Supreme Court of India
CHIEF EXECUTIVE OFFICER, ZILA PARISHAD, THANE & ORS.versusSANTOSH TUKARAM TIWARE & ORS.
- Citation
- 2022 INSC 1229
- Decided
- 24 November 2022
- Disposal
- Appeal(s) allowed
- Bench
- M R SHAH
Holding
Continuity of service on a contractual, stop‑gap basis does not confer a right to regularisation when the appointment was made without a selection process and a policy decision to outsource the post exists.
Summary
The Zila Parishad, Thane appointed Santosh Tiware as a driver on a temporary contractual basis in 2010 pending a tender for driver services. Because the tender was delayed, he continued on contract for about nine years. When the tender was finally awarded to a private agency in July 2021, his services were terminated. He filed a writ petition seeking regularisation; the High Court set aside the termination order and directed his regularisation, relying on his long service. The Supreme Court allowed the appeal by the Zila Parishad, holding that mere continuity of service on a contractual, stop‑gap basis does not create a right to regularisation where a policy decision to outsource the post exists and no selection procedure was followed. Consequently, the High Court’s order was quashed and the writ dismissed.
Issues considered
- Whether a contractual employee who continues to serve for a long period acquires a right to regularisation.
- Whether the High Court could set aside a termination order that was not specifically challenged.
- Whether a policy decision to outsource a post defeats a claim for regularisation of a contractual employee.
- Whether an appointment made without a selection procedure can be regularised.
Subjects
regularisationcontractual employmentservice continuitypolicy decisionoutsourcingselection procedureterminationadministrative law
Judgment
[2022] 15 S.C.R. 817 817
CHIEF EXECUTIVE OFFICER, ZILA PARISHAD, A
THANE & ORS.
v.
SANTOSH TUKARAM TIWARE & ORS.
(Civil Appeal No. 8856 of 2022) B
NOVEMBER 24, 2022
[M. R. SHAH AND M. M. SUNDRESH, JJ.]
Service Law: Regularisation in service – Continuity of service
for a longer period on a contractual basis – Regularization sought
C
on basis thereof – Held: Merely because employee-driver continued
in service for longer period on contractual basis, the order of
regularization ought not to have passed more particularly, when a
policy decision was taken to avail the services of the driver by the
agency/contractor and that the appointment of employee and other
similarly situated drivers was not made after any selection procedure D
– Appointment of the employee was purely on stopgap and on
contractual basis – Thus, the High Court erred in ordering
regularization, and the order is quashed and set aside – Policy
decision.
