Rajasthan High Court - Jaipur
Smt Ratni Devi Khatik vs State (Social Justirct )Ors on 1 August, 2013
Author: Mn Bhandari
Bench: Mn Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR ORDER 1.SB Civil Writ Petition No. 6682/2013 Amra Bhambi versus State of Rajasthan & ors 2.SB Civil Writ Petition No. 6696/2013 Smt Meena Devi Sain versus State of Rajasthan & ors 3.SB Civil Writ Petition No.6683/2013 Smt Savitri Devi Khatik versus State of Rajasthan & ors 4.SB Civil Writ Petition No. 6684/2013 Ramdhan Balai versus State of Rajasthan & ors 5.SB Civil Writ Petition No. 6685/2013 Mukesh Kumar Bareth versus State of Rajasthan & ors 6.SB Civil Writ Petition No. 6686/2013 Smt Sita Devi Raigar versus State of Rajasthan & ors 7.SB Civil Writ Petition No. 6687/2013 Banna Lal Harijan versus State of Rajasthan & ors 8.SB Civil Writ Petition No. 6688/2013 Norat Mal Meghwal versus State of Rajasthan & ors 9.SB Civil Writ Petition No. 6689/2013 Suresh Chand Bhambi versus State of Rajasthan & ors 10.SB Civil Writ Petition No. 6690/2013 Smt Manju Sharma versus State of Rajasthan & ors 11.SB Civil Writ Petition No. 6691/2013 Smt Ratni Devi Khatik versus State of Rajasthan & ors 12.SB Civil Writ Petition No. 6692/2013 Satya Narayan Balai versus State of Rajasthan & ors 13.SB Civil Writ Petition No.6693/2013 Smt Sita Devi versus State of Rajasthan & ors 14.SB Civil Writ Petition No. 6694/2013 Budha Raj @ Chhotu versus State of Rajasthan & ors 15.SB Civil Writ Petition No.6695/2013 Smt Sita Devi Mewara versus State of Rajasthan & ors 16.SB Civil Writ Petition No. 6697/2013 Smt Priya Devi Khatik versus State of Rajasthan & ors 1.8.2013 HON'BLE MR. JUSTICE MN BHANDARI Mr SK Tewari for petitioners Mr Gajanad Manav, Addl Government Counsel for respondents BY THE COURT:
These writ petitions have been filed to challenge order dated 16.11.2012 at annexure-4 in CW 6682/2013, whereby, respondents have decided to engage Cooks/ Chowkidar on job basis through a contractor or Self Held Group (SHG) till 31.3.2013 or till regularly selected candidates are made available, whichever is earlier.
Learned counsel for petitioners submits that petitioners were engaged as Cooks/ Chowkidars some where in the year 2000 onwards from time to time. Now the respondents have taken a decision to replace them by another set of employees. The aforesaid is not permissible in view of the judgment of the Hon'ble Supreme Court in the case of State of Haryana & ors etc., versus Piara Singh & ors etc., [AIR 1992 SC 2130].
A further prayer is made to direct the respondents to fill all the vacant posts of Cooks/ Chowkidars by regular means inasmuch as the respondents are making appointment on contract basis though not provided under the service rules. They are thus need to be commanded with the direction as was given by the Hon'ble Apex Court in the case of Piara Singh (supra) and The Secretary, State of Karnataka versus Uma Devi(3) [(2006) 4 SCC 1]. Therein, a direction was given to allow same weightage for experience in appointment to those persons working for the last several years.
The intention of the respondents is to replace one set of contractual employees by another, otherwise, there was no reason to pass impugned order dated 16.11.2012 at annexure-4. The aforesaid is opposed to the judgment of the Supreme Court referred to above. The controversy of the nature was taken up by the Apex Court in those cases where administration did not hold regular selection in time and engage persons on contract/ ad hoc/ temporary basis. That needs to be curtailed with appropriate direction for regular appointment.
Learned counsel for respondents, on the other hand, submits that the order dated 16.11.2012 lost its sanctity after 31.3.2013 and all these writ petitions have been filed subsequent to the date aforesaid. The arrangement given therein was to remain in operation till the date aforesaid thus all the writ petitions be rendered infructuous.
It is also decided that the posts would be filled by regular means in future. It is further argued that in view of the judgment in the case of Secretary, State of Karnataka versus Uma Devi(3) [(2006) 4 SCC 1] a direction for regularisation of ad hoc/ temporary/ contractual employees should not be given by this court. In the background aforesaid, all the writ petitions may be dismissed. This is more so when the petitioners are working with the respondents even at present hence as and when they get actual threat of termination or order of discontinuance, writ petition may be maintained at that stage.
I have considered submissions of learned counsel for the parties and perused the record.
