Rajasthan High Court - Jodhpur
Hukam Singh Rajpurohit vs State Of Rajasthan & Ors on 17 January, 2018
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 12972 / 2017
Hukam Singh Rajpurohit Son of Shri Ratan Singh Rajpurohit, Aged
About 51 Years, Resident of Village Post Khinchan, Tehsil Phalodi,
District Jodhpur (Rajasthan)
----Petitioner
Versus
1. State of Rajasthan Through the Chief Secretary-cum-
Chairperson of the Apex Committee, State Water and Sanitation
Mission (S.W.S.M.), Government of Rajasthan, Secretariat, Jaipur
2. Principal Secretary, Public Health and Engineering Department -
Cum - Chairperson of the Executive Committee, State Water and
Sanitation Mission (S.W.S.M.), Government of Rajasthan,
Secretariat, Jaipur.
3. Chief Engineer (Rural), Public Health and Engineering
Department - Cum - Chairperson of the Management Committee,
Water and Sanitation Support Organization (W.S.S.O.), Rajasthan,
Jaipur
4. Superintending Engineer, Public Health and Engineering
Department - Cum - Member Secretary, Maangement Committee
of Water and Sanitation Support Organization (W.S.S.O.), Jaipur
----Respondents
Connected With
S.B. Civil Writ Petition No. 14174 / 2017
Dr. Suneet Sethi Son of Shri Satyapal Sethi, Aged About 44 Years,
Resident of G-2, 280, Samridhi Apartment, Kusum Vihar, Gali No.
6, Jagatpura, Jaipur C/o House No. 442, 2nd C Road, Sardarpura,
Jodhpur.
----Petitioner
Versus
1. State of Rajasthan Through the Chief Secretary- Cum-
Chairperson of the Apex Committee, State Water and Sanitation
Mission (S.W.S.M.), Government of Rajasthan, Secretariat, Jaipur.
2. Principal Secretary, Public Health and Engineering Department -
Cum- Chairperson of the Executive Committee, State Water and
Sanitation Mission (S.W.S.M.), Government of Rajasthan,
Secretariat, Jaipur.
3. Chief Engineer (Rural), Public Health and Engineering
(2 of 12)
[ CW-12972/2017]
Department - Cum - Chairperson of the Management Committee,
Water and Sanitation Support Organization (W.S.S.O.), Rajasthan,
Jaipur.
4. Superintending Engineer, Public Health and Engineering
Department - Cum - Member Secretary, Management Committee
of Water and Sanitation Support Organization (W.S.S.O.), Jaipur.
----Respondents
S.B. Civil Writ Petition No. 14700 / 2017
Neeraj Saxena Son of Late Shri Shekhar Saxena, Aged About 55
Years, Resident of 50, Nagnechiji Scheme, Bikaner (Rajasthan)
----Petitioner
Versus
1. State of Rajasthan Through the Chief Secretary - Cum -
Chairperson of the Apex Committee, State Water and Sanitation
Mission (S.W.S.M.), Government of Rajasthan, Secretariat, Jaipur
2. Principal Secretary, Public Health and Engineering Department -
Cum - Chairperson of the Executive Committee, State Water and
Sanitation Mission (S.W.S.M.), Government of Rajasthan,
Secretariat, Jaipur.
3. Chief Engineer (Rural), Public Health and Engineering
Department - Cum - Chairperson of the Management Committee,
Water and Sanitation Support Organization (W.S.S.O.), Rajasthan,
Jaipur
4. Superintending Engineer, Public Health and Engineering
Department - Cum - Member Secretary, Management Committee
of Water and Sanitation Support Organization (W.S.S.O.), Jaipur
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. Mukesh Rajpurohit
For Respondent(s) : Mr. PR Singh, Addl. Advocate General
assisted by Mr. N.K. Mehta, AGC
_____________________________________________________
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order (3 of 12) [ CW-12972/2017] 17/01/2018
1. The petitioner has preferred this writ petition for the following reliefs (prayer clause & facts of lead case has been taken into consideration) :-
"a) By an appropriate writ, order or direction, the impugned illegal action on the part of respondent authorities in not extending the term of contractual engagement of petitioner beyond 21.10.2017 and thereby removing/terminating services of the petitioner from the post of Consultant -Water Quality, Communication and Capacity Development Unit (C.C.D.U), Water and Sanitation Support Organization W.S.S.O.), State Water and Sanitation Mission (S.W.S.M.), Rajasthan, Jaipur may kindly be declared illegal and accordingly be quashed and set aside.
b) By an appropriate writ, order or direction, the respondent authorities may also kindly be directed to continue to allow the petitioner to work on the post of Consultant -Water Quality, Communication and Capacity Development Unit (C.C.D.U), Water and Sanitation Support Organization W.S.S.O.), State Water and Sanitation Mission (S.W.S.M.), Rajasthan, Jaipur till availability of regularly selected candidates or the said project is in operation.
c) Any other appropriate writ, order or direction which this Hon`ble Court may deem just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner.
