{"id":179661,"date":"2010-11-23T00:00:00","date_gmt":"2010-11-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/naveen-dubey-vs-m-p-urja-vikas-nigam-ltd-on-23-november-2010"},"modified":"2019-01-12T06:06:56","modified_gmt":"2019-01-12T00:36:56","slug":"naveen-dubey-vs-m-p-urja-vikas-nigam-ltd-on-23-november-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/naveen-dubey-vs-m-p-urja-vikas-nigam-ltd-on-23-november-2010","title":{"rendered":"Naveen Dubey vs M.P.Urja Vikas Nigam Ltd on 23 November, 2010"},"content":{"rendered":"
Madhya Pradesh High Court<\/div>\n
Naveen Dubey vs M.P.Urja Vikas Nigam Ltd on 23 November, 2010<\/div>\n
HIGH COURT OF MADHYA PRADESH : AT JABALPUR\n\n\n        Writ Petition No : 9989 of 2008(S)\n\n              Vijay Kumar Bajpayee\n                    - V\/s   -\n           MP Urja Vikas Nigam Limited\n                   & Another.\n\n        Writ Petition No : 4190 of 1999(S)\n\n               Vijay Kumar Bajpai\n                    - V\/s -\n           MP Urja Vikas Nigam Limited\n                   & Another.\n\n        Writ Petition No : 9974 of 2008(S)\n\n              Sanjay Kumar Sharma\n                    - V\/s -\n           MP Urja Vikas Nigam Limited\n                   & Another.\n\n        Writ Petition No : 9976 of 2008(S)\n\n            Krishna Kumar Shrivastava\n                    - V\/s -\n           MP Urja Vikas Nigam Limited\n                   & Another.\n\n        Writ Petition No : 9978 of 2008(S)\n\n                 Naveen Dubey\n                    - V\/s -\n           MP Urja Vikas Nigam Limited\n                   & Another.\n\n        Writ Petition No : 9985 of 2008(S)\n\n              Ram Manohar Gautam\n                    - V\/s -\n           MP Urja Vikas Nigam Limited\n                   & Another.\n                                          2\n\n\n                   Writ Petition No : 9986 of 2008(S)\n\n                          Rajesh Kumar Pandey\n                                - V\/s -\n                       MP Urja Vikas Nigam Limited\n                               & Another.\n\n                   Writ Petition No : 9992 of 2008(S)\n\n                        Suresh Kumar Suryavanshi\n                                - V\/s -\n                       MP Urja Vikas Nigam Limited\n                               & Another.\n\n                   Writ Petition No : 9993 of 2008(S)\n\n                           Sher Singh Thakur\n                                - V\/s -\n                       MP Urja Vikas Nigam Limited\n                               & Another.\n\n                  Writ Petition No : 14773 of 2008(S)\n\n                          Rakesh Kumar Gupta\n                                - V\/s -\n                       MP Urja Vikas Nigam Limited\n                               & Another.\n\n\n Present :                   Hon'ble Shri Justice Rajendra Menon.\n\n--------------------------------------------------------------------------------------\n             Shri Ashok Lalwani, learned counsel for the\n             petitioners.\n\n             In W.P.No.:14773\/2008(S):\n             Shri Brindawan Tiwari, learned counsel for the\n             petitioner.\n\n             Smt. Shobha Menon, Senior Advocate, with Shri\n             Rahul Choubey for the respondents.\n--------------------------------------------------------------------------------------\n\n       Whether approved for reporting:                              Yes \/ No.\n                                     3\n\n\n                               ORDER\n<\/pre>\n
                               23\/11\/2010<\/p>\n
              As common questions are involved in all these petitions and
\nas challenge made in these petitions are to order dated 31.7.2008, by
\nwhich services of the petitioners are being retrenched in accordance to
\nthe provisions of Section 25-F of the Industrial Disputes Act, 1947, all
\nthese petitions are being heard and decided by this order. For the sake of
\nconvenience and as requested for by the parties, documents filed and the
\npleadings available in the record of W.P.No.9989\/2008 is being referred
\nto in this order.\n<\/p>\n
2-            The petitioners were employed in the establishment of the
\nrespondents in various capacities. As far as petitioner Vijay Kumar
\nBajpayee, in W.P.No.9989\/2008(S), is concerned, he was appointed as a
\nJunior Assistant vide order-dated 23.5.1990. It is the case of this
\npetitioner that he was appointed in the regular establishment of the
\nrespondents, whereas it is the case of the respondents that each of the
\npetitioner was appointed in a particular Project known as Integrated
\nRural Energy Programme (hereinafter referred to as ‘IREP’). According
\nto the petitioner Vijay Kumar Bajpayee, his initial appointment vide
\nAnnexure P\/1 on 23.5.90 was on probation and thereafter he was
\nconfirmed after extension of probation. The orders in this regard are
\nAnnexure P\/2 dated 1.8.91 and Annexure P\/3 dated 1.10.97. It is the
\ncase of the petitioners that even though in the orders passed, they are
\nshown to be appointed and confirmed in the IREP Scheme, but it is their
\ncase that they are the regular employees of the respondent corporation
\nand as per the service rules applicable to the respondents corporation
\ni.e… Annexure P\/4, namely the Employees Service and Recruitment
\nRules of 1989, petitioners are the permanent employees of the
\ndepartment as they have worked for more than two years. It is the case of
\neach of the petitioner that by virtue of the definition of “permanent
\nemployee” as contained in Rule 2(7), after two years of service with the
\nCorporation, he is deemed to be a regular employee of the department. It
\n                                     4<\/span><\/p>\n
is the case of each of the petitioner that till date they have put in more
\nthan 18 years of service and respondents are granting him the benefit of
\nGroup Insurance, Employees Provident Fund Scheme 1992 and various
\nother benefits. It is emphasized that treating the petitioner to be an
\nemployees of the Project their services are being dispensed with on the
\nground that the Project is being wound up and the Scheme, which is
\nimplemented at the instance of the Central Government, has come to an
\nend.\n<\/p>\n
3-           Case of each of the petitioners are that even though they are
\nshown to be appointed in the Scheme in question, but infact and in law
