Rajasthan High Court - Jodhpur
Rajesh Kumar Jain & Ors vs State Of Raj. & Ors on 13 March, 2014
Author: Vineet Kothari
Bench: Vineet Kothari
S.B. Civil Writ Petition No.1702/2010
Damodar Prasad Meena & Ors. Vs. State of Rajasthan & Ors.
Along-with connected 23 writ petitions.
Order dt: 13/03/2014
1/28
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
ORDER
S.B. Civil Writ Petition No.1702/2010
Damodar Prasad Meena & 73 Ors. Vs. State of Rajasthan & Ors.
&
Along-with connected 23 writ petitions, mentioned in SCHEDULE.
DATE OF ORDER ::: 13th March 2014
PRESENT
HON'BLE Dr. JUSTICE VINEET KOTHARI
REPORTABLE
Appearance:
Dr. Nupur Bhati, Mr. T.S. Rathore ]
Mr. Kuldeep Mathur, Mr. H.S. Sidhu ]
Mr. Shardul Bishnoi, Mr. A.D. Charan]- for the petitioner(s).
Mr. S.S. Ladrecha, AAG with
Mr. Vikram Choudhary, for the State.
Mr. Manish Patel, Addl. Govt. Counsel (Panchayati Raj Deptt.)
--
BY THE COURT:
1. These writ petitions involving common question are being decided by this common judgment. The facts are illustratively taken from CW No.1702/2010-Damodar Prasad Meena & Ors. Vs. State of Rajasthan & Ors. Some of the writ petitions are joint petitions, in which several petitioners, 498 to be precise, have joined the array of S.B. Civil Writ Petition No.1702/2010 Damodar Prasad Meena & Ors. Vs. State of Rajasthan & Ors.
Along-with connected 23 writ petitions.
Order dt: 13/03/2014 2/28 cause title and the respondents are State of Rajasthan and the Panchayati Raj Department of the State implementing the National Rural Employment Guarantee Scheme (NREGS) under the National Rural Employment Guarantee Act, 2005 (Act of 2005).
2. The petitioners were given contractual employment in 2009 as Computer Operator with Machine ('COM' for short) in pursuance of the Advertisement issued by the Coordinator of the said Scheme at District Level-cum-District Collector(s) and were to be given fixed monthly honorarium of Rs.6,000/- per month for their working in various Panchayat Samiti(s) to undertake the work of feeding data/s relating to works of NREGS in the computers, to be bought by them with printers and upload these data/s on internet to the Government sites, where the State Government could compile such datas for taking further policy decision in this regard. The individual contracts of employment were entered on various dates in the year 2009 and the period of contract initially was stipulated to be a quarter or so, with a further stipulation that the said period of contract can be extended by mutual contract for a period of one year, but such extended period of contract will not exceed a total period of 5 years in any case, or the date of which the Scheme in question closes, whichever is earlier. The agreement also provided for a premature termination of the contract in case the work or services of such contractual (COM) was not found to be satisfactory.
3. The State Government by general orders extended the period of contracts up to 28.02.2010 and these petitioners S.B. Civil Writ Petition No.1702/2010 Damodar Prasad Meena & Ors. Vs. State of Rajasthan & Ors.
Along-with connected 23 writ petitions.
Order dt: 13/03/2014 3/28 indisputably have been working right from their initial date of contract but when their contracts were sought to be terminated or rather not extended after 28.02.2010, by an order issued by the Commissioner- cum-Secretary, Employment Guarantee Scheme (EGS) of the Rural Development & Panchayati Raj Department, Govt. of Rajasthan, vide order (Annex.6) dated 09.02.2010, wherein the State Government decided to recruit such COM(s) through specified companies, viz. CMS Computer Ltd., Shri Kripa Computers and HCL Info-system Ltd., the petitioners approached this Court by way of present writ petition and they were given interim protection by this Court directing the State Government not to discontinue their contractual employment in the position of COM(s). Those interim orders are continuing as of now.
4. Learned counsels for the petitioners urged that these petitioners are poor persons, who took loans to buy their own computers and printers as per the specifications given by the State Government in the year 2009, and they were given only monthly honorarium of Rs.6,000/-, which later on during the pendency of the writ petitions came to be increased marginally to Rs.6,500/- per month. Counsels for the petitioners also urged that that though the period of contract now being over and the petitioners not having been regularly appointed on the said position, the fact still remains that not only the work and the said NAREGA Scheme continues even now and is likely to continue indefinitely by the the very nature of their existence under the statutory enactment of the Parliament, under the S.B. Civil Writ Petition No.1702/2010 Damodar Prasad Meena & Ors. Vs. State of Rajasthan & Ors.
Along-with connected 23 writ petitions.
Order dt: 13/03/2014 4/28 National Rural Employment Guarantee Act, 2005, the fact also remains that they have been continued from time to time under the general orders of the State Government up to 28.02.2010 and thereafter under the interim protection given by this Court under various stay orders passed in these cases.
