CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE AJAY KUMAR TRIPATHI) Date : 17-04-2018
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Intra- court appeals have been filed by a large number of appellants, who were also petitioners before the writ court whose writs were heard together and by a common order dated 24.01.2017 all the writ applications came to be dismissed by the learned Single Judge. Now, the challenge is to the said order.
2. Even before the appellate court, all these appeals were clubbed together and were argued by counsels as a block.
3. The issue before the learned Single Judge was the correctness or otherwise of the Cabinet decision dated 07.06.2016 which decided to annul the list of Accredited Statistical Volunteers (ASVs), which had the effect of not only marring their present prospect of engagement but also all future engagements as well for the work of gathering of statistics in the State of Bihar.
4. An advertisement was published by the Planning and Development Department of Government of Bihar, especially the Directorate of Economics and Statistics dated 12.02.2012. Based on the advertisement, an examination was held of the candidates. Those, who qualified, found their name in the panel prepared. It is pleaded that thereafter such ASVs were given training and services utilized for gathering statistics of various kinds. On the basis of work assigned to them, they were being paid a kind of piecemeal
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on the basis of inputs provided by them for the day and some of them have worked between the year 2012 till almost 2015.
5. However, all of a sudden instead of treating their case for regularization or conferring some kind of status upon them under the State Government, the State Cabinet vide its notification dated 07.06.2016 took a decision to scrap the panel and vide notification dated 26.07.2016 it was done.
6. The main line of arguments on behalf of some of the senior counsels is that due process was followed in creation of panel, which was akin to a regular appointment, and, therefore, certain right was created in their favour and the same cannot be snatched away by scrapping the panel without any reason or opportunity of hearing and if such a decision has been taken by the Cabinet, then such decision is vulnerable and is liable to be struck down.
7. One of the senior counsel, namely, Sri Vinod Kanth, made a submission in support of the appeal that even though it may not be a fit case for regularization of these candidates, which prayer anyway has been given up even by Mr Kanth representing some of the appellants, but his main argument is that all these appellants after having gone through the process of selection had a legitimate expectation for being continued in the panel and also
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being assigned work, may be on need base. In this regard, he tries to draw support from a decision rendered in the case of Bannari Amman Sugars Ltd. Vs. Commercial Tax Officer, reported in (2005) 1 SCC 625, with a special emphasis on paragraphs 8 and 9.
8. Since the question of regularization has been given up by the counsels, the argument is now confined to the legality of the decision of the Cabinet followed by the subsequent notification issued scrapping the panel of ASVs. Now, the effort is to keep the panel or the list of ASVs alive.
9. The stand of the State on behalf of the respondents is that based on a decision taken by the Government of India where need for gathering statistics for effective implementation of the National Agriculture Insurance Scheme was felt, a direction was issued to all the States to gather data and statistics of the kind indicated in the Scheme. The National Agriculture Insurance Scheme continued till the year 2010- 11 and thereafter a modified National Agriculture Insurance Scheme was brought into play. The modified Scheme decided to collect data on the basis of unit area for measure of crops at village or Panchayat level and the State Governments, including the State of Bihar, were saddled with the responsibility of such data gathering. The Cooperative Department of the State was made a nodal agency and detailed
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guidelines was issued on 03.08.2011 with respect to the mode and manner of implementation. Since from the earlier collection of data at district level the exercise was brought down to the level of Panchayat and villages, the volume of work increased manifold, therefore, the need for extra manpower was felt and in this background an advertisement was issued, a copy of which was Annexure- 1 to the writ application, the lead case being CWJC No.11550 of 2016.
10. A close look at the advertisement would show the object and purpose for which a list of ASVs was prepared. Clause 3 of the advertisement clearly lays down that the persons on the panel of ASVs are not to be treated as government servants nor will they be entitled to any benefit at par with a government servant. They can be disengaged at any time. Clause 13 of the advertisement lays down the rate for the piecemeal kind of job, which may be demanded by the authorities to be gathered by such ASVs and it is not a case of any consolidated fixed remuneration also. There was no guarantee to provide work for all the ASVs, therefore, in totality the argument which was sought to be made on behalf of the appellants that due process was followed in preparation of panel akin to regular substantive appointment is a case of overstatement, if not overkill.