\nthey are regular employees of the Corporation, have attained the status
\nof permanent employee and, therefore, the respondents cannot terminate
\ntheir service in the manner done. It is emphasized by Shri Ashok
\nLalwani and Shri Brindawan Tiwari, learned counsel appearing for the
\npetitioners, during the course of hearing, that each of the petitioner is a
\npermanent employee, he has attained the status of a permanent employee
\nand the respondents cannot terminate their services treating them to be
\nemployees of the Project. It is stated that once the Provident Fund and
\nother benefits are extended to the petitioners and when they are paid the
\nbenefit of gratuity, group insurance etc, they cannot be treated as
\nemployees of a particular Project or Scheme.\n<\/p>\n
4-           Referring to the set up of the respondents’ organization, the
\nScheme, namely – The Integrated Rural Energy Programme, and the
\nappointments made of various other employees to the Scheme, it was
\nemphasized that many employees appointed under the said Scheme are
\nstill continued. Referring to the case of an employee – Smt. Indu Goyal,
\nwho has been appointed vide Annexure P\/9 on 31.12.93, it is argued that
\nSmt. Indu Goyal is still continued, petitioners contend that it is a case
\nwhere various other employees appointed under the Scheme are still
\ncontinuing and by adopting a pick and choose method, only 12 persons
\nwho are petitioners before this Court are being retrenched. Referring to
\nAnnexure P\/10, document with regard to payment of salary and other
\nbenefits to the employees working under the Scheme, learned counsel
\n                                      5<\/span><\/p>\n
for the petitioners emphasized that in the scheme in question, 111
\nemployees have been appointed and even though 99 employees are still
\ncontinuing in service, it is only the 12 petitioners who are being singled
\nout for retrenchment. Contending that this action of the respondents in
\nonly terminating the services of the present 12 petitioners and permitting
\n99 employees, similarly situated, to continue amounts to discrimination,
\nis violative of Article 14 of the Constitution, interference into the matter
\nis sought for.\n<\/p>\n
5-           Referring to the rejoinder filed, the documents annexed
\nthereto and the interlocutory applications filed, Shri Ashok Lalwani
\nemphasized that when 99 employees are continued then there is no
\nreason or justification on the part of the respondents to take the
\nimpugned action, it is stated that action of the respondents are
\ndiscriminatory    and    unsustainable.    Inviting    my    attention   to
\nI.A.No.2869\/2010, the grounds raised therein and emphasizing that if the
\nScheme itself is closed then how 99 other employees are permitted to
\nwork, petitioners want this Court to interfere into the matter.
\n6-           Finally, placing reliance on certain orders passed by this
\nCourt in the matter of certain employees namely Rudra Prasad Mishra,
\nBudhsen etc, it was argued by Shri Ashok Lalwani that as these
\nemployees have been directed to be regularized by this Court, petitioners
\nwho are also similarly situated like these employees are entitled to be
\nextended similar treatment. Claiming parity with these employees prayer
\nmade is that the relief as prayed for be granted and the retrenchment
\nproposed by the impugned notice – Annexure P\/5 dated 31.7.2008 be
\nquashed.\n<\/p>\n
7-           In support of his contention Shri Ashok Lalwani invites my
\nattention to the following judgments: Central Inland Water Transport
\nCorporation Ltd. and another Vs. Brojo Nath Ganguly and another,
\nAIR 1986 SC 1571; V.L. Chandra and others Vs. All India Institute
\nof Medical Sciences and others, 1990 SCC 38; and, State of West
\nBengal and others Vs. Kabert Khastagir and others, AIR 2009 SC
\n1437.\n<\/p>\n
                                     6<\/span><\/p>\n
8-          Refuting the aforesaid contention Smt. Shobha Menon,
\nlearned Senior Advocate, by referring to the orders of appointment i.e…
\nthe appointment order of Shri Vijay Kumar Bajpayee, petitioner in
\nW.P.No.9989\/2008, and taking me through the orders – Annexures P\/1,
\nP\/2 and P\/3, issued in his case, pointed out that in each and every order
\nissued to this person it is clearly stipulated that he is appointed in
\nconnection with the IREP. It is the case of the respondents that the IREP
\nis a Scheme floated by the Government of India and the respondent
\nNigam is only a nodal agency appointed by the Central Government for
\nimplementation of the Scheme. The Scheme is implemented for the
\npurpose of making available renewable and non-renewable source of
\nenergy in rural areas and the expenditure for implementing the Scheme
\nis shared @ 50% each between the Central Government and the State
\nGovernment. It is emphasized that the Central Government having
\nclosed the Scheme now and having withdrawn the financial assistance
\ngranted, it is stated that the petitioners, who were appointed for a
\nparticular Scheme, cannot claim any further continuation in service. It is
\nthe case of the respondents that petitioners’ appointment is co-terminus
\nwith the Scheme and once the Scheme is wound up, the service of the
\npetitioners also come to an end. It is the case of the respondents that
\nonce the Scheme is concluded, the petitioners’ have been rightly
\nretrenched after following the provisions of Section 25-F of the
\nIndustrial Disputes Act. Smt. Shobha Menon, learned Senior Advocate,
\nsubmits that in the respondents Corporation, there are two sets of
\nemployees. Under the Recruitment Rules of 1989 – Annexure P\/4,
\nappointments are made to the regular cadre post in the department and
\nsuch appointments are made either by direct recruitment or by promotion
\nor on deputation. All other appointments made are either casual in nature
\nor in connection with certain Schemes or Project that are being
\nimplemented by the respondents. It is the case of the respondents that the
\npetitioners were never appointed in connection with the regular
\nestablishment or activities of the Corporation, in accordance to the
\n                                     7<\/span><\/p>\n
Recruitment Rules against sanctioned post and, therefore, the benefit of
\nthe Recruitment Rules of 1989 is not applicable to them.
