Rajasthan High Court - Jaipur
Rajeshwar Singh And Ors vs State Of Raj And Ors on 15 September, 2011
Author: M.N. Bhandari
Bench: M.N. Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR S.B. CIVIL WRIT PETITION NO.12448/2009 (Rajeshwar Singh & Ors. Vs. State of Rajasthan & Ors.) AND S.B. CIVIL WRIT PETITION NO.5216/2009 (Arun Kurria Nagauri & Ors. Vs. State of Rajasthan & Ors.) AND S.B. CIVIL WRIT PETITION NO.6208/2009 (Jagdish Prasad Shakraval Vs. State of Rajasthan & Ors.) AND S.B. CIVIL WRIT PETITION NO.6631/2009 (Saleem Khan & Ors. Vs. State of Rajasthan & Ors.) AND S.B. CIVIL WRIT PETITION NO.6853/2009 (Ramesh Kumar & Ors. Vs. State of Rajasthan & Ors.) AND S.B. CIVIL WRIT PETITION NO.7349/2009 (Suresh Chandra Sharma Vs. State of Rajasthan & Ors.) AND S.B. CIVIL WRIT PETITION NO.7476/2009 (Mahendra Kumar Kshotriya & Ors. Vs. State of Raj. & Ors.) AND S.B. CIVIL WRIT PETITION NO.7477/2009 (Nemi Chand Verma & Ors. Vs. State of Rajasthan & Ors.) AND S.B. CIVIL WRIT PETITION NO.7858/2009 (Balbir Singh & Ors. Vs. State of Rajasthan & Ors.) AND S.B. CIVIL WRIT PETITION NO.8391/2009 (Dinesh Kumar Parwal Vs. State of Rajasthan & Ors.) AND S.B. CIVIL WRIT PETITION NO.9318/2009 (Bhagwat Singh & Anr. Vs. State of Rajasthan & Ors.) AND S.B. CIVIL WRIT PETITION NO.9319/2009 (Farooq Ali Khan & Anr. Vs. State of Rajasthan & Ors.) AND S.B. CIVIL WRIT PETITION NO.9967/2009 (Nagenda Choudhary & Anr. Vs. State of Rajasthan & Ors.) AND S.B. CIVIL WRIT PETITION NO.9968/2009 (Girdhari Meena & Anr. Vs. State of Rajasthan & Ors.) AND S.B. CIVIL WRIT PETITION NO.9969/2009 (Bharat Lal Meena & Anr. Vs. State of Rajasthan & Ors.) AND S.B. CIVIL WRIT PETITION NO.9970/2009 (Ganesh Lal Meena & Ors. Vs. State of Rajasthan & Ors.) AND S.B. CIVIL WRIT PETITION NO.9976/2009 (Jagdish Prasad Jat Vs. State of Rajasthan & Ors.) AND S.B. CIVIL WRIT PETITION NO.10369/2009 Mahendra Kumar Raigar & Ors. Vs. State of Rajasthan & Ors. AND S.B. CIVIL WRIT PETITION NO.10461/2009 (Manoj Kumar Sharma & Ors. Vs. State of Rajasthan & Ors.) AND S.B. CIVIL WRIT PETITION NO.10838/2009 (Dharamveer Singh Verma Vs. State of Rajasthan & Ors.) AND S.B. CIVIL WRIT PETITION NO.11035/2009 (Om Prakash Meena Vs. State of Rajasthan & Ors.) AND S.B. CIVIL WRIT PETITION NO.11958/2009 (Kehsar Lal Suthar & Anr. Vs. State of Rajasthan & Ors.) AND S.B. CIVIL WRIT PETITION NO.14258/2009 (Dharam Pal Goyal & Anr. Vs. State of Rajasthan & Ors.) AND S.B. CIVIL WRIT PETITION NO.15732/2009 (Ojasvi Sharma Vs. State of Rajasthan & Ors.) AND S.B. CIVIL WRIT PETITION NO.5121/2010 (Soniya Panwar Vs. State of Rajasthan & Ors.) AND S.B. CIVIL WRIT PETITION NO.9870/2010 (Subhash Chand Pilania Vs. State of Rajasthan & Ors.) AND S.B. CIVIL WRIT PETITION NO.13826/2010 Ms. Kamini Kumari Sewak & Ors. Vs. State of Raj. & Ors. AND S.B. CIVIL WRIT PETITION NO.14789/2010 (Rajendra Singh Shekhawat Vs. State of Rajasthan & Ors.) AND S.B. CIVIL WRIT PETITION NO.894/2011 (Deepak Vyas Vs. State of Rajasthan & Ors.) AND S.B. CIVIL WRIT PETITION NO.9876/2009 (Nand Ram Meena & Anr. Vs. State of Rajasthan & Ors.) AND S.B. CIVIL WRIT PETITION NO.9877/2009 (Mahesh Chand Meena & Ors. Vs. State of Rajasthan & Ors.) AND S.B. CIVIL WRIT PETITION NO.3731/2011 (Babu Lal Meena Vs. State of Rajasthan & Ors.) Date of Order : 15th September, 2011 HON'BLE MR. JUSTICE M.N. BHANDARI Mr.Vigyan Shah ] Mr.R.D.Meena ] Mr.Sunil Kumar Jain ] Mr.Kuldeep Aswal ], for the petitioners. Mr.N.A.Naqvi, AAG., Sr. Adv. With Mr.Mohd. Rahil Khan, for the State Government. Mr.Ganesh Meena, GC Mr.Anant Bhandari, Dy.G.C. Mr.S.Kasliwal ] Mr.Prahlad Singh ] Mr.Amrit Suroliya ], for the respondents. By the Court:
With the consent of learned counsel for the parties, the matters are heard finally at this stage.
