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Rajasthan High Court · body

2014 DIGILAW 2099 (RAJ)

Dharmendra Singh v. State of Raj.

2014-12-11

BELA M.TRIVEDI

body2014
JUDGMENT : Hon'ble TRIVEDI, J.—All the three petitions were tagged together, having been filed by the same group of the petitioners against the same respondents involving same issues. They were heard together and are being disposed of by this common order. 2. At the outset, it is required to be stated that these petitions filed at the instance of the petitioners are not only vexacious litigations but the petitioners have taken the court for a ride by filing the petitions one after the other, suppressing material facts, and have held the respondents to a ransom under the garb of ex-parte ad-interim orders passed by the court, which shall be demonstrated hereinafter. 3. Initially one Sunil Kumar had filed the SBCWP NO. 9533/12, for setting aside the notice inviting tender dated 7.6.12 by which the respondent-college had sought to engage the placement agency. In the said petition, the coordinate bench of this court passed the following order on 10.2.14:- "The petition is therefore disposed of directing the respondents that even if the placement agency appoints any other person, preference shall be given to the petitioner and the already existing contractual employees rather than availing the services of the new contractual employees. In other words, the placement agency shall be under compulsion to engage those who were already engaged by the respondents on the same terms and conditions if they want to avail the services of Technician or of any other post." 4. Thereafter the petitioners Kailash Kumar and other 18 petitioners, who are also the petitioners in the present petitions, had filed the SBCWP No. 6320/14 seeking directions against the respondents interalia not to treat the services of the petitioners under the placement agency and treat them as the as direct employees. The said petition was disposed of by the coordinate bench vide order dated 14.8.14 directing the respondents to consider the petitioners' grievances and further directing the respondents not to substitute the petitioners by another set of contractual employees. Thereafter the said petitioners of SBCWP No. 6320/14 alongwith some other petitioners again filed the SBCWP No. 9306/14 seeking directions against the respondents inter alia to allow the petitioners to continue on their respective posts, and not to replace their services by another set of contractual /daily wages /temporary/ placement agency, and further to treat the petitioners as the direct employees of the respondent-college. It is pertinent to note that the SBCWP No.9306/2014 was filed by the petitioners without disclosing the filing of earlier petition being No.6320/2014. Not only that the averments and prayers in both the petitions were verbatim the same, except changing the chronology of paragraphs. In the said writ petition being SBCWP No. 9306/14, while issuing the notices to the respondents, the coordinate bench passed following ex-parte ad-interim order on 8.9.14:- "In the meanwhile, if the respondents want to avail services of any person on any post held by the petitioners, preference shall be given to them over any other new incumbent inasmuch their services shall not be replaced by any other contractual/temporary/daily wager/ad hoc appointee on payment of consolidated salary/daily wages." 5. Pending the said writ petition being SBCWP No. 9306/14, one Ajay Mathur, who was also the petitioner in SBCWP No. 9306/14 filed the SBCWP No. 12240/14 against the respondents seeking direction to set aside the advertisement dated 18.10.14 issued by the respondent Government Engineering College and for restraining the respondents from appointing the new employees in lieu of the old employees, in view of the order dated 10.2.14 passed by the court in SBCWP No. 9533/12. In the said writ petition being SBCWP No. 12240/14, the coordinate bench directed the counsel for the petitioner to supply the copy of the petition to the Add. Advocate General Mr. Abhinav Sharma and further passed the ex-parte order that the petitioner shall not be discontinued and shall be allowed to continue. After passing of the said order, the other petitioners who were also the petitioners in SBCWP No. 9306/14 filed another petition being SBCWP No. 13013/14 seeking the same relief as prayed for by the petitioners in the writ petition being SBCWP No. 12240/14. In both the petitions i.e. SBCWP No. 12240/14 and 13013/14, the petitioners had not mentioned the fact of their filing the earlier writ petition being SBCWP No. 9306/14. 6. In all these petitions, the replies have been filed on behalf of the respondent-Government Engineering College, Jhalawar, raising preliminary objections as to the maintainability of the petitions, highlighting the misconduct of the petitioners as to how the process of law was misused, concealing the material facts. 