HIGH COURT OF MADHYA PRADESH : AT JABALPUR
Writ Petition No : 9989 of 2008(S)
Vijay Kumar Bajpayee
- V/s -
MP Urja Vikas Nigam Limited
& Another.
Writ Petition No : 4190 of 1999(S)
Vijay Kumar Bajpai
- V/s -
MP Urja Vikas Nigam Limited
& Another.
Writ Petition No : 9974 of 2008(S)
Sanjay Kumar Sharma
- V/s -
MP Urja Vikas Nigam Limited
& Another.
Writ Petition No : 9976 of 2008(S)
Krishna Kumar Shrivastava
- V/s -
MP Urja Vikas Nigam Limited
& Another.
Writ Petition No : 9978 of 2008(S)
Naveen Dubey
- V/s -
MP Urja Vikas Nigam Limited
& Another.
Writ Petition No : 9985 of 2008(S)
Ram Manohar Gautam
- V/s -
MP Urja Vikas Nigam Limited
& Another.
2
Writ Petition No : 9986 of 2008(S)
Rajesh Kumar Pandey
- V/s -
MP Urja Vikas Nigam Limited
& Another.
Writ Petition No : 9992 of 2008(S)
Suresh Kumar Suryavanshi
- V/s -
MP Urja Vikas Nigam Limited
& Another.
Writ Petition No : 9993 of 2008(S)
Sher Singh Thakur
- V/s -
MP Urja Vikas Nigam Limited
& Another.
Writ Petition No : 14773 of 2008(S)
Rakesh Kumar Gupta
- V/s -
MP Urja Vikas Nigam Limited
& Another.
Present : Hon'ble Shri Justice Rajendra Menon.
--------------------------------------------------------------------------------------
Shri Ashok Lalwani, learned counsel for the
petitioners.
In W.P.No.:14773/2008(S):
Shri Brindawan Tiwari, learned counsel for the
petitioner.
Smt. Shobha Menon, Senior Advocate, with Shri
Rahul Choubey for the respondents.
--------------------------------------------------------------------------------------
Whether approved for reporting: Yes / No.
3
ORDER
23/11/2010
As common questions are involved in all these petitions and
as challenge made in these petitions are to order dated 31.7.2008, by
which services of the petitioners are being retrenched in accordance to
the provisions of Section 25-F of the Industrial Disputes Act, 1947, all
these petitions are being heard and decided by this order. For the sake of
convenience and as requested for by the parties, documents filed and the
pleadings available in the record of W.P.No.9989/2008 is being referred
to in this order.
2- The petitioners were employed in the establishment of the
respondents in various capacities. As far as petitioner Vijay Kumar
Bajpayee, in W.P.No.9989/2008(S), is concerned, he was appointed as a
Junior Assistant vide order-dated 23.5.1990. It is the case of this
petitioner that he was appointed in the regular establishment of the
respondents, whereas it is the case of the respondents that each of the
petitioner was appointed in a particular Project known as Integrated
Rural Energy Programme (hereinafter referred to as ‘IREP’). According
to the petitioner Vijay Kumar Bajpayee, his initial appointment vide
Annexure P/1 on 23.5.90 was on probation and thereafter he was
confirmed after extension of probation. The orders in this regard are
Annexure P/2 dated 1.8.91 and Annexure P/3 dated 1.10.97. It is the
case of the petitioners that even though in the orders passed, they are
shown to be appointed and confirmed in the IREP Scheme, but it is their
case that they are the regular employees of the respondent corporation
and as per the service rules applicable to the respondents corporation
i.e… Annexure P/4, namely the Employees Service and Recruitment
Rules of 1989, petitioners are the permanent employees of the
department as they have worked for more than two years. It is the case of
each of the petitioner that by virtue of the definition of “permanent
employee” as contained in Rule 2(7), after two years of service with the
Corporation, he is deemed to be a regular employee of the department. It
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is the case of each of the petitioner that till date they have put in more
than 18 years of service and respondents are granting him the benefit of
Group Insurance, Employees Provident Fund Scheme 1992 and various
other benefits. It is emphasized that treating the petitioner to be an
employees of the Project their services are being dispensed with on the
ground that the Project is being wound up and the Scheme, which is
implemented at the instance of the Central Government, has come to an
end.
3- Case of each of the petitioners are that even though they are
shown to be appointed in the Scheme in question, but infact and in law
they are regular employees of the Corporation, have attained the status
of permanent employee and, therefore, the respondents cannot terminate
their service in the manner done. It is emphasized by Shri Ashok
Lalwani and Shri Brindawan Tiwari, learned counsel appearing for the
petitioners, during the course of hearing, that each of the petitioner is a
permanent employee, he has attained the status of a permanent employee
and the respondents cannot terminate their services treating them to be
employees of the Project. It is stated that once the Provident Fund and
other benefits are extended to the petitioners and when they are paid the
benefit of gratuity, group insurance etc, they cannot be treated as
employees of a particular Project or Scheme.