The petitioners are those, who have been engaged as computer instructors in different schools and colleges. This was pursuant to the policy of the State in the field of Information Technology. Since it was a new policy, notice inviting tender (for short NIT) to engage a company to provide computers and adequate number of computer instructors was advertised. Pursuant to the first NIT, a company entered into an agreement with the State Government and accordingly, petitioners were engaged as computer instructors on a fixed amount. The period of agreement was of 5 years, which was then extended by 3 years, petitioners continued accordingly. On expiry of period of agreement, so extended, the respondent State Government flouted new NIT and pursuant to which, a new company has been engaged to provide same facilities as were given by earlier company. An agreement was entered between the State Government and new company giving out details about the work to be performed by the said company. The agreement also indicates as to what would be qualification of a computer instructor. In view of new agreement, petitioners apprehending termination in few cases and even on termination, approached this Court. By an interim order, the respondents were directed to continue the petitioners, who were not terminated and if terminated, a direction was issued to give preference in re-engagement.
It is stated that most of the petitioners are being continued accordingly.
In these writ petitions, the grievances of the petitioners are three folds.
It is firstly stated that the State Government should not be allowed to replace petitioners by another set of contract/temporary employees, even if work is assigned to a new agency/company. This is moreso when petitioners have gained experience of 5-8 years in the field of teaching while performing the work of computer instructors. The direction is accordingly sought on the respondents not to discontinue services of the petitioners.
The second issue is regarding inadequacy of remuneration paid to the petitioners. It is stated that petitioners are paid a sum of Rs.2,000/- to Rs.2500/- per month only. A prayer is accordingly to give them regular pay-scale. It is in view of the fact that computer education has been taken as a regular course in all the schools/colleges and looking to the policy of the Government in the field of Information Technology, now the computer instructors would be required on regular basis, thus there remains no reason to deny benefit of regular pay-scale.
The third grievance/prayer of the petitioners is that if, at all, in future, the respondent State Government comes with the policy for regular establishment of computer instructor, then keeping in mind experience of the petitioners, they may be given preference in the recruitment on regular basis.
Learned Additional Advocate General, Mr.N.A.Naqvi appearing on behalf of the State Government, on the other hand submits that State Government had entered into an agreement with the agency/company and it is the company which engaged the petitioners, thus the State Government never engaged them, hence, a lis does not exists between the petitioners and the State Government. The Information Technology Programme was undertaken by the State Government to impart education of computer application at the level of schools and colleges and to implement the aforesaid programme, a policy decision was taken to engage some agency/company to provide computer and adequate number of computer instructors. It was looking to limited sources, the Government was having at that time, the NITs were invited accordingly and thereby, a company entered into an agreement and then engaged the petitioners. Hence, relationship of employee and employer between the State Government and the petitioners does not exists.
Since the period of agreement with the earlier company came to an end after extension of three years, a new NIT was invited and agreement pursuant to which has already been entered. The new company has continued most of the petitioners pursuant to the interim order of this Court. Looking to the aforesaid, so far as the first grievance of the petitioners is concerned, it can be redressed by this Cort by an order for their continuance but to be implemented by the new agency/company.
So far as the claim of regular pay scale is concerned, looking to the volume of work undertaken by the petitioners, which used to be for two to three hours, remuneration has adequately fixed at the sum of Rs.2,000/- to Rs.2500/- per month. The petitioners are not entitled for regular pay-scale unless the post of computer instructor is created, thus prayer of petitioners for grant of regular pay-scale may not be accepted.
So far as third issue/prayer made by learned counsel for the petitioners is concerned, the Government is yet to take a decision to create post of computer instructor at the level of schools/colleges and as and when regular appointment would be made after creation of post, the Government will take a proper decision as to whether petitioners should be given preference looking to their long experience.
