Rajasthan High Court - Jodhpur
Mahendra Kumar & Anr vs Union Of India & Ors on 12 April, 2018
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 9291 / 2017
1. Mahendra Kumar S/o Shri Udai Raj, Aged About 41 Years, R/o
Man Sagar, Mahamandir, Jodhpur, Rajasthan.
2. Umarddin S/o Shri Gabru Khan, Aged About 34 Years, R/o-
Reprawas, Sojat City, District Pali.
----Petitioners
Versus
1. Union of India Through the Secretary, Elementary and Literacy
Department, Human Resource and Development Ministry, Shastri
Bhawan, New Delhi.
2. The State of Rajasthan Through the Secretary, Elementary
Education, Government of Rajasthan Secretariat, Jaipur.
3. The Commissioner, Rajasthan Elementary Education Council
Second and Third Floor, Block-5, Dr. S.N. Radhakrishan Shiksha
Sankool, Jawarhar Lal Nehru Marg, Jaipur.
4. Commissioner Council for Sarva Shiksha Abhiyan, Shiksha
Sankook, Jaipur.
5. Head Office Resource Coordinator, Sarva Shiksha Abhiyan,
Baggi Khana, Old Power House, Jaipur.
6. The District Coordinator, Sarva Shiksha Abhiyan, Paota B Road,
Jodhpur.
7. The Block Elementary Education, Office of District Education
Officer, Near Gosala, Jodhpur.
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. Sukesh Bhati &
Mr. Devendra Soni
For Respondent(s) : Mr. Dinesh Ojha, Assisting Counsel to
Mr. P.R. Singh, AAG
_____________________________________________________
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 12/04/2018
1. The petitioners have preferred this writ petition for the following reliefs :-
"a) by an appropriate writ, order or direction, the respondents (2 of 8) [CW-9291/2017] may kindly be restrained from filling up the post of Warden/ Co-Warden in the government residential school (boys), Soorsagar, Jodhpur by bringing the teachers on deputation basis.
b) by an appropriate writ, order or direction, the respondents may kindly be directed to not to disturb services of the petitioners till the Scheme of Sarva Shiksha Abhiyan of running the government residential school for boys continues and/or till regular appointment on all sanctioned posts in the State of Rajasthan is made and/or the office order dated 28.7.2017 (Annex.4) may be quashed and set aside.
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.
d) Writ petition filed by the petitioner may kindly be allowed with costs."
2. The petitioners no.1 & 2 are rendering services on the post of Warden cum Teacher/Co-warden cum Teacher in government residential school since 2012 and 2015 respectively. The respondents are seeking to replace them by deputationist. Counsel for the petitioner pointed out that contractual employee ought not to be replaced by deputationist employee. Counsel for the petitioner submits that Government Residential School (boys) is being run under Sarva Shiksha Abhiyan for the last so many (3 of 8) [CW-9291/2017] years. Order terminating services was orally given to the petitioners w.e.f. 29.7.2017.
3. This Court on 01.8.2017 while issuing notices passed following order :
"Issue notice. Issue notice of stay application also. Notices be made returnable on 19.08.2017. The notices for respondents no.2 to 7 be served upon Mr. P.R. Singh, Additional Advocate General. List this case for orders on stay application on 19.08.2017.
Till then, the petitioners' engagement as Warden cum Teacher /Co-warden-cum teacher shall not be brought to an end"
4. Under the protection of interim order, the petitioners are discharging their duties.
5. Counsel for the petitioner relied upon Division Bench judgment of this Court (Jaipur Bench) in State of Rajasthan & Ors. Vs. Kusum Devi & Ors. [(D.B. Civil Special Appeal (W) No.1231/2017, decided on 20.3.2018]. Relevant portion of the judgment reads as follows :-
"As prayed by the parties, following agreed order is passed for disposal of these appeals.
(i) It is agreed that contractual employee, either by direct contract or through placement agency, would not be replaced by another set of contractual employees.
(ii) The contractual employee can be replaced by regularly selected employee either under the scheme or by taking regularly selected employees of the State (4 of 8) [CW-9291/2017] Government on deputation. The deputation would however be not permissible if there is shortage of Teachers and others in the State service and to make it clear, at the cost of sufferance of the school run by the State Government, deputation would not be permissible. Thus, the direction given above would be applied after taking note of the aforesaid.
(iii) The service of the contractual Teachers can be dispensed with if there is complaint about their working or they are found to be inefficient. It would, however, be after providing them opportunity of hearing.
(iv) In case, the Central Government or State Government withdraw the scheme then no one would have right to continue either on contract basis or in other capacity, but withdrawal of the scheme should be in totality and not with the change of name of the scheme.