4- Referring to the set up of the respondents’ organization, the
Scheme, namely – The Integrated Rural Energy Programme, and the
appointments made of various other employees to the Scheme, it was
emphasized that many employees appointed under the said Scheme are
still continued. Referring to the case of an employee – Smt. Indu Goyal,
who has been appointed vide Annexure P/9 on 31.12.93, it is argued that
Smt. Indu Goyal is still continued, petitioners contend that it is a case
where various other employees appointed under the Scheme are still
continuing and by adopting a pick and choose method, only 12 persons
who are petitioners before this Court are being retrenched. Referring to
Annexure P/10, document with regard to payment of salary and other
benefits to the employees working under the Scheme, learned counsel
5
for the petitioners emphasized that in the scheme in question, 111
employees have been appointed and even though 99 employees are still
continuing in service, it is only the 12 petitioners who are being singled
out for retrenchment. Contending that this action of the respondents in
only terminating the services of the present 12 petitioners and permitting
99 employees, similarly situated, to continue amounts to discrimination,
is violative of Article 14 of the Constitution, interference into the matter
is sought for.
5- Referring to the rejoinder filed, the documents annexed
thereto and the interlocutory applications filed, Shri Ashok Lalwani
emphasized that when 99 employees are continued then there is no
reason or justification on the part of the respondents to take the
impugned action, it is stated that action of the respondents are
discriminatory and unsustainable. Inviting my attention to
I.A.No.2869/2010, the grounds raised therein and emphasizing that if the
Scheme itself is closed then how 99 other employees are permitted to
work, petitioners want this Court to interfere into the matter.
6- Finally, placing reliance on certain orders passed by this
Court in the matter of certain employees namely Rudra Prasad Mishra,
Budhsen etc, it was argued by Shri Ashok Lalwani that as these
employees have been directed to be regularized by this Court, petitioners
who are also similarly situated like these employees are entitled to be
extended similar treatment. Claiming parity with these employees prayer
made is that the relief as prayed for be granted and the retrenchment
proposed by the impugned notice – Annexure P/5 dated 31.7.2008 be
quashed.
7- In support of his contention Shri Ashok Lalwani invites my
attention to the following judgments: Central Inland Water Transport
Corporation Ltd. and another Vs. Brojo Nath Ganguly and another,
AIR 1986 SC 1571; V.L. Chandra and others Vs. All India Institute
of Medical Sciences and others, 1990 SCC 38; and, State of West
Bengal and others Vs. Kabert Khastagir and others, AIR 2009 SC
1437.
6
8- Refuting the aforesaid contention Smt. Shobha Menon,
learned Senior Advocate, by referring to the orders of appointment i.e…
the appointment order of Shri Vijay Kumar Bajpayee, petitioner in
W.P.No.9989/2008, and taking me through the orders – Annexures P/1,
P/2 and P/3, issued in his case, pointed out that in each and every order
issued to this person it is clearly stipulated that he is appointed in
connection with the IREP. It is the case of the respondents that the IREP
is a Scheme floated by the Government of India and the respondent
Nigam is only a nodal agency appointed by the Central Government for
implementation of the Scheme. The Scheme is implemented for the
purpose of making available renewable and non-renewable source of
energy in rural areas and the expenditure for implementing the Scheme
is shared @ 50% each between the Central Government and the State
Government. It is emphasized that the Central Government having
closed the Scheme now and having withdrawn the financial assistance
granted, it is stated that the petitioners, who were appointed for a
particular Scheme, cannot claim any further continuation in service. It is
the case of the respondents that petitioners’ appointment is co-terminus
with the Scheme and once the Scheme is wound up, the service of the
petitioners also come to an end. It is the case of the respondents that
once the Scheme is concluded, the petitioners’ have been rightly
retrenched after following the provisions of Section 25-F of the
Industrial Disputes Act. Smt. Shobha Menon, learned Senior Advocate,
submits that in the respondents Corporation, there are two sets of
employees. Under the Recruitment Rules of 1989 – Annexure P/4,
appointments are made to the regular cadre post in the department and
such appointments are made either by direct recruitment or by promotion
or on deputation. All other appointments made are either casual in nature
or in connection with certain Schemes or Project that are being
implemented by the respondents. It is the case of the respondents that the
petitioners were never appointed in connection with the regular
establishment or activities of the Corporation, in accordance to the
7
Recruitment Rules against sanctioned post and, therefore, the benefit of
the Recruitment Rules of 1989 is not applicable to them.
