Chief Executive Officer, Zilla Parishad, Thane vs Santosh Tukaram Tiware

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)

JUDGMENT

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: 1 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

2 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

3 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.

4 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

5 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

6 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

7 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 8 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

9 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

11 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

12 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 13 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

14 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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