(v) If the Government takes a decision to make a scheme permanent then their endeavor would be to make regular selection on the post under the scheme and, in that case, the petitioners-non-appellants would be at liberty to apply for the post and in case of availability of the selected candidates, they would make a room for them and in that case, their services would be terminable.
(vi) In case, the number of posts are reduced, then also, the ad-hoc or contractual employees can be terminated but, while doing so, the principles of "last come first go" would be applied.
(vii) The aforesaid direction would be applied to the (5 of 8) [CW-9291/2017] present cases and exercise for it would be undertaken within four months from the date of receipt of copy of this order. If any one has been terminated in violation of direction given above, the reinstatement would be without actual benefit of the intervening period.
All the appeals are disposed of with the aforesaid. A copy of this order be placed in each connected appeals."
Counsel for the petitioner further relied upon the judgment of Hon'ble Apex Court in Md. Abdul Kadir & Another Vs. Director General of Police, Assam & Ors., reported in [2009] 0 Supreme(SC) 805, relevant portion whereof reads as follows :
" 8. We may next consider the challenge to the procedure of annual termination and reappointment introduced by the circular dated 17.3.1995. The PIF Scheme and PIF Additional Scheme were introduced by Government of India. The scheme does not contemplate or require such periodical termination and re-appointment. Only ex-servicemen are eligible to be selected under the scheme and that too after undergoing regular selection process under the Scheme. They joined the scheme being under the impression that they will be continued as long as the PIF Additional Scheme was continued. The artificial annual breaks and reappointments were introduced by the state agency entrusted with the operation of the Scheme. This Court has always frowned upon artificial breaks in service. When the ad-hoc appointment is under a scheme and is in accordance with the selection process prescribed by the scheme, there is no reason why (6 of 8) [CW-9291/2017] those appointed under the scheme should not be continued as long as the scheme continues. Ad-hoc appointments under schemes are normally co-terminus with the scheme (subject of course to earlier termination either on medical or disciplinary grounds, or for unsatisfactory service or on attainment of normal age of retirement). Irrespective of the length of their ad hoc service or the scheme, they will not be entitled to regularization nor to the security of tenure and service benefits available to the regular employees. In this background, particularly in view of the continuing Scheme, the ex-serviceman employed after undergoing selection process, need not be subjected to the agony, anxiety, humiliation and vicissitudes of annual termination and re-engagement, merely because their appointment is termed as ad hoc appointments. We are therefore of the view that the learned Single Judge was justified in observing that the process of termination and re-appointment every year should be avoided and the appellants should be continued as long as the Scheme continues, but purely on ad hoc and temporary basis, coterminus with the scheme. The circular dated 17.3.1995 directing artificial breaks by annual terminations followed by fresh appointment, being contrary to the PIF Additional Scheme and contrary to the principles of service jurisprudence, is liable to be is quashed."
6. Counsel for the respondent vehemently opposed the submission on count of the fact that State is having sufficient number of Teachers and deputationist would not hamper the (7 of 8) [CW-9291/2017] regular work of the said cadre. Counsel for the respondent averred that the petitioners were taken through Placement Agency, thus, no direct right accrue in their favour to continue in service. Counsel for the respondent categorically stated that the petitioners are not their employees and in fact they are employees of Placement Agency, who have been providing contractual service of Teacher/Warden under the Sarva Shiksha Abhiyan to man posts of Warden/Teacher in Government Residential School (Boys) at Jodhpur.
7. After hearing learned counsel for the parties and perusing record of case, this Court finds that the petitioners, who are rendering contractual service as Teacher/Warden at Government Residential School (Boys) under the Sarva Shiksha Abhiyan since 2012/2015. This Court is of the opinion that such contractual service under Sarva Shiksha Abhiyan can be terminated only in accordance with the directions given by Hon'ble Division Bench of this Court in State of Rajasthan & Ors. Vs. Kusum Devi & Ors. (supra). Apparently, the precedent law does not permit contractual appointments to be terminated on the ground of deputationist until the respondents themselves have sufficient number of persons on that posts working for themselves. Counsel for the petitioner has clearly averred in petition that more than 50,000 posts of Teachers are still lying vacant with the State Government. It is also noted by the Court that Teacher is a cadre where the respondents keep on making regular recruitment but there is always a shortage of Teachers in the State.
(8 of 8) [CW-9291/2017]
8. In light of the aforesaid observation, the respondents are directed to continue petitioners on their contractual appointment on the same terms as they were continuing, however, they can be terminated by the respondents only if :-
(1) Their services are not proper;
(2) The Scheme/Project has come to an end; or (3) They are required to be replaced by regularly selected employees and also deputationist if the respondents fill 90% posts of Teachers at a particular time.
(DR. PUSHPENDRA SINGH BHATI)J. Sanjay