Rajasthan High Court - Jaipur
State Of Raj And Ors vs Surendra Kumar Gurjar And Ors on 6 December, 2017
Author: Chief Justice
Bench: Chief Justice
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
D.B. Special Appeal Writ No. 1017 / 2017
1. The State of Rajasthan Through the Principal Secretary, Medical
& Health Department, Government Secretariat, Jaipur
2. The Director, Medical & Health Department, Swasthya Bhawan,
Tilak Marg, C-scheme, Jaipur
3. The Chief Medical & Health Officer, Baran, District Baran.
4. The Medical Officer Incharge, Govt. Primary Health Centre, Pali,
Village & Post Tehsil Chhabra, District Baran.
5. The Block Chief & Medical Officer, Block Chhabra, District Baran.
----Appellants
Versus
1. Surendra Kumar Gurjar S/o Shri Mohan Lal, Aged About 28
Years, Village Maloni, Post Bilendi, Tehsil Chhipabadod, District
Baran (Raj.)
2. Govind Sharma S/o Shri Om Prakash Sharma, Aged About 27
Years, Village & Post Bhulon, Tehsil Chhabra, District Baran (Raj.)
3. Narendra Nagar S/o Shri Ram Charan Nagar, Aged About 29
Years, Village Kohani, Post Bamori Dhara, Tehsil Chhbra, District
Baran (Raj.)
4. Rajendra Nagar S/o Shri Janki Lal Nagar, Aged About 27 Years,
Village Bamori Dhara, Tehsil Chhipabadod, District Baran (Raj.)
5. Ram Naresh S/o Shri Mansingh, Aged About 25 Years, Village &
Post Pali, Tehsil Chhabra, District Baran (Raj.)
6. Radha Bai W/o Shri Dinesh Kumar, Aged About 25 Years, Village
& Post Pali, Tehsil Chhabra, District Baran (Raj.)
7. Sharda Bai W/o Shri Madan Lal, Aged About 25 Years, Village &
Post Pali, Tehsil Chhabra, District Baran (Raj.)
8. Sunita Kumari W/o Shri Dharmendra, Aged About 32 Years,
Villge & Post Dhanot Kalan, Tehsil Guhana, District Baran (Raj.)
9. Suman Kumari W/o Shri Ram Chandra, Aged About 30 Years,
Village Post & Tehsil Chidawa, District Jhunjhunu (Raj.)
(2 of 6)
[ SAW-1017/2017]
10. Renu Kumari W/o Shri Subhash, Aged About 28 Years, Village
Moibaru, Tehsil Buhana, District Jhunjhunu (Raj.)
11. Sulochana W/o Shri Jale Singh, Aged About 31 Years, Village &
Post Gudaniya, Tehsil Chidawa, District Jhunjhunu (Raj.)
12. Shashi Bala W/o Shri Vidhyadhar Singh, Aged About 25 Years,
Village Kichora Ka Bass, Post Bajla, District Jhunjhunu (Raj.)
13. Sardar Bai D/o Shri Ramcharan, Village & Post Dingaradi,
Tehsil Chhabra, District Baran (Raj.)
14. Guddi Bai Suman D/o Shri Ram Swaroop Suman, Aged About
27 Years, Ward No. 8, Maliyon Ka Mohalla, Pateda, District Baran
(Raj.)
15. Seema Kumari Suman D/o Shri Ramdayal Suman, Aged About
26 Years, Village Toliya, Post Memor, Tehsil Kanwas, District Kota
(Raj.)
----Respondents
_____________________________________________________ For Appellant(s) : Mr. Shyam Arya, AAG Mr. Sheetanshu Sharma on behalf of Mr. N.M. Lodha(Advocate General) For Respondent(s) : Mr. Tanveer Ahamad _____________________________________________________ HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE DINESH CHANDRA SOMANI Judgment 06/12/2017 D.B. Civil Misc. Application No.604/2017:
For the reasons mentioned in the application the delay in filing the appeal is condoned. The application is allowed.
D.B. Civil Special Appeal(W) No.1017/2017:
1. On the date when notices were served upon the appellants writ petition filed by the respondents was allowed by (3 of 6) [ SAW-1017/2017] the learned Single Judge vide impugned order dated 03.04.2017.
