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2015 DIGILAW 891 (RAJ)

Ram Sahay Gurjar v. State of Rajasthan

2015-04-21

SUNIL AMBWANI, VEERENDR SINGH SIRADHANA

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JUDGMENT : We have heard learned counsel appearing for the parties. 2. These two Special Appeals have been filed against the judgment of learned Single Judge dated 22.01.2014 in S.B. Civil Writ Petition No.15128/2011 (Babu Lal Gurjar v. State of Rajasthan & Ors.), by which he had allowed the writ petition, on the ground that the replacement of one contractual employee by another contractual employee, on the post of Chowkidar, on which the petitioner was suddenly stopped the work on 30.06.2010, without any rhyme or reason, was a practise, which was deprecated by the judgments of this Court in Smt.Pramila Devi & Ors. v. State of Rajasthan & Ors. (S.B.Civil Writ Petition No.8365/2010), decided on 08.02.2011, as well as the judgment in Smt.Mooli Devi v. State of Rajasthan & Ors., 2010 (4) WLC (Raj.) 334. 3. In the present case, Shri Babu Lal Gurjar, the petitioner, who has also filed an appeal against the judgment dated 22.01.2014, was engaged on contract, to serve as a Chowkidar in Kasturba Gandhi Balika Vidhyalaya, Chaksu, District Jaipur, a scheme floated by the Central Government for the residential schools, for girls in rural areas. He was engaged on 01.07.2006, and continue to work upto 30.06.2009, when the State Government, running the project through Sarva Shiksha Abhiyan, decided to engage the employees, namely, warden, teachers, watchman, cook and helper, in all Kasturba Gandhi Balika Vidhyalaya, through private placement agencies. Though the petitioner was already working on contract, which was extended from year to year, he was recommended by the placement agency, namely CDECS (HRD Division), Jaipur to the District Project Coordinator, Sarva Shiksha Abhiyan, Jaipur. His name was recommended as Watchman in Kasturba Gandhi Balika Vidhyalaya, Chaksu, District Jaipur, in letter of CDECS, Jaipuir dated 30.06.2009. 4. It was submitted on behalf of the petitioner that on 30.06.2010, he was relieved, and was not allowed to work from 01.07.2010, on the ground that his services had come to an end. The petitioner requested to allow him to continue, but without any response. On 12.07.2010, a new person, namely, Shri Ram Sahay Gurjar was recommended by the same placement agency, and was employed by the District Project Coordinator, Sarva Shiksha Abhiyan, Jaipur, to work as Chowkidar in Kasturba Gandhi Balika Vidhyalaya, Chaksu. 5. The petitioner requested to allow him to continue, but without any response. On 12.07.2010, a new person, namely, Shri Ram Sahay Gurjar was recommended by the same placement agency, and was employed by the District Project Coordinator, Sarva Shiksha Abhiyan, Jaipur, to work as Chowkidar in Kasturba Gandhi Balika Vidhyalaya, Chaksu. 5. On 20.08.2011, a legal notice was given by the petitioner, in which it was stated that he had been disengaged, without any rhyme or reason, or passing any order, and that, no notice for terminating his employment, was given to him, as to why he was discontinued to work. In reply to the legal notice, the Block Primary Education Officer, Block Chaksu, District Jaipur, vide his letter dated 12.09.2011, informed Shri Akshay Sharma, Advocate, that the petitioner was employed through the District Project Coordinator and CDECS. He regularly attended his duties, and that, there was no complaint against him. He was replaced by Shri Ram Sahay Gurjar, who was recommended by CDECS, and District Project Coordinator, Sarva Shiksha Abhiyan, Jaipur. Since there is only one post of Chowkidar in Kasturba Gandhi Balika Vidhyalaya, Chaksu, District Jaipur, in pursuance to the directions of the District Project Coordinator and CDECS, Shri Ram Sahay Gurjar was appointed as Chowkidar. The Block Primary Education Officer also replied to point No.2, that the local office is not entitled to issue any appointment order for the post of Chowkidar; the persons are employed in Kasturba Gandhi Balika Vidhyalaya through the CDECS and District Project Coordinator. 6. Learned Single Judge allowed the writ petition, on the ground that the petitioner is a victim of being replaced by another contractual worker through placement agency, and that, since this Court has already held that the State cannot give employment through placement agencies, by replacing one set of contractual workers with another, to avoid regularization, the replacement of the petitioner was illegal. The Court directed the petitioner to be reinstated in service on the post of Chowkidar within fifteen days. 7. The order was stayed, on an appeal filed by Shri Ram Sahay Gurjar, on 09.05.2014. 8. It is submitted by learned counsel appearing for the State of Rajasthan and Shri Ram Sahay Gurjar, that Shri Babu Lal Gurjar, the petitioner, had abandoned the employment. He did not turn up on 01.07.2010, and has started a general merchant shop. 7. The order was stayed, on an appeal filed by Shri Ram Sahay Gurjar, on 09.05.2014. 8. It is submitted by learned counsel appearing for the State of Rajasthan and Shri Ram Sahay Gurjar, that Shri Babu Lal Gurjar, the petitioner, had abandoned the employment. He did not turn up on 01.07.2010, and has started a general merchant shop. Shri Babu Lal Gurjar is not interested in working any more. He never gave any representation, and kept quiet from 01.07.2010 to 20.08.2011, when a notice was sent by him, through an Advocate, and which was replied by the Block Primary Education Officer, Block Chaksu, District Jaipur. It is submitted that the present petitioner, who had voluntarily given up the employment, to start a general merchant shop, was not entitled to any relief from the Court. 