\n9-           As far as payment of Employees Provident Fund and other
\nstatutory benefits are concerned, it is the case of the respondents that
\nmerely because the benefit statutory in nature, payable to the employee
\nis paid that would not mean that the employee becomes a permanent or
\nregular employee of the establishment. Contending that there is no
\ndiscrimination and taking me through the appointments of various
\nemployees like Smt. Indu Goyal, Shri A.K. Garg, Shri Rajeev Kumar
\nBakshi and others and filing a detailed statement indicating that these
\nemployees even though deputed to work under the Scheme are infact
\nregular employees of the Nigam and even after winding up of the Project
\nthey still continue as employees of the Nigam. Smt. Shobha Menon,
\nlearned Senior Advocate, emphasized that the contention of the
\npetitioners that 111 employees were appointed under the Project and
\nonly 12 are being terminated is incorrect. Learned Senior Advocate took
\nme through the documents filed alongwith the return as Annexures R-
\n11-A to R-11-Z, and pointed out that out of 111 employees working in
\nthe Scheme in question, most of the employees were the regular
\nemployees of the Nigam and they were temporarily deputed to work
\nunder the Project\/Scheme in question. After the Scheme\/Project is over,
\nthey are being brought back to the regular establishment. It is stated that
\nthe nature of appointment of the petitioners and these regularly
\nappointed employees are different and, therefore, petitioners cannot
\ncompare their case with these employees. Referring to the orders of
\nappointment of Smt. Indu Goyal and other employees available on
\nrecord, the plea of discrimination is rebutted by the respondents.
\n10-          Smt. Shobha Menon, learned Senior Advocate, further
\nsubmits that the petitioners are employees appointed in a particular
\nscheme or project, their appointment is co-terminus with the scheme and
\nonce the scheme is over their services come to an automatic end. As far
\nas the case of Rudra Prasad Mishra & Budhsen is concerned, Smt. Shobha
\nMenon invites my attention to the Division Bench judgment rendered in
\n                                          8<\/span><\/p>\n
the case of M.P. Urja Vikas Nigam Limited and others Vs. Rudra
\nPrasad Mishra, on 2.5.2007 in W.A.No.419\/2007, and submits that in
\nthe light of the order passed by the Division Bench, in this case
\npetitioners cannot claim any benefit. It is argued that in the case of other
\nemployees, referred to in paragraphs 6.4 of the petition, they were
\ngranted the benefit of certain orders passed by the learned Single Judge
\nand in view of the order passed by the learned Single Judge in the case
\nof Rudra Prasad Mishra, the same is now under challenge in the Writ
\nAppeal after the judgment rendered by the Division Bench in the case of
\nRudra Prasad Mishra, it is argued that the cases of the present petitioners
\nand these employees are different.\n<\/p>\n
11-           As far as the case of other employees are concerned, it
\nis said that when the services of these employees were terminated, they
\nchallenged the termination before the Labour Court and it was their case
\nthat their termination is retrenchment and the same is illegal. Labour
\nCourt found that these employees were removed from service
\ncontrary    to    the      principles    laid    down       for retrenchment as
\ncontemplated under the Industrial Disputes Act, 1947 and, therefore,
\ntheir termination was held to be illegal. This order of the Labour Court
\nhaving been upheld by this Court, therefore, these employees were
\nreinstated. In the present case, petitioners have not challenged the
\nretrenchment on the ground as was raised by these employees, which
\nwas considered by the Labour Court. That being so, the case of these
\nemployees is clearly distinguishable. In that case the Labour Court has
\nnot considered the question with regard to the Project employees being
\ncontinued after winding up of the Project. It is a case where the
\ntermination is held to be retrenchment and the same being without
\nfollowing the procedure contemplated under the Industrial Disputes Act,
\nis held to be illegal.\n<\/p>\n
12-           In support of her contention to the effect that petitioners are
\nproject employees and cannot claim any benefit and further in support of
\nthe various other averments made by her, Smt. Shobha Menon, learned
\ncounsel,    placed       reliance   on   the    following    judgments:   Delhi
\n                                    9<\/span><\/p>\n
Development      Horticulture     Employees’     Union     Vs.    Delhi
\nAdministration, Delhi and others, (1992) 4 SCC 99; State of
\nHimachal Pradesh through the Secretary (Rural Development) to
\nthe Govt of Himachal Pradesh, Shimla Vs. Ashwani Kumar and
\nothers, AIR 1997 SC 352; State of Himachal Pradesh through the
\nSecretary, Agriculture to the Govt of Himachal Pradesh, Shimla Vs.
\nNodha Ram and others, AIR 1997 SC 1445; Surendra Kumar
\nSharma Vs. Vikas Adhikari and Another, (2003) 5 SCC 12;
\nMahendra L. Jain and others Vs. Indore Development Authority
\nand others, A. Umarani Vs. Registrar, Cooperative Societies and
\nothers, (2004) 7 SCC 112; AIR 2005 SC 1252; Gurbachan Lal Vs.
