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2018 DIGILAW 183 (RAJ)

Sampat Lal S/o Shri Bhanwar Lal v. State of Rajasthan through the Chief Secretary

2018-01-16

PUSHPENDRA SINGH BHATI

body2018
ORDER : Pushpendra Singh Bhati, J. 1. These writ petitions under Article 226 of the Constitution of India have been preferred, in sum and substance, with the following prayers and for the sake of convenience, the prayer clauses are being taken from the case being S.B. Civil Writ Petition No. 9520/2017. 2. Petitioner has preferred this writ petition with the following prayer:- "1. The impugned order dated 26.07.2017 (Annx.1) and the order dated 01.08.2017 (Annx.2) and the consequential action of relieving the petitioners may kindly be quashed and set aside. 2. That respondents may kindly be directed to continue petitioners in service till the CMBPLJRK scheme continues. 3. That last but not the least, respondents may kindly be directed to adhere to the directions given in Anil Kumar Patwa's case and if at all, it is necessary to terminate services the same may be terminated by adhering the principle of 'last come -first go' by preparing a common seniority list of the persons working in CMBPLJRK and MNDY schemes. 4. That as a consequence, after preparation of such common seniority list, persons who are senior in the two schemes may be directed to be retained in the service as per the need. 5. That last but not the least, it is prayed that finance department may be directed to grant permission for absorption of the petitioners in NHM as directed by administrative department i.e. Medical & Health Department. 6. That the petitioner may also kindly be granted relief in consonance with the facts stated and the grounds taken in the memo of writ petition. 7. Writ petition filed by the petitioners may also kindly be allowed with costs." 3. Learned counsel for the petitioner has pointed out that vide annexure-1 the sanctioned posts have been done away with but the scheme is still continuing. 4. Learned counsel for the petitioner has further stated that the other parallel schemes are continuing under the broader purview of NHM and thus, any kind of accommodation in those schemes to the trained persons like the petitioner having rich experience was required to be done. Learned counsel for the petitioner has also submitted that since scheme itself has not come to an end and the contractual appointment are co-terminus with the scheme, therefore, such appointments need to be continued. 5. Learned counsel for the petitioner has also submitted that since scheme itself has not come to an end and the contractual appointment are co-terminus with the scheme, therefore, such appointments need to be continued. 5. Learned counsel for the petitioner has also pointed out that the respondents ought to adhere to the principle of last come first go for purpose of scaling down the posts which are no longer required. 6. Learned counsel for the petitioner has also relied upon the judgment of Mohd. Abdul Kadir and Another vs. Director General of Police, Aasam, 2009 AIR SCW 4291 in which the ratio is that the posts coming to an end co-terminus with the project are permissible. 7. Learned counsel for the petitioner has further stated that any preference to the employees in other scheme is not possible as the scheme comes with the strings attached from the NHM source i.e. Union of India. 8. Learned counsel for the petitioner has further shown that for similar posts a judgment was rendered by the Jaipur Bench of this Court in Anil Kumar Patwa vs. State of Rajasthan and Others (S.B. Civil Writ Petition No. 5508/2011) decided on 20.09.2011, the relevant portion of this judgment, reads as under:- "1. Respondents will not replace petitioners by another set of contractual/temporary employees either by direct contract or through placement agency. 2. Petitioners would be continued in service till BPL Jeevan Raksha Kosh is continued but subject to requirement of their services. If the required strength is reduced, respondents would be at liberty to discontinue services of petitioners but it should be after following principle of 'last come - first go' at the block level where any of the petitioner is working. In case of withdrawal of the scheme from a particular block, respondents would be at liberty to discontinue services of the petitioners/persons working in that block and in case of continuance of scheme in the block but with reduction of strength, principle of 'last come - first go' would be applied at that block. 3. As agreed by respondents, they will not to make appointments under NRHM pursuant to short term advertisement dated 6.9.2010, rather, they have agreed not to engage any one on contract basis by a direct contract or through placement agency. 3. As agreed by respondents, they will not to make appointments under NRHM pursuant to short term advertisement dated 6.9.2010, rather, they have agreed not to engage any one on contract basis by a direct contract or through placement agency. It can be only on 'job basis' and for which preference would be given to the existing persons if they are in position to undertake work on 'job basis'. 4. In future, if additional hands are required to undertake work of BPL Jeevan Raksha Kosh, the persons, who have been discontinued, would be given preference for appointment. 5. Petitioners, who have been taken under NRHM pursuant to interim order of this court, can be discontinued if additional hands are not required under NRHM as their continuance was pursuant to the interim order of this court only but, while doing so, respondents will take note of their previous engagement at the block level. If the BPL Jeevan Raksha Kosh is continued in his/her block then such a candidate/petitioner would be considered based on principle of 'last come - first go'. If he is the person first appointed in comparison to other at the block level where the strength is reduced, then petitioner would be entitled to seek continuance on the principle of 'last come - first go'. 6. In future also, if there is further reduction in requirement of hands, respondents will apply the same formula of 'last come - first go' at the block level for discontinuance of surplus hands as has been given above." 9. Learned counsel for the respondent has however shown from the Annexure-1 dated 26.07.2017 that the financial sanction of the posts sanctioned has been withdrawn and the posts have been eliminated. Learned counsel for the respondent states that it is not a case where a contractual employees are being replaced by another set of contractual employees. Learned counsel for the respondent has also stated that the concerned scheme is being scaled down as other employees of other schemes are able to man the jobs to be done under this scheme. 10. Learned counsel for the respondents has drawn attention of this court towards the Annexure-2 dated 01.08.2017 whereby the alternate arrangement to the scheme was contemplated by the respondents. 11. 10. Learned counsel for the respondents has drawn attention of this court towards the Annexure-2 dated 01.08.2017 whereby the alternate arrangement to the scheme was contemplated by the respondents. 11. After hearing counsel for the parties and perusing the record the case, this Court is of the opinion that it is not a case where the contractual employees under the Mukhyamantri BPL Jeevan Raksha Kosh Yojna are being replaced by another employees. It is clear from the Annexure-1 that the posts have been de-sanctioned and thus, the scheme is being scaled down. The reason of scaling down is also pertinent as the respondents have categorically made out a case that these persons are no longer required as other schemes are covering the zone of functioning of the scheme of Mukhyamantri BPL Jeevan Raksha Kosh Yojna. This Court also finds that the earlier order passed by this court at Jaipur Bench of this Court in the matter of Anil Kumar Patwa (Supra) was sufficient protection given by this Court to the petitioner. Thus, the petitioners cannot be given any protection over and above, the protection of not being replaced by any other of contractual employees. 12. Thus, the present petitions are disposed of with the directions to the respondents that until the scheme of the Mukhyamantri BPL Jeevan Raksha Kosh Yojna is continuing and the number of seats are sanctioned, the persons for the purpose of scaling down shall be done away while strictly adhering to the principle of last come first go at the block level. The respondent shall also be required to re-asses the functioning zone of the Mukhyamantri BPL Jeevan Raksha Kosh Yojna from time to time and at any juncture, if the zone of functioning of the Mukhyamantri BPL Jeevan Raksha Kosh Yojna is expanded and extended, the petitioners shall be given due preference strictly in accordance with law. It is also made clear that the petitioner shall be entitled to their due benefits until the last day which they work.