6. In all these petitions, the replies have been filed on behalf of the respondent-Government Engineering College, Jhalawar, raising preliminary objections as to the maintainability of the petitions, highlighting the misconduct of the petitioners as to how the process of law was misused, concealing the material facts. The said respondent has also placed on record as to how the petitioners had disrupted the academic atmosphere of the college by proceeding on strike and holding the entire college to a ransom, under the garb of the ex-parte orders passed by the court from time to time. 7. It is sought to be submitted by the learned counsels Mr K.C. Sharma and Mr. R.P. Saini for the petitioners that the petitioners were working with the respondents on different posts since a long time and that though the respondents college had started appointing the employees through placement agency, the petitioners were continued on their posts from time to time. According to the learned counsels for the petitioners, the respondent-college was paying huge amount to the placement agency (i.e. the respondent No.4 M/s. Rajendra Sharma in the SBCWP No. 9306/14), for providing the services on contractual basis, depriving the rights of the petitioners to be continued on the permanent basis. They further submitted that though the court had directed the respondents not to replace the services of the petitioners by other contractual/temporary appointees, the respondent-college had issued advertisement inviting the applications from the registered contractors and placement agencies. Relying upon the decisions of Single Bench of this court in case of Sunil Kumar vs. State of Raj. & Anr. (supra), they submitted that the court had given specific directions to the respondents that even if the placement agency appoints any other person, preference shall be given to the petitioners, however, the respondents jeopardising the rights of the employees, are bent upon engaging another placement agency, which should not be permitted. They have also relied upon the other decisions of this court in case of Radha Rani vs. State of Raj. & Ors. decided on 4.8.11 in SBCWP No. 7178/11 and others, as also the order passed by the court in the petition being SBCWP No. 6320/14 filed by the petitioners themselves. 8. The learned Addl. Advocate General Mr. Abhinav Sharma alongwith Mr. & Ors. decided on 4.8.11 in SBCWP No. 7178/11 and others, as also the order passed by the court in the petition being SBCWP No. 6320/14 filed by the petitioners themselves. 8. The learned Addl. Advocate General Mr. Abhinav Sharma alongwith Mr. Tanveer Ahmed appearing for the respondents however, vehemently submitted that the petitions having been filed by the petitioners grossly misusing the process of law and suppressing the material facts, the same deserve to be dismissed with exemplary costs. They further submitted that there being disputed questions of facts involved in the petitions, and the alternative remedy of approaching the Labour Court being available to the petitioners, the High Court should not entertain these petitions. Assailing the ex-parte orders passed by the coordinate bench in the present petitions as well as in the earlier petitions filed by the petitioners, Mr. Sharma submitted that the alleged action of the respondents, being within the realm of contract, it was not open for this court to judicially review the decision of the respondents, nor the court should have directed without giving opportunity of hearing to the respondents as to whether any other reasonable decision or course of action could have been taken by the respondents or not. In this regard Mr. Sharma has relied upon the decision of the Apex Court in case of Gridco Ltd. & Anr. vs. Sadananda Doloi & Ors. AIR 2012 SC 729 . Mr. Sharma has also placed heavy reliance on the decision of the Apex Court in the case of Secretary, State of Karnataka vs. Uma Devi & Ors. (2006) 4 SCC 1 to submit that the contractual appointments come to an end at the end of the contract. 9. According to Mr. Sharma for the respondents,in any case the petitioners were the employees of the placement agency i.e. M/s. Rajendra Sharma, the respondent No.4, and the said respondnet No.4 also having refused to continue the contract with the respondent-college, the court could not and should not have compelled the college or the new placement agency, which might be appointed by the college, to continue the petitioners in the employment, as directed in SBCWP No. 9533/12, more particularly when the petitioners had spoiled the entire atmosphere of the college by going on strike and behaving like hooligans. 10. 