The learned Single Judge has held that the respondents were appointed by the State Government through a placement agency and the State Government has issued directions to withdraw the work from the placement agency at 10 Primary Health Centres. The learned Single Judge has noted a decision of this Court reported as 2010(4) WLC 334, Mooli Devi Choudhary & Ors. Vs. State of Rajasthan & Ors., which prohibited appointment through placement agencies. The learned Single Judge has thereafter noted the law concerning regularisation declared in the celebrated decision in Uma Devi's case, (2006) 4 SCC 1 and has thereafter proceeded to issue directions (a) to (j) which read as under:-
"(a) The State Government is restrained from appointing any persons on contract basis or otherwise allowing any person to work through placement agency on any government post or posts created under any particular scheme henceforth ;
(b) The State Government is henceforth directed to make appointments only in accordance with the rules framed under proviso to Article 309 of the Constitution of India for the various services in the State or the rules framed for the various departments, Corporations under the State;
(c) The State Government is further directed to make appointments on the posts created under various schemes sponsored by State or by the Centre on contract basis or otherwise only by conducting selection through open advertisement and after inviting applications and conducting written examinations and selecting persons on merit basis by a transparent method. For the said purpose, the State Government may lay down procedure and a recruiting agency either department wise or a Central nodal agency may be created for the said purpose keeping in view the provisions laid down for conducting public examinations.
However, there shall be no interviews method followed in order to avoid any room for arbitrariness or pick and (4 of 6) [ SAW-1017/2017] choose method and subsequent litigation;
(d) The merit of the candidates so prepared, shall be published showing the marks obtained by each candidate and after publishing the answer key;
(e) In view of the law laid down by the Apex Court in the case of State of Rajasthan vs. Mitendra Singh Rathore (SLP No.32671/2013 decided on 17.02.2017, the State Government may provide additional bonus marks to those candidates who have prior working experience with the State Government. The bonus marks quantum should be on the basis of number of years of service already rendered by any contractual employee but the exact quantum may be decided by the Government while conducting selections for individual schemes/posts;
(f) Every attempt should be made to see that the entire selection process is transparent and without any ambiguity;
(g) If any selections are found to be wrongful, accountability of the concerned Officials who have conducted selection must be necessarily fixed and action be taken under the relevant provisions of law against them;
(h) Considering that such exercise would take some time to be implemented, this Court grants three months time to the Government to make such provisions from the date of submission of the certified copy of this order;
(i) All the persons presently working in the State Government through placement agency will now henceforth be treated as working directly on contractual basis till the aforesaid selection process is completed;
(j) Services of the persons however, shall be continued only if the Government takes a decision to continue them otherwise their services shall be dispensed with forthwith and new selections shall only be conducted after issuing advertisements as directed herein above."
2. Since the appellants were denied the right to file a counter affidavit and this entails the writ petition to be decided (5 of 6) [ SAW-1017/2017] afresh, we note that the case of the respondents before the learned Single Judge was that under a Public Private Partnership mode, health care was assigned in some health centres to private agencies. Lords Education and Health Society was the one which had entered into an agreement with the respondents to engage them as Paramedics and Safai Karamcharis'. Pleading that the PPP mode was terminated the challenge was to the order dated 27.02.2017 issued by Lords Education and Health Society. The order annexed as Annexure-3 to the writ petition informs the respondents that since the PPP has been terminated the agency would no longer be able to continue with the service of the respondents.
3. It is thus not a case where the State engaged Paramedics and Safai Karamcharis' through a placement agency. It is a case where a Primary Health Centre was handed over under a PPP to a private agency and with the termination of the PPP agreement the working at the Health Centres was directly taken over by the State Government.
4. It is not a case where against sanctioned posts contractual appointment was being resorted to.
5. The impugned order does not note the aforesaid facts. It was not a case where writ petition could have been allowed with the sweeping directions issued without granting appellant an opportunity to file a reply.
6. Disposing of the appeal we set aside the impugned order dated 03.04.2017 and restore Civil Writ Petition (6 of 6) [ SAW-1017/2017] No.4582/2017 before the learned Single Judge. Appellants shall file a reply within six weeks. The writ petition would be listed before the learned Single Judge after six weeks. (DINESH CHANDRA SOMANI),J. (PRADEEP NANDRAJOG),C.J. KKC/6