9- As far as payment of Employees Provident Fund and other
statutory benefits are concerned, it is the case of the respondents that
merely because the benefit statutory in nature, payable to the employee
is paid that would not mean that the employee becomes a permanent or
regular employee of the establishment. Contending that there is no
discrimination and taking me through the appointments of various
employees like Smt. Indu Goyal, Shri A.K. Garg, Shri Rajeev Kumar
Bakshi and others and filing a detailed statement indicating that these
employees even though deputed to work under the Scheme are infact
regular employees of the Nigam and even after winding up of the Project
they still continue as employees of the Nigam. Smt. Shobha Menon,
learned Senior Advocate, emphasized that the contention of the
petitioners that 111 employees were appointed under the Project and
only 12 are being terminated is incorrect. Learned Senior Advocate took
me through the documents filed alongwith the return as Annexures R-
11-A to R-11-Z, and pointed out that out of 111 employees working in
the Scheme in question, most of the employees were the regular
employees of the Nigam and they were temporarily deputed to work
under the Project/Scheme in question. After the Scheme/Project is over,
they are being brought back to the regular establishment. It is stated that
the nature of appointment of the petitioners and these regularly
appointed employees are different and, therefore, petitioners cannot
compare their case with these employees. Referring to the orders of
appointment of Smt. Indu Goyal and other employees available on
record, the plea of discrimination is rebutted by the respondents.
10- Smt. Shobha Menon, learned Senior Advocate, further
submits that the petitioners are employees appointed in a particular
scheme or project, their appointment is co-terminus with the scheme and
once the scheme is over their services come to an automatic end. As far
as the case of Rudra Prasad Mishra & Budhsen is concerned, Smt. Shobha
Menon invites my attention to the Division Bench judgment rendered in
8
the case of M.P. Urja Vikas Nigam Limited and others Vs. Rudra
Prasad Mishra, on 2.5.2007 in W.A.No.419/2007, and submits that in
the light of the order passed by the Division Bench, in this case
petitioners cannot claim any benefit. It is argued that in the case of other
employees, referred to in paragraphs 6.4 of the petition, they were
granted the benefit of certain orders passed by the learned Single Judge
and in view of the order passed by the learned Single Judge in the case
of Rudra Prasad Mishra, the same is now under challenge in the Writ
Appeal after the judgment rendered by the Division Bench in the case of
Rudra Prasad Mishra, it is argued that the cases of the present petitioners
and these employees are different.
11- As far as the case of other employees are concerned, it
is said that when the services of these employees were terminated, they
challenged the termination before the Labour Court and it was their case
that their termination is retrenchment and the same is illegal. Labour
Court found that these employees were removed from service
contrary to the principles laid down for retrenchment as
contemplated under the Industrial Disputes Act, 1947 and, therefore,
their termination was held to be illegal. This order of the Labour Court
having been upheld by this Court, therefore, these employees were
reinstated. In the present case, petitioners have not challenged the
retrenchment on the ground as was raised by these employees, which
was considered by the Labour Court. That being so, the case of these
employees is clearly distinguishable. In that case the Labour Court has
not considered the question with regard to the Project employees being
continued after winding up of the Project. It is a case where the
termination is held to be retrenchment and the same being without
following the procedure contemplated under the Industrial Disputes Act,
is held to be illegal.
12- In support of her contention to the effect that petitioners are
project employees and cannot claim any benefit and further in support of
the various other averments made by her, Smt. Shobha Menon, learned
counsel, placed reliance on the following judgments: Delhi
9
Development Horticulture Employees’ Union Vs. Delhi
Administration, Delhi and others, (1992) 4 SCC 99; State of
Himachal Pradesh through the Secretary (Rural Development) to
the Govt of Himachal Pradesh, Shimla Vs. Ashwani Kumar and
others, AIR 1997 SC 352; State of Himachal Pradesh through the
Secretary, Agriculture to the Govt of Himachal Pradesh, Shimla Vs.
Nodha Ram and others, AIR 1997 SC 1445; Surendra Kumar
Sharma Vs. Vikas Adhikari and Another, (2003) 5 SCC 12;
Mahendra L. Jain and others Vs. Indore Development Authority
and others, A. Umarani Vs. Registrar, Cooperative Societies and
others, (2004) 7 SCC 112; AIR 2005 SC 1252; Gurbachan Lal Vs.
