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2023 DIGILAW 335 (RAJ)

Suresh Yadav v. Nagar Nigam Jaipur Through Its Chief Commissioner Head Office

2023-01-30

ANOOP KUMAR DHAND

body2023
ORDER 1. Instant petition has been filed by the petitioner with the following prayer:- 'It is therefore prayed that your lordships may kindly be accept and allow this writ petition and please be: (i) Given directions to the respondents for regularization of service of the petitioner from the date the similarly situated persons given benefits of regularization. (ii) Given directions for payment of arrears and other benefits to the petitioner. (iii) Any order or direction may deem fit and proper in favour of the petitioner for and of Justice.' 2. Counsel for the petitioner submits that the petitioner was appointed on the post of Driver on contract basis through placement agency in the year 1995 but his services were terminated in the month of February, 1999 and again he was taken back in service on the same post in the month of June 1999. Counsel submits that since then the petitioner was continuously working on the said post of Driver without interruption and the respondents are liable to regularize the services of petitioner. Counsel submits that the case of the petitioner is squarely covered by the judgment of this Court passed in the case of Lachchhi Ram Sharma Vs. Jaipur Municipal Corporation, Jaipur and Anr. (SBCWP No. 5303/2008 decided on 17.09.2008). Counsel for the petitioner further submits that the judgment of this Court passed in the case of Lachchhi Ram Sharma (Supra) was assailed by the Jaipur Municipal Corporation before Division Bench of this Court by filing D.B. Civil Special Appeal (Writ) No. 399/2009 and the same was dismissed. Counsel submits that under these circumstances, same order may be passed in the instant case directing the respondents to regularize the service of petitioner along with all consequential benefits. 3. Learned counsel for the petitioner has also placed reliance on the judgments of the Hukum Chand and Anr. Vs. Industrial Tribunal, Jaipur and Ors. (S.B. Civil Writ Petition No. 5043/2005 decided on 02.01.2017) and Om Prakash Vs. State of Rajasthan and Anr. (S.B. Civil Writ Petition No. 13615/2012, decided on 14.09.2017). 4. Per contra, learned counsel for the respondents opposed the arguments raised by the learned counsel for the petitioner and submitted that the petitioner is working on the post of Driver through placement agency and a contractual employee is not entitled to claim regularization in service. State of Rajasthan and Anr. (S.B. Civil Writ Petition No. 13615/2012, decided on 14.09.2017). 4. Per contra, learned counsel for the respondents opposed the arguments raised by the learned counsel for the petitioner and submitted that the petitioner is working on the post of Driver through placement agency and a contractual employee is not entitled to claim regularization in service. Counsel submits that there existed no relationship of employer and employee between the petitioner and the State. Counsel submits that no document with regard to the appointment of the petitioner has been placed on record, which could indicate that the petitioner is holding a regular appointment. Counsel submits that under these circumstances, the petitioner is not entitled to claim regularization and the petition filed by the petitioner is liable to be rejected on this count. 5. In support of their contentions, they have placed reliance on the Division Bench judgment of this Court in the case of Murai Lal Gurjar and Ors. Vs. State of Rajasthan and Ors. in D.B. Special Appeal (Writ) No. 1029/2022 decided on 08.09.2022. 6. Heard and considered the submissions made at bar. 7. It is admitted case of the petitioner that he is working on the post of Driver on contract basis. This is also admitted fact on record that no regular appointment order has been passed in favour of the petitioner by the respondents. As per reply submitted by the respondents, the petitioner is working on the said post on contract basis through placement agency. 8. The Hon'ble Apex Court in the case of K.K. Suresh and Anr. Vs. Food Corporation of India and Ors. reported in 2018(17) SCC 641 , has dealt with the issue involved in this case and held in para No. 7 as under:- '7. 8. The Hon'ble Apex Court in the case of K.K. Suresh and Anr. Vs. Food Corporation of India and Ors. reported in 2018(17) SCC 641 , has dealt with the issue involved in this case and held in para No. 7 as under:- '7. In the first place, the Appellants failed to adduce any evidence to prove existence of any relationship between them and the FCI; Second, when the documents on record showed that the Appellants were appointed by the FCI Head Load Workers Co-Operative Society but not by the FCI then obviously the remedy of the Appellants, if at all, in relation to their any service dispute was against the said Society being their employer but not against the FCI; Third, the FCI was able to prove with the aid of evidence that the Appellants were in the employment of the said Society whereas the Appellants were not able to prove with the aid of any documents that they were appointed by the FCI and how and on what basis they claimed to be in the employment of the FCI except to make an averment in the writ petitions in that behalf. It was, in our opinion, not sufficient to grant any relief to the Appellants.' 