Allowing the appeal, the Court E
HELD: 1.1 When respondent No. 1 was initially appointed
in the year 2010, he was appointed on temporarily contractual
basis till the tender process to award the contract for availing the
services of the driver is completed. In communication dated
29.03.2010, the District Health Officer, Zila Parishad F
communicated to the Block Development Officer. That thereafter
only applications were invited and the appointment of driver of
ambulance on contractual basis was made. In the appointment
order itself it was specifically provided that if at the said place
appointment of Zila Parishad driver is done then the appointment
of concerned driver would be terminated. Therefore, at the G
relevant time neither there was any selection process followed
nor it can be said that the appointment of respondent as driver
was made after following due procedure as required. It appears
that at the relevant time the appointment on contractual basis
was made looking to the public interest and to see that the H
817
818 SUPREME COURT REPORTS [2022] 15 S.C.R.
A ambulance is not without any driver. At this stage, it is required
to be noted that after G.O. issued by the Government, the regular
appointments were banned and services of the driver were to be
provided by the contractor/agency. It is true that for whatever
reason the tender process to award the contract could not be
completed and therefore, respondent No. 1 continued to render
B
services as a driver on contractual basis. That the further tender
process was started in the month of March, 2021 which was
awarded in the month of July, 2021 and therefore, as the contract
was awarded to the agency to provide services of the drivers,
the services of respondent No. 1 along with other similarly situated
C drivers were put to an end by order dated 15.07.2021. That
thereafter respondent No. 1 filed a writ petition before the High
Court praying for regularization which was filed on 31.07.2021,
and by that time vide order dated 15.07.2021 the services of
respondent No. 1 was put to an end. Despite the above and solely
on the ground that respondent No. 1 has rendered his services
D
for longer period the High Court ordered regularization. The High
Court also set aside order dated 15.07.2021 though the same
was not challenged before the High Court. Without challenging
order dated 15.07.2021 the High Court ought not to have set
aside order dated 15.07.2021 which was on the award of the
E contract to the agency. [Para 6 and 6.1][823-C; 824-D, E]
1.3 Merely because respondent No. 1 continued in service
for longer period on contractual basis the High Court ought not
to have passed the order of regularization more particularly, when
a policy decision was taken to avail the services of the driver by
F the agency/contractor and that the appointment of respondent
No. 1 and other similarly situated drivers was not made after any
selection procedure. The appointment of respondent No. 1 was
purely on stopgap and on contractual basis. Under the
circumstances, the High Court committed a very serious error
in ordering regularization as well as quashing and setting aside
G order dated 15.07.2021 by which on the contract being awarded
to Security Services Company., the services of respondent No. 1
was put to an end. Thus, the impugned judgment and order passed
by the High Court quashing and setting aside communication
dated 15.07.2021 putting an end to services of respondent No. 1
H
CHIEF EXECUTIVE OFFICER, ZILA PARISHAD, 819
THANE v. SANTOSH TUKARAM TIWARE
on the contract being awarded to the Security Services Company, A
and the order directing the appellants to regularize the services
of respondent No. 1 as a driver is quashed and set aside. [Para
6.2, 7][825-B-D, H; 826-A]
Pandurang Sitaram Jadhav and Ors. v. State of
Maharashtra (2020) 17 SCC 393; Sheo Narain Nagar B
and Ors. v. State of Uttar Pradesh and Anr. (2018) 13
SCC 432 : [2017] 11 SCR 138 – distinguished.
Case Law Reference
(2020) 17 SCC 393 distinguished Para 6.3
C
[2017] 11 SCR 138 distinguished Para 6.3
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8856
of 2022.
From the Judgment and Order dated 16.12.2021 of the High Court
of Judicature at Bombay in Writ Petition No. 4731 of 2021. D
A. Karthik, Arsh Khan, Ms. Srepriya, Kailas Bajirao Autade, Advs.
for the Appellants.
Mrs. V. Mohana, Sr. Adv., Satyajit A. Desai, Abhinav K.
Mutyalwar, Satyakam Sharma, Ms. Anagha S. Desai, Aaditya Aniruddha
Pande, Siddharth Dharmadhikari, Bharat Bagla, Advs. for the E
Respondents.
The Judgment of the Court was delivered by
M. R. SHAH, J.
1. Leave granted. F
2. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 16.12.2021 passed by the High Court of Judicature at
Bombay in Writ Petition No. 4731/2021, by which, the High Court has
set aside the order of termination issued to respondent No. 1 herein –
original writ petitioner and directed the appellant – Zila Parishad to grant G
him the benefits as regular employee from the date of termination i.e.,
15.07.2021, the Zila Parishad, Thane has preferred the present appeal.
3. The facts leading to the present appeal in a nutshell are as
under: -
H
820 SUPREME COURT REPORTS [2022] 15 S.C.R.
A 3.1 That the Zila Parishad, Thane issued communication dated
29.03.2010 to the Block Development Officer, Panchayat Samiti
requesting for immediate recruitment of ambulance drivers at primary
health centres on contractual basis till the tender process for supplying/
providing driver on contract basis is completed. It was directed to
complete the process of appointing the drivers on contract basis locally
B
and on the maximum honorarium of Rs. 7,600/- for each driver. Pursuant
to the said communication, the Block Development Officer initiated the
process. Vide office order dated 24.05.2010, respondent No. 1 – original
writ petitioner was appointed temporarily and on contract basis as a
driver for a period of two months and an agreement was executed
C between respondent No. 1 and Health Officer, Primary Health Centre
agreeing with the terms and conditions of the employment. One of the
conditions was that the appointment of candidate is on the contract basis
and is exclusively temporary in nature. That another condition was that
if at the appointed place appointment of zila parishad driver is done then
the appointment of concerned driver will be terminated. As it took time
D
in completing tender process the tenure/engagement of respondent No.