Regional Engineering College, Kurukshetra and others, 2007
INDLAW SC 323; Lal Mohammed and Others Vs. Indian Railway
Construction Co. Ltd. & Others, AIR 2007 SC 2230; Mohd. Abdul
Kadir and Another Vs. Director General of Police, Assam and
others, (2009) 6 SCC 611; and, judgments of the Delhi High Court in
the cases of Amita Gulati Vs. Union of India and others, ILR 1996
Delhi 327; and, Union of India Vs. Ram Pal Singh and others,
W.P.(C) No.1542/2010, decided on 26.8.2010.
13- Having heard learned counsel for the parties and on perusal
of the records, it is seen that the main question that would arise for
consideration in this writ petition is as to whether petitioners were
employees, who were appointed into the regular service of M.P. Urja
Vikas Nigam Limited; and, whether they are deemed to have attained the
status of a permanent employee as enumerated in Rule 2.7 of the M.P.
Urja Vikas Nigam Rules, 1989. The second question would be as to
whether the petitioners are employees appointed against a Project and if
so, what is the result of closure of the Project. A further question
requiring consideration is as to whether other similarly situated
employees engaged in the same Project are continued and by adopting a
‘pick and choose’ formula, petitioners are singled out for being
terminated even though other similarly situated project employees are
continuing. The final question would be with regard to benefit to be
10
granted to the petitioner in the light of the decision rendered in the case
of Rudra Prasad Mishra and other employees like Shri Budhsen, so also
those who were granted relief by the Labour Court.
14- Before adverting to consider the questions for determination
as indicated hereinabove, it may be appropriate to take note of the so
called Integrated Rural Energy Programme and the role of the MP Urja
Vikas Nigam Limited, in the matter of execution of this Scheme/Project.
From the material available on record, it is clear that the M.P. Urja Vikas
Nigam Limited is a Company incorporated under the Companies Act,
1956. It is an independent legal entity and it is fully owned and
established by the Government of MP. It has various functions to be
carried out and is amenable to the writ jurisdiction of this Court. The
aims and object of the Nigam is available in the memorandum of
association.
15- The IREP was a Scheme initially sponsored by the Central
Government and came into force in the year 1986-87. The purpose of
this Scheme was to provide assistance for establishing Integrated Rural
Energy Planning Source at State Level and District Level. Respondent
M.P. Urja Vikam Nigam was nominated as the Nodal Agency for
implementing this Scheme and the burden for implementing the Scheme
was to be shared on the basis of 50% each by the State Government and
the Central Government.
16- As far as employment to the services of MP Urja Vikas
Nigam Limited is concerned, the same is governed by the MP Urja
Vikas Nigam Rules, 1989 and the service conditions stipulated therein.
17- Petitioners claim that they are regular employees appointed
by the respondent company. However, on a perusal of the appointment
order of the petitioners, which is similar in nature, it is seen that in the
order-dated 23.5.90 – Annexure P/1, with regard to appointment of
petitioner Shri Vijay Kumar Bajpayee, it is clearly indicated that he is
appointed on a fixed salary of Rs.950/- per month in the IREP Scheme
and posted at Amarpatan. Even though in the order it is stated that his
appointment is on probation for a period of two years, but the
11
stipulations contained in the appointment order clearly points out that it
is under the IREP Scheme. Thereafter, when the order of confirmation
was passed vide Annexure P/2 on 1.8.1981, it is again indicated in this
order that he is appointed under the particular scheme, as is already
contained in the order-dated 23.5.90 – Annexure P/1. Finally, in the
order-dated 1.10.1997 – Annexure P/3, it is clearly indicated that
petitioner’s appointment is against the IREP Scheme and he is an
employee of the Scheme. The stipulations in this regard are evident from
the order-dated 1.10.1997 – Annexure P/3 issued by the Department. It
is, therefore, clear that in the case of each of the petitioner’s the
appointment order clearly stipulates that they are appointed for the
purpose of execution of a particular scheme. The words used in the order
of appointment – Annexure P/3 dated 1.10.1997 in Hindi, reads as
under:
” Jh fot; dqekj cktis;h vkRet Jh clar dqekj
cktis;h dks vLFkkbZ :i ls vkxkeh vkns’k rd fuxe }
kjk fØ;kUohr dh tk jgh ,dhÑr xzkeh.k ÅtkZ ;kstuk
dk;ZØe ¼iw.kZr% vLFkkbZ½ ds vUrxZr dfu”B lgk;d in
ij osrueku :i;s &
;g fu;qfDr ifj;kstuk ds vUrxZr iw.kZr% vLFkkbZ gS
rFkk vLFkkbZ fu;qfDr ds nkSjku Jh cktis;h dh lsok,a
fdlh Hkh le; fdlh Hkh ,d i{k }kjk ,d ekg dk
uksfVl nsdj ;k mlds ,ot esa ,d ekg dk osru nsdj
lekIr dh tk ldrh gSA
—————————–vkbZ-vkj-bZ-ih- jhok esa inLFk fd;k tkrk
gS rFkkfi iz’kkldh; vko’;drkvksa ds dkj.k bUgsa e/;
izns’k esa fuxe ds fdlh Hkh dk;kZy; vFkok vkbZ-vkj-bZ-ih-
ifj;kstuk dk;kZy; esa inLFk djus dk fu;e dks vf/kdkj
gksxkA”
(Emphasis supplied)
18- The aforesaid stipulation in this order of appointment of the
petitioners clearly shows that appointment of the petitioners are in
connection with a particular scheme. If the appointment orders of other
employees available on the record as Annexure R-11-A to R-11-Z are
taken note of, it would be seen that in the appointment order of none of
these employees, it is indicated that their appointment is in connection
12
with the execution of a particular scheme. On the contrary it is seen that
their appointment is to the service in the Nigam, for example in the order
– Annexure R-11-C, appointing four persons, it is stated that the
employees are appointed to the services of the Nigam. Petitioners want
this Court to hold that by virtue of the provisions of Clause 2(7) of the
Service Rules – Annexure P/4, petitioners having worked for two years,
are deemed to be employees of the Nigam is wholly misconceived.