5. Impugning the order of the State Government dated 10.02.2010, which directed various Panchayat Samiti(s) not to renew the individuals' contract of their employment as COM(s) after 28.02.2010 and only to take fresh COM(s) through the specified bigger computer or software companies like CMS Computers Ltd. etc., learned counsel for the petitioners urged that such change of policy decision by the State Government without taking into account or providing any protection or continuity of the contractual employment to the present petitioners, and who had gained experience of working in those positions for last 4-5 years without giving any opportunity of hearing to them, the State Government suddenly decided to discontinue and not to extend their contractual employment, without providing them any alternative employment in some other Scheme of the State. They also urged that the reasons assigned in the impugned order for change of such policy decision to take COM(s) only through the specified companies who can provide to the Government readily alternative Computer Operators in case the individual Computer Operators, are not available at the particular Panchayat Samiti level on particular days or to have upgraded computers or Operators with such upgraded computers, to be S.B. Civil Writ Petition No.1702/2010 Damodar Prasad Meena & Ors. Vs. State of Rajasthan & Ors.
Along-with connected 23 writ petitions.
Order dt: 13/03/2014 5/28 provided by these companies and because they may have more comprehensive network to provide readily the data for all such Panchayat Samiti(s) to help the State Government to take a more appropriate view of the implementation of the Schemes like NREGS or NRHM at the State level, does not justify ignoring or exclusion of the presen petitioners' right to continue in such contractual employment on fixed monthly honorarium and even computers of the present petitioners could be allowed to be upgraded at their own end or by the support system to be hired from these companies. In fact, they also urged that in such other cases where contractual employment of Teachers, LDC(s) and other such capacities, the Court has directed to consider their regularization or at least their continuation in the services till the regularly recruited incumbents for those posts are made available by Public Service Commission and they are so recruited. A number of case laws for that purpose were relied upon by the learned counsel for the petitioners and a brief review of which shall be made herein after.
6. The reasons given in the impugned order dated 09.02.2010 for this shift in the policy decision can be extracted below at this stage, which reads as under: -
"उपर क व षय न र लख ह क म नन य मखयमत
दर रई बजट घ षण अनरप र जय सभ ग म
पच य - ललए ए म1य2टर ऑपरटर मय मश न पद
सव द आध र पर सदलभ पत द र सज8 ज क य ज
च ह।
S.B. Civil Writ Petition No.1702/2010
Damodar Prasad Meena & Ors. Vs. State of Rajasthan & Ors.
Along-with connected 23 writ petitions.
Order dt: 13/03/2014
6/28
अ : आप जजल समस पच य - म< ए
म1य2टर मय मश न सव द आध र पर उपलबध र ।
म1य2टर ऑपरटर मय मश न व त व भ र आदश एफ 9
(1) एफड -1 (1) ब य2ड /2004 ददन 28.07.2008 म< ददय रय
ददश ननदC श- अनस र हD लर य ज । र जय स र पर भ
ग म पच य - म1यट
2 र ऑपरटर मय मश न उपलबध
रन पस व लभनन मपननय- स प प क य रय थ।
इस सबध म< स एमएस म1य2टर लल., श 8प म1य2टस
ए एचस एल इनफ लससटम लल. न अपन पस व भर
ददय ह। इन पस - पन भ इस पत स थ लभज ई
ज रहD ह। आप अपन स र पर उक फमJ म धयम स
अथ अनय फमJ स म1य2टर ऑपरटर मय मश न
रण रण आध र पर लर । जजन पच य - न र ए
ष म< ई भ शलम ननय जज नहD क य रय ह अथ
जह अभ इटरनट सव ध /व द आप2न उपलबध
नहD ह प ई ह ऐस जरह आ शय नस र हD 1य2टर
ऑपरटर मय मश न लर ज ।
म1य2टर ऑपरटर शकणण य गय व त व भर
उक पररपत ए इस य लय पत एफ 4 (19)
ग व /एनआईईज एस/नरर र/प ओ/09-10 ददन 18.09.09
बबनद सखय 5 म< ननध रर य गय अनरप हD रख ज ।
म1य2टर ऑपरटर मखय य मह नरर य जन
आ ड म1य2टर म< फ ड रन थ व भ र द र च हD
रई पच य स र समस स2 च न ओ ऑन ल ईन
उपलबध र न ह।
छ जजल- म< म1यट
2 र ऑपरटर- चयन र ललय
रय ह थ छ जजल- म< ननय जज भ र ललय रय ह।
जजन जजल- म< अनबध आध र पर ड ट एनWD ऑपरटर
लर ददय रय ह उन अनबध अ धध ददन 28.02.2010
सम प ह रहD ह। अ : ददन 28.02.2010 पश
उन अनबध न न रण नहD क य ज । उनह<
S.B. Civil Writ Petition No.1702/2010
Damodar Prasad Meena & Ors. Vs. State of Rajasthan & Ors.
Along-with connected 23 writ petitions.
Order dt: 13/03/2014
7/28
ददन 28.02.2010 पश हट ददय ज । जजन जजल-
म< ल ड ट एनWD ऑपरटर चयन क य ह, उनह< अब
ननय जज नहD क य ज । अब ल म1य2टर ऑपरटर
मय मश न हD लर य ज ।
उक य हD म नन य मखयमत द र बजट भ षण
रई घ षण अनरप समयबद रप स जन
आ शय ह। अ : 28.02.2010 आ शय रप स प लन
र अ र रन शम र।
भ दDय.