1 was extended from time to time but for every two months on the same
terms and conditions on which earlier he was engaged. Thereafter,
respondent No. 1 in the year 2019 gave a representation to the Zila
Parishad for permanency on the post of driver and the concerned medical
E officer issued the experience certificate. That thereafter Taluka Health
Officer issued order dated 18.08.2020 for re-employment of respondent
No. 1 for temporary basis from 01.11.2019 to 30.09.2020. Again, in the
year 2020 respondent No. 1 was re-appointed on contractual basis for a
period of 11 months. That respondent No. 1 again submitted his
representation and prayed for permanency submitting, inter-alia, he has
F
been working approximately for nine years. That thereafter respondent
No. 1 – original writ petitioner filed Writ Petition No. 4731/2021 before
the High Court on 31.07.2021 and prayed for regularization and to confer
permanency. Before that by order dated 15.07.2021 and in compliance
with order dated 06.07.2021 of CEO, Zila Parishad, Thane, Taluka Health
G Department terminated the appointment of respondent No. 1 and
appointed an outsourcing agency. At this stage, it is required to be noted
that appointment of respondent No. 1 as contractual driver was put to
an end as by that time the tender process was completed and the contract
for providing contractual driver was given to one M/s Rakshak Security
Services and Systems Pvt. Ltd., Pune. That the High Court issued the
H
CHIEF EXECUTIVE OFFICER, ZILA PARISHAD, 821
THANE v. SANTOSH TUKARAM TIWARE [M. R. SHAH, J.]
notice in Writ Petition on 30.08.2021 and by an interim order the High A
Court allowed the original writ petitioner to sign the muster roll and to
continue his work. That thereafter by the impugned judgment and order
the High Court has not only set aside order of termination dated 15.07.2021
though no such prayer was made, but has ordered regularization and
permanency on the ground that he has been continued in service for
B
more than nine years as a driver without break and/or with artificial
break.
3.2 Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the High Court, Zila Parishad has preferred the
present appeal. By order dated 07.03.2022 while issuing the notice this
Court stayed the operation of the impugned judgment and order passed C
by the High Court.
4. Shri A. Karthik, learned counsel appearing on behalf of the
appellants has vehemently submitted that in the facts and circumstances
of the case the Hon’ble High Court has seriously erred in directing to
regularize services of respondent No. 1. D
4.1 It is submitted by learned counsel appearing on behalf of the
appellants that the Hon’ble High Court has not properly appreciated the
fact that the initial appointment of respondent was on contractual basis
and till the tender process for providing services of the driver is completed.
E
4.2 It is submitted that the Hon’ble High Court has not properly
appreciated that fact that respondent No. 1 was neither appointed on
regular basis nor was appointed after following due procedure as required
and was appointed as stopgap and on contractual basis. It is submitted
that merely because it took a longer time to complete the tender process
and that respondent No. 1 continued for a long time on contractual/ F
temporary basis, the respondent has not acquired any right to get his
services regularized.
4.3 It is vehemently submitted by learned counsel appearing on
behalf of the appellants that the post of driver was vacant at Primary
Health Centre, Sendrun. Considering the fact that the medical service is G
an emergency service and for 24 hours and the ambulance cannot be
without any driver, the service of driver was temporarily required and
therefore, the applications for the post of temporary driver on the contract
basis was called by the panchayat samiti office from District Health
Officer, Zila Parishad, Thane. It is submitted that respondent No. 1 applied
H
822 SUPREME COURT REPORTS [2022] 15 S.C.R.
A for the post of driver on temporary contract basis and his application for
the said post was considered and the direction was given to appoint him
on the post of driver only for temporary contract period. It is submitted
that in the appointment order itself it is specifically mentioned that he is
appointed as a driver on temporary basis and his services shall be put to
an end as and when the appointment of the driver is made by the Zila
B
Parishad.
