Rajasthan High Court - Jaipur
Bhuvnesh Gautam Son Of Shri Jawala ... vs Principal Secretary Department Of ... on 28 February, 2019
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writs No. 8896/2016
1. Bhuvnesh Gautam son of Shri Jwala Prasad Sharma, aged
about 31 years, Resident of DM-46, Sushant City-I, Village
Machwa, Kalwar Road, Jaipur-302012 Rajasthan
2. Vishal Verma Son Of Shri Prakash Chand Verma, Aged
About 36 Years, Resident Of Jai Narayan Vyas Nagar, Bikaner
(Rajasthan)
3. Vikash Singh Jadoun Son Of Shri Girdhar Singh, Aged
About 31 Years, Resident Of Jadoun House, 159, Raj Vihar,
Near Commerce College, Swaimadhopur, (Rajasthan)
----Petitioners
Versus
1. Principal Secretary Department of Skill Entrepreneurship
and Employment, Govt. Of Rajasthan, Secretariat, Jaipur
2. Rajasthan Skill and Livelihood Development Corporation, J-
8, A, EMI Campus, Jhalana Institutional Area, Jaipur (Rajasthan)
through its Managing Director.
3. Vision India Staffing Private Limited, E-529, Sector-7,
Dwarka, New Delhi-110075 through its Managing Director.
4. Accenture Solutions Private Limited having its registered
office at Plant 3, Godrej & Boyce Complex, LBS Marg, Vikholi
(West), Mumbai, Maharashtra -400079 through its Managing
Director.
5. M/s Grant Thornton India LLP, 21st Floor, DLF Square,
Jacaranda Marg, DLF Phase-II, Gurugram, Haryana-122002.
----Respondents
Connected With
S.B. Civil Writs No. 4783/2016
Abhishek Kumar Sharma son of Shri Rewati Prasad Sharma,
Aged 30 years, resident of near Gomati Mission School, Indira
Colony, Karauli (Rajasthan).
----Petitioner
Versus
(D.B. SAW/688/2019 and 4 more have been filed in this matter. Please refer the same for further orders)
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1. Principal Secretary Department of Skill Entrepreneurship and
employment, Govt. of Rajasthan, Secretariat, Jaipur
2. Rajasthan Skill and Livelihood Developmetn Corporation, J-8-
A, EMI Campus, Jhalana
Institutional Area, Jaipur (Rajasthan) through its Managing
Director.
3. Vision India Staffing Private Limited, E-529, Sector-7,
Dwarka, New Delhi-110075 through its Managing Director.
4. M/s. Accenture Services Private Limited, 6 th Floor, DLF
Centre, Sansad Marg, New Delhi through its Managing Director.
5. M/s. M/s. Grant Thornton India LLP, 21st Floor, DLF Square,
Jacaranda Marg, DLF Phase II, Gurugram, Haryana-122002.
----Respondents
S.B. Civil Writs No. 5687/2016
Raj Kumar Khatri Son Of Shri Prem Ratan Khatri, aged 30 years,
R/o Rampura Basti, Gali No. 1, Gulab Shah Pir Ki Dargah,
Lalgarh, Bikaner, Presently Residing At BB-6, Anita Colony, Bajaj
Nagar, Jaipur
----Petitioner
Versus
1. Principal Secretary Department Of Skill Entrepreneurship
and Employment, Govt. Of Rajasthan, Secretariat, Jaipur
2. Rajasthan Skill and Livelihood Development Corporation,
J-8-A, EMI Campus, Jhalana Institutional Area, Jaipur
(Rajasthan) through its Managing Director.
3. Vision India Staffing Private Limited, E-529. Sector-7
Dwarka, New Delhi-110075 through its Managing
Director.
----Respondents
AND
S.B. Civil Writs No. 9855/2018
1. Surendra Pal Singh S/o Shri Teekam Singh, aged 45
years, R/o Triveni House, Vikas Nagar, Ward No. 42
Bharatpur, (Rajasthan)
2. Pankaj Agarwal S/o Shri Madan Lal Gupta, aged about
43 years, R/o Behind Daksh, Hospital, Sonawa Ki
Dungari, Alwar.