Sd/-
( नमय म र)
आयक ए श सन सधच , ईज एस"
7. Learned counsel for the petitioners also submitted that aspect of the increase of monthly honorarium, which now stands increased to Rs.6,500/- per month also deserves to be dealt-with by this Court, since for such contractual employments, the State Government had generally prescribed the increase @ 10% p.a. in the monthly honorarium and in the Agreement with the petitioners also vide Clause (5) such 10% increase has been provided for, whereas for the Computer Operators, vide the communication dated 16.01.2012 (Annex.A/3) filed along-with the second stay petition, of the Additional Commissioner (II), EGS of the respondent- Department, the said authority has clearly stipulated that the Computer Operators, will not be entitled to such 10% increase on annual basis and their monthly honorarium as a package already stands increased to Rs.6,500/- per month. The learned counsel for the petitioners also assailed the said order and prayed for the relief of increase of 10% on annual basis in this regard as was agreed in S.B. Civil Writ Petition No.1702/2010 Damodar Prasad Meena & Ors. Vs. State of Rajasthan & Ors.
Along-with connected 23 writ petitions.
Order dt: 13/03/2014 8/28 Clause 5 of the agreement itself. They also urged that this unilateral increase to Rs.6,500/- per month only, is contrary to the Clause (5) of the Agreement itself, which stipulates 10% increase on annual basis. In the impugned communication dated 16.01.2012, the recovery of the alleged excess amount paid on the basis of 10% increase earlier granted, is also sought to be made, which is illegal according to the learned counsel for the petitioner.
8. On the other hand, Mr. S.S. Ladrecha, learned Additional Advocate General and Mr. Manish Patel, learned Additional Govt. Counsel (Panchayati Raj Department) supported the impugned orders and also drew the attention of the Court towards various reasons, which are bonafide on the part of the State Government to take this policy decision of shifting the recruitment of Computer Operators through the placement agencies like CMS Computers Ltd. and others who could provide a pool of such computer operators with machines readily to the various Panchayat Samiti(s) through their larger resources and networking and they could provide better services to the State Government. The reasons assigned for this purpose are that, firstly, the machines bought by the individual Computer Operators could not be upgraded at their own end and the contractual employment of the petitioners causes lot of problems when the individuals are not available on all the days of working for variety of reasons and the Panchayat Samiti(s) cannot readily make any alternative arrangements, the claim of such contractually employed Computer Operators for their regularization and insisting S.B. Civil Writ Petition No.1702/2010 Damodar Prasad Meena & Ors. Vs. State of Rajasthan & Ors.
Along-with connected 23 writ petitions.
Order dt: 13/03/2014 9/28 the same through methods like 'Dharna/s', strike etc., and constant demands raised for increase for monthly honorarium etc., were the reasons for which the State Government wanted to recruit such Computer Operators with Machines (COMs) through specified companies, so that such practical difficulties can be avoided.
9. Learned Additional Advocate General also submitted that at the place where the aforesaid three companies did not have their adequate network and could not make available such Computer Operators (COMs), the concerned District Collector-cum-Coordinator
(s) of the said scheme, were left free to engage such Computer Operators through other agencies whom they found appropriate and who could provide the continuous supply of Computer Operators with machines (COMs) through their resources.
10. Both the learned counsel appearing for the State also vehemently submitted that the petitioners have no right to claim the continuity of their contractual employment as Computer Operators and with the sheer lapse of period of their contract, their right to work as Computer Operators comes to an end and the Court cannot compel the State Government to enter into fresh contracts or continue with the contracts with the petitioners and the petitioners have no legal right, much-less fundamental right to invoke the jurisdiction of this Court under Article 226 of the Constitution of India for seeking any such mandamus direction in this regard.
11. Summing up their arguments and relying upon the decision of Division Bench of this Court in the case of Managing Committee, Shri Mahila Vidyapeeth Shikshak Prashikshan Mahavidyalaya, Bhusawar Vs. Raj. Non-Government Educational S.B. Civil Writ Petition No.1702/2010 Damodar Prasad Meena & Ors. Vs. State of Rajasthan & Ors.
Along-with connected 23 writ petitions.
Order dt: 13/03/2014 10/28 Institutions Tribunal & Anr. reported in 2010 (1) WLC (Raj.) 299 urged that in the policy decision and contractual employment, the Court cannot interfere and where the question of retirement age of such Teachers employed in the un-aided institution was concerned, whether it should be 60 years or 58 years, the Court could not grant any mandamus direction and the respondent- Institutions were justified in retiring the teachers as per agreed age in the agreement.
