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2017 DIGILAW 1255 (RAJ)

N. v. S. Prasad son of Shri N. Veeraraghavulu VS Union of India, through Secretary, Ministry of Agriculture and Cooperation, Government of India

2017-05-17

SANJEEV PRAKASH SHARMA

body2017
JUDGMENT : 1. All these three writ petitions are being commonly decided as the issue involved is identical. 2. Facts of SB Civil Writ Petition No.10822/2015 are being noted for the purpose. 3. Petitioners’ case is that all three of them were appointed as IT-Facilitator in Post Graduate Diploma in Agri-Business Management (PGDABM) on consolidated salary w.e.f. 15/07/2001 at National Institute of Agricultural Marketing, Jaipur (NIAM). The NIAM is an organization of Ministry of Agriculture, Govt. of India and thus comes within the ambit of Article 12 of the Constitution of India having been a Govt. of India Organization under its control. 4. The services of the petitioners were continued till 30/06/2015 where after their services were discontinued by not allowing them to mark attendance. No formal order was passed. 5. Aggrieved thereof, the petitioners gave notice to the respondents and thereafter preferred these writ petitions before this Court stating that they came to know that the respondents have issued a notification calling placement agencies to fill up the posts by issuing e-tender. 6. A prayer has been made to set aside the oral termination and further direct the respondents to regularize services of the petitioners on the post of IT-Facilitator as they have been performing their duties on the said post since last 14 years. 7. Counsel for the petitioner submits that action of the respondents in replacing one set of contractual employees by another set of contractual employees has already been held bad by this Court as well as by the Apex Court from time to time. A recent judgment passed by this Court in the case of Surendra Kumar Gurjar & ors. Vs. State of Rajasthan & ors. (SB Civil Writ Petition No.4582/2017, decided on 03/04/2017 authored by me, has been cited wherein this Court has laid down following guidelines:- “(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. 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 choose method and subsequent litigation.” 8. It is further argued that as the petitioner has been working for more than 10 years on the post and the programme, for which their appointment was made, is of perennial nature, they are entitled for regularization and tobe paid regular salary. It is further submitted that the action for the respondents in dispensing with services of the petitioners and asking tenders from placement agency for filling up the said posts is wholly illegal and unjustified. It is also stated that in terms of the reply filed by the respondents, the petitioners cannot be asked to now work in placement agency after having been working on contract basis and getting salary from NIAM. 9. Per-contra, learned counsel for the respondents submits that services of the petitioners were taken on contract basis in view of the new PGDABM Course had been started by the NIAM from its own funding. The funds for the salary to be paid to the nonteaching staff, which includes petitioners, is from the amount which the NIAM gets during the PGDABM Course. It is also submitted that the programme is not of perennial nature and is continued from year to year notwithstanding that the petitioners were appointed on contract basis, the management of NIAM had been providing suitable hike from year to year in the remuneration being paid to the petitioners and they should not be aggrieved of the minimum of salary being paid to them as the post is not a cadered post and is purely a contract post/programme based post. Hence there cannot be any salary structure fixed for the said post and the demand was wrongful and unjustified. Keeping in view that they had completed more than 10 years of service, guidance was sought from the Ministry of Agriculture to issue directions on 02/07/2014 to make arrangements at the level of NIAM for the PGDABM Programme by outsourcing. Hence there cannot be any salary structure fixed for the said post and the demand was wrongful and unjustified. Keeping in view that they had completed more than 10 years of service, guidance was sought from the Ministry of Agriculture to issue directions on 02/07/2014 to make arrangements at the level of NIAM for the PGDABM Programme by outsourcing. In view of the directions, the petitioners were asked to work under the placement agency and no illegality can be said to have been committed by the respondents. It is submitted that the respondent-Institute had repeatedly told the petitioners that they may be given preference while applying through the empenelled agency. It is also stated that while services of the petitioners have been discontinued, they were not evicted from the premises and the discontinuance was only for the petitioners to be considered again by the empenelled agency. 10. Heard learned counsel for the parties at length. 11. It is noted that an interim order was passed by this Court. Pursuant thereto, the petitioners are still continuing without any break with the respondents and are getting salary with continued year to year hike in remuneration. A look at the order dt.02/07/2014 would show that what has been directed for the NIAM by the Ministry of Agriculture is only in the nature of guidelines. Thereby, it has been pointed out that what should be the preconditions for outsourcing. One of the principal condition is that the contractual employees are continued on year to year basis based on their performance with suitable periodical hike in remuneration and that the recommendations of the Executive Committee of NIAM. The other one is with regard to the payment of remuneration and it has been laid down that there is no liability on the part of the Government of India/NIAM for the remuneration part and the same has to be out of the profit generated from the paid course. Thus, this Court finds that the respondent-institute has wrongly interpreted it to mean that the serving contractual employees of NIAM will have to be put under the placement agency and the letter dt. 02/07/2014 cannot be treated as a directory but is only a guideline. Such guidelines are for the purpose of channelizing and to streamline the services. It cannot be treated to be mandatory nor could it ever mean to direct the NIAM for removing the existing employees. 02/07/2014 cannot be treated as a directory but is only a guideline. Such guidelines are for the purpose of channelizing and to streamline the services. It cannot be treated to be mandatory nor could it ever mean to direct the NIAM for removing the existing employees. 12. Even otherwise, this Court time and again has deprecated the practice of appointing persons through placement agency. Such system results in putting an employee under control of the placement agency and there is always a lot of room for exploitation, discrimination and arbitrariness at the hands of such placement agencies which are not amenable to court jurisdiction. 13. The posts held in the Government or having any public flavour, cannot be allowed to be filled through placement agency. Moreover, such a person, appointed through placement agency, would not be himself amenable or responsible to the Government. In the case of Surendra Kumar Gurjar & ors. Vs. State of Rajasthan & ors. (supra), this Court has already issued direction to the State Government. 14. However, for the present case, which relates to NIAM, which is under the control of the State Government, suffice it to state that the petitioners, who are working on contract basis and getting salary from NIAM, could not have been placed in the hands of the placement agencies and the action taken by the respondents cannot be justified. Of course, the appointment of the petitioners would be coterminous to the PGDABM programme and this Court agrees with the learned Senior Counsel that the petitioners cannot claim regularization on the post as the post is not of a permanent nature nor the petitioner can claim regular pay-scale as there is no salary structure fixed for the said post. However, if in future, the respondents plan to make the posts permanent and fix a salary structure, the concerned petitioners may be considered for the benefit of regularization and may claim for the same at that relevant time. 14. For the present, the petitions are partly allowed. The oral termination of the petitioners w.e.f. 01/07/2015 is set aside and the petitioners, who are already working on the basis of interim order, are allowed to continue and the interim order is made absolute. No costs.