The perusal of the prayer clause reveals many fold reliefs out of which first pertains to challenge to the order dated 16.11.2012. The direction is also sought to fill the vacant posts of Cooks/ Chowkidar though direct selection process with benefit of preference to the petitioners. The last direction sought is for framing of the scheme to consider for regularisation of services of the petitioners and accordingly provide regular pay scale at par with other Cooks/ Chowkidar So far as challenge to the order dated 16.11.2012 at annexure-4 is concerned, it is no doubt true that arrangement therein was allowed to be carried out till 31.3.2013, however, question remains as to whether the type of arrangement allowed till 31.3.2013 is in consonance to the rules or the judgment of the Hon'ble Supreme Court in the case of Piara Singh (supra).
Learned counsel for respondents could not refer to service rules under which appointment can be made on contract basis. The rule which exists is for urgent temporary appointment with certain riders. The employment herein was not on urgent temporary basis. Section 4 of the Rajasthan (Regulation of Appointments to Public Services and Rationalisation of Staff) Act, 1999 (for short 'the Act of 1999') reveals engagement of persons on urgent temporary basis but with prior permission of the competent authority and such appointment shall also be consistent with such conditions as may be imposed by the competent authority. It is the respondents who are circumventing the rules by evolving a mechanism which is not provided under the rules i.e. by taking persons on contract basis and not urgent temporary basis. The aforesaid is only one aspect of the matter to show default of the respondents and, in that eventuality, justifies the prayer No.2 of the writ petitions where direction is sought for the respondents to fill the post by regular selection.
Further prayer is to allow weightage/ preference in that selection.
I find that the relief prayed aforesaid is not only in consonance to the rules but para 55 of the judgment in the case of Uma Devi(3). For ready reference, para 55 of the said judgment is reproduced hereunder -
55. In cases relating to service in the Commercial Taxes Department, the High Court has directed that those engaged on daily wages, be paid wages equal to the salary and allowances that are being paid to the regular employees of their cadre in government service, with effect from the dates from which they were respectively appointed. The objection taken was to the direction for payment from the dates of engagement. We find that the High Court had clearly gone wrong in directing that these employees be paid salary equal to the salary and allowances that are being paid to the regular employees of their cadre in government service, with effect from the dates from which they were respectively engaged or appointed. It was not open to the High Court to impose such an obligation on the State when the very question before the High Court in the case was whether these employees were entitled to have equal pay for equal work so called and were entitled to any other benefit. They had also been engaged in the teeth of directions not to do so. We are, therefore, of the view that, at best, the Division Bench of the High Court should have directed that wages equal to the salary that is being paid to regular employees be paid to these daily- wage employees with effect from the date of its judgment. Hence, that part of the direction of the Division Bench is modified and it is directed that these daily-wage earners be paid wages equal to the salary at the lowest grade of employees of their cadre in the Commercial Taxes Department in government service, from the date of the judgment of the Division Bench of the High Court. Since, they are only daily wage- earners, there would be no question of other allowances being paid to them. In view of our conclusion, that the Courts are not expected to issue directions for making such persons permanent in service, we set aside that part of the direction of the High Court directing the Government to consider their cases for regularization. We also notice that the High Court has not adverted to the aspect as to whether it was regularization or it was giving permanency that was being directed by the High Court. In such a situation, the direction in that regard will stand deleted and the appeals filed by the State would stand allowed to that extent. If sanctioned posts are vacant (they are said to be vacant) the State will take immediate steps for filling those posts by a regular process of selection. But when regular recruitment is undertaken, the respondents in C.As. Nos. 3595-3612 and those in the Commercial Taxes Department similarly situated, will be allowed to compete, waiving the age restriction imposed for the recruitment and giving some weightage for their having been engaged for work in the Department for a significant period of time. That would be the extent of the exercise of power by this Court under Article 142 of the Constitution to do justice to them.
The para aforesaid reveals it to be under Article 142 of the Constitution of India but the State Government itself is providing bonus marks/ preference to those who have gained experience. Accordingly, I find justification in prayer No.2 of the writ petitions where direction of the nature indicated above, have been sought.
The challenge to the order dated 16.11.2012 no more survives due to efflux of time inasmuch as the arrangement given therein was to remain in operation till 31.3.2013. Either of the parties have not placed on record any subsequent order and, as the learned counsel for respondents himself has stated that writ petitions were filed after the expiry of the period i.e. 31.3.2013, no direction is required to be given except to command that as per the respondents themselves the order dated 16.11.2012 has lost its sanctity with efflux of time, respondents will not take further action pursuant to the aforesaid order.
A further prayer is made to direct the respondents to frame a scheme to extend benefit of regularisation to the petitioner, which has seriously been opposed by learned counsel for the respondents in reference to the judgment of the Supreme Court in the case of Uma Devi (supra).