12. I have heard the learned counsel for the parties at length and perused the record and the judgments cited at Bar.
13. True it is, if one were to a strictly legalistic view of the matter, that the petitioners (Computer Operators with Machines) were given such employment on contractual basis in the year 2009 under separate agreements executed with them by the authority of the respondent- Department and with the stipulated period of contract being admittedly over by now, the State cannot be compelled to renew such contract of employment or to enter into fresh agreement for their continuous engagement as Computer Operators in the respective Panchayat Samiti(s). It is equally true and legally sustainable that the State Government is free to take its own policy decision in this regard and to employ Computer Operators with Machines through these specified placement agencies, which according to the State Government, have large network and their capabilities are enough to provide constant supply of Computer Operators with Machines, with their constant up-gradation and over all control and supervision, so that the concerned data in a more S.B. Civil Writ Petition No.1702/2010 Damodar Prasad Meena & Ors. Vs. State of Rajasthan & Ors.
Along-with connected 23 writ petitions.
Order dt: 13/03/2014 11/28 comprehensive manner, are constantly made available to the State Government to take appropriate decisions in this regard; and also to monitor and supervise the implementation of big scheme like NREGS, where huge funds are employed and provided by the Central Government to provide guaranteed employment to the rural folks.
14. There is no doubt about the bonafides of the NREGS scheme in question or the bonafide intention of the State Government to employ such Computer Operators with Machines through specified sources and the reasons assigned in the impugned order and otherwise in the office-notes, as were produced before this Court along-with the reply and other pleadings in the present set of writ petitions also, appear to be bonafide ex-facie, and the petitioner have also not laid any serious challenge to these reasons behind such change of policy decision by this Court.
15. But the stark fact which stares in the face, is the said change of the policy of the State Government of employing Computer Operators with machine through the specified sources, is neither a comprehensive nor a complete Scheme of the employment of such Computer Operators with machines throughout the State for the avowed purpose specified in the impugned order. The petitioners, who have been working as Computer Operators with their own machines, have been sought to be thrown out like a flea from the milk, ignoring that the petitioners have been serving the State even on the basis of annually extended contracts for last four years, and S.B. Civil Writ Petition No.1702/2010 Damodar Prasad Meena & Ors. Vs. State of Rajasthan & Ors.
Along-with connected 23 writ petitions.
Order dt: 13/03/2014 12/28 not only they have gained experience and in turn become valuable human resources for the State, but the shortcomings or the lacunae in their working, which purportedly furnished the basis for such change of policy, namely, up-gradation of the machines and computers, the State Government does not appear to have given even a thought to this at all that even their machines or the software used by the present petitioners could also be upgraded at their own end or at the end of the State Government or the companies so selected for recruitment of fresh Computer Operators with Machine, could also even provide this kind of support services to the State Government without causing any harm and loss of employment of the present petitioners.
16. During the course of arguments, it was brought to the notice of the Court by the respondents that some of such Computer Operators have already been selected on other positions like LDC(s) by the State Government in the regular recruitment process undertaken by the State, but the present petitioners, who are now continuing as Computer Operators only under the interim orders of this Court, are not those persons. The said fact stated by the learned counsel for the respondents, only goes to strengthen the submission of the petitioners that a continuity in the employment of the present petitioners even though initially appointed on contractual basis is the desired objective which all such contractual employed persons would seek and the practice of adhocism and replacement of one set of contractual employees by another set of contractual employees, or S.B. Civil Writ Petition No.1702/2010 Damodar Prasad Meena & Ors. Vs. State of Rajasthan & Ors.
Along-with connected 23 writ petitions.
Order dt: 13/03/2014 13/28 one set of temporary employees by another set of temporary employees, has been consistently deprecated by the Courts of law, this Court and by the Apex Court of the country. There are enactments in place, which prohibit contractual employment, like Contractual Labour (Prohibition) Act, 1970, RAPSAR Act, 1999, while on the other hand several protection, safeguards and assurance of continued employment are provided in the labour legislation like Industrial Disputes Act, 1947, Factories Act, ESI Act, Workmen Compensation Act etc.
17. The very fact that a person employed on contractual basis, which is extended from time to time for short periods, causes uncertainity, anxiety and lack of faith in the minds of such persons, their productivity, sense of belongingness, sense of even rendering good services to the employer, like a welfare State, is bound to be adversely affected by such short period contracts of employment and on the basis of these underlaying considerations, which emanate from the constitutional principles like Right to dignified life, Right of Work, Right of Employment, Right of Health, Right of Education, cannot be ignored by the Courts of law and that is why such 'hire and fire' practices have been consistently deprecated and quashed by the Courts time and again.
18. It would be of some relevance to refer the similar kind of situation, which arose for the employment of Teachers for educational projects like 'Sarva Shisha Abhiyan' and 'Kastoorba Gandhi Balika Vidhyalaya' again those Schemes being funded by the Central S.B. Civil Writ Petition No.1702/2010 Damodar Prasad Meena & Ors. Vs. State of Rajasthan & Ors.
Along-with connected 23 writ petitions.