4.4 It is further submitted that thereafter the tender process to
award the contract commenced in the month of March, 2021 and having
come to know about the tender process respondent No. 1 filed the writ
petition before the High Court praying for the regularization. It is submitted
C that the same petition was filed on 31.07.2021. But by the time the contract
was given/awarded to one M/s Rakshak Security Services and Systems
Pvt. Ltd., Pune and therefore, by order dated 15.07.2021 the services of
respondent No. 1 along with other similar situated contractual drivers
were put to an end. It is submitted that though order dated 15.07.2021
D was not specifically challenged before the High Court and it was also
brought to the notice of the High Court by way of counter, without any
challenge the Hon’ble High Court has set aside order dated 15.07.2021
and thereafter, has ordered regularization which is impermissible.
4.5 Making the above submissions it is prayed to allow the present
E appeal.
5. Present appeal is vehemently opposed by Mrs. V. Mohana,
learned Senior Advocate appearing on behalf of respondent No. 1.
5.1 It is submitted that in the facts and circumstances of the case
and more particularly, when respondent No. 1 was continued in service
F for more than ten years the Hon’ble High Court has not committed any
error in ordering regularization of his services.
5.2 It is submitted that before appointing respondent No. 1
applications were invited by the District Health Officer, Zila Parishad,
Thane and thereafter, respondent No. 1 was appointed in the year 2010
G and thereafter, his services have been continued from time to time by
giving him artificial break which continued up to July, 2021. It is submitted
that therefore in the above facts and circumstances no error has been
committed by the High Court in ordering regularization. Reliance is placed
upon the decisions of this Court in the case of Pandurang Sitaram
Jadhav and Ors. Vs. State of Maharashtra; (2020) 17 SCC 393 as
H
CHIEF EXECUTIVE OFFICER, ZILA PARISHAD, 823
THANE v. SANTOSH TUKARAM TIWARE [M. R. SHAH, J.]
well as on the decision of this Court in the case of Sheo Narain Nagar A
and Ors. Vs. State of Uttar Pradesh and Anr.; (2018) 13 SCC 432.
5.3 Making the above submissions and relying upon the above
decisions it is prayed to dismiss the present appeal.
6. We have heard learned counsel appearing on behalf of the
respective parties at length. At the outset, it is required to be noted that B
by the impugned judgment and order the High Court has directed the
appellants – Zila Parishad to regularize the services of respondent No. 1
as a driver. However, it is required to be noted that when respondent
No. 1 was initially appointed in the year 2010, he was appointed on
temporarily contractual basis till the tender process to award the contract C
for availing the services of the driver is completed. In communication
dated 29.03.2010, the District Health Officer, Zila Parishad
communicated to the Block Development Officer as under: -
“HEALTH DEPARTMENT, ZILLA PARISHAD, THANE
Outward No. ZP/AV/Vehicle/Vshi/68 D
Health Department, Zilla Parishad, Thane
Date: 29.03.2010
To, Block Development Officer
Panchayat Samiti————(concerned)
E
Subject: In respect of appointment of driver on contractual basis.
Within your jurisdiction, new TATA Sumo ambulance are
provided to primary health centre through this office. And those
public health centres which has been provided with new
ambulance, the old vehicle of that place is given to other primary
F
health centre. Those primary health centre were the posts of
drivers are vacant, at those primary health centres, for supplying
/providing drivers on contract basis society the procedure for tender
is being done at the department level. For this tender process,
minimum two month period may be required.
Therefore, on your level, the process of appointing driver G
may be done locally. The monthly 41 honorarium maximum limit
will be amount of Rs. 7600/- for each driver. Any more amount
than this will not be payable. For inviting quotation, driving license
of the driver, insurance of the vehicle etc record should be included.
H
824 SUPREME COURT REPORTS [2022] 15 S.C.R.
A Before this, the contract of vehicles taken on lease in the
financial year 2009-10 is expiring on 31.03.2010. Therefore, vehicle
of medical aid squad is being closed. However, those primary
health centres / squad who has not been provided with government
vehicle till today, those health centres and squad are hereby
permitted to ply vehicle on lease basis until further orders. The list
B
of said societies is annexed herewith.
Those primary health centres where the posts of drivers
are to be filled on contractual basis, the list of those primary health
centres is annexed herewith.