10. Having regard to the submissions made by the learned counsels for the parties and to the documents on the record, the undisputed facts that emerge are that the petitioners were never employed by the respondent-college, but were the employees of the placement agency which was engaged by the respondent-college on contractual basis. It appears from the reply filed by the respondent-college that the respondent-Govt. Engineering College is a society which was registered on 30.6.10 and prior to that, the college was being run by the sociaty registered under the society governing the Engineering Colleges at Ajmer. The respondent-college is governed by the Executive Council, which had decided to outsource the services of non-teaching staff through placement agency and accordingly M/s. Rajendra Sharma, a placement agency of Ajmer, who was also providing services to the erstwhile college, was engaged by the respondent-college at Jhalawar. The agreement with the said placement agency was continued till 2014, however, the employees of the said agency including the present petitioners went on strike with the demand that they should be given permanent appointments in the college. It is alleged by the respondents that the petitioners had held the priprietor of the said firm i.e. Mr. Rajendra Sharma as hostage and threatened him of dire consequences, in respect of which the said Rajendra Sharma had also filed a complaint. The copy of the said complaint is also placed on the record by the respondents alongwith the reply as R-2/9/A and R-2/9/3. Again in the month of August 2014, the petitioners and other employees resorted to strike in a violent manner threatening to stall the functioning of the college. The Principal of the respondent-college, therefore had written letters to the said placement agency M/s. Rajendra Sharma and in response thereto the said placement agency requested the college to terminate his contract and engage the services of some other agency. As transpiring from the record, the respondent-college had also requested the Government, and accordingly the Joint Secretary, Technical Education had permitted the college to make stopgap arrangements against 39 sanctioned posts vide the letter dated 19.9.14. The respondents under the circumstances had published the notice dated 18.10.14 inviting the tenders from the registered contractors. 11. As transpiring from the record, the respondent-college had also requested the Government, and accordingly the Joint Secretary, Technical Education had permitted the college to make stopgap arrangements against 39 sanctioned posts vide the letter dated 19.9.14. The respondents under the circumstances had published the notice dated 18.10.14 inviting the tenders from the registered contractors. 11. It is very pertinent to note that the petitioners of SBCWP No.9306/14 (who are also the petitioners in SBCWP No. 12240/2014 and 13013/2014) had not disclosed about the pendency of Writ Petition No. 6320/2014 and had filed the said petition making same averments and seeking almost the same prayers, as sought in SBCWP No. 6320/2014, except changing the chronology of paragraphs, and therefore the petition No. 9306/2014 deserves to be dismissed on that ground alone. Even otherwise, on merits also the petitioners have no legs to stand. In the said Writ Petition No. 9306/14, the petitioners have prayed to treat them as the direct employees of the respondent-college and continue them on the respective posts, and to direct the respondents not to replace them by another set of contractual employees/placement agency. IN the other two petitions also the petitioners have prayed to restrain the respondent-college from employing new employees in their place, in view of the order passed by the Single Bench of this court in SBCWP No. 9533/12. In the opinion of this court no such prayers could be granted in view of the position of law settled by the Apex Court in catena of decisions. 12. The Apex Court in the case of Secretary, State of Karnataka vs. Uma Devi (supra), has categorically held that the contractual appointment comes to an end at the end of the contract. The relevant para No. 43 is reproduced as under:- "Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because, an employee had continued under cover of an order of Court, which we have described as 'litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates." 13. In the instant case, the petitioners were never employed by the respondent-college, but were employed by the respondent-placement agency which agency was engaged by the respondent-college on contractual basis. Hence it could not be said that the petitioners were appointed by the respondent-college on contractual basis. That apart, even as per the aforesaid legal position, the persons employed on contractual basis would not have any right over the posts and their services would come to an end with the end of the contract. The Constitutional Bench of the Apex Court in the said decision of the Secretary, State of Karnataka vs. Uma Devi (supra) had also while considering the earlier judgments obseved interalia that the appointments made without following the due process or the rules did not confer any right on the appointees and the courts cannot direct their absorption or regularisation, or re-engagement or making them permanent, and that any decision running counter to the said decision (i.e. of Uma Devi by the Constitutional Bench) would stand denuded of their status as precedents. In view of the specific mandate given by the Apex Court in the said decision of Uma Devi, the petitioners cannot seek relief to continue them or to treat them as the direct employees of the respondent-college, relying upon the decisions of the Single Bench of this court. 