Order dt: 13/03/2014 14/28 Government, when their contractual employment was sought to be curtailed and replaced by fresh employment through private placement agencies, a large number of writ petitions landed before this Court; and after hearing the lengthy arguments of both the sides, this Court examined that matter in the light of various judgments of the Hon'ble Supreme Court in the case of Mooli Devi Choudhary & Ors. Vs. State of Rajasthan & Ors. reported in 2010 (4) WLC (Raj.) 334, the writ petitions came to be allowed by this Court (it was rendered by me and later on upheld by Division Bench) with the following observations directing the State Government to continue such contractually employed Teachers till the State Government undertakes the regular selection process for employment of teachers and other related staff on a regular basis for such projects like 'Sarva Shiksha Abhiyan' etc. which were claimed by the State Government to be of fixed period, but were found by the Court to be existing and likely to continue for indefinite period in future. It would be appropriate to quote some para(s) of that judgment for the benefit of these parties as herein below: -
"34. This Court closely examined the scheme of issuing tenders for inviting private placement agencies, who are supposed to employ such teachers every year to work in such Government projects, like SSA or KGBV, and this Court is at loss to really understand and appreciate the necessity of appointing such teachers by the private placement agencies only for a year, and such private placement agencies have been S.B. Civil Writ Petition No.1702/2010 Damodar Prasad Meena & Ors. Vs. State of Rajasthan & Ors.
Along-with connected 23 writ petitions.
Order dt: 13/03/2014 15/28 directed by the Government to follow & abide by the laws like Industrial Disputes Act, as if teachers are workmen. From such terms of contract, it is clear that the Appropriate Government just wants to wash their hands off these petitioner-teachers even though they are continuously required for such educational programme and such fast turn over of teachers with fresh employment every year through private placement agencies causes incalculable loss to the education programmes which are launched and are required to be financed by the State Government or the Central Government, as the case may. The role of private placement agencies to the extent of making available such candidates after due screening of their applications, compiling the same in order of merit could have been understood and tolerated if appropriate `justification note' was recorded for the same, as that could only be taken as an outsourcing a part of exercise by the Appropriate Government but to keep away such teachers from 'employer-employee relationship' with the State Government is nothing but a sham exercise in futility. With such petitioners-teachers to be treated as workmen or employees of private placement agencies only even though they worked as teachers in the Government schools or Government aided schools, there is no reason why the `employer-employee relationship' between the State Government and these teachers should not be treated as established & why State Govt. itself should not be treated as the Principal Employer of such teachers (employees) employed S.B. Civil Writ Petition No.1702/2010 Damodar Prasad Meena & Ors. Vs. State of Rajasthan & Ors.
Along-with connected 23 writ petitions.
Order dt: 13/03/2014 16/28 through the contractors (private placement agencies). This Court surprisingly found that some of the private placement agencies are even not properly manned so as to select teachers and even security agencies like M/s Maa Vaishnav Security Services Ltd. were assigned this job to recruit teachers for such projects as if they were to recruit `security guards' and not the teachers. This Court also noticed from the various averments made in the writ petitions by the present petitioners that large scale corrupt practices like charging high fees for application forms, paying less than monthly honorarium fixed, pick and choose in selections, selecting persons with lower merit or taking only local persons to the exclusion of other etc. are prevalent in such agencies.
39. The State Government is duty bound to undertake regular selection process for employment of teachers and other related staff for these projects, which the Court has already held them to be not of limited duration. Till regular selection process is undertaken and appropriate strength of teachers and related staff is determined and filled up by regularly selected candidates, there is no reason that the present petitioners-teachers and other related staff should be thrown out of their respective jobs and, therefore, it is further directed that till such regular selection process takes place, the present petitioners-teachers and other related staff shall continue in the service in the aforesaid projects as before and they shall be paid their monthly allowances and honorariums as already fixed S.B. Civil Writ Petition No.1702/2010 Damodar Prasad Meena & Ors. Vs. State of Rajasthan & Ors.
Along-with connected 23 writ petitions.
Order dt: 13/03/2014 17/28 for them. The State Government can of course employ more teachers and other related staff, if these projects have to be expanded or new schools have to be added in tune with the new Act No.35 of 2009 for providing free and compulsory education to the children between the age group of 6-14 years, even on urgent temporary basis or by the regular selection process.
40. It would also be appropriate to direct that present petitioners-teachers and other related staff, who have gained experience over this period since when they were initially employed and up to the period when such regular selection process takes place, will be given some preference in such regular selection process and it is left for the State Government best to decide how that criteria would be incorporated in the regular selection process."
19. The case-laws, cited to support the aforesaid proposition of law could be multiplied but one need not burden with the multiplicity of the precedents and suffice it would to quote a couple judgments of the Hon'ble Supreme Court also in this regard, which throw considerable light on such contractual employment by the welfare State and the trend of Hon'ble Apex Court in this regard.
20. Firstly, the following from the landmark judgment of Hon'ble Supreme Court in the case of Secretary, State of Karnataka & Ors. Vs. Uma Devi & Ors. reported in (2006) 4 SCC 1, is quoted for conceptual understanding:
"23. We may now consider, State of Haryana vs. Piara Singh and Ors, reported in (1992) 4 SCC 118.
S.B. Civil Writ Petition No.1702/2010 Damodar Prasad Meena & Ors. Vs. State of Rajasthan & Ors.
Along-with connected 23 writ petitions.