\nRegional Engineering College, Kurukshetra and others, 2007
\nINDLAW SC 323; Lal Mohammed and Others Vs. Indian Railway
\nConstruction Co. Ltd. & Others, AIR 2007 SC 2230; Mohd. Abdul
\nKadir and Another Vs. Director General of Police, Assam and
\nothers, (2009) 6 SCC 611; and, judgments of the Delhi High Court in
\nthe cases of Amita Gulati Vs. Union of India and others, ILR 1996
\nDelhi 327; and, Union of India Vs. Ram Pal Singh and others,
\nW.P.(C) No.1542\/2010, decided on 26.8.2010.\n<\/p>\n
13-         Having heard learned counsel for the parties and on perusal
\nof the records, it is seen that the main question that would arise for
\nconsideration in this writ petition is as to whether petitioners were
\nemployees, who were appointed into the regular service of M.P. Urja
\nVikas Nigam Limited; and, whether they are deemed to have attained the
\nstatus of a permanent employee as enumerated in Rule 2.7 of the M.P.
\nUrja Vikas Nigam Rules, 1989. The second question would be as to
\nwhether the petitioners are employees appointed against a Project and if
\nso, what is the result of closure of the Project. A further question
\nrequiring consideration is as to whether other similarly situated
\nemployees engaged in the same Project are continued and by adopting a
\n‘pick and choose’ formula, petitioners are singled out for being
\nterminated even though other similarly situated project employees are
\ncontinuing. The final question would be with regard to benefit to be
\n                                     10<\/span><\/p>\n
granted to the petitioner in the light of the decision rendered in the case
\nof Rudra Prasad Mishra and other employees like Shri Budhsen, so also
\nthose who were granted relief by the Labour Court.\n<\/p>\n
14-            Before adverting to consider the questions for determination
\nas indicated hereinabove, it may be appropriate to take note of the so
\ncalled Integrated Rural Energy Programme and the role of the MP Urja
\nVikas Nigam Limited, in the matter of execution of this Scheme\/Project.
\nFrom the material available on record, it is clear that the M.P. Urja Vikas
\nNigam Limited is a Company incorporated under the Companies Act,
\n1956. It is an independent legal entity and it is fully owned and
\nestablished by the Government of MP. It has various functions to be
\ncarried out and is amenable to the writ jurisdiction of this Court. The
\naims and object of the Nigam is available in the memorandum of
\nassociation.\n<\/p>\n
15-            The IREP was a Scheme initially sponsored by the Central
\nGovernment and came into force in the year 1986-87. The purpose of
\nthis Scheme was to provide assistance for establishing Integrated Rural
\nEnergy Planning Source at State Level and District Level. Respondent
\nM.P. Urja Vikam Nigam was nominated as the Nodal Agency for
\nimplementing this Scheme and the burden for implementing the Scheme
\nwas to be shared on the basis of 50% each by the State Government and
\nthe Central Government.\n<\/p>\n
16-            As far as employment to the services of MP Urja Vikas
\nNigam Limited is concerned, the same is governed by the MP Urja
\nVikas Nigam Rules, 1989 and the service conditions stipulated therein.
\n17-            Petitioners claim that they are regular employees appointed
\nby the respondent company. However, on a perusal of the appointment
\norder of the petitioners, which is similar in nature, it is seen that in the
\norder-dated 23.5.90 – Annexure P\/1, with regard to appointment of
\npetitioner Shri Vijay Kumar Bajpayee, it is clearly indicated that he is
\nappointed on a fixed salary of Rs.950\/- per month in the IREP Scheme
\nand posted at Amarpatan. Even though in the order it is stated that his
\nappointment is on probation for a period of two years, but the
\n                                         11<\/span><\/p>\n
stipulations contained in the appointment order clearly points out that it
\nis under the IREP Scheme. Thereafter, when the order of confirmation
\nwas passed vide Annexure P\/2 on 1.8.1981, it is again indicated in this
\norder that he is appointed under the particular scheme, as is already
\ncontained in the order-dated 23.5.90 – Annexure P\/1. Finally, in the
\norder-dated 1.10.1997 – Annexure P\/3, it is clearly indicated that
\npetitioner’s appointment is against the IREP Scheme and he is an
\nemployee of the Scheme. The stipulations in this regard are evident from
\nthe order-dated 1.10.1997 – Annexure P\/3 issued by the Department. It
\nis, therefore, clear that in the case of each of the petitioner’s the
\nappointment order clearly stipulates that they are appointed for the
\npurpose of execution of a particular scheme. The words used in the order
\nof appointment – Annexure P\/3 dated 1.10.1997 in Hindi, reads as
\nunder:\n<\/p>\n
            ”     Jh fot; dqekj cktis;h vkRet Jh clar dqekj
\n            cktis;h dks vLFkkbZ :i ls vkxkeh vkns’k rd fuxe }
\n            kjk f\u00d8;kUohr dh tk jgh ,dh\u00d1r xzkeh.k \u00c5tkZ ;kstuk
\n            dk;Z\u00d8e \u00bciw.kZr% vLFkkbZ\u00bd ds vUrxZr dfu”B lgk;d in
\n            ij osrueku :i;s &<\/p>\n
                   ;g fu;qfDr ifj;kstuk ds vUrxZr iw.kZr% vLFkkbZ gS
\n            rFkk vLFkkbZ fu;qfDr ds nkSjku Jh cktis;h dh lsok,a
\n            fdlh Hkh le; fdlh Hkh ,d i{k }kjk ,d ekg dk
\n            uksfVl nsdj ;k mlds ,ot esa ,d ekg dk osru nsdj
\n            lekIr dh tk ldrh gSA<\/p>\n
            —————————–vkbZ-vkj-bZ-ih- jhok esa inLFk fd;k tkrk
\n            gS rFkkfi iz’kkldh; vko’;drkvksa ds dkj.k bUgsa e\/;
\n            izns’k esa fuxe ds fdlh Hkh dk;kZy; vFkok vkbZ-vkj-bZ-ih-
\n            ifj;kstuk dk;kZy; esa inLFk djus dk fu;e dks vf\/kdkj
\n            gksxkA”\n<\/p>\n
                                                     (Emphasis supplied)
\n18-         The aforesaid stipulation in this order of appointment of the
\npetitioners clearly shows that appointment of the petitioners are in
\nconnection with a particular scheme. If the appointment orders of other
\nemployees available on the record as Annexure R-11-A to R-11-Z are
\ntaken note of, it would be seen that in the appointment order of none of
\nthese employees, it is indicated that their appointment is in connection
\n                                     12<\/span><\/p>\n
with the execution of a particular scheme. On the contrary it is seen that
\ntheir appointment is to the service in the Nigam, for example in the order\n<\/p>\n
– Annexure R-11-C, appointing four persons, it is stated that the
\nemployees are appointed to the services of the Nigam. Petitioners want
\nthis Court to hold that by virtue of the provisions of Clause 2(7) of the
\nService Rules – Annexure P\/4, petitioners having worked for two years,
\nare deemed to be employees of the Nigam is wholly misconceived.