(D.B. SAW/688/2019 and 4 more have been filed in this matter. Please refer the same for further orders)
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3. Suresh Parihar S/o Mukand Chand Parihar, R/o Sadar
Bazar, Chhipo Ka Bas, Village and Post Bhopalgarh,
Distt. Jodhpur.
----Petitioners
Versus
1. Principal Secretary Department Of Skill,
Entrepreneurship and Employment, Govt. Of Rajasthan,
Government Of Rajasthan, Secretariat, Jaipur.
2. Rajasthan Skill and Livelihood Development Corporation,
J-8-A, EMI, Campus, Jhalana Institutional Area, Jaipur,
Rajasthan Through Its Managing Director.
3. Vision India Staffing Private Limited, E-529, Sector 7,
Dwaraka, New Delhi 110075 Through Its Managing
Director.
4. M/s. Accenture Solutions Private Limited, 3,
Godrej & Boyce Complex, LBS Marg, Vikholi
(West), Muumbai - 400079, through its
Managing Director.
5. M/s. Grant Thornton India LLP, 21 st Floor, DLF
Square, Jacaranda Marg, DLF Phase II,
Gurugram, Haryana-122002.
----Respondents
For Petitioner(s) : Shri Akhil Simlote
For Respondent(s) : Shri Padam Singh Gurjar, Adv. for
respondents No.1 and 2
Shri Madav Mitra, Adv. for respondent
No.5 Shri Mukesh Pal Jadaun, Adv. for respondent No.3 Shri Mahendra Singh, Adv. with Shri Raunak Bapna, Adv. for respondent No.4.
(D.B. SAW/688/2019 and 4 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 03:42:45 AM) (4 of 15) [CW-8896/2016] HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA Judgment/Order Reserved on 04/02/2019 Pronounced on 28/02/2019 Reportable
1. All these writ petitions have been heard finally with the consent of the parties.
2. The facts of S.B. Civil Writ Petition No.8896/2016, Bhuvnesh Gautam & Ors. v/s Principal Secretary Department of Skill Entrepreneurship and Employment & Ors., are being noticed for the purpose of disposal of the writ petitions. Petitioners before this court are working on contract basis on the post of District Manager/Community Organizer and other posts with the Rajasthan Skill and Livelihood Development Corporation (hereinafter referred as "RSLDC"). It is the case that an advertisement was issued in the Rajasthan Patrika for recruitment of various contract basis and the same was to be conducted through placement agency. The criteria of selection was walk in interview. The petitioners were appointed on contract basis for various period. Petitioner No.1 was appointed from 18.9.2014 to 8.7.2016. Petitioner No.2 was appointed from 26.6.2013 to 8.7.2016. Petitioner No.3 was appointed from 12.10.2015 to 8.7.2016 and petitioner No.4 was appointed from 19.8.2014 to 8.7.2016. The petitioners have preferred this writ petition challenging the order dated 26.5.2016 whereby it has been intimated to the petitioner of conclusion of the term of employment engagement by the respondent No.3. The ground taken by the petitioner is that while dispensing with the services of the petitioner, the respondent No.1 is going to take new staff on (D.B. SAW/688/2019 and 4 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 03:42:45 AM) (5 of 15) [CW-8896/2016] contract by leaving the work to other contractor of placement agency.
3. The matter came before the court and interim order was passed restraining the respondent from replacing the petitioner from the post of District Manager by another set of individual on contract basis.
4. The second stay application was moved which was allowed and the respondents were directed to allow the petitioner to continue on the post they were holding in the same capacity as prior to 7.9.2018 and shall continue to release monthly salary to the petitioner. The order dated 18.9.2018 is as under:-
"Copy of the second stay application was made available to the respondents on 30th August, 2018 and case was listed thereafter on 7.9.2018 and notices were issued to the respondents. No reply has come forward on behalf of the respondents of the second stay application.
Learned counsel for the petitioner submits that this court vide interim order dated 20.4.2016 & 17.08.2016 directed as under:
"In the meanwhile, respondents are restrained to engage any employee through placement agency and if they need hands to carry out the work then would be at liberty to engage persons directly in accordance to the rules and not through placement agency. If the petitioners are working as on the date of the order, the respondents are directed to continue their services unless to be terminated on the ground of their conduct or work has come to an end."