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11. The preparation of ASVs panel, in other words, does not create any right in their favour. It was a kind of list of volunteers, who were available or could be used for the purposes of gathering statistics for the specific object and purpose for which such exercise was initiated by the Central Government, which was primarily related to inputs for National Agriculture Insurance Scheme.
12. This gathering of data was not supposed to be a ongoing or ever-going exercise. By 2014-15, the Central Government, which had also made allocation of funds, decided to end the programme and, therefore, even the State Government took a decision to scrap the panel or list of volunteers whose services or continuance was not needed any further.
13. Learned Advocate General representing the State of Bihar informs the Court that the decision of the Cabinet was not a sudden decision and the original file relating to the decision and the reasons behind the decision was brought before the learned Single Judge, who went through it and was satisfied with the reasons recorded, which culminated in the decision of the Cabinet to scrap the list/ panel after being fully satisfied as to the reasons. So, it was not a case of sudden decision taken to rob the rights of the ASVs which the appellants anyway had none.
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14. The learned Single Judge while dealing with the issue formulated four questions as under :
"In the undisputed circumstances discussed above, the issue which would require a consideration in the backdrop of the arguments advanced by learned counsel for the parties would be:
(a) Whether the petitioners have a right to the continuity of panel;
(b) Whether they have a right to claim regularisation against a Government post;
(c) Whether the decision of the Cabinet to scrap the panel is arbitrary; and
(d) Whether the petitioners were entitled to a hearing.
The length of the argument advanced by learned counsel appearing on behalf of the petitioners basically is equity-based. Although learned counsel have tried to make inroads into the issues of arbitrariness in the decision of the State to scrap the panel but that requires to be tested. The main plank of the argument of learned counsel for the petitioners is that there is yet enough work available for the 'ASVs' but such argument has been countered bythe learned PAAG-I in reference to certain circulars enclosed with the second supplementary counter affidavit to submit that since the year 2014, there is no work available for the 'ASVs' and even the
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budgetary allocation has stopped. (emphasis supplied) However, this statement requires a correction in reference to the third supplementary counter affidavit filed in the proceedings in which the State has admitted that work was available until 2015. To that extent the statement of Mr. Lalit Kishore would require a modification. The enclosures to the rejoinder filed in CWJC No.12855 of 2016 and CWJC No.11315 of 2016 are sufficient indication of the fact that the work indeed is being taken from the 'ASVs' even after the year 2015 and until January, 2016.
Be that as it may, the fact remains that the empanelment of the petitioners as Accredited Statistical Volunteers was neither against a sanctioned post nor against a salary. The empanelment does not even provide any assurance for work allotment. On the contrary the empanelment is for the purpose of their engagement as and when any need would arise. The petitioners thus were not on a salary nor appointed against any post and although there is an admitted empanelment of more than 60,000 'ASVs' across the State but the work requirement as discussed in the second supplementary counter affidavit at paragraph 12 shows that whereas 1604 'ASVs' were engaged for 20 days in the year 2012, 6171 'ASVs' were engaged for 50 days in the year 2013 and 7198 'ASVs' were engaged in
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2014 for 50 days. Paragraph 16 of the second supplementary counter affidavit mentions that following the second advertisement under the 6 th Economic Census, of the 61506 candidates engaged, only 42961 worked for 30 days in the census work in the year 2013 and paragraph 22 shows that 468 'ASVs' were engaged for 15 days in 2014. The details so given are not contested and which by itself reflects the nature of engagement of these 'ASVs'. (emphasis supplied)
In the nature of engagement of the 'ASVs' reflecting above, the issue would be whether the petitioners yet have a right, either for continuity of the panel or for regularisation. In my opinion, the issue has to be answered in the negative. The petitioners have not been appointed against any sanctioned post nor they have been paid any salary for their engagement and the engagement during this period of three years at best makes it to 50 days in a year. The petitioners also cannot insist on maintaining the panel or its continuity for it would strike at the root of Article 14 of the Constitution of India depriving the others who may have become eligible for consideration.