Petitioners can become employees of the Urja Vikas Nigam, if their
appointment is made in accordance to the conditions for recruitment into
service of the Nigam as is stipulated in the Recruitment Rules –
Annexure P/4 itself. Clause 10 onwards of the aforesaid Recruitment
Rules contains elaborate procedure for appointment to the service of the
Nigam and there is nothing to indicate that the petitioners were
appointed to the service of the Nigam after following the Rules and the
Procedure contemplated in Annexure P/4, that also against sanctioned
post as per the schedule to this rule. It is a case where the petitioners are
appointed on a particular Scheme/Project and merely because they have
worked for two years, it cannot be construed that they have become
permanent employees in the regular establishment of the respondents.
For appointment to the regular establishment of the respondents a
detailed recruitment procedure is contemplated under the Recruitment
Rules – Annexure P/4 and in the absence of the petitioners establishing
the fact that they are appointed in compliance to the requirement of the
aforesaid recruitment rules, it cannot be held that the petitioners are
regular employees of the department. As far as the claim of the petitioner
with regard to payment of Provident Fund, Gratuity, GIS are concerned,
merely because the aforesaid statutory benefits are extended to the
petitioners, it cannot be construed that they become regular employees of
the establishment.
19- Similar questions as are being raised by the petitioners in
these petitions have been considered by the Supreme Court in the case of
Lal Mohammed (supra), relied upon by Smt. Shobha Menon. It has
been held by the Supreme Court in the aforesaid case that when
13
appointment is not made in accordance to the Rules for recruitment in
the Department and when the appointment is dehors the rules and further
when the appointment letter clearly appoints a person against a particular
project, the appointment cannot be termed to be one in the regular
establishment of the Company, but would only be an appointment in
connection with the Project. In paragraph 14 of the aforesaid judgment,
the matter has been considered in detail and it has been held that until
and unless appointment is not made in accordance to the regular
recruitment rules, merely because some benefit of Group Insurance
Scheme or Provident Fund is extended, the Project employee will not
become an employee of the establishment. The principles laid down in
the aforesaid judgment would squarely apply in the facts and
circumstances of this case and in the light of the specific stipulation as is
contained in the order of appointment of each of the petitioners, it is
clear that they are appointed to a particular project and there is nothing
to indicate that their appointment is to the regular service of the
establishment of the respondent after following the conditions stipulated
in the Recruitment Rules. Accordingly, the contentions advanced by Shri
Ashok Lalwani, in this regard and in the facts and circumstances of the
present case and in view of the principles laid down as indicated
hereinabove, I am unable to accept the grounds raised by the petitioner
that they are regular employees of the establishment/Nigam. The
petitioners are not appointed in the regular establishment of the
respondents, they are only appointed to a particular project.
20- As far as the right accruing to the petitioners and their claim
for continuing in service after winding up of the Project is concerned, the
law in this regard is well settled and there cannot be any doubt with
regard to the right of a project employee and the principle to be followed
in such cases. In the judgments relied upon by Smt. Shobha Menon, the
principles have been clearly laid down. In the case of Delhi
Development Horticulture Employees’ Union (supra), decided in the
year 1992, it has clearly been held that an employee appointed under a
14
particular scheme has no right to claim regularization only because he
has worked for a particular period of time.
21- In the case of State of Himachal Pradesh through the
Secretary, Agriculture to the Govt of Himachal Pradesh, Shimla Vs.
