Rajasthan High Court - Jaipur
Smt Gulab Devi And Ors vs State Of Raj & Ors on 8 February, 2011
Author: Ajay Rastogi
Bench: Ajay Rastogi
S.B.CIVIL WRIT PETITION NO.8365/2010 Smt.Pramila Devi & others Versus State of Rajasthan & ors. (Alongwith cognate cases as per Schedule) DATE OF ORDER : 08/02/2011 HON'BLE MR. JUSTICE AJAY RASTOGI *** Mr.NS Sikarwar, Mr.Shailesh Kumar, Mr.SK Jindal, Mr.Narendra Nemiwal, Mr.sudhindra Kumawat, Mr.VS Gurjar, Mr.Virendra Lodha, Mr.RDS Naruka, Mr.RP Saini, Mr.Balvinder Singh, Mr. Omveer Singh Saini, Mr.Abhishek Sharma, Mr.VS Gurjar, Mr.Dileep Sinsinwar, for petitioners. Mr.SK Gupta, for respondents.
The bunch of instant writ petitions since involves common question, hence being disposed of by the present order.
The question, which the petitioners have raised in the bunch of writ petitions for consideration of this Court, is as to whether the respondents were justified in replacing the petitioners, who were appointed in Sarva Shiksha Abhiyan (SSA)/Kastoorba Gandhi Balika Vidhyalaya (KGBV) on teaching/non-teaching posts after due process of selection on contract basis through placement agencies by another set of incumbents who too have been considered for appointment on contract basis through placement agencies, can be held to be in conformity with the mandate of Article 14 of the Constitution.
The SSA/KGBV scheme was introduced by the Government somewhere in July, 2004. The question, which has been raised in the bunch of instant writ petitions herein, was examined before the main seat at Jodhpur in a case reported in 2010(4)WLC (Raj.) 334 and such writ petitions were decided and the coordinate bench came on the following conclusions in Para NO. 41 of the judgment, referred to supra, which is reproduced as under;-
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.
Apart from the other conclusions arrived at by the Court in the judgment referred to supra, it was observed that the action of the respondents in giving fixed term appointment on contract basis on teaching/non-teaching posts in SSA/KGBV projects on year to year basis through different placement agencies with no assurance regarding continuity of employment cannot held to be justified and it has been held that such action of the respondents is not legally sustainable.
This Court is in complete agreement of what has been observed by the coordinate Bench in its judgment referred to supra. In addition to above, this Court would like to observe that once the incumbents have been appointed by a process which the respondents adopted in giving appointment on contract basis through placement agency, they can certainly be replaced by a regular process of recruitment but taking a decision to replace an incumbent by another incumbent who too has been considered for appointment by the same method, cannot be held to be in conformity with Article 14 of the Constitution of India.
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 to 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.
Consequently, the bunch of writ petitions as per Schedule annexed herewith, in the light of the judgment, referred to supra, stand allowed of and the present petitioners and other similarly situated persons (teaching/ non-teaching staff), who were continuously working and discharging their duties on contract basis and worked upto the last academic session 2009-10, are also entitled mutatis mutandis the same relief which has been granted by the coordinate bench of this Court in the judgment referred to supra. The respondents are directed to ensure compliance within three months and allow the petitioners and other similarly situated persons to continue on the respective post in terms of the order of this Court subject to the conditions which have been taken note of in the judgment referred to supra. No costs.
[AJAY RASTOGI],J.
Raghu/p.8/8365-CW-2010-Final.doc Schedule to Judgment dt.07/02/2011 in CWP-8365/2010 & Cognate cases *** S.No. CWP/Stay Pet.Nos. / Name of Petitioners/ Versus 1.8365/2010 (nil) Smt. Pramila Devi & Ors Versus State & Ors 2.8495/2009 (nil) Sheela Bairwa & Ors Versus State & Ors 3.9852/2009 (nil) Reena Paliwal & Anr Versus State & Ors 4.10429/2009 (nil) Smt. Sarita Jadaun Versus State & Ors 5.12039/2009 (nil) Smt. Suraj Bairwa & rs. Versus State & Ors
6. 6945/2010 (nil) Usha & Ors. Versus State & Ors
7. 8048/2010 (1668/10l) Rajesh Kumar Vijay Versus State & Ors
8. 8396/2010 (1987/10l) Smt. Madhu Kumari & ors. Vs State & Ors
9. 8708/2010 (2251/10l) Smt. Ranjana Jain & Ors. Versus State & Ors 10.8891/2010 (2431/10) Smt. Indira Jain & ors. Versus State & Anr 11.9000/2010 (nil) Kusum Rani Vyas & Ors Versus State & Ors 12.9152/2010 (2655/10) Manju Vyas & Anr. Versus State & Ors 13.9631/2010 (3073/10) Smt. Manju Chorasia Versus State & Ors 14.9653/2010 (3094/10) Hemlata Kanwariya Versus State & Ors 15.9711/2010 (3153/10) Smt. Gulab Devi & Ors. Versus State & Ors 16.10173/2010 (353/10) Sangeeta Sharmai Versus State & Ors 17.10306/2010 (3699/10) Geeta Vaishanv & ors. Versus State & Ors 18.14411/2010 (7110/10) Smt. Pinki Morya Versus State & Ors 19.15815/2010 (nil) Smt. Brij Lata Sharma Versus State & Ors 20.15825/2010 (8319/10) Hemlata Dubey Versus State & Ors
21. 74//2011 (70/11) Smt. Geeta Devi Versus State & Ors
22. 411/2011 (396/11) Archana Sharma Versus State & Anr
23. 768/2011 (701/11l) Miss Leena Dahabi Versus State & Ors
24. 1514/2011 (1386/11) Anita Jain Versus State & Ors
25. 1036/2011 (951/11) Chandra kala meena & ors. Versus State & Ors
26. 14962/2010 (nil) Mrs. Abha Chaturvedi Versus State & Ors [AJAY RASTOGI],J.
Raghu/p.8/8365-CW-2010-Final.doc