Rajasthan High Court - Jaipur
Smt Sharmila Kisan vs State Of Raj & Ors on 16 March, 2011
Author: Ajay Rastogi
Bench: Ajay Rastogi
In the High Court of Judicature for Rajasthan
Jaipur Bench
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1-Civil Writ Petition No.16185/2010
Shramila Kisan Versus State & Ors
2-Civil Writ Petition No.16279/2010
Rajnitara & Ors Versus State & Ors
3-Civil Writ Petition No.3329/2011
Kusuma Meena Versus State & Ors
Date of Order ::: 16/03/2011
Hon'ble Mr. Justice Ajay Rastogi
Mr. Sandeep Jain, Mr. Manoj Ojhla,
& Mr. Dinesh Kr. Garg, for petitioners
Mr. SK Gupta, for respondents
Counsel for petitioners jointly submit that petitioners have worked as Teacher /Warden cum Teacher in Kasturba Gandhi Balika Vidhyalya in academic sessions 2008-09 & 2009-10; and have been selected for academic sessions 2010-11, as well; but are being replaced pursuant to judgment in Mooli Devi Choudhary Vs. State (2010(4) WLC (Raj.) 334), whereby Co-ordinate Bench of this Court held that one set of employee could not be replaced by another set of contractual employees.
Counsel for petitioners submit that atleast petitioners have a better right than those who were not even selected alongwith them in academic session 2010-11 and their grievance is covered by order dt.08/02/2011 passed by this Court in CWP-8365/2010 {(Smt. Pramila Devi Vs. State) alongwith cognate cases}.
Government counsel submits that once there was an order passed by this Court that teachers having worked in academic session 2009-10 have to continue, there was no option except to discontinue those being selected for academic session 2010-11; in such circumstances, action of respondents cannot be held to be arbitrary.
Controversy raised herein was initially examined & decided by Co-ordinate Bench of this Court in Mooli Devi Choudhary Vs. State (2010(4) WLC (Raj.) 334) wherein it was observed in para 41 ad infra:-
41. Therefore, for these reasons, this Court is inclined to allow these writ petitions with aforesaid directions and following answers to the questions framed above.
CONCLUSIONS:
(i) Question No.1 is answered in the manner that employment of teachers for SSA or KGBV is a 'sovereign function' of imparting education by the State Government or the Central Government and such 'sovereign function' including employment of teachers for imparting education cannot be delegated to private placement agencies by the State Government.
(ii) Question No.2 is answered like this that since the State Government has not so far enacted any law nor it has laid down any guidelines or parameters for selection of private placement agencies, therefore, practice of giving away such contract by the State Govt. to the private placement agencies is unconstitutional and cannot be sustained and the teachers and other related staff in SSA or KGBV cannot be treated as employees of private placement agencies whether such projects are financed by the Central Government or the State Government or any other agency.
(iii) Question No.3 is answered in the manner that the object of SSA or KGBV is not a project of limited tenure or period and the nonavailability of funds cannot be a ground to discontinue the said educational programmes and such programmes even with or without the change of name have to be continued to give effect to the provisions of the Act No.35 of 2009, namely, Right of Children to Free and Compulsory Education Act, 2009 and Article 21A of the Constitution of India.
(iv) Question No.14 is answered in the manner that the provision of Article 21A and provisions of Right to Children to Free and Compulsory Education Act, 2009 are of paramount and supervening importance and Appropriate Governments should adopt a uniform employment policy for teachers and other staff under it with assured continuity of employment with all other benefits which are payable to regular civil servants including the teachers employed in Government schools even as of now.
(v) Question No.5 is answered in the manner that teachers cannot be teated as workmen so as to subject them to the provisions of Industrial Disputes Act, 1947.
(vi) Question No.6 is answered in negative and it is held that fixed term contract of service for the teachers of 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.
However, Counsel for respondents submits that respondents have not taken the decision to fill in the vacancies on deputation pursuant to which, advertisement has been issued on 04/03/2011 and in this view whereof, atleast after the notification being published, such petitioners even having worked in earlier academic sessions either 2008-09 or 2009-10, have no right to continue in service.
Since all the petitioners had worked prior to approaching this Court before issuance of notification dt.04/03/2011, question raised herein does not arise in the proceedings for consideration.
After having taken note of observations made in para 41 quoted in Smt. Pramila Devi Vs. State (supra), this Court finally observed ad infra:
It has come on record that the writ petitioners were appointed in academic session 2008-09 and continued for the academic session 2009-10 and some of them were appointed prior thereto and were continuously holding the post on contract basis appointed through the placement agencies but few of them participated in the selection process which the respondents initiated for the academic session 2010-11 and despite continuously worked prior thereto of their appointment through the fresh process which the respondents initiated and on their selection, they joined their respective posts but on account of the interim order passed by the court in favour of such petitioners, who were working in the academic session 2009-10 and were going to be replaced by the incumbents who were selected by the same method adopted by the respondents for the academic session 2010-11, on the basis of the interim order. Some of the petitioners were not allowed to continue and despite their selection in the academic session 2010-11 and their services were terminated and they too approached this Court. This Court would like to observe that if such petitioners, who were appointed in the academic session 2009-10 or were discharging their duties prior thereto and holding the post continuously, at least, they too are entitled to continue on the post which they held in the academic session 2009-10 and merely because they were also selected for the academic session 2010-11, will not dis-entitle them from the same relief which this court has granted to such petitioners who worked in Session 2009-10 and are similarly situated as referred to in the judgment referred to supra.
In light of the order passed by this Court (supra), writ petitions are accordingly allowed. Respondents are directed to allow the petitioners who had worked during academic sessions 2009-10 and are entitled mutatis mutandis for the same benefits as granted by this Court vide judgment dt.08/02/2011 in Pramila Devi Vs. State(supra) and respondents to comply with the directions of this Court (supra) by passing necessary orders within 15 days. No costs. (Ajay Rastogi), J.
K.Khatri/p6/ 16185CW2010Mar16Dsp(3)SSA-KGBV.doc