Order dt: 13/03/2014 18/28 There, the court was considering the sustainability of certain directions issued by the High Court in the light of various orders passed by the State for the absorption of its ad hoc or temporary employees and daily wagers or casual labour. This Court started by saying:
"21. Ordinarily speaking, the creation and abolition of a post is the prerogative of the Executive. It is the Executive again that lays down the conditions of service subject, of course, to a law made by the appropriate legislature. This power to prescribe the conditions of service can be exercised either by making rules under the proviso to Article309 the Constitution or (in the absence of such rules) by issued rules/instructions in exercise of its executive power. The court comes into the picture only to ensure observance of fundamental rights, statutory provisions, rules and other instructions, if any governing the conditions of service.
24. This Court then referred to some of the earlier decisions of this Court while stating:
"The main concern of the court in such matters is to ensure the rule of law and to see that the Executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16. It also means that the State should not exploit its employees nor should it seek to take advantage of the helplessness and misery of either the unemployed persons or the employees, as the case may be. As is often said, the State must be a model employer. It is for this reason, it is held that equal pay must be given for equal work, which is indeed one of the directive principles of the Constitution. it is for this very reason it is held that a person should not be kept in a temporary or ad hoc status for long. Where a temporary or ad hoc appointment is continued for long the court presumes that there is need S.B. Civil Writ Petition No.1702/2010 Damodar Prasad Meena & Ors. Vs. State of Rajasthan & Ors.
Along-with connected 23 writ petitions.
Order dt: 13/03/2014 19/28 and warrant for a regular post and accordingly directs regularization. While all the situations in which the court may act to ensure fairness cannot be detailed here, it is sufficient to indicate that the guiding principles are the ones stated above."
25. This Court then concluded in paragraphs 45 to 50:
"45. The normal rule, of course, is regular recruitment through the prescribed agency but exigencies of administration may sometimes 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 employee 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.
46. 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.
47. Thirdly, even where an ad hoc 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 Article16 should be followed. In S.B. Civil Writ Petition No.1702/2010 Damodar Prasad Meena & Ors. Vs. State of Rajasthan & Ors.
Along-with connected 23 writ petitions.
Order dt: 13/03/2014 20/28 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.
48. An unqualified person ought to be appointed only when qualified persons are not available through the above processes.
49. If for any reason, an ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularization provided he is eligible and qualified according to the rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State."
26. With respect, why should the State be allowed to depart from the normal rule and indulge in temporary employment in permanent posts? This Court, in our view, is bound to insist on the State making regular and proper recruitments and is bound not to encourage or shut its eyes to the persistent transgression of the rules of regular recruitment. The direction to make permanent -- the distinction between regularization and making permanent, was not emphasized here -- can only encourage the State, the model employer, to flout its own rules and would confer undue benefits on a few at the cost of many waiting to compete. With respect, the direction made in paragraph 50 of Piara Singh (supra) are to some extent inconsistent with the conclusion in paragraph 45 therein. With great respect, it appears to us that the last of the directions clearly runs counter to the constitutional scheme of employment recognized in the earlier part of the decision. Really, it cannot be said that S.B. Civil Writ Petition No.1702/2010 Damodar Prasad Meena & Ors. Vs. State of Rajasthan & Ors.
Along-with connected 23 writ petitions.
Order dt: 13/03/2014 21/28 this decision has laid down the law that all ad hoc, temporary or casual employees engaged without following the regular recruitment procedure should be made permanent."
21. Another judgment relied upon by the learned counsel for the petitioners may be referred herein in the case of Rajbinder Singh Vs. State of Punjab & Ors. reported in 1988 (Supp) SCC 428, by a short order, the Hon'ble Supreme Court allowed the adhoc teachers to continue in service until persons regularly selected by the Public Service Commission were appointed on such posts and the Court directed the respondent State to extend the same benefit to the such other adhoc lecturers and not to drag them to Court unnecessarily for securing the same relief.
22. A coordinate bench of this Court dealing with similar scheme of engaging teachers known as 'Vidhyarthi-Mitra' in the case of Devendra Kumar & 502 others Vs. State of Rajasthan & Ors. reported in 2009 WLC Raj. (UC) 498, a learned Single Judge of this Court gave similar directions to continue such Vidhyarthi Mitra employed on contractual basis or on ad hoc basis, till the regularly selected candidates were made available by the RPSC or the concerned Departmental Promotion Committee. Dealing with the contentions of the parties, the learned Single Judge of this Court in para 8 and 9 observed as under: -
"So far as contention of the learned counsel for the petitioners is concerned that while granting relief by S.B. Civil Writ Petition No.1702/2010 Damodar Prasad Meena & Ors. Vs. State of Rajasthan & Ors.
Along-with connected 23 writ petitions.
