3 Making the above submissions and relying upon the abovedecisions it is prayed to dismiss the present appeal.

6. We have heard learned counsel appearing on behalf of therespective parties at length. At the outset, it is required to be noted thatby the impugned judgment and order the High Court has directed theappellants – Zila Parishad to regularize the services of respondent No. 1as a driver. However, it is required to be noted that when respondentNo. 1 was initially appointed in the year 2010, he was appointed ontemporarily contractual basis till the tender process to award the contractfor availing the services of the driver is completed. In communicationdated 29.03.2010, the District Health Officer, Zila Parishadcommunicated to the Block Development Officer as under: - B

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“HEALTH DEPARTMENT, ZILLA PARISHAD, THANEOutward No. ZP/AV/Vehicle/Vshi/68DHealth Department, Zilla Parishad, ThaneDate: 29.03.2010

To, Block Development Officer

Panchayat Samiti————(concerned)

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Subject: In respect of appointment of driver on contractual basis.

Within your jurisdiction, new TATA Sumo ambulance areprovided to primary health centre through this office. And thosepublic health centres which has been provided with newambulance, the old vehicle of that place is given to other primaryhealth centre. Those primary health centre were the posts ofdrivers are vacant, at those primary health centres, for supplying/providing drivers on contract basis society the procedure for tenderis being done at the department level. For this tender process,minimum two month period may be required.

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Therefore, on your level, the process of appointing drivermay be done locally. The monthly 41 honorarium maximum limitwill be amount of Rs. 7600/- for each driver. Any more amountthan this will not be payable. For inviting quotation, driving licenseof the driver, insurance of the vehicle etc record should be included.

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ABefore this, the contract of vehicles taken on lease in thefinancial year 2009-10 is expiring on 31.03.2010. Therefore, vehicleof medical aid squad is being closed. However, those primaryhealth centres / squad who has not been provided with governmentvehicle till today, those health centres and squad are herebypermitted to ply vehicle on lease basis until further orders. The listBof said societies is annexed herewith.

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

Sd/-District Health officer,Zilla Parisahd,Thane”

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

6.1 In the appointment order itself it was specifically providedthat if at the said place appointment of Zila Parishad driver is done thenthe appointment of concerned driver will be terminated. Therefore, atthe relevant time neither there was any selection process followed nor itEcan be said that the appointment of respondent as driver was made afterfollowing due procedure as required. It appears that at the relevant timethe appointment on contractual basis was made looking to the publicinterest and to see that the ambulance is not without any driver. At thisstage, it is required to be noted that after G.O. issued by the Government,the regular appointments were banned and services of the driver wereFto be provided by the contractor/agency. It is true that for whateverreason the tender process to award the contract could not be completedand therefore, respondent No. 1 continued to render services as a driveron contractual basis. That the further tender process was started in themonth of March, 2021 which was awarded in the month of July, 2021Gand therefore, as the contract was awarded to the agency to provideservices of the drivers, the services of respondent No. 1 along withother similarly situated drivers were put to an end by order dated15.07.2021. That thereafter respondent No. 1 filed a writ petition beforethe 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 H

No. 1 was put to an end. Despite the above and solely on the ground thatrespondent No. 1 has rendered his services for longer period the HighCourt has ordered regularization. The High Court has also set asideorder dated 15.07.2021 though the same was not challenged before theHigh Court. Without challenging order dated 15.07.2021 the High Courtought not to have set aside order dated 15.07.2021 which was on theaward of the contract to the agency.

6.2 Merely because respondent No. 1 continued in service forlonger period on contractual basis the High Court ought not to havepassed the order of regularization more particularly, when a policy decisionwas taken to avail the services of the driver by the agency/contractorand that the appointment of respondent No. 1 and other similarly situateddrivers was not made after any selection procedure. The appointmentof respondent No. 1 was purely on stopgap and on contractual basis.Under the circumstances, the High Court has committed a very seriouserror in ordering regularization as well as quashing and setting asideorder dated 15.07.2021 by which on the contract being awarded to M/sRakshak Security Services and Systems Pvt. Ltd., the services ofrespondent No. 1 was put to an end.

6.3 Now so far as the reliance placed upon the decision of thisCourt 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 Courtfound an unfair labour practice. It was found that employees similarlysituated 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. Itwas a case where the authorities conferred temporary status and it wasfound 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 servicesof the concerned employees were directed to be regularized w.e.f.,02.10.2002 from the date on which the authorities conferred the temporarystatus. Therefore, on facts the said decision shall not be applicable to thefacts of the case on hand.

7. In view of the above and for the reasons stated above theimpugned judgment and order passed by the High Court quashing andsetting aside communication dated 15.07.2021 putting an end to servicesof respondent No. 1 on the contract being awarded to M/s Rakshak AB

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ASecurity Services and Systems Pvt. Ltd., and the order directing theappellants to regularize the services of respondent No. 1 as a driverdeserves to be quashed and set aside and is accordingly quashed and setaside. Consequently, writ petition preferred by respondent No. 1 standsdismissed. Present appeal is accordingly allowed. In the facts andcircumstance of the case there shall be no order as to costs.B

Nidhi Jain

Appeal allowed.

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