Rajasthan High Court - Jaipur
Surendra Kumar Gurjar And Ors vs State Of Raj And Ors on 3 April, 2017
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Civil Writ Petition No. 4582 / 2017
1. Surendra Kumar Gurjar S/o Shri Mohan Lal, Aged About 28
Years, Village Maloni, Post Bilendi, Tehsil Chipabadod, District
Baran (Raj.).
2. Govind Sharma S/o Shri Om Prakash Sharma,, Aged About 27
Years, Village & Post Bhulon, Tehsil Chhabra, District Baran
(Raj.)
3. Narendra Nagar S/o Shri Ram Charan Nagar,, Aged About 29
Years, Village Kohani, Post Bamori Dhara, Tehsil Chhabra,
District Baran (Raj.)
4. Rajendra Nagar S/o Shri Janki Lal Nagar, Aged About 27 Years,
Village Bamori Dhara, Tehsil Chipabadod, District Baran (Raj.)
5. Ram Naresh S/o Shri Mansingh, Aged About 25 Years, Village
& Post Pali, Tehsil Chhabra, District Baran (Raj.)
6. Radha Bai W/o Shri Dinesh Kumar,, Aged About 25 Years,
Village & Post Pali, Tehsil Chhabra, District Baran (Raj.)
7. Sharda Bai W/o Shri Madan Lal,, Aged About 45 Years, Village
& Post Pali, Tehsil Chhabra, District Baran (Raj.)
8. Sunita Kumari W/o Shri Dharmendra,, Aged About 32 Years,
Village & Post Dhanot Kalan, Tehsil Guhana, District Jhunjhun
(Raj.)
9. Suman Kumari W/o Shri Ram Chandra,, Aged About 30 Years,
Village Post & Tehsil Chidawa, District Jhunjhunu (Raj.)
10. Renu Kumari W/o Shri Subhash,, Aged About 28 Years, Village
Moibaru, Tehsil Buhana, District Jhunjhunu (Raj.)
11. Sulochana W/o Shri Jale Singh,, Aged About 31 Years, Village
& Post Gudaniya, Tehsil Chidawa, District Jhunjhunu (Raj.)
12. Shashi Bala W/o Shri Vidhyadhar Singh, Aged About 25 Years,
Village Kichora Ka Bass, Post Bajla, District Jhunjhunu (Raj.)
13. Sardar Bai D/o Shri Ramcharan, Village & Post Dingaradi,
Tehsil Chhabra, District Baran (Raj.)
14. Guddi Bai Suman D/o Shri Ram Swaroop Suman, Aged About
27 Years, Ward No. 8, Maliyon Ka Mohalla, Pateda, District
Baran (Raj.)
15. Seema Kumari Suman D/o Shri Ramdayal Suman, Aged About
26 Years, Village Toliya, Post Memor, Tehsil Kanwas, Disttrict
Kota (Raj.)
----Petitioners
Versus
(2 of 9)
[CW-4582/2017]
1. State of Rajasthan Through the Principal Secretary, Medical &
Health Department, Government Secretariat, Jaipur.
2. The Director, Medical & Health Department, Swasthya Bhawan,
Tilak Marg, C-Scheme, Jaipur.
3. The Chief Medical & Health Officer, Baran, District Baran.
4. The Medical Officer Incharge, Govt. Primary Health Centre, Pali
Village & Post, Tehsil Chhabra, District Baran
5. The Block Chief & Medical Officer, Block Chhabra, District Baran
(Raj.)
----Respondents
_____________________________________________________ For Petitioner(s) : Mr.Tanveer Ahmed.
For Respondent(s) : Mr. Kushal Singh on behalf of Mr. Sanjay Kumar Sharma, Govt. Counsel.
_____________________________________________________ HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA Order Reportable 03/04/2017 Issue notice to the respondents. Mr. Kushal Singh, Advocate appears on behalf of Mr. Sanjay Kumar Sharma, Govt. Counsel Advocate accepts notices on behalf of all the respondents.
Heard both the Counsel.
Counsel for the petitioners states that the appointment of the petitioners was done through placement agency and now the State Government has issued directions of withdrawing work from the placement agency at 10 Primary Health Centres while at other Primary Health Centres, the work is being done through placement agency.
(3 of 9) [CW-4582/2017] Taking into consideration the submission of the learned Counsel and also in view of law laid down by this Court in Mooli Devi Choudhary & Ors. Vs. State of Rajasthan & Ors. 2010 (4) WLC 334 that there shall be no appointment through placement agency, the Court while answering question No.6, has held as under : -
"(vi) Question No.6 is answered to negative and it is held that fixed term contract of service for the teachers in SSA or KGBV Projects on year to year basis by different placement agencies with no assured continuity of employment is not justified, nor it is a legally sustainable practice."
Considering that petitioners were appointed through placement agency, no relief can be granted to the petitioners as the action of appointing through placement agency has been held to be illegal and unjustified. However, taking into consideration that the respondents are continuing to appoint persons through placement agency and several cases have come up before this Court where petitions have been filed challenging the action of the respondents in dispensing with their services and appointing another persons through placement agency.