(4 of 12) [ CW-12972/2017]
d) Writ petition filed by the petitioner may kindly be allowed with costs."
2. The petitioner underwent selection process and faced interview for being appointed on the post of Consultant in Communication and Capacity Development Unit (CCDU), State Water and Sanitation Mission, Rajasthan, Jaipur on contractual basis on a consolidated professional fee of Rs.30,000/- per month, which was mentioned in his appointment letter dated 05.7.2008 (Annex.4). The petitioner's service were utilized by CCDU under the control of Water and Sanitation Support Organization (WSSO). The contractual engagement of petitioner was extended from time to time by the respondents, however, due to internal change of set up of the State of Rajasthan, a tripartite memorandum of understanding was entered into between the State Water and Sanitation Mission (S.W.S.M.), Rajasthan; Indian Institute of Health Management Research (IIHMR) and UNICEF came to be terminated by the State Government w.e.f. 31.3.2010 and in place thereof the Department of Drinking Water Supply, Ministry of Rural Development, Government of India under the Rajiv Gandhi National Drinking Water Mission issued guidelines for implementation of National Rural Drinking Water Programme 2008-2012, whereby it was recommended to set up Water and Sanitation Support Organization (SWSM) to deal with the support activities. The changed set up resulted into re-appointment of the petitioner as Consultant, Water Quality in CCDU, WSSO, SWSM, (5 of 12) [ CW-12972/2017] Rajasthan, Jaipur on contract for a fee of Rs.40,000/- per month, the said order is Annex.9. The services of the petitioner were extended from time to time. The extension of service was based upon performance, for which duly constituted Committee was constituted by the respondents. The respondents, however, took a decision that services of the petitioner shall be continued only upto 31.3.2018. Counsel for the petitioner argued that the petitioner's service cannot be replaced by another set of contractual employee as the original plan has been prepared/approved for the period 2011-2022 by the Department of Drinking Water and Sanitation, Ministry of Rural Development, Government of India upto 2022. Learned counsel for the petitioner has relied upon the judgment of this Court in Mooli Devi Choudhary & ors. Vs. State of Rajasthan & ors., reported in RLW 2010(4) (Raj.) 3714, the relevant portion whereof of which reads as follows :
"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 (6 of 12) [ CW-12972/2017] 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. 4 is answered in the manner that the provision of Article 21A and provisions of Right of 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 treated 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 in 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."
3. Learned counsel for the respondent has drawn attention of this Court to the reply wherein it has been submitted (7 of 12) [ CW-12972/2017] that the engagement are not continuous, however, from time and time extensions were allowed. After completion of extension, a Review Committee met on 04.7.2016 and it was held that contract will not be extended further. Counsel for the respondent supports this statement with the help of Annex.R/1 dated 11.7.2016. Counsel for the respondent further pointed out that service of the petitioner was governed by a contractual agreement and Clause 6 of agreement is regarding termination which states that the contract can be terminated with notice of one month on either side or by depositing/paying one month's package/contract amount in lieu of notice. Counsel for the respondent further shows that though the strategy plan was from 2011-2022 but that does not mean that the services of petitioner is required to be extended as the appointments were contractual one, which has to come to an end.
4. Mr. P.R.Singh, learned Additional Advocate General, states that in the precedent law of Deepak Kumar & Ors. Vs. State of Rajasthan & Ors. (S.B.Civil Writ Petition No.1469/2014 decided on 25.02.2014), this Hon'ble Court has laid down the following parameters:
"After hearing learned counsel for the petitioners, this Court is of the opinion that whatever remuneration is given can be given as per the project or scheme. The petitioner's grievance cannot be redressed while exercising jurisdiction under Article 226 of the Constitution of India with regard to their claim of remuneration or mode of assessment applied by the respondents for making payment to the District (8 of 12) [ CW-12972/2017] Consultant. The grievance of the petitioners with regard to the impugned order is not sustainable in law. The petitioners are engaged in the project/scheme and they are not appointed substantively. They are consultants and to pay consultants the respondents themselves can exercise their jurisdiction as per the advice/work taken from the consultants. Therefore, this Court cannot interfere in the matter because it is prerogative of the respondents to asses emoluments to be paid to the consultants as per the scheme/programme/project."
The aforesaid judgment has been upheld by the Division Bench of this Hon'ble Court vide judgment dated 08.07.2016 passed in D.B.Civil Special Appeal No.405/2014. Learned Additional Advocate General further pointed out Rule 17 of the Rajasthan Transparency in Public Procurement Rules, 2013. Learned Additional Advocate General submits that Rule 17 of the Rules of 2013 is applicable and the respondents were free to engage the professional consultants, as per the requirement of the said Rule.