C Sd/-
District Health officer,
Zilla Parisahd,
Thane”
That thereafter only applications were invited and the appointment
D of driver of ambulance on contractual basis was made.
6.1 In the appointment order itself it was specifically provided
that if at the said place appointment of Zila Parishad driver is done then
the appointment of concerned driver will be terminated. Therefore, at
the relevant time neither there was any selection process followed nor it
E can be said that the appointment of respondent as driver was made after
following due procedure as required. It appears that at the relevant time
the appointment on contractual basis was made looking to the public
interest and to see that the ambulance is not without any driver. At this
stage, it is required to be noted that after G.O. issued by the Government,
the regular appointments were banned and services of the driver were
F to be provided by the contractor/agency. It is true that for whatever
reason the tender process to award the contract could not be completed
and therefore, respondent No. 1 continued to render services as a driver
on contractual basis. That the further tender process was started in the
month of March, 2021 which was awarded in the month of July, 2021
G and therefore, as the contract was awarded to the agency to provide
services of the drivers, the services of respondent No. 1 along with
other similarly situated drivers were put to an end by order dated
15.07.2021. That thereafter respondent No. 1 filed a writ petition before
the High Court praying for regularization which was filed on 31.07.2021,
and by that time vide order dated 15.07.2021 the services of respondent
H
CHIEF EXECUTIVE OFFICER, ZILA PARISHAD, 825
THANE v. SANTOSH TUKARAM TIWARE [M. R. SHAH, J.]
No. 1 was put to an end. Despite the above and solely on the ground that A
respondent No. 1 has rendered his services for longer period the High
Court has ordered regularization. The High Court has also set aside
order dated 15.07.2021 though the same was not challenged before the
High Court. Without challenging order dated 15.07.2021 the High Court
ought not to have set aside order dated 15.07.2021 which was on the
B
award of the contract to the agency.
6.2 Merely because respondent No. 1 continued in service for
longer period on contractual basis the High Court ought not to have
passed the order of regularization more particularly, when a policy decision
was taken to avail the services of the driver by the agency/contractor
and that the appointment of respondent No. 1 and other similarly situated C
drivers was not made after any selection procedure. The appointment
of respondent No. 1 was purely on stopgap and on contractual basis.
Under the circumstances, the High Court has committed a very serious
error in ordering regularization as well as quashing and setting aside
order dated 15.07.2021 by which on the contract being awarded to M/s D
Rakshak Security Services and Systems Pvt. Ltd., the services of
respondent No. 1 was put to an end.
6.3 Now so far as the reliance placed upon the decision of this
Court in the case of Pandurang Sitaram Jadhav (supra) is concerned,
on facts the said decision shall not be applicable to the case on hand and/ E
or of any assistance to respondent No. 1. It was a case where this Court
found an unfair labour practice. It was found that employees similarly
situated working in the same establishment were granted regularization.
Similarly, the decision of this Court in the case of Sheo Narain Nagar
(supra) also shall not be applicable to the facts of the case on hand. It
was a case where the authorities conferred temporary status and it was F
found that there was requirement of work and availability of posts too,
and it was found that it was not a case of back-door entry, the services
of the concerned employees were directed to be regularized w.e.f.,
02.10.2002 from the date on which the authorities conferred the temporary
status. Therefore, on facts the said decision shall not be applicable to the G
facts of the case on hand.
7. In view of the above and for the reasons stated above the
impugned judgment and order passed by the High Court quashing and
setting aside communication dated 15.07.2021 putting an end to services
of respondent No. 1 on the contract being awarded to M/s Rakshak H
826 SUPREME COURT REPORTS [2022] 15 S.C.R.
A Security Services and Systems Pvt. Ltd., and the order directing the
appellants to regularize the services of respondent No. 1 as a driver
deserves to be quashed and set aside and is accordingly quashed and set
aside. Consequently, writ petition preferred by respondent No. 1 stands
dismissed. Present appeal is accordingly allowed. In the facts and
circumstance of the case there shall be no order as to costs.
B
Nidhi Jain Appeal allowed.
C
D
E
F
G
H
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