Nodha Ram and others (supra), it has been held that an employee
appointed in a government project does not have any right to continue in
employment after the project is closed. It is stated that appointment in a
project is temporary in nature and co-terminus with the continuation or
otherwise of the Project.
22- Similar is the view of the Supreme Court in the case of
Ashwani Kumar (supra), where it is held that termination on closure of
a project is proper and not illegal. In the judgments rendered by the
Supreme Court, in the case of Mahendra L. Jain (supra), it has been
held that if appointments are made without following the rules
contemplated in the Recruitment Rules, such an employment cannot be
regularized and if the appointment is on a particular scheme or a project,
the appointment will come to an end once the scheme or the project is
wound up or closed.
23- In the case of Mohd. Abdul Kadir (supra) also, it has been
held that staff employed for a particular project or scheme will have no
right to claim regularization and they cannot claim continuation in
service or regularization in other project or scheme once the scheme or
project for which they are appointed is closed. This is the view taken by
the Supreme Court in the case of Surendra Kumar Sharma (supra)
also, wherein after following the law laid down in various other cases, it
has been held that once the scheme, project or programme is abolished,
the employee appointed under such scheme, project or programme
automatically comes to an end. The consistent view of the Supreme
Court and various other High Courts, particularly the Delhi High Court –
in the cases relied upon by Smt. Shobha Menon, to the effect that a
project employee continues to work so long as the project continues, the
appointment is co-terminus with the project and once the project is
wound up the appointment comes to an end.
15
24- In that view of the aforesaid, once the petitioners are seen to
be appointed against a project, they have no right to claim continuation
in service after the project is wound up. In the present case, the
overwhelming documentary evidence available on record clearly
indicates that the Central Government had wound up the project and
stopped funding and it was because of the same that the petitioners’
services are being retrenched.
25- During the course of hearing Shri Ashok Lalwani had
placed heavy reliance on a judgment of the Supreme Court, in the case
of Kabert Khastagir (supra), to say that petitioner is not a project
employee. The aforesaid judgment has to be considered in the facts and
circumstances of that case. It was a case where even though the
employees were appointed for discharging certain duties under ICDC
Scheme or a Project by the Government of West Bengal, but the facts
that are unveiled on going through the said judgment indicates that they
were appointed to the services of the State of West Bengal in accordance
to the recruitment rules of the State and thereafter delegated to discharge
their duties in a particular project, for which the State Government was
the implementing agency. That was a case where the employees were
appointed to the services of the State and their services utilized for a
particular project and it was in view of the aforesaid that the Supreme
Court held that the closure of the Project will not affect the services of
the employees as they were appointed by the State Government itself. In
the case of Kabert Khastagir (supra), there was a specific provision in
paragraph 47 of the Scheme, in which it was contemplated that even
though for implementation of the Scheme the fund would be provided by
the Central Government, the staff will be borne on the appropriate cadre
of the State Government and the State Government was obliged under
the Scheme to create and sanction posts, as per appendix to the Scheme
in the appropriate scale of pay. In pursuance to this provision the State
Government issued various notifications and finally posts were
sanctioned, recruitment rules were framed and the employees were
appointed against these sanctioned posts to the services of the State
16
Government. It was in view of the aforesaid peculiar circumstances that
in the case of Kabert Khastagir (supra), Supreme Court decided the
matter as indicated hereinabove. For the sake of convenience, the
relevant part of the Supreme Court judgment in this regard is reproduced
hereinunder, which clarifies the position and, therefore, on this count the
case of Kabert Khastagir (supra), relied upon by Shri Ashok Lalwani,
being distinguishable, will not apply in the facts and circumstances of
the present case:
“26. …… Infact, paragraph 47 of the Scheme,
which has been extracted hereinabove, in no uncertain
terms makes it very clear that even though funds for the
Scheme would be provided for by the Central Government,
the staff would be borne on the appropriate cadres of the
States which would sanction the posts in the appropriate
corresponding State pay scale. In the face of such provision
it is difficult to accept that the writ petitions were Project
workers and not employees of the State Government.”
26- In the present case, it is clear that all the twelve petitioners
were appointed to work in the IREP and the Central Government having
closed the said scheme, the petitioners’ appointment which was in
connection with the scheme will automatically come to an end.
Accordingly, it has to be held that the petitioners being project
employees have no right to continue in service once the Project has
come to an end.
27- As far as the other ground raised with regard to
discrimination and adopting a ‘pick and choose’ policy in the matter of
terminating the services of the petitioners are concerned, the said ground
is raised mainly on account of two reasons. The first factual aspect for
assailing the aforesaid ground is based on case of one Smt. Indu Goyal.