(emphasis supplied) Paragraph 26 of the judgment relied upon by Mr. Lalit Kishore, learned PAAG-I in the case of Babita Prasad (supra) itself is an answer to the plea of the petitioners regarding continuity of panel. It is also an answer to the
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prayer of regularisation and which runs as follows:
"26. The mere fact that the candidates who had been brought on the panel had been sent for training at the Government expense, would also not imply that any indefeasible right had been created in their favour for appointment after they had completed their training and their names were entered in the panel because the training was merely intended to confer eligibility on the candidates for being brought on the list. In the facts and circumstances of the case, we, therefore, hold that the panel prepared in the present case was only in the nature of an eligibility list of qualified trained teachers arranged according to their merit in a chronological order. It had been prepared without any process of selection whatsoever as none who was a trained qualified teacher was excluded from being brought on the list. The list was neither related to existing vacancies nor to anticipated vacancies. Such a panel did not create any vested or indefeasible right on the empanelists to be appointed."
The legal position is well settled and a mere empanelment gives no right to the incumbent to seek permanency against the post. The case of the petitioners is on even worse pedestal because they have not been appointed against any post rather they have simply been empanelled for discharging certain work as per
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the requirement. (emphasis supplied) Regularisation is a concept attached to a post existing within a cadre and the foundation rests on a continuity of engagement. In the present case neither the engagement has been made against any post nor is it against a salary nor there is a continuity of work. All the three pre-requisites to a plea for regularisation is manifestly absent in the present case. May be, the empanelment of the petitioners as 'ASVs', provided them with some kind of status but it did not invest them with any right for seeking creation of a post of the like or for seeking permanency on any other vacancy available in the department.
The other issue of arbitrariness raised by the petitioners for questioning the policy decision of the State to scrap the panel, even though attractive on the proposition advanced but does not stand the test calling for any intervention. Mr. Giri had argued rather passionately as regarding the scope of intervention in policy matters under Articles 226 and 227 of the Constitution of India in reference to the judgment of the Supreme Court in Ramesh Chandra Sankla (supra) and Harihar Yadav (supra) for striking the decision on grounds of arbitrariness but the records of the proceedings which has culminated in the Cabinet decision, has been produced by Mr. Lalit Kishore, learned PAAG-I and which also contains the
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memorandum which was put up for consideration before the Cabinet and which is the foundation for the decision impugned herein. The memorandum very clearly discusses the development which has taken place over the period and in consideration whereof it was decided at the level of the Cabinet to discontinue the panel. A cursory glance at the proceedings so produced by Mr. Kishore, PAAG-I does confirm that the decision of the Cabinet is sufficiently backed by reasons. (emphasis supplied) The judgment of the Supreme Court in the case of Kumari Shrilekha Vidyarthi (supra) at paragraph 13 has discussed the expression 'termination without assigning any cause'. Their Lordships of the Supreme Court have held that the expression 'termination without assigning any cause' does not mean a termination without existence of a cause. In reference to the judgment rendered in the Liberty Oil Mills vs. Union of India reported in AIR 1984 SC 1271 it was held that the expression 'without assigning any reasons' implies that no decision has to be communicated and although the reasons for a decision taken may not be stated but the reasons must exist otherwise a decision becomes arbitrary. It has further been clarified that 'non-assigning of reasons' or 'non-communication thereof' may be based on public policy but a termination of appointment without existence of a cogent
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reason, would be arbitrary and against the public policy.
As regarding the non-adherence to the rules of natural justice, in my opinion, where the purported action is resting on a policy decision of the State, it would not require a scrutiny on the issue as long as it satisfies the test of arbitrariness and is based on sound reasons, equity, fairplay and justice. (emphasis supplied)
It is not a case where the State Government while retaining some of the 'ASVs', has done away with the others rather the panel itself has been scrapped and the reasons assigned is non-availability of fund and non-availability of work. In such circumstances the social justice concept advanced by Mr. Giri in reference to the judgment of the Supreme Court in the case of Harihar Yadav (supra) would not come to the rescue of the petitioners.
In fact the judgments relied upon by learned counsel for the petitioners do not come to their aid because these are cases in which appointments were made against a post albeit on casual, daily-wage or on contract basis and the continuation of the incumbent in such capacity over a period, raised an issue for regularisation against one such post. Unfortunately such is not the case here. The present case is not a case of appointment nor it is a case of empanelment for the purpose of appointment. It is not even a case
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of contractual engagement. It is simply that a panel of certain persons has been prepared and who have been made to undergo training for discharging certain works and for the purpose of their identification they have been termed as 'Accredited Statistical volunteers'. The Supreme Court in the case of M. Pushkaran (supra) while testing a plea of abandonment of select-list has observed in paragraph 11 that a mere inclusion of a person in the select list cannot be a ground for offering him appointment nor gives a legal right to such candidate. No doubt the judgment in the said case went in favour of the appointee but the facts are dissimilar. The unequivocal opinion of the Court has been that a mere inclusion in the select list does not bestow an indefeasible right for appointment.