"In the meantime, the respondents are restrained from replacing the petitioner from the contractual post of District Managers and Projects Facilitators in the Rajasthan Rural Livelihood Project by another individual on contractual basis."
The petitioners were continuing, however, they were not granted salary from (D.B. SAW/688/2019 and 4 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 03:42:45 AM) (6 of 15) [CW-8896/2016] February onwards. Earlier, salary was also paid after the petitioner had preferred contempt petition before this court.
Learned counsel submits that now the respondents have replaced earlier placement agency and are seeking to discontinue the petitioners and appointed a new person on contract which this court had restrained while order(supra).
The petitioners therefore pray that they may be allowed to perform their duties as they were performing prior to 7th September, 2018.
Having considered the submissions as above, which stand uncontroverted, the second stay application allowed. Respondents are directed to allow the petitioners to continue on the post which they were holding in the same capacity as on prior to 7 th September, 2018 and the respondents shall continue to release monthly salary to the petitioners. The arrears,if any, pending shall also be released.
List on 24th October, 2018.
In the meanwhile, new impleaded respondents may file their reply."
5. Thereafter applications have been moved for vacating the interim order on behalf of the service provider of placement agency, respondents No.2,3,4 and 5.
6. During pendency of the writ petition, the work contract has been awarded to the respondent No.5.
7. Respondent No.5 in its reply submits that award as contract of providing services to the respondent No.2 requires providing of staff. Further, respondents No.3 and 4 submit that RSLDC floated a request for Proposal (RFP) for selection of consultancy agency for providing project management consulting support services. As per RFP staff profile was laid down and pursued for (D.B. SAW/688/2019 and 4 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 03:42:45 AM) (7 of 15) [CW-8896/2016] appointment by the respondent No.3. The order impugned has been issued by the respondent No.3 which is a private firm and a writ could not lie against the order passed by the respondent No.3. It does not fall within the meaning of State or its authorities as per Article 12 of the Constitution of India.
8. So far as the respondent No.2 is concerned, he has stated that the petitioners cannot claim themselves to be employees of the RSLDC and the term of contract of employment is exclusively between the respondents No.3 & 4 and the petitioners. It has also been pointed out that a fresh NIT was issued and the procedure was legally followed thereafter and the respondent No.5 has been awarded the contract for providing service personnel to the respondent No.2, there being no privity of contract between the respondent No.5 and the petitioners, the writ would not lie against the respondent No.5.
9. Respondent No.5 has also filed its reply and written submissions and submits that the Government has evaluated project afresh and the consultancy of petitioner was qua different work with additional duties the posts under the earlier contract were 282 which have been reduced to 122 and later on reduced to 103. While issuing work order in favour of respondent No.5. The petitioners therefore cannot be accommodated and continued beyond their term of employment as there is the difference of the nature of work.
10. The petitioners submit that action is nothing but ruse to exploit the employees and there has been a complete misuse of the public exchequer. It is stated that under the Right to Information Act, 2005, information was received from the (D.B. SAW/688/2019 and 4 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 03:42:45 AM) (8 of 15) [CW-8896/2016] regulator regarding break down of the man power cost and it is revealed that the State Government had allocated Rs.54,000/- per month for the District Manager while the service provider was paying to the petitioner Rs.22,000/- to Rs. 25,000/- only. It is submitted that a set of contractual employees cannot be replaced by another set of contractual employees while the work assignment is continuing with the respondent No.2. The nomenclature of the post District Manager has been renamed as District Skill Coordinator.
11. Learned counsel relies on the judgment passed by Apex Court in Mohd. Abdul Kadir and anr. vs. Director General of Police, Assam and others, (2009) 6 SCC 611 to submit that the process of term and reappointment every year should be avoided and also relies on the judgment passed in the case of State of Haryana vs. Piara Singh, (1992) SCC (4) 118 to submit that one set of contractual employees cannot be replaced by another set of contract employees and has thus prayed that he should be allowed to continue till the scheme is continuing and they should not be replaced by another set of persons on account of change of the company.