\nPetitioners can become employees of the Urja Vikas Nigam, if their
\nappointment is made in accordance to the conditions for recruitment into
\nservice of the Nigam as is stipulated in the Recruitment Rules –
\nAnnexure P\/4 itself. Clause 10 onwards of the aforesaid Recruitment
\nRules contains elaborate procedure for appointment to the service of the
\nNigam and there is nothing to indicate that the petitioners were
\nappointed to the service of the Nigam after following the Rules and the
\nProcedure contemplated in Annexure P\/4, that also against sanctioned
\npost as per the schedule to this rule. It is a case where the petitioners are
\nappointed on a particular Scheme\/Project and merely because they have
\nworked for two years, it cannot be construed that they have become
\npermanent employees in the regular establishment of the respondents.
\nFor appointment to the regular establishment of the respondents a
\ndetailed recruitment procedure is contemplated under the Recruitment
\nRules – Annexure P\/4 and in the absence of the petitioners establishing
\nthe fact that they are appointed in compliance to the requirement of the
\naforesaid recruitment rules, it cannot be held that the petitioners are
\nregular employees of the department. As far as the claim of the petitioner
\nwith regard to payment of Provident Fund, Gratuity, GIS are concerned,
\nmerely because the aforesaid statutory benefits are extended to the
\npetitioners, it cannot be construed that they become regular employees of
\nthe establishment.\n<\/p>\n
19-          Similar questions as are being raised by the petitioners in
\nthese petitions have been considered by the Supreme Court in the case of
\nLal Mohammed (supra), relied upon by Smt. Shobha Menon. It has
\nbeen held by the Supreme Court in the aforesaid case that when
\n                                     13<\/span><\/p>\n
appointment is not made in accordance to the Rules for recruitment in
\nthe Department and when the appointment is dehors the rules and further
\nwhen the appointment letter clearly appoints a person against a particular
\nproject, the appointment cannot be termed to be one in the regular
\nestablishment of the Company, but would only be an appointment in
\nconnection with the Project. In paragraph 14 of the aforesaid judgment,
\nthe matter has been considered in detail and it has been held that until
\nand unless appointment is not made in accordance to the regular
\nrecruitment rules, merely because some benefit of Group Insurance
\nScheme or Provident Fund is extended, the Project employee will not
\nbecome an employee of the establishment. The principles laid down in
\nthe aforesaid judgment would squarely apply in the facts and
\ncircumstances of this case and in the light of the specific stipulation as is
\ncontained in the order of appointment of each of the petitioners, it is
\nclear that they are appointed to a particular project and there is nothing
\nto indicate that their appointment is to the regular service of the
\nestablishment of the respondent after following the conditions stipulated
\nin the Recruitment Rules. Accordingly, the contentions advanced by Shri
\nAshok Lalwani, in this regard and in the facts and circumstances of the
\npresent case and in view of the principles laid down as indicated
\nhereinabove, I am unable to accept the grounds raised by the petitioner
\nthat they are regular employees of the establishment\/Nigam. The
\npetitioners are not appointed in the regular establishment of the
\nrespondents, they are only appointed to a particular project.
\n20-          As far as the right accruing to the petitioners and their claim
\nfor continuing in service after winding up of the Project is concerned, the
\nlaw in this regard is well settled and there cannot be any doubt with
\nregard to the right of a project employee and the principle to be followed
\nin such cases. In the judgments relied upon by Smt. Shobha Menon, the
\nprinciples have been clearly laid down. In the case of Delhi
\nDevelopment Horticulture Employees’ Union (supra), decided in the
\nyear 1992, it has clearly been held that an employee appointed under a
\n                                    14<\/span><\/p>\n
particular scheme has no right to claim regularization only because he
\nhas worked for a particular period of time.\n<\/p>\n
21-          In the case of State of Himachal Pradesh through the
\nSecretary, Agriculture to the Govt of Himachal Pradesh, Shimla Vs.