According to the petitioner she was also appointed vide order-dated
31.12.1993 – Annexure P/9, in the same project. If the order of
appointment of Smt. Indu Goyal is perused i.e.. Annexure P/9 dated
31.12.1993, filed by the petitioner, it is seen that this order pertains to
17
appointment of Smt. Indu Goyal as a Junior Assistant in the regular pay
scale and it is clearly stipulated that she is appointed in connection with
the service and affairs of the Nigam under the Service Rules of 1989 and
after being so appointed, in the appointment order it is stated that after
her appointment she is posted to work in the Project being undertaken by
the Urja Vikas Nigam i.e… IREP Project. It is, therefore, clear that the
nature and the content of appointment of Smt. Indu Goyal and that of the
petitioners are entirely different. Smt. Indu Goyal is appointed to the
services of the Nigam in accordance to the rules applicable to the Nigam
and after such appointment she is delegated to work in the Project at a
particular office whereas in the case of the petitioner the stipulation in
the appointment order is with regard to their appointment in connection
with the work of the Project. That being so, the nature and contract of
appointment in the case of the petitioners and Smt. Indu Goyal is entirely
different.
28- It is the case of the petitioners that in all 111 employees
were working in the Project and it is only the petitioners, twelve in
number, who are picked up for termination on the ground that the Project
is closed. Petitioners in support are placing reliance on a note-sheet –
Annexure P/10. Annexure P/10 is a note-sheet prepared by the
Department for the purpose of drawing salary and allowance of various
employees, which includes Project Officers, Mechanics, Helpers, Junior
Assistants, Project Directors etc, appointed in the Block Level, Head
Office etc. If the set up of the department and the appointment of
various employees, whose names are contained in the list annexed to
Annexure P/10, is taken note of, it would be seen that the list consists of
various persons, which includes certain persons like A.K. Garg, Rajeev
Kumar Bakshi etc. If the return filed by the respondents is perused, it
would be seen that it is the case of the respondents that the employees
who were continuing in service even after winding up of the Project are
employees appointed into the service of the Nigam and not for the
Project. For example – in the document filed by the petitioner as
Annexure P/10 in the State Level Cell, at Head Office, one Shri A.K.
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Garg is shown to be appointed as Project Director. Salary for Shri A.K.
Garg is drawn in this document. The appointment order of Shri A.K.
Garg is filed by the respondents as Annexure R/11-A and this order
indicates that Shri A.K. Gupta is appointed as Regional Manager in the
office of M.P. Urja Vikas Nigam, Rewa. He is appointed to work in the
Nigam and there is nothing in the order – Annexure R/11-A to indicate
that Shri A.K. Garg is appointed against a particular Project. Similarly,
Shri Rajeev Kumar Bakshi and Shri Sunil Kumar Gahukhedkar, whose
name also appear in Annexure P/10, are appointed vide Annexure R/11-
B and they are also appointed in connection with the affairs of the
Nigam. Similar is the position with Shri Arif Hussain, who is appointed
as Assistant and various other employees in whose cases respondents
have filed the appointment order – Annexure R/11-C to R/11-Z. A
scrutiny of these appointment letters indicate that all these employees
were regular employees of the department and they were thereafter
deputed to work in the Project. It is not a case where these employees
were appointed particularly to work in the Project and inspite of closure
of the Project they are continued. The case of the petitioners and these
employees are entirely different. The nature of appointment and the
contract of appointment in the case of the petitioners and these
employees are different. The petitioners have not brought on record
example or instance in the case of a single employee appointed like the
petitioners to a particular Project and thereafter continued. On the
contrary, it is seen from the records that only such employees are
continued in service after winding up of the project, who were regularly
appointed into the service of the Nigam as per the Recruitment Rules of
the Nigam and after such appointment were posted to work in the Project
and after winding up of the Project are brought back to the main stream
activities of the Nigam. Contention of the petitioners that a ‘pick and
choose’ policy is followed and there is discrimination is wholly
unsustainable and not established from the material available on record.
That being so, the third ground raised by the petitioners is also found to
be unsustainable.
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29- As far as the last ground with regard to relief granted to Shri
Rudra Prasad Mishra and Budhsen is concerned, it is seen that in the
case of Shri Rudra Prasad Mishra an order was passed by a Single Bench
of this Court on 11.12.2006, in WP(S) No.6088/2006 and earlier to that
M.P.No.4589/1993 was filed by him seeking his regularization in the
services of the respondent. It seems that on 16.4.2002, a Single Bench of
this Court passed certain orders in M.P.No.4589/93 and this order was
confirmed in LPA No.388/2003 and, therefore, when the matter was
again agitated, the Division Bench in W.A.No.419/2007, held that in the
light of the order already passed in LPA No.388/2003, interference
cannot be made. After evaluating the circumstances in the case, the
Division Bench in paragraph 39 has issued various directions and the
direction contained in paragraph 39(e) of the judgment rendered by the
Division Bench reads as under:
“39(e) – In case vacancies arise, directions given
in LPA No.388/2003 shall be carried out in letter and spirit
as the said judgment has attained the finality. It is hereby
clarified that the said decision is not to be treated as a
precedent for any purpose because it only issued directions
in that particular factual matrix.”