Rule 17 of the Rules of 2013 reads as under:-
"17. Single source procurement.-(I) In addition to the conditions enumerated in sub-section (1) of Section 31, a procuring entity may procure the subject matter by the method of single source procurement, if-
(a) Hiring of the services of consultant or professional is required, for a maximum period of twelve months and up to financial limit of Rupees five lakh in each case, subject to delegation of financial powers; or (9 of 12) [ CW-12972/2017]
(b) Price of subject matter of procurement is administered by the State Government or Central Government.
(2) The procedure for single source procurement shall be as under:-
(a) The procuring entity shall solicit a bid from the single prospective bidder and shall also exhibit the invitation to bid on the State Public Procurement Portal if the value of procurement is rupees one lakh or more. The procuring entity shall not exhibit the invitation to bid on the State Public Procurement Portal, if it is of the opinion that subject matter for procurement is of nature specified in clause (e) or (h) of sub-section (1) of section 31.
(b) The procuring entity may engage in negotiations in good faith with the bidder.
(c) The single source may be selected out of the list of empanelled/registered bidders for the subject matter of procurement with the procuring entity or with any other procuring entity, where procuring entity uses the list of registered bidders of other procuring entity in terms of sub-section (5) of section 19 or suitable bidder identified through other reliable sources.
(d) Bid security shall not be obtained in case of single source procurement.
(e) Except as otherwise provided in this rule and provisions of Chapter V relating to pre-qualification proceedings, bid security, publication of Notice Inviting Bids in the newspapers, price of bidding documents, sale of bidding documents, pre-bid clarifications, exclusion of bids, comparison of rates of firms outside and those in Rajasthan, price/purchase preference in evaluation and diving quantities among more than one bidder at the time of award, all other provisions of (10 of 12) [ CW-12972/2017] Chapter V shall mutatis mutandis apply, but in case of matters covered under sub-rule (1) performance security shall not be obtained.
(3) Notwithstanding anything contained in sub-rule (2), in the emergent situation arising out of floods and other natural calamities, the subject matter of procurement may be procured up to the ceiling rates.
The committee consisting of the following, shall decide the ceiling rates for subject matter of procurement on the basis of rates received during the last six months or the prevailing market rates analysis, namely:-
(a) District Collector - Chairman
(b) District Level Officer of the concerned Department
- Member.
(c) Treasury Officer - Member Secretary.
(d) Special invitee, if required - Member."
5. In rejoinder, learned counsel for the petitioners has strongly refuted the applicability of the case law cited by learned Additional Advocate General, as the only proposition of the said case law is that the Court cannot interfere in the matter of deciding the emoluments of the non-substantive employees, and therefore, it was the sole prerogative of the respondents to assess the emoluments to be paid to the consultants, as per the scheme/programme/project. Learned counsel for the petitioners states that no submission pertaining to the emoluments has been made by him, and thus, the assessment of the emoluments, which was the ratio of the judgment and cannot be applied in the present case. Learned counsel for the petitioners also refuted that (11 of 12) [ CW-12972/2017] the schemes referred are governed by the Rules of 2013, and particularly Rule 17. As per learned counsel for the petitioner, the Rule deals with only source procurement for the purpose of executing a public procurement. Learned counsel for the petitioners states that the changing of nomenclature of the non- substantive employees to consultant or contractual employee or a professional or any other term, shall not defeat the truth that the petitioners are rendering their contractual services as employees of the respondents. The order of contractual appointment of the petitioners makes it amply clear that there was relationship of employer and employee existing between the respondents and the petitioners.
6. After hearing learned counsel for the parties, perusing record and the precedent law cited by learned counsel for the petitioner, apparently, the precedent law cited by learned Additional Advocate General is only dealing with the prerogative of the respondents to assess the emoluments, and admittedly, this is not the adjudication being sought by the petitioners herein. Rule 17 of the Rules of 2013, on a bare reading, does not inspire confidence of this Court, as to whether it would govern the services of the petitioners, which are governed by individual contract and individual appointment being made for a particular term on particular terms and conditions. Moreover, the respondents are not precluded from acting against the petitioners. But the only condition where the respondents could act against the petitioners would be on account of unsatisfactory services (12 of 12) [ CW-12972/2017] being rendered by the petitioners, desanctioning or end of the scheme or project or plan, and that the contractual employees are being replaced by the regularly selected candidates.
7. This Court is of the opinion that the petitioner who is a contractual employee cannot be replaced by another set of contractual employee unless the respondents need to terminate his services on account of three issues :-
(a) If the petitioner is not performing his task as per the satisfaction of respondents.
(b) The scheme/project is coming to an end.
(c) If petitioner is being replaced by a set of regularly selected candidates.
Admittedly, the respondents case is not that the petitioners services are not satisfactory. The respondents have also not been able to point out that the scheme/project/plan is being discontinued and hence the posts are being scaled down. The respondents have not been able to point out as to whether the petitioners are proposed to be replaced by another set of regularly selected employees, thus, the writ petition is allowed and the respondents are directed to continue the petitioners on their respective posts till any of the aforesaid three reasons come into operation.
(DR. PUSHPENDRA SINGH BHATI)J. Sanjay