Order dt: 13/03/2014 22/28 the judgment dated 8th May, 2009 it has been observed that "respondents are directed to consider the cases of the petitioners for continuation in service till regularly selected candidates from RPSC/persons selected and recommended by the DPC for promotion are made available.." is concerned, that has been made clear in the same sub-para (II) of operative part of the judgment that, that is to be done in the light of the observation made in the judgment itself and in para no.34 of the judgment it has been observed "....Further argument of the counsel for the State is that the services of the petitioners came to an end automatically on 15.6.2009 and there is no reason to further extend the same is also not sustainable as where the examinations are over, checking of the answer sheets is going on and even if result is declared, then the admission process for the next academic session is about to start for which also theservices of the Teachers is required, therefore, the scheme is in force, the work is available and simply invocation of the last extension is held to be arbitrary and illegal." and in view of the above observation there cannot be any confusion in interpreting the sub-para (II) of the operative part of the judgment and there is no ambiguity in the judgment.
Hence, these writ petitions are allowed by this common order with the same directions as have been given in the judgment dated 8.5.2009, which are as under:-
"36. Accordingly, the writ petitions are disposed of as under:-
S.B. Civil Writ Petition No.1702/2010 Damodar Prasad Meena & Ors. Vs. State of Rajasthan & Ors.
Along-with connected 23 writ petitions.
Order dt: 13/03/2014 23/28 I. During continuation of the work, as detailed out hereinabove, the invocation of the last extension is arbitrary and illegal; and the consequential automatic termination orders of the petitioners are set aside.
II. The RPSC/DPC selected candidates/ employees are still not available and next academic sessions is about to start; even urgent temporary appointments under Rule 28 of the Rules of 1971 are not possible due to short span of one month and a half left to start with the process of admission and academic session, therefore, as per the aims and objects of the Scheme, respondents are directed to consider the cases of the petitioners for continuation in service till regularly selected candidates from RPSC/persons selected and recommended by the DPC for promotion are made available in the light of the above observations;
III. Even in case of appropriate order of continuation in service till regularly selected candidates from RPSC/DPC selected persons are available, the petitioners are not entitled for wages of the vacations, in other words, when the schools are closed.
IV. In case the regularly selected candidates from RPSC/persons selected and recommended by the DPC for promotion are made available, then the respondents can terminate services of the petitioners after preparation of the seniority list on the State level as per their date of appointment and merit assigned to them, by following the principle of 'last come first go' to the extent of availability of the selected candidates and while doing so, the respondents will keep the interest of the present students and prospective students in view."
23. It is true that the present petitioners viz. Computer Operators with machines, are not working as Teachers in the projects like 'Sarva Shiksha Abhiyan' or 'Kastoorba Gandhi Balika Vidhyalaya' or like Vidhya-Mitra, but conceptually there is little difference in the S.B. Civil Writ Petition No.1702/2010 Damodar Prasad Meena & Ors. Vs. State of Rajasthan & Ors.
Along-with connected 23 writ petitions.
Order dt: 13/03/2014 24/28 employment of the present petitioners as Computer Operators with machines, involved in the present writ petitions and the Teachers or the Vidhyarthi-Mitra, involved in those case-laws. In a way, the present petitioners, who had to buy their own machines (computers, equipment and printers) only to get such employment on contractual basis after investing their own money, which for poor people, it could be termed as a big investment and some of them, as stated by the learned counsel for th petitioners, even borrowed funds to manage to buy these equipments, so that they could get the monthly fixed honorarium of their contractual employment as Computer Operators with machine, stand on a better footing in comparison with those teachers who at least were not required to make any initial investment to get such employment.
24. The pitiable plight of the unemployment and the poverty, in our country, in which these young people sought employment from the State, and were only employed on annual contract basis, the change of the policy by the State Government in these circumstances, may be for bonafide reasons, seeking to throw them out of their contractual employment, taking a narrow and only legalistic approach like the period of contract being over and thus no right vested in them, can only be said to be ruthless, to say the least.
25. While this Court is aware that the Court cannot tread on the path of policy making, which is the sole domain of the State Government but at the same time, the Court also cannot permit the arbitrary policy decisions to shake and jerk the root of employment of S.B. Civil Writ Petition No.1702/2010 Damodar Prasad Meena & Ors. Vs. State of Rajasthan & Ors.
Along-with connected 23 writ petitions.
Order dt: 13/03/2014 25/28 such contractual persons who have hardly any choice in the matter, to take such contractual employment on the dictated terms, without any assurance of their continuity of employment or guarantee of employment even though they are supposed to work for the scheme which is enacted by the Parliament with the sole and avowed purpose of providing guaranteed employment to the persons in the rural area. What more conflict and contradiction of the avowed objectives of enactment and the implementation of the policies of the State Government can be there, if not the present case in hand.
26. In these circumstance, the Court can only expect the respondent- State to come out with a comprehensive, fair and uniform policy decision in this regard, which could take care not only of the requirements of the State to provide continuous supply of such Computer Operators with machines and for which no exception can be taken to the policy decision of the State Government to employ such persons through specified companies, which according to the State Government have large resources available for providing such services to the State Government, but such policy decision may also take care of the advantage and benefit which the persons like the present set of petitioners can provide and also the up-gradation of their machines, if required, can be provided either by the petitioners themselves or by the State or through such contracted companies to provide such support services, as the case may be. But, since these all are essentially various aspects of policy decisions, this Court cannot and, therefore, will not dictate the terms in this regard, but it S.B. Civil Writ Petition No.1702/2010 Damodar Prasad Meena & Ors. Vs. State of Rajasthan & Ors.