14. The engagement of the petitioners by the placement agency do not confer any right on the petitioners much less the right to be treated as the direct employees of the respondent-college. It is also very pertinent to note that the respondent M/s. Rajendra Sharma who had engaged the petitioners and who was the earlier placement agency engaged by the respondent-college has also refused to continue the contract with the respondent-college, and under the circumstances, the respondent-college has no alternative but to engage the new placement agency by way of stopgap arrangement till the regular posts are filled up by the regular recruitment process. It cannot be gainsaid that the respondent-college being Government College should fill up the posts by regular employment after following the due process of law, and it should not continue to engage the placement agencies on contractual basis, nonetheless the petitioners cannot as a matter of right demand their continuation or permanence of employment with the respondent-college as sought in the present petitions. Though much reliance has been placed by the petitioners on the decisiion of the Single Bench of this court in the case of Sunil Kumar vs. State of Raj. (supra), whereby the court had compelled the placement agency that might be engaged by the respondent-college, to continue the petitioners, the said decisin loses its significance in view of the legal position settled by the Apex Court in case of Secretary, State of Karnataka vs. Uma Devi & Ors. (supra) and other decisions. The Apex Court in case of Gridco Ltd. & Anr vs. Sadananda Doloi & Ors. (supra) has also reiterated that the termination of contractual employment in accordance with the terms of the contract is permissible and the employee could not claim any protection against such termination, even when one of the contracting parties happens to be the State. It has been observed in Para 26 as under:- "26. A conspectus of the pronouncements of this court and the development of law over the past few decades thus show that there has been a notable shift from the stated legal position settled in earlier decisions, that termination of a contractual employment in accordance with the terms of the contract was permissible and the employee could claim no protection against such termination even when one of the contracting parties happened to be the State. Remedy for a breach of a contractual condition was also by way of civil action for damages/compensation. With the development of law relating to judicial review of administrative actions, a writ Court can now examine the validity of a termination order passed by public authority. It is no longer open to the authority passing the order to argue that its action being in the realm of contract is not open to judicial review. A writ Court is entitled to judicially review the action and determine whether there was any illegality, perversity, unreasonableness, unfairness or irrationality that would vitiate the action, no matter the action is in the realm of contract. A writ Court is entitled to judicially review the action and determine whether there was any illegality, perversity, unreasonableness, unfairness or irrationality that would vitiate the action, no matter the action is in the realm of contract. Having said that we must add that judicial review cannot extend to the Court acting as an appellate authority sitting in judgment over the decision. The Court cannot sit in the arm chair of the Administrator to decide whether a more reasonable decision or course of action could have been taken in the circumstances. So long as the action taken by the authority is not shown to be vitiated by the infirmities referred to above and so long as the action is not demonstrably in outrageous defiance of logic, the writ Court would do well to respect the decision under challenge." 15. In view of the above stated factual and legal position, the court does not find any merits in any of the writ petitions, and rather finds that the petitioners had misused the process of law by filing the petitions one after the other suppressing material facts, and therefore the petitions deserve to be dismissed with cost, which is quantified at Rs.5,000/- per petition. All the writ petition stand dismissed with costs accordingly. The costs shall be paid to the respondent No.3-college. 16. By this order, the stay application and other pending applications if any, also stand disposed of.