12. I have considered the submissions raised at Bar and find that in one writ petition namely S.B. Civil Writ Petition No.7211/2017 (Amit Sharma vs. Rajasthan Skill and Livelihoods Development Corporation and Ors.), I have dismissed the writ petition on the ground that the respondent No.3 is private organization and the impugned order has been passed on 16.5.2017 which is as under:-
(D.B. SAW/688/2019 and 4 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 03:42:45 AM) (9 of 15) [CW-8896/2016] "The petitioner by way of this writ petition has challenged the order dated 26th May, 2016 whereby his services were dispensed with by respondent No.3 on completion of his contract. As per the terms of the appointment letter (Annexure-2), it is noted that the same was issued by respondent No.3. There is no privity of contract between the petitioner and respondent No.1.
The respondent No.3 is private organization and the impugned order has been passed by it. It has not been shown asto how respondent No.1 has control on respondent No.3. The respondent No.3 a prviate party having no connection with the affairs of the State or an authority under the State which may come within the ambit of Article 12 of the Constitution. This Court is satisfied that this writ petition would not lie as against the private organization and the petition, being wholly misconceived, is accordingly dismissed.
13. Respondents have prayed that the present writ petition should be dismissed accordingly.
14. However, I find that while it is true that the order impugned has been passed by the respondent No.3 which is a private organization having no connection with the affairs of the State or an authority under the State which may come within the ambit of Article 12 of the Constitution. Still, it cannot be said that the respondent No.2 has no control on the respondent No.3.
15. This court also notices that the respondent No.2 is not registered under the Contract Labour (Regulation and Abolition Act) 1970 and, therefore, the method and the manner in which the appointments have been made by respondent No.2 is merely a camouflage to avoid making regular appointments.
16. As the name suggests Rajasthan Skill and Livelihood Development Corporation, is a Corporation which provides livelihood for skilled development and therefore the posts are to (D.B. SAW/688/2019 and 4 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 03:42:45 AM) (10 of 15) [CW-8896/2016] be necessarily filled by way of selection on merits but the method and manner in which the appointments have been made by inviting tender is nothing but a back door entry. There is no procedure or allocation of merit in the selection by competition by the placement agency is providing staff to the respondents. Salary is being paid as if it is a dole money.
17. From the perusal of the agreement entered into between the RSLDC and the respondents No.3 and 4 shows that the bank guarantee has been received by RSLDC which would be with reference to the employees to be deployed by the concerned to RSLDC. A huge sum of Rs.11,35,25,820/- shall be advanced by RSLDC to the firm to be distributed to the employees as per their choice. As has come out on record, while a sum of Rs.54,000/-
has been earmarked for Deputy Manager, some fixed amount of Rs.22,000/- to Rs.24,000/- has been paid to the Deputy Managers. This court is amazed and shocked to find such a modus operandi adopted by a State controlled corporation. Employees appointed by a private firm will have no accountability to the work nor can their integrity and work performance be gauged by the State Government Authorities. The public money has been put to a waste and without any accountability by RSLDC. The mode of appointment as mentioned by the petitioner is walk in interview. Thus, there is an ample room for arbitrariness and pick and choose. Such process of employment is contrary to the provisions of the Constitution or the Rules framed by the State Government. The said Government Corporation cannot be allowed to act in a manner akin to a private organization. Public exchequer and the public money is involved.
(D.B. SAW/688/2019 and 4 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 03:42:45 AM) (11 of 15) [CW-8896/2016]
18. Even if the appointments are to be made on contractual basis and not on a regular basis, the transparency and competition method of selection ought to be adopted. However, the same has been given a complete go by, as has been argued by the respondents No.3,4 and 5. They are not amenable to writ jurisdiction and thus under Article 226, this court would thus not issue directions to the respondents No.3,4 and 5 with regard to the manner and method by which their employees are appointed. However, so far as the respondent No.2 is concerned, situation is different. It has to act within the frame work of Constitution of India and laws framed therein. Officers of RSLDC are Govt. officers and they cannot be allowed to fritter away with public funds. The manner, method, they have entered into contract for providing persons for working with them is thus clearly arbitrary, illegal and unjustified and amounts to wastage of public funds for engaging persons by back door method. While Article 309 of the Constitution provides for the State and its authorities to frame rules for service under the State and its authorities, and rules can be framed also under proviso to Article 309 of the Constitution, at the same time, under Article 310 of the Constitution contractual appointment can also be made. However, if any contractual appointments are to be made, the same has to be in consonance with the law laid down by the Supreme Court and strict transparency has to be maintained.