\nNodha Ram and others (supra), it has been held that an employee
\nappointed in a government project does not have any right to continue in
\nemployment after the project is closed. It is stated that appointment in a
\nproject is temporary in nature and co-terminus with the continuation or
\notherwise of the Project.\n<\/p>\n
22-          Similar is the view of the Supreme Court in the case of
\nAshwani Kumar (supra), where it is held that termination on closure of
\na project is proper and not illegal. In the judgments rendered by the
\nSupreme Court, in the case of Mahendra L. Jain (supra), it has been
\nheld that if appointments are made without following the rules
\ncontemplated in the Recruitment Rules, such an employment cannot be
\nregularized and if the appointment is on a particular scheme or a project,
\nthe appointment will come to an end once the scheme or the project is
\nwound up or closed.\n<\/p>\n
23-          In the case of Mohd. Abdul Kadir (supra) also, it has been
\nheld that staff employed for a particular project or scheme will have no
\nright to claim regularization and they cannot claim continuation in
\nservice or regularization in other project or scheme once the scheme or
\nproject for which they are appointed is closed. This is the view taken by
\nthe Supreme Court in the case of Surendra Kumar Sharma (supra)
\nalso, wherein after following the law laid down in various other cases, it
\nhas been held that once the scheme, project or programme is abolished,
\nthe employee appointed under such scheme, project or programme
\nautomatically comes to an end. The consistent view of the Supreme
\nCourt and various other High Courts, particularly the Delhi High Court –
\nin the cases relied upon by Smt. Shobha Menon, to the effect that a
\nproject employee continues to work so long as the project continues, the
\nappointment is co-terminus with the project and once the project is
\nwound up the appointment comes to an end.\n<\/p>\n
                                    15<\/span><\/p>\n
24-          In that view of the aforesaid, once the petitioners are seen to
\nbe appointed against a project, they have no right to claim continuation
\nin service after the project is wound up. In the present case, the
\noverwhelming documentary evidence available on record clearly
\nindicates that the Central Government had wound up the project and
\nstopped funding and it was because of the same that the petitioners’
\nservices are being retrenched.\n<\/p>\n
25-          During the course of hearing Shri Ashok Lalwani had
\nplaced heavy reliance on a judgment of the Supreme Court, in the case
\nof Kabert Khastagir (supra), to say that petitioner is not a project
\nemployee. The aforesaid judgment has to be considered in the facts and
\ncircumstances of that case. It was a case where even though the
\nemployees were appointed for discharging certain duties under ICDC
\nScheme or a Project by the Government of West Bengal, but the facts
\nthat are unveiled on going through the said judgment indicates that they
\nwere appointed to the services of the State of West Bengal in accordance
\nto the recruitment rules of the State and thereafter delegated to discharge
\ntheir duties in a particular project, for which the State Government was
\nthe implementing agency. That was a case where the employees were
\nappointed to the services of the State and their services utilized for a
\nparticular project and it was in view of the aforesaid that the Supreme
\nCourt held that the closure of the Project will not affect the services of
\nthe employees as they were appointed by the State Government itself. In
\nthe case of Kabert Khastagir (supra), there was a specific provision in
\nparagraph 47 of the Scheme, in which it was contemplated that even
\nthough for implementation of the Scheme the fund would be provided by
\nthe Central Government, the staff will be borne on the appropriate cadre
\nof the State Government and the State Government was obliged under
\nthe Scheme to create and sanction posts, as per appendix to the Scheme
\nin the appropriate scale of pay. In pursuance to this provision the State
\nGovernment issued various notifications and finally posts were
\nsanctioned, recruitment rules were framed and the employees were
\nappointed against these sanctioned posts to the services of the State
\n                                     16<\/span><\/p>\n
Government. It was in view of the aforesaid peculiar circumstances that
\nin the case of Kabert Khastagir (supra), Supreme Court decided the
\nmatter as indicated hereinabove. For the sake of convenience, the
\nrelevant part of the Supreme Court judgment in this regard is reproduced
\nhereinunder, which clarifies the position and, therefore, on this count the
\ncase of Kabert Khastagir (supra), relied upon by Shri Ashok Lalwani,
\nbeing distinguishable, will not apply in the facts and circumstances of
\nthe present case:\n<\/p>\n
             “26.         …… Infact, paragraph 47 of the Scheme,
\n             which has been extracted hereinabove, in no uncertain
\n             terms makes it very clear that even though funds for the
\n             Scheme would be provided for by the Central Government,
\n             the staff would be borne on the appropriate cadres of the
\n             States which would sanction the posts in the appropriate
\n             corresponding State pay scale. In the face of such provision
\n             it is difficult to accept that the writ petitions were Project
\n             workers and not employees of the State Government.”\n<\/p><\/blockquote>\n
26-          In the present case, it is clear that all the twelve petitioners
\nwere appointed to work in the IREP and the Central Government having
\nclosed the said scheme, the petitioners’ appointment which was in
\nconnection with the scheme will automatically come to an end.
\nAccordingly, it has to be held that the petitioners being project
\nemployees have no right to continue in service once the Project has
\ncome to an end.\n<\/p>\n
27-          As far as the other ground raised with regard to
\ndiscrimination and adopting a ‘pick and choose’ policy in the matter of
\nterminating the services of the petitioners are concerned, the said ground
\nis raised mainly on account of two reasons. The first factual aspect for
\nassailing the aforesaid ground is based on case of one Smt. Indu Goyal.