This would bring this Court to the last but not the least important issues raised by the petitioners regarding abandonment of the committee constituted to examine the grievance of the petitioners under the Cabinet decision dated 19.2.2015 the reference of which finds mentioned in the letter of the Special Secretary, Cabinet Secretariat Department dated 20.2.2015 present at page 304 of File No.Q0c0;ks0&09&2010. The resolution of the Cabinet passed on 19.2.2015 reads thus:
"10. lkaf[;dh Lo;a los dksa dh leL;k ds v/;;u djus ds fy, ,d lfefr xfBr djus ds fy, lS)kfUrd fu.kZ; fy;k x;kA
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2& vr% vuqjks/k gS fd eaf=ifj"kn ds bl fu.kZ; ds vkyksd e sa leqfpr vxzsRrj dkjZokbZ djus dh d̀ik dh tk,A" The resolution has been acted upon and though a meeting was held on 21.1.2015 by the Chief Minister but it did not reach any conclusion. The file though was processed thereafter and contains several notings which reflect that it was being acted upon until 11.3.2015 but thereafter this file appears to have been closed and the matter has proceeded in another file Bearing No. LFkk0.-02/06-05/2010 and after a gap of five months the notings have initiated to consider the continuity of the panel iself. The notings have started from 3.8.2015 and proposal mooted is for reconsideration of the continuity of the panel. In this background and after taking legal opinion thereon that a fresh memorandum has been placed before the Cabinet, a copy of which is present at running page 435 and discusses the reasons which form the basis for cancellation of the panel and has been accepted by the Cabinet decision impugned in the writ petitions as also present at page 71 of the file and following which a formal order has been issued by the Planning and Development department bearing Memo No.1549 dated 26.7.2016 cancelling the panel of 'ASVs'. In my opinion, the two resolutions have been passed by the Cabinet at different stages. May be at the stage when the first resolution was
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passed on 19.2.2015, the Cabinet was of a different opinion but the developments that has taken place in between the first resolution passed on 19.2.2015 and the second resolution passed on 7.6.2016, becomes a relevant factor for a judicial review of the action taken. The explanation present in the second supplementary counter affidavit as regarding the work discharged by these petitioners coupled with the stand on the availability of work and availability of funds, would not persuade this Court to issue any direction to the State to continue with the panel. Even if there have been stray instances of work being taken from these 'ASVs', the choice lies with the State for such engagement. If the State has decided to now get the work done departmentally and there is nothing on record which would show that the State has deviated from such stand, there is no reason for the petitioners to raise any grievance nor any occasion arises to interfere with the decision. In fact in the words of the Supreme Court as found in the judgment of the Indian Drugs and Pharmaceuticals Ltd. (supra) and Nihal Singh (supra), any direction by this Court in the circumstances discussed, either for continuation of the panel or for considering the cases of these petitioners for regularisation, in absence of facts supporting continuity of discharge, would amount to a direction for creation of post as well
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as financial liability which is neither in the domain nor within the framework of judicial review." (emphasis supplied)
15. After having heard the counsels for the appellants as well as the counsels representing the State and having extensively gone through the impugned order passed by the learned Single Judge, we do come to a conclusion that the reasons so provided by the learned Single Judge in his order, relevant paragraphs of which has also been reproduced in the earlier part of order to avoid repetitions of facts, as well as considerations of law, we do come to a considered opinion that the appellants have failed to make out a case for interfering with the impugned order and judgment dated 24.01.2017 passed in the batch of writ applications, the lead case being CWJC No.11550 of 2016.
All the appeals lack merit, therefore, stand dismissed.
(Ajay Kumar Tripathi, J) Nilu Agrawal, J.
I agree.
( Nilu Agrawal, J)
sk
| AFR/NAFR |
AFR |
| CAV DATE |
12.04.2018 |
| Uploading Date |
17.04.2018 |
| Transmission Date |
NA |