Along-with connected 23 writ petitions.
Order dt: 13/03/2014 26/28 certainly deserves to be said that the change of policy decision taken by the State Government as is on record vide Annex.6 dated 10.02.2010, cannot be said to be a comprehensive and fair policy decision.
27. Therefore, the State is now required to take a comprehensive and fair policy decision in this regard. Till that is done, the interest of the present petitioners is required to be safeguarded. In view of the undisputed position that these petitioners employed on contractual basis in the year 2009, about 5 years back, have continued in such contractual employment extended from time to time up to 28.02.2010 and thereafter under the interim orders of this Court, they deserve to be continued as such till such comprehensive policy decision is taken by the State Government, which can consider all the aforesaid and other related aspects of the matter and earlier such a comprehensive policy decision is taken, the better it is for both, the petitioners and the State, so that a clarity in the employment of the present petitioners and others is achieved. Though no time frame for this purpose can be fixed, it would be appropriate and opportune, if such a comprehensive policy decision for engagement of Computer Operators is taken by the State Government, within a period of one year from now. The interim orders in favour of petitioners, shall continue till such decision is taken by the State Government.
28. The second limb of the argument taken by the learned counsel for the petitioners about the monthly honorarium of Rs.6,500/-, presently being paid to the petitioners as a package, S.B. Civil Writ Petition No.1702/2010 Damodar Prasad Meena & Ors. Vs. State of Rajasthan & Ors.
Along-with connected 23 writ petitions.
Order dt: 13/03/2014 27/28 which was also said to be contrary to Clause 5 of the Agreement itself, which provided for annual increase of 10% also is left for the State Government to be decided. In view of the fact that the period of the contract itself was over and the impugned communication filed with the second stay petition by the petitioners dated 16.01.2012 (Annex.A/3), provides for the package limit of Rs.6,500/- monthly honorarium, this Court does not find any sufficient ground to quash that order at this stage as the fixation of such monthly honorarium, is also governed by several factors like availability of funds, number of such persons working, requirement of the State Government and the availability such Computer Operators through different agencies, as aforesaid. Therefore, the State Government is expected to take a decision in this regard also while framing the aforesaid policy, as directed. However, till then no recovery of alleged excess already paid to such Computer Operators, as directed in the said communication daetd 16.01.2012 shall be made.
29. With these observations and directions, the writ petitions are disposed of. No orders as to costs. A copy of this order be sent to the respondents as also to the Chief Secretary of the State Government, forthwith.
(Dr. VINEET KOTHARI), J.
DJ/-
4-18, 44-47, 125 & S-151 to 154 S.B. Civil Writ Petition No.1702/2010 Damodar Prasad Meena & Ors. Vs. State of Rajasthan & Ors.
Along-with connected 23 writ petitions.
Order dt: 13/03/2014
28/28
SCHEDULE
S. No. SBCWP Nos. Title of the Case
1 1831/2010 Pushkar Singh Chundawat & 5 Ors. Vs. State & Ors.
2 1833/2010 Ajay Gahlot & 17 Ors. Vs. State & Ors.
3 1834/2010 Vinod Kumar Kabra & 30 Ors. Vs. State & Ors.
4 1835/2010 Pankaj Mandawat & 18 Ors. Vs. State & Ors.
5 1836/2010 Rajkumar Pandya & 34 Ors. Vs. State & Ors.
6 1837/2010 Bhawani Singh Panwar & 11 Ors. Vs. State & Ors.
7 1838/2010 Rajesh Kumar Jain & 8 Ors. Vs. State & Ors.
8 1839/2010 Yameen Bano & 24 Ors. Vs. State & Ors.
9 1840/2010 Anil Kumar Meghwal & 21 Ors. Vs. State & Ors.
10 1848/2010 Sajid Jamil & 26 Ors. Vs. State & Ors.
11 1863/2010 Ashok Kumar Khatik & 8 Ors. Vs. State & Ors.
12 2341/2010 Kesar Singh Chouhan & 4 Ors. Vs. State & Ors.
13 3056/2010 Tulsi Ram Meena & 3 Ors. Vs. State & Ors.
14 3811/2010 Hitpal Singh & 2 Ors. Vs. State & Ors.
15 1984/2010 Sumeet Kumar & 27 Ors. Vs. State & Ors.
16 1982/2010 Narayan Singh & 17 Ors. Vs. State & Ors.
17 1985/2010 Ajay Kherwa & 23 Ors. Vs. State & Ors.
18 1986/2010 Mahaveer Kumar Jakhar & 25 Ors. Vs. State & Ors.
19 2095/2010 Bharat Meghwal & 5 Ors. Vs. State & Ors.
20 2005/2010 Ram Chander & 58 Ors. Vs. State & Ors.
21 2046/2010 Umesh Chalana & 15 Ors. Vs. State & Ors.
22 2147/2010 Shishpal & 13 Ors. Vs. State & Ors.
23 2271/2010 Arti & 7 Ors. Vs. State & Ors.