\nAccording to the petitioner she was also appointed vide order-dated
\n31.12.1993 – Annexure P\/9, in the same project. If the order of
\nappointment of Smt. Indu Goyal is perused i.e.. Annexure P\/9 dated
\n31.12.1993, filed by the petitioner, it is seen that this order pertains to
\n                                    17<\/span><\/p>\n
appointment of Smt. Indu Goyal as a Junior Assistant in the regular pay
\nscale and it is clearly stipulated that she is appointed in connection with
\nthe service and affairs of the Nigam under the Service Rules of 1989 and
\nafter being so appointed, in the appointment order it is stated that after
\nher appointment she is posted to work in the Project being undertaken by
\nthe Urja Vikas Nigam i.e… IREP Project. It is, therefore, clear that the
\nnature and the content of appointment of Smt. Indu Goyal and that of the
\npetitioners are entirely different. Smt. Indu Goyal is appointed to the
\nservices of the Nigam in accordance to the rules applicable to the Nigam
\nand after such appointment she is delegated to work in the Project at a
\nparticular office whereas in the case of the petitioner the stipulation in
\nthe appointment order is with regard to their appointment in connection
\nwith the work of the Project. That being so, the nature and contract of
\nappointment in the case of the petitioners and Smt. Indu Goyal is entirely
\ndifferent.\n<\/p>\n
28-          It is the case of the petitioners that in all 111 employees
\nwere working in the Project and it is only the petitioners, twelve in
\nnumber, who are picked up for termination on the ground that the Project
\nis closed. Petitioners in support are placing reliance on a note-sheet –
\nAnnexure P\/10. Annexure P\/10 is a note-sheet prepared by the
\nDepartment for the purpose of drawing salary and allowance of various
\nemployees, which includes Project Officers, Mechanics, Helpers, Junior
\nAssistants, Project Directors etc, appointed in the Block Level, Head
\nOffice etc. If the set up of the department and the appointment of
\nvarious employees, whose names are contained in the list annexed to
\nAnnexure P\/10, is taken note of, it would be seen that the list consists of
\nvarious persons, which includes certain persons like A.K. Garg, Rajeev
\nKumar Bakshi etc. If the return filed by the respondents is perused, it
\nwould be seen that it is the case of the respondents that the employees
\nwho were continuing in service even after winding up of the Project are
\nemployees appointed into the service of the Nigam and not for the
\nProject. For example – in the document filed by the petitioner as
\nAnnexure P\/10 in the State Level Cell, at Head Office, one Shri A.K.\n<\/p>\n
                                    18<\/span><\/p>\n
Garg is shown to be appointed as Project Director. Salary for Shri A.K.
\nGarg is drawn in this document. The appointment order of Shri A.K.
\nGarg is filed by the respondents as Annexure R\/11-A and this order
\nindicates that Shri A.K. Gupta is appointed as Regional Manager in the
\noffice of M.P. Urja Vikas Nigam, Rewa. He is appointed to work in the
\nNigam and there is nothing in the order – Annexure R\/11-A to indicate
\nthat Shri A.K. Garg is appointed against a particular Project. Similarly,
\nShri Rajeev Kumar Bakshi and Shri Sunil Kumar Gahukhedkar, whose
\nname also appear in Annexure P\/10, are appointed vide Annexure R\/11-
\nB and they are also appointed in connection with the affairs of the
\nNigam. Similar is the position with Shri Arif Hussain, who is appointed
\nas Assistant and various other employees in whose cases respondents
\nhave filed the appointment order – Annexure R\/11-C to R\/11-Z. A
\nscrutiny of these appointment letters indicate that all these employees
\nwere regular employees of the department and they were thereafter
\ndeputed to work in the Project. It is not a case where these employees
\nwere appointed particularly to work in the Project and inspite of closure
\nof the Project they are continued. The case of the petitioners and these
\nemployees are entirely different. The nature of appointment and the
\ncontract of appointment in the case of the petitioners and these
\nemployees are different. The petitioners have not brought on record
\nexample or instance in the case of a single employee appointed like the
\npetitioners to a particular Project and thereafter continued. On the
\ncontrary, it is seen from the records that only such employees are
\ncontinued in service after winding up of the project, who were regularly
\nappointed into the service of the Nigam as per the Recruitment Rules of
\nthe Nigam and after such appointment were posted to work in the Project
\nand after winding up of the Project are brought back to the main stream
\nactivities of the Nigam. Contention of the petitioners that a ‘pick and
\nchoose’ policy is followed and there is discrimination is wholly
\nunsustainable and not established from the material available on record.