In the case of Secretary, State of Karnataka and others Vs. Uma Devi (3) and others: (2006)4 SCC 1 it has been held by the Apex Court in Para No.44, 45 & 49 of its judgment as under:-
"44. The concept of 'equal pay for equal work' is different from the concept of conferring permanency on those who have been appointed on ad hoc basis, temporary basis, or based on no process of selection as envisaged by the Rules. This Court has in various decisions applied the principle of equal pay for equal work and has laid down the parameters for the application of that principle. The decisions are rested on the concept of equality enshrined in our Constitution (4 of 9) [CW-4582/2017] in the light of the directive principles in that behalf. But the acceptance of that principle cannot lead to a position where the court could direct that appointments made without following the due procedure established by law, be deemed permanent or issue directions to treat them as permanent. Doing so, would be negation of the principle of equality of opportunity. The power to make an order as is necessary for doing complete justice in any cause or matter pending before this Court, would not normally be used for giving the go-by to the procedure established by law in the matter of public employment. Take the situation arising in the cases before us from the State of Karnataka. Therein, after the Dharwad decision, the Government had issued repeated directions and mandatory orders that no temporary or ad hoc employment or engagement be given. Some of the authorities and departments had ignored those directions or defied those directions and had continued to give employment, specifically interdicted by the orders issued by the executive. Some of the appointing officers have even been punished for their defiance. It would not be just or proper to pass an order in exercise of jurisdiction under Article 226 or 32 of the Constitution or in exercise of power under Article 142 of the Constitution of India permitting those persons engaged, to be absorbed or to be made permanent, based on their appointments or engagements. Complete justice would be justice according to law and though it would be open to this Court to mould the relief, this Court would not grant a relief which would amount to perpetuating an illegality.
45. While directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the concerned person has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with eyes open. It may be true that he is not in a position to bargain -- not at arms length -- since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or (5 of 9) [CW-4582/2017] casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succor to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution of India.
49. It is contended that the State action in not regularizing the employees was not fair within the framework of the rule of law. The rule of law compels the State to make appointments as envisaged by the Constitution and in the manner we have indicated earlier. In most of these cases, no doubt, the employees had worked for some length of time but this (6 of 9) [CW-4582/2017] has also been brought about by the pendency of proceedings in Tribunals and courts initiated at the instance of the employees. Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, the people of India. It is therefore not possible to accept the argument that there must be a direction to make permanent all the persons employed on daily wages. When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution.
It has been further held by the Apex Court in the case of Secretary, State of Karnataka and others Vs. Uma Devi (3) and others (supra) that the "Union of India, the State Governments and their instrumentalities should ensure that regular recruitment is undertaken to fill those vacant sanctioned posts that required to be filled up in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from the date of the judgment."
However, it is noticed that in spite of such directions issued way back in the year 2006, while the State Government has embarked upon conducting regular selections, which is appreciated by this Court, still several cases are coming up before this Court where persons are continuing on daily wages basis or on contractual basis either directly or through placement agencies. In spite of the observations made time and again by this Court (7 of 9) [CW-4582/2017] also in the cases noticed herein above (supra), the process of appointing persons through placement agency has not been stopped. The appointments made through placement agency resulted into cases where without following any process of selection, candidates are appointed by the placement agency of their choice or of their known persons and a commission is also deducted from their salary for giving the said persons appointment. Such appointments made though placement agency go completely against the ethos of the Constitution. The administration of law, if given into hands of such employees, would result in causing administrative chaos and non-governance. Sooner or later we may end up every appointment being made on contract basis and the people may start bidding for the post in the Government. Such concept is totally foreign to the Indian Constitution such method of appointing through placement agency deserves to be stopped at all levels.
Therefore, this Court in consonance with aforesaid law issues following directions : -
"(a) The State Government is restrained from appointing any persons on contract basis or otherwise allowing any person to work through placement agency on any government post or posts created under any particular scheme henceforth ;
(b) The State Government is henceforth directed to make appointments only in accordance with the rules framed under proviso to Article 309 of the Constitution of India for the various services in the State or the rules framed for the various departments, Corporations under the State;
(8 of 9) [CW-4582/2017]
(c) The State Government is further directed to make appointments on the posts created under various schemes sponsored by State or by the Centre on contract basis or otherwise only by conducting selection through open advertisement and after inviting applications and conducting written examinations and selecting persons on merit basis by a transparent method. For the said purpose, the State Government may lay down procedure and a recruiting agency either department wise or a Central nodal agency may be created for the said purpose keeping in view the provisions laid down for conducting public examinations. However, there shall be no interviews method followed in order to avoid any room for arbitrariness or pick and choose method and subsequent litigation;
(d) The merit of the candidates so prepared, shall be published showing the marks obtained by each candidate and after publishing the answer key;
(e) In view of the law laid down by the Apex Court in the case of State of Rajasthan vs. Mitendra Singh Rathore (SLP No.32671/2013 decided on 17.02.201 7, the State Government may provide additional bonus marks to those candidates who have prior working experience with the State Government. The bonus marks quantum should be on the basis of number of years of service already rendered by any contractual employee but the exact quantum may be decided by the Government while conducting selections for individual schemes/posts;
(f) Every attempt should be made to see that the entire selection process is transparent and without any ambiguity;
(g) If any selections are found to be wrongful, accountability of the concerned Officials who have conducted selection must be necessarily fixed and action be taken under the relevant provisions of law against them;
(h) Considering that such exercise would take some time to be implemented, this Court grants three months time to (9 of 9) [CW-4582/2017] the Government to make such provisions from the date of submission of the certified copy of this order;
(i) All the persons presently working in the State Government through placement agency will now henceforth be treated as working directly on contractual basis till the aforesaid selection process is completed;
(j) Services of the persons however, shall be continued only if the Government takes a decision to continue them otherwise their services shall be dispensed with forthwith and new selections shall only be conducted after issuing advertisements as directed herein above."
With the aforesaid directions, the writ petition is disposed of.
(SANJEEV PRAKASH SHARMA)J. N.Gandhi/44