19. In the case of Secretary, State of Karnataka and others v/s Uma Devi (3) and others, (2006) 4 SCC 1, the Apex Court has stressed "Union of India, the State Governments and their instrumentalities should ensure that regular recruitment is (D.B. SAW/688/2019 and 4 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 03:42:45 AM) (12 of 15) [CW-8896/2016] undertaken to fill those vacant sanctioned posts that required to be filled."
20. Several cases have come up before this court of contractual employees praying that they should not be replaced by another set of contractual employees.
21. While such a principle has been laid down to be correct, still the question arises whether original employment on contract has been given in accordance with law or not i.e. whether the selection process was adopted in consonance with transparency and fair play before making appointments on contract basis. The appointments made through placement agency resulted in candidates having been appointed by back door method who have been appointed without undergoing any selection. The administration and functioning of any State entity, if allowed to be handed by such employees, would result in causing administrative chaos and non-governance as they have no accountability. Sooner or late r we may end up every appointment being made on contract basis and encourage situation where the people may start bidding for the posts in the State Government or its instrumentalities which would result in nothing but encouragement of corruption. Such concept would demolish the very basis of our Indian Constitution system.
22. In the present case, the petitioners were appointed through back door method by the respondents No.3 and 4 and were working with the respondent No.2 which is an instrumentality of the State. Their appointment was for a fixed term basis and the contract was exclusively with a private firm i.e. respondents no.3 (D.B. SAW/688/2019 and 4 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 03:42:45 AM) (13 of 15) [CW-8896/2016] & 4. If the petitioners are allowed to continue, it would be encouraging back door method of appointment. While their term of appointment was ending in July, 2016, they have already continued upto now without facing any selection. Thus, the petitioners cannot be granted relief of continuing in employment.
23. At the same time, in view of what has been stated hereinabove, the RSLDC is restrained from engaging the persons for its various projects, through placement agency or service providers or any other nomenclature which it may so assign.
24. Ideally, respondents must frame rules or adopt the existing rules for employment in their corporation. However, if the respondent No.2 wants to engage persons on contract basis i.e. a fixed salary for fixed term, they would be entitled to do so. However, if such a course is sought to be adopted, following directions would govern such selection :
(a) The State Government or its instrumentalities shall 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;
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(b) The merit of the candidates so prepared, shall be published showing the marks obtained by each candidate and after publishing the answer key;
(c) 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 17.02.20 1 7, the State Government may provide additional bonus marks to those candidates who have prior working experience with the State Government or its instrumentalities. 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;
(d) Every attempt should be made to see that the entire selection process is transparent and without any ambiguity;
(e) 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;
(f) Considering that such exercise would take some time to be implemented, this Court grants three months time to the Government to make such provisions from the date of submission of the certified copy of this order;
25. If the aforesaid course is not followed, the only other course available with the respondents would be to frame its own rules for making selections or adopt rules already framed by the State Government under proviso to Article 309 of the Constitution of India for its other departments and corporations and make selections thereto. The Chief Secretary, Government of Rajasthan (D.B. SAW/688/2019 and 4 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 03:42:45 AM) (15 of 15) [CW-8896/2016] shall be responsible for getting the orders of this court implemented.
26. In these circumstances, respondents No. 3, 4 and 6 will have no right or claim for continuing their employees with respondent No.2.
27. The petitioners have no right to continue in employment with respondent no.2 and their writ petitions are dismissed.
(SANJEEV PRAKASH SHARMA),J Chauhan/ (D.B. SAW/688/2019 and 4 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 03:42:45 AM) Powered by TCPDF (www.tcpdf.org)