Learned counsel Mr.S.Kasliwal appearing for respondent M/s. Educom Solutions Limited submits that so far as they are concerned, an agreement exists between them and the State Government, thus a prayer cannot be made to continue the petitioners in services. The petitioners are otherwise being paid remuneration as has been fixed and was paid by previous employer. The main prayer of the petitioners is against the State Government, thus no extra financial burden may be casted on the respondent company and even if direction is issued to continue the petitioners, they would be continued but it may be clarified that if any of the petitioners fail to perform duties properly or is lacking in the qualification as required under the new NIT and agreement thereupon, then he/she will have no right to continue.
I have considered the submissions made by the learned counsel for the respective parties and scanned the matter carefully.
It is not in dispute that as per the policy of the State Government to promote Information Technology, an agency/company was engaged at the relevant time to provide not only number of computers but a complete lab and computer instructors to perform the duties of teaching at the level of schools and colleges. The decision of the Government was to promote computer application course at all levels, i.e., at the level of schools/colleges. With the aforesaid pious object, a scheme was promoted by the respondent State Government, which needs to be appreciated.
Since the State Government was not having requisite infrastructure in the shape of computer labs etc., to implement the policy immediately, a decision was taken to engage some agency/company to provide computer lab and the adequate number of computer instructors. The company so engaged for the aforesaid purpose seems to have completed period of five years successfully, hence, period was then extended by three years. On completion of period of eight years, the State Government flouted new NIT.
The question now comes as to whether the Government should have allowed new company/agency to engage new hands, leaving those who are having experience of 5-8 years. It is, no doubt, true that new computers are required with the change in the technology and thus, a computer lab set up almost 5-8 yeas may remain so usefull, thus new lab may be required but could have with the condition that experienced computer instructors should be continued on the same terms and if working hours are increased then to reimburse them appropriately. This is moreso when even new company has to provide computer instructors. The State fail to do so.
This would have been to promote proper education of computer application to the students because leaving the experienced, engagement of new hands cannot be in the interest of students. The State Government is under an obligation to keep in mind the interest of the students and therefore only, they came up with the policy of Information Technology Education and impart education of computer application at the level of schools/colleges.
In any case, now not only NIT has already been flouted but an agreement also exist. A period of more than two years has already passed by now out of five years, thus at this stage, I am not inclined to disturb the agreement entered between the State Government and the respondent company/agency but fact further remains that computer application course has been taken as a regular course at the level of schools/colleges.
In the background aforesaid, the Government cannot remain dependent on outer agency/company to provide computer labs and instructors. If a course has to be taken up on regular basis, it becomes necessary for the State Government to think about creation of cadre post. This is moreso when even Constitution has been amended to make education at the primary level to be a fundamental right. In the background aforesaid, the State Government is expected to advance the cause of students further. Keeping in mind the aforesaid, it becomes necessary for the State Government to do away with the system of engagement of agency/company in future. However, a proper decision on the aforesaid may be taken after considering all the necessary aspects which includes even availability of funds etc. Till the aforesaid exercise is undertaken, the petitioners, who are working with the respondent company, would be continued till its terms, as agreed by the respondents, however, the petitioners, who are not in possession of required qualification as has been given now in the new NIT/agreement and their work is not found satisfactory, will have no right to continue. In case of any complaint, it is expected from the respondent -company not to terminate or discontinue the person straight way but they may be given opportunity of hearing before any adverse action is taken against them.
It is also brought to the notice of this Court that there are few cases where termination was given effect to. However, an interim order was passed by this Court later on that in future, if any person is to be engaged, preference has to be given to those persons earlier working. Keeping in mind the aforesaid, the respondent-company is directed that if they need additional hands in future or to fill-up any vacant post, preference may be given to those, who were earlier working and having experience. This would, however, be subject to requirement of eligibility and element of good conduct. This will otherwise avoid replacement of one set of contractual employees with another.
At present, I am not interfering in the agreement but then the State Government should consider the fact as to whether reimbursement of Rs.2,000/- or Rs. 2500/- is adequate payment to the petitioners or not? It should be keeping in mind the hours of working of the petitioners and other aspects. For that purposes, even the Government should shoulder financial responsibility to increase remuneration adequately if not in regular pay-scale but it should not be inadequate remuneration, because on inadequate remuneration, quality persons would not be available to advance best possible studies to the students.
So far as the prayer for grant of preference to the petitioners in future recruitment is concerned, since the post of computer instructors is not an en-carder post, rather it has been operated through agency/company entered into agreement with the State Government. Looking to the aforesaid, it is also expected from the State Government that in future they will take a decision to make post of computer instructor to be of regular post and fill-up the aforesaid post on regular basis. On taking aforesaid decision, it is further expected that keeping in mind long experience of the petitioners, some preference would be given to them while making recruitment.
For the aforesaid, the State Government is expected to take a proper decision in due course of time.
With the aforesaid directions and observations, all the writ petitions are disposed of so as the stay applications.
(M.N. BHANDARI), J.
preety/Jr.P.A. All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Preety Asopa Jr.P.A.