I find that in the said judgment itself, para 53 commands for framing of the scheme of the nature prayed herein though it is with certain riders as given therein. The State Government has already come out with the notification to screen the candidates for regularisation who have completed ten years of service as on 10.4.2006. It is again subject to certain conditions thus I do not find any justification in the argument of the respondents to oppose the prayer when the State Government itself has come out with the notification amending the service rules. In any case, de hors the notification and the judgment in the case of Uma Devi (supra) the petitioners cannot seek regularization.
The matter does not end here inasmuch as the threat to the petitioners is basically for their replacement by another set of contractual employees. The aforesaid arrangement is not permissible in view of the judgment of the Supreme Court in the case of Piara Singh (supra). Relevant para of the said judgment is reproduced hereunder -
25. Before parting with this case, we think it appropriate to say a few words concerning the issue of regularisation of ad hoc/ temporary employees in government service.
The normal rule, of course, is regular recruitment through the prescribed agency but exigencies of administration may some-times call for an ad hoc or temporary appointment to be made. In such a situation, effort should always be to replace such an ad hoc/ temporary employees by a regularly selected employee as early as possible. Such a temporary employee may also compete along with others for such regular selection/ appointment. If he gets selected, well and good, but if he does not, he must give way to the regularly selected candidate. The appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an ad hoc/ temporary employee.
Secondly, an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee; he must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority.
Thirdly, even where an adhoc or temporary employment is necessitated on account of the exigencies of administration, he should ordinarily be drawn from the employment exchange unless it cannot brook delay in which case the pressing cause must be stated on the file. If no candidate is available or is not sponsored by the employment exchange, some appropriate method consistent with the requirements of Article 16 should be followed. In other words, there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly.
An unqualified person ought to be appointed only when qualified persons are not available through the above processes.
If for any reason, an ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularisation provided he is eligible and qualified according to rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State.
The proper course would be that each State prepares a scheme, if one is not already in vogue, for regularisation of such employees consistent with its reservation policy and if a scheme is already framed, the same may be made consistent without our observations herein so as to reduce avoidable litigation in this behalf. If and when such person is regularised he should be placed immediately below the last regularly appointed employee in that category, class or service, as the case may be.
So far as the work-charged employees and casual labour are concerned, the effort must be to regularise them as far as possible and as early as possible subject to their fulfilling the qualifications, if any, prescribed for the post and subject also to availability of work. If a casual labourer is continued for a fairly long spell - say two or three years - a presumption may arise that there is regular need for his services. In such a situation, it becomes obligatory for the concerned authority to examine the feasibility of his regularisation. While doing so, the authorities ought to adopt a positive approach coupled with an empathy for the person. As has been repeatedly stressed by this Court, security of tenure is necessary for an employee to give his best to the job. In this behalf, we do commend the orders of the Government of Haryana (contained in its letter dated 6.4.90 referred to hereinbefore) both in relation to work-charged employees as well as casual labour.
We must also say that the orders issued by the Governments of Punjab and Haryana providing for regularisation of ad hoc/ temporary employees who have put in two years/ one year of service are quite generous and leave no room for any legitimate grievance by any one.
These are but a few observations which we thought it necessary to make, impelled by the facts of this case, and the spate of litigation by such employees. They are not exhaustive nor can they be understood as immutable. Each Government or authority has to devise its own criteria or principles for regularisation having regard to all the relevant circumstances, but while doing so, it should bear in mind the observations made herein.
Perusal of the para quoted above reveals that arrangement of substitution of one set/ replacement of temporary/ contractual/ ad hoc employees by another set is deprecated by the Hon'ble Supreme Court. This court, by interim order, restrained the respondents to replace one set of contractual employees by another. I find aforesaid direction to be in consonance to the judgment of the Apex Court. If the respondents are not in need of an employee, they can very well discontinue them or if they get regularly selected candidates, the contractual employee can be discontinued even then. However, no justification would remain if one set of contractual employee is replaced by another.
In the background aforesaid, all these writ petitions are disposed of with the following directions -
1.The respondents will not replace one set of contractual/ ad hoc/ temporary employees by another unless they get regularly selected candidates in accordance with the rules.
2.The discontinuance may be if there are short coming of the employee, however, for that purpose, discontinuance may not be without following principles of natural justice.
3.If the respondents are not in need of the petitioners then they would be at liberty to discontinue them but, in that event, they would not be replaced by another set of contractual employees.
4.The respondents are further directed to fill sanction posts by the mode provided under the service rules. This is to avoid appointment on temporary/ ad hoc/ contract basis for years together. It was otherwise emphasised by the Hon'ble Supreme Court in the case of Piara Singh so as Uma Devi (supra).
This also dispose of the applications filed for vacation of the interim orders so as the stay applications.
(MN BHANDARI), J.
bnsharma All corrections made in the judgment/ order have been incorporated in the judgment/ order being emailed.
(BN Sharma) PS-cum-J