From the aforesaid, it is clear that the judgment in the case
of Rudra Prasad Mishra (supra) was rendered in the peculiar factual
matrix that were existing in the said case, and the Division Bench itself
has held that the order passed will not be treated as a precedent. It is also
pointed out by Smt. Shobha Menon that in the light of the order passed
by the Division Bench, in the case of Rudra Prasad Mishra (supra), in
W.A.No.419/2007, writ appeals in the case of other similarly situated
employees are pending and as their cases are different petitioners cannot
claim any benefit. Accordingly, it is clear that the cases of the petitioners
and that of these employees are different and petitioners cannot claim
parity with these employees. Similarly, the case of other employees
are also different in as much as in the case of these employees the
Labour Court had interfered with the matter on the ground that their
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termination is illegal – retrenchment being in contravention to the
statutory requirement contemplated under the Industrial Disputes Act,
1947 and, therefore, unsustainable. It is not at all the case of the
petitioners in these petitions that their retrenchment is illegal, being in
contravention to the provisions of the Industrial Disputes Act 1947, no
such contention was ever raised at the time of hearing. As far as the
present petitioners are concerned, analysis of the material available on
record and the grounds and reasons as are indicated hereinabove clearly
shows that each of the petitioner was appointed for a particular Project
i.e… IREP, the Project continued for a certain period of time and so long
as the Project continued petitioners, who were appointed in this Project
continued to work. After the Project was closed and wound up by the
Central Government, petitioners’ services have been retrenched. That
being so, in the light of the discussions made hereinabove and for the
grounds and reasons indicated therein, this Court does not find any merit
in this writ petition.
30- It is, therefore, clear that petitioners are claiming parity with
three categories of employees. The first category of employees are those
like Smt. Indu Goyal and others, but as these employees are regular
employees of the establishment and were appointed to sanctioned post as
per the recruitment rules, their cases is clearly different from that of the
petitioners. The second category of employees with whom parity is
claimed is that of Shri Rudra Prasad Mishra and others like Budhsen. In
their case, in view of the specific stipulation made by the Division
Bench, in the Writ Appeal of Shri Rudra Prasad Mishra, the said order
cannot be treated as a precedent and made applicable to the present
petitions. The third set of employees are those, who aggrieved by their
termination approached the Labour Court and challenged the termination
on the ground that it is illegal retrenchment. This contention of the
employees has been upheld and finding the retrenchment to be illegal,
the Labour Court has interfered in the matter. In the present case, there is
nothing pleaded or established before this Court nor any submission
made to show that the retrenchment in question is illegal or contrary to
21
the statutory requirement of the Industrial Disputes Act. It is a case
where the parity claimed is not in existence and petitioners have not
brought to the notice of this Court case of even a single employee
similarly situated like the petitioners and appointed specifically in
connection with the Scheme, who is continued after winding up of the
Scheme. Even though during the course of hearing of this writ petition,
by referring to certain interlocutory applications filed, Shri Ashok
Lalwani tried to emphasize that as the respondents have failed to
produce all the documents to justify their action of discrimination
adverse inference should be drawn, I am of the considered view that
petitioners have not made out any case for claiming parity with other
employees as alleged in the writ petitions and, therefore, no adverse
inference is required to be drawn in the matter.
31- As services of the petitioners are being retrenched after
allegedly complying with the provisions of Section 25-F of the Industrial
Disputes Act, 1947 and as the petitioners have not raised any ground
with regard to breach of these provisions in this writ petition, the said
question is not to be gone into. In case the petitioners have any grievance
with regard to their retrenchment being contrary to the provisions of the
Industrial Disputes Act, 1947 or they want to claim parity with those
employees, in whose case it has been held by the Labour Court that their
retrenchment is illegal, they have to agitate the same by resorting to the
remedy available under the Industrial Disputes Act, 1947 before the
appropriate Labour court or Industrial Court.
32- In the facts and circumstances of the case, finding no case
for interference in these writ petitions on the grounds as are indicated
hereinabove, the petitions are dismissed. No order as to costs.
( RAJENDRA MENON )
JUDGE
Aks/-