\nThat being so, the third ground raised by the petitioners is also found to
\nbe unsustainable.\n<\/p>\n
                                     19<\/span><\/p>\n
29-          As far as the last ground with regard to relief granted to Shri
\nRudra Prasad Mishra and Budhsen is concerned, it is seen that in the
\ncase of Shri Rudra Prasad Mishra an order was passed by a Single Bench
\nof this Court on 11.12.2006, in WP(S) No.6088\/2006 and earlier to that
\nM.P.No.4589\/1993 was filed by him seeking his regularization in the
\nservices of the respondent. It seems that on 16.4.2002, a Single Bench of
\nthis Court passed certain orders in M.P.No.4589\/93 and this order was
\nconfirmed in LPA No.388\/2003 and, therefore, when the matter was
\nagain agitated, the Division Bench in W.A.No.419\/2007, held that in the
\nlight of the order already passed in LPA No.388\/2003, interference
\ncannot be made. After evaluating the circumstances in the case, the
\nDivision Bench in paragraph 39 has issued various directions and the
\ndirection contained in paragraph 39(e) of the judgment rendered by the
\nDivision Bench reads as under:\n<\/p>\n
             “39(e)        –     In case vacancies arise, directions given
\n             in LPA No.388\/2003 shall be carried out in letter and spirit
\n             as the said judgment has attained the finality. It is hereby
\n             clarified that the said decision is not to be treated as a
\n             precedent for any purpose because it only issued directions
\n             in that particular factual matrix.”\n<\/p>\n
             From the aforesaid, it is clear that the judgment in the case
\nof Rudra Prasad Mishra (supra) was rendered in the peculiar factual
\nmatrix that were existing in the said case, and the Division Bench itself
\nhas held that the order passed will not be treated as a precedent. It is also
\npointed out by Smt. Shobha Menon that in the light of the order passed
\nby the Division Bench, in the case of Rudra Prasad Mishra (supra), in
\nW.A.No.419\/2007, writ appeals in the case of other similarly situated
\nemployees are pending and as their cases are different petitioners cannot
\nclaim any benefit. Accordingly, it is clear that the cases of the petitioners
\nand that of these employees are different and petitioners cannot claim
\nparity with these employees. Similarly, the case of other employees
\nare also different in as much as in the case of these employees the
\nLabour Court had interfered with the matter on the ground that their
\n                                      20<\/span><\/p>\n
termination is illegal – retrenchment being in contravention to the
\nstatutory requirement contemplated under the Industrial Disputes Act,
\n1947 and, therefore, unsustainable. It is not at all the case of the
\npetitioners in these petitions that their retrenchment is illegal, being in
\ncontravention to the provisions of the Industrial Disputes Act 1947, no
\nsuch contention was ever raised at the time of hearing. As far as the
\npresent petitioners are concerned, analysis of the material available on
\nrecord and the grounds and reasons as are indicated hereinabove clearly
\nshows that each of the petitioner was appointed for a particular Project
\ni.e… IREP, the Project continued for a certain period of time and so long
\nas the Project continued petitioners, who were appointed in this Project
\ncontinued to work. After the Project was closed and wound up by the
\nCentral Government, petitioners’ services have been retrenched. That
\nbeing so, in the light of the discussions made hereinabove and for the
\ngrounds and reasons indicated therein, this Court does not find any merit
\nin this writ petition.\n<\/p>\n
30-           It is, therefore, clear that petitioners are claiming parity with
\nthree categories of employees. The first category of employees are those
\nlike Smt. Indu Goyal and others, but as these employees are regular
\nemployees of the establishment and were appointed to sanctioned post as
\nper the recruitment rules, their cases is clearly different from that of the
\npetitioners. The second category of employees with whom parity is
\nclaimed is that of Shri Rudra Prasad Mishra and others like Budhsen. In
\ntheir case, in view of the specific stipulation made by the Division
\nBench, in the Writ Appeal of Shri Rudra Prasad Mishra, the said order
\ncannot be treated as a precedent and made applicable to the present
\npetitions. The third set of employees are those, who aggrieved by their
\ntermination approached the Labour Court and challenged the termination
\non the ground that it is illegal retrenchment. This contention of the
\nemployees has been upheld and finding the retrenchment to be illegal,
\nthe Labour Court has interfered in the matter. In the present case, there is
\nnothing pleaded or established before this Court nor any submission
\nmade to show that the retrenchment in question is illegal or contrary to
\n                                    21<\/span><\/p>\n
the statutory requirement of the Industrial Disputes Act. It is a case
\nwhere the parity claimed is not in existence and petitioners have not
\nbrought to the notice of this Court case of even a single employee
\nsimilarly situated like the petitioners and appointed specifically in
\nconnection with the Scheme, who is continued after winding up of the
\nScheme. Even though during the course of hearing of this writ petition,
\nby referring to certain interlocutory applications filed, Shri Ashok
\nLalwani tried to emphasize that as the respondents have failed to
\nproduce all the documents to justify their action of discrimination
\nadverse inference should be drawn, I am of the considered view that
\npetitioners have not made out any case for claiming parity with other
\nemployees as alleged in the writ petitions and, therefore, no adverse
\ninference is required to be drawn in the matter.\n<\/p>\n
31-          As services of the petitioners are being retrenched after
\nallegedly complying with the provisions of Section 25-F of the Industrial
\nDisputes Act, 1947 and as the petitioners have not raised any ground
\nwith regard to breach of these provisions in this writ petition, the said
\nquestion is not to be gone into. In case the petitioners have any grievance
\nwith regard to their retrenchment being contrary to the provisions of the
\nIndustrial Disputes Act, 1947 or they want to claim parity with those
\nemployees, in whose case it has been held by the Labour Court that their
\nretrenchment is illegal, they have to agitate the same by resorting to the
\nremedy available under the Industrial Disputes Act, 1947 before the
\nappropriate Labour court or Industrial Court.\n<\/p>\n
32-          In the facts and circumstances of the case, finding no case
\nfor interference in these writ petitions on the grounds as are indicated
\nhereinabove, the petitions are dismissed. No order as to costs.\n<\/p>\n
                                            ( RAJENDRA MENON )
\n                                                   JUDGE
\nAks\/-<\/p>\n","protected":false},"excerpt":{"rendered":"
Madhya Pradesh High Court Naveen Dubey vs M.P.Urja Vikas Nigam Ltd on 23 November, 2010 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,24],"tags":[],"class_list":["post-179661","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madhya-pradesh-high-court"],"yoast_head":"\nNaveen Dubey vs M.P.Urja Vikas Nigam Ltd on 23 November, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/naveen-dubey-vs-m-p-urja-vikas-nigam-ltd-on-23-november-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Naveen Dubey vs M.P.Urja Vikas Nigam Ltd on 23 November, 2010 - 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