9. In Mohd. Abdul Kadir & Anr. v. Director General of Police, Assam & Ors., (2009) 6 SCC 611 , the Supreme Court observed as follows:- "16. 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 the PIF Additional Scheme were introduced by the Government of India. The Scheme does not contemplate or require such periodical termination and reappointment. 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. 18. We are therefore of the view that the learned Single Judge was justified in observing that the process of termination and reappointment 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, coterminous 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 quashed. 26. The appeal is allowed in part accordingly as follows: (i) The Circular dated 17-3-1995 is quashed. 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 quashed. 26. The appeal is allowed in part accordingly as follows: (i) The Circular dated 17-3-1995 is quashed. The appellants shall not be subjected to annual terminations and reappointments (subject to observations in paras 16-18 above). (ii) The benefit of this order will be available to other similarly situated ad hoc border staff, even if they have not approached the Court for relief. In view of the above, the interlocutory applications for impleading are disposed of as having become in fructuous. (iii) This order will not however come in the way of ad hoc employees working as border staff, being subjected to any periodical medical examination or service review to assess their fitness and suitability for continuation." 10. The documents brought on record, namely, the recommendations of the placement agency and the reply given by the Block Primary Education Officer, Chaksu to the legal notice, clearly suggests that no notice was given, nor the petitioner's services were terminated on the ground of absence from duties. Though he was working from 01.07.2006, and even thereafter when the process of giving appointments through placement agencies was adopted by the State Government, and was engaged through the placement agency from 01.07.2009 for a period of one year, his employment was only allowed for a year. The appointment order of his services on contract, has not been filed along with the reply given by the respondents in the writ petition. In fact, no orders were issued for his appointment on contract, nor any contract was executed between the parties. Every year, the placement agency would recommend a name for appointment, on which the contractual employees were replaced by another employee. This process was apparently adopted, to avoid any claim for regularization. The Kasturba Gandhi Balika Vidhyalaya is a Central Government Scheme run under the Sarva Shisha Abhiyan through the officers of the Education Department of the State. The Scheme has continued from time to time. The State Government, in order to avoid the claims for regularization, and to give permanency to any employee in the Scheme, started engaging the employees through the placement agencies, on yearly basis, dispensing with services of previous employees without giving any reasons and issuing any orders. The Scheme has continued from time to time. The State Government, in order to avoid the claims for regularization, and to give permanency to any employee in the Scheme, started engaging the employees through the placement agencies, on yearly basis, dispensing with services of previous employees without giving any reasons and issuing any orders. 11. Although there are no pleadings, we find considerable substance in the stand taken by learned counsel appearing for Babu Lal Gurjar, that every year, the employees had to manage to get recommended to continue in the work for the subsequent year. There was no reason assigned for not allowing the employees to work on contract, if he had not been recommended by the placement agency. There was no order issued, nor any reason given in the reply to the legal notice by Block Primary Education Officer, that the petitioner had voluntarily abandoned the employment. It was only when a writ petition was filed, that a reply was given that he had abandoned the employment and had started a general merchant shop. 12. In the absence of any reasons, nor any pleading, we do not find that the conduct of Babu Lal Gurjar was such that he was dis-entitled for employment for the next year. In fact, in the reply to the legal notice, it is clearly stated that there was no complaint about the work and conduct of Shri Babu Lal Gurjar. 13. This Court had already deprecated and ruled against the employment given on contract through placement agencies, and further, the replacement of the contractual employees with another set of contractual employees, every year. Shri Babu Lal Gurjar, the petitioner was a victim of the policy of the State Government, which has been disapproved as arbitrary, whimsical and irrational, by this Court and by the Hon'ble Supreme Court. 14. In view of the above, both the Special Appeals are dismissed. The order passed by learned Single Judge will be carried out within fifteen days. Since Babu Lal Gurjar had not worked for the period, in which there was an interim order passed by this Court, he will not be entitled to any arrears of salary. 14. In view of the above, both the Special Appeals are dismissed. The order passed by learned Single Judge will be carried out within fifteen days. Since Babu Lal Gurjar had not worked for the period, in which there was an interim order passed by this Court, he will not be entitled to any arrears of salary. However, considering the facts and circumstances of the case, we award Rs.10,000/-, to be paid by the State of Rajasthan, from out of the funds of Sarva Shiksha Abhiyan, as costs, to Shri Babu Lal Gurjar, the petitioner, who is respondent before us, for pursuing the litigation. 15. A copy of this judgment will be placed in the connected file.