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2019 DIGILAW 2247 (RAJ)

Chanchal Khurana v. State of Rajasthan

2019-08-21

PUSHPENDRA SINGH BHATI

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JUDGMENT : PUSHPENDRA SINGH BHATI, J. 1. Since identical question of law is involved in batch of writ petitions, the same are being decided by this common order. 2. First and foremost, learned counsel for the petitioners jointly rely upon the judgment passed by this Court in Anil Kumar Patwa Vs. State of Raj. & Ors. (S.B. Civil Writ Petition No. 5508/2011), decided on 20/09/2011 which reads as follows:- "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, respondent 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 petitioners are 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. 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/petitioners would be considered based on principle 'last come-first go'. If the BPL Jeevan Raksha Kosh is continued in his/her block then such a candidate/petitioners would be considered based on principle '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 petitioners 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." 3. Learned counsel for the petitioners jointly submit that the petitioners are working with the respondents on respective posts of Class III/VI posts under the various Schemes of the respondents namely; Mukhya Mantri Nisulk Dava Yojna, Mukhya Mantri Nisulk Jaanch Yojna, Medicare Relief Society etc. on contractual basis and their services are satisfactory. It is further submitted that by virtue of interim order passed by this Court, the contractual services of the petitioners are protected and that though the contractual appointees do not have absolute right of continuance but certainly they cannot be removed illegally, perversely, unreasonably, unfairly or irrationally. Learned counsel for the petitioners have relied upon a judgment of Apex Court in Gridco Limited & Anr. Vs. Sadananda Doloi & Ors.: (2011) 15 SCC 16 , more particularly on Para 39 which reads as follows:- "39. 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." 4. 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." 4. Learned counsel for the petitioners further submit that the regular job, which is being discharged by the petitioners, is required by the respondents and thus such requirement until exists, the petitioners, who are contractually working on various posts under various schemes of the State Government, referred to supra, ought to be continued and substituting the services of the petitioner by another set of contractual employees will be a decision which will not be a legal decision but it will be an illegal, perverse, unreasonable, unfair and irrational action and thus will be bad in the eye of law. 5. On the other hand, Mr. Harshal Tholia, Adv. appearing on behalf of Dr. VB Sharma, AAG and Mr. Vivek Tyagi, DGC jointly submit that by no stretch of imagination, the petitioners could be protected on the contractual job and the breach of contract, at best, could be redressed by the petitioners by taking resort to civil remedy. Learned counsel for the respondents have referred to judgment of Division Bench of this Court in Rajasthan State Text Book Board Vs. Shri Anurag Mathur & Anr. (DB Civil Special Appeal Writ No. 7/2002), decided on 02/04/2009 which reads as follows:- "The appeal is directed against the judgment dated 12.12.2001 passed by the learned Single Judge by which while allowing the writ petition filed by the respondents challenging their termination order, they were directed to be continued in service with 25% back wages. As has come on record, the respondents were appointed purely on contract basis to perform the work of Computer Operator in the years 1995-96. The contract was duly signed by the parties and the same was extended from time to time. Lastly, the contract was signed on 2.4.1999 and the work was to continue upto 31st March, 2000. The Board took a decision on 13.3.2000 not to continue the contract period of the respondents and get the work done through some agencies on job contract basis. In pursuance to the above resolution dated 13.3.2000, the contract of the respondents was not extended beyond 31.3.2000. The Board took a decision on 13.3.2000 not to continue the contract period of the respondents and get the work done through some agencies on job contract basis. In pursuance to the above resolution dated 13.3.2000, the contract of the respondents was not extended beyond 31.3.2000. There is no dispute that the post of Computer Operator either been greated nor en-cadred in the service rule of the appellant-Board. The contract executed by the respondents from time to time has also not been disputed. At no point of time, teh respondents challenged the execution and terms and conditions of the contract before appropriate forum. There is also no dispute that the Board has the powers to get the particular work done through contract basis. The discretion of the Board in such matters cannot be interfered by this Court in writ jurisdiction. Apart from there been no regular sanctioned post duly en-cadred in the service rules, in view of the specific contracts duly executed by the respondents without any protest or objections, since the contract has not been extended as per decision of the Board., in our opinion, the directions issued by the learned Single Judge cannot be sustained in the eyes of law. More so, even as per specific affidavit filed on behalf of the appellants, the post of Computer Operator has yet not been created or exists in the appellant Board. Accordingly, the appeal is allowed. The impugned judgment dated 12.12.2001 passed by the learned Single Judge is quashed and set aside." 6. Learned counsel for the respondents further submit that if regularly selected persons are available or if the petitioners' temporary appointment is not in accordance with law or any breach of conditions of contract occur, then the respondents have full right to terminate services of the petitioners. Learned counsel for the respondents also submit that if the work, which the petitioners are discharging, comes to an end, then also, their contractual appointment can be brought to an end. It is further submitted that the petitioners have been given appointment as per Rajasthan Transparency and Public Procurement Act, 2012 norms and thus, they did not have any individual right of continuing in service. 7. It is further submitted that the petitioners have been given appointment as per Rajasthan Transparency and Public Procurement Act, 2012 norms and thus, they did not have any individual right of continuing in service. 7. After hearing learned counsel for the parties and perusing the material available on record as well as the precedent law cited, this Court is of the opinion that though the petitioners are contractual employees but they have been selected on the basis of their eligibility and merit and once they are selected and have attained reasonable experience of working with the respondent-State, then such persons tend to become asset to the State by virtue of the experience gained by them. This position is particularly clear in the places where competitive selection is not held and simply contractual appointments are made on the basis of the minimum eligibility and qualification. The competitive selection is excluded from such protection as in this more qualitative candidate replaces the contractual candidate already working. 8. This Court finds that the petitioners, who have been working with the respondents, if substituted for no good reasons, then it shall be a decision which shall not only be unreasonable but shall also be unfair and irrational. The investment of time and energy in gaining the experience no doubt creates a sedimentation in favour of the contractual employees to the extent that they should not be substituted by another set of contractual employees in normal circumstances. It is needless to say that in academic field or in any field of expertise where the competitive contractual employees are engaged, the respondents have a right to engage a more competitive person in place of the lesser competitive person but this is not the case in the present facts where the petitioners are discharging normally Class III/IV type of services. The experience gained by the petitioners entitles them to continue with the job of the respondents and the respondents shall be entitled to bring to an end the services of the petitioners in case and in the circumstances (i) where the petitioners' conduct is such which is in violation of the contractual conditions or is not upto the mark; or (ii) the regularly selected employees are available with the respondents or (iii) the work/scheme/project/duties assigned to the petitioners are no longer in continuance and the work itself is no longer required. 9. 9. Except for the aforesaid reasons, any other reason simply with a view to substitute the petitioners with other similarly situated candidates, particularly contractual employees shall be nothing but a case of sheer arbitrariness, unreasonableness and unfairness. 10. Consequently, the writ petitions are allowed. The respondents are directed not to substitute the petitioners with another set of contractual employees except for the aforesaid reasons. It is needless to say that if work is not available with the respondents is a reason for termination of the services of the petitioners at any point of time, then the principle of last come first go shall be adopted. It is made clear that the due salary of the petitioners shall be paid within a period of thirty days from today.