9. Similarly in the case of Rajasthan State Road Development and Construction Corporation Ltd. Vs. Piyush Kant Sharma reported in 2020 SCC Online SC 842, Hon'ble Apex Court has held in para 8 as under:- '8. Having heard the learned Counsel appearing on behalf of the respective parties, we are of the opinion that the High Court has committed a grave error in passing such an interim order restraining the Appellant Corporation from appointing new set of contractual employees in place of original writ Petitioners. No reasons, whatsoever have been assigned by the High Court while passing the impugned interim order. The High Court has failed to appreciate and consider the fact that according to the Appellant Corporation, there was no regular sanctioned post of Computer Operator in the Appellant Corporation and that there was no employer-employee relationship between the original writ Petitioner and the Appellant Corporation and that the original writ Petitioner was a employee appointed by the contractor on contractual basis and worked with the Appellant Corporation on contractual basis. As the writ petition is pending before the High Court, we refrain ourselves from making any further observations on merits. As the writ petition is pending before the High Court, we refrain ourselves from making any further observations on merits. However, we are of the opinion that in the facts and circumstances of the case narrated hereinabove, the High Court ought not to have passed such an interim order. Under the circumstances, the impugned interim order passed by the High Court requires to be quashed and set aside.' 10. It is settled proposition of law that even if a Scheme has been in operation for some decades or that the employee concerned has continued on ad hoc basis for decades, it would not entitle the employee to seek permanency or regularization. 11. In Mohd. Abdul Kadir v. DGP, reported in (2009) 6 SCC 611 , the Hon'ble Apex Court observed as under:- '15. On completion of the project or discontinuance of the scheme, those who were engaged with reference to or in connection with such project or scheme cannot claim any right to continue in service, nor seek regularisation in some other project or service.' 12. Similarly the Kerla High Court in Resmi R.S Vs. Government of India, reported in 2019 SCC online Kerla 2649 has held that: 9. That contractual employees under a Scheme can have no right to claim that they are entitled to continue in service after the agreed term of contract is over. 10. who had been engaged on contract basis have no right to insist that they are to be permitted to continue after the term of contract has expired. 13. Recently Hon'ble Apex Court has dealt with the question of regularization of an employee continue in service for a larger period on contractual basis. Hon'ble Apex Court in the case of Chief Executive Officer Zila Parishad Thane and Ors. Vs. Santosh Tukaram Tiware and Ors. reported in 2023(1) SCC 456 has held in para 15 to 21 as under:- '15. That thereafter respondent No. 1 filed a writ petition before the High Court praying for regularization which was filed on 31.07.2021, and by that time vide order dated 15.07.2021 the services of respondent No. 1 was put to an end. Despite the above and solely on the ground that respondent No. 1 has rendered his services for longer period the High Court has ordered regularization. Despite the above and solely on the ground that respondent No. 1 has rendered his services for longer period the High Court has ordered regularization. The High Court has also set aside order dated 15.07.2021 though the same was not challenged before the High Court. Without challenging order dated 15.07.2021 the High Court ought not to have set aside order dated 15.07.2021 which was on the award of the contract to the agency. 16. Merely because respondent No. 1 continued in service for longer period on contractual basis the High Court ought not to have passed the order of regularization more particularly, when a policy decision was taken to avail the services of the driver by the agency/contractor and that the appointment of respondent No. 1 and other similarly situated drivers was not made after any selection procedure. The appointment of respondent No. 1 was purely on stopgap and on contractual basis. 17. Under the circumstances, the High Court has committed a very serious error in ordering regularization as well as quashing and setting aside order dated 15.07.2021 by which on the contract being awarded to M/s Rakshak Security Services and Systems Pvt. Ltd., the services of respondent No. 1 was put to an end. 18. Now so far as the reliance placed upon the decision of this Court in the case of Pandurang Sitaram Jadhav (supra) is concerned, on facts the said decision shall not be applicable to the case on hand and/or of any assistance to respondent No. 1. It was a case where this Court found an unfair labour practice. It was found that employees similarly situated working in the same establishment were granted regularization. 19. Similarly, the decision of this Court in the case of Sheo Narain Nagar (supra) also shall not be applicable to the facts of the case on hand. It was a case where the authorities conferred temporary status and it was found that there was requirement of work and availability of posts too, and it was found that it was not a case of backdoor entry, the services of the concerned employees were directed to be regularized w.e.f., 02.10.2002 from the date on which the authorities conferred the temporary status. Therefore, on facts the said decision shall not be applicable to the facts of the case on hand. 20. Therefore, on facts the said decision shall not be applicable to the facts of the case on hand. 20. In view of the above and for the reasons stated above the impugned judgment and order passed by the High Court quashing and setting aside communication dated 15.07.2021 putting an end to services of respondent No. 1 on the contract being awarded to M/s Rakshak Security Services and Systems Pvt. Ltd., and the order directing the appellants to regularize the services of respondent No. 1 as a driver deserves to be quashed and set aside and is accordingly quashed and set aside. Consequently, writ petition preferred by respondent No. 1 stands dismissed. 21. Present appeal is accordingly allowed. In the facts and circumstance of the case there shall be no order as to costs.' 14. In view of the settled proposition of law as propounded by the Hon'ble Apex Court in K.K. Suresh (Supra), Piyush Kant Sharma (Supra), Mohd. Abdul Kadir (Supra) and Santosh Tukaram Tiware (Supra), I find no force in this writ petition and the petition filed by the petitioner and the same deserves to be dismissed for the reason that there is no relationship of employee and employer between the petitioner and the State-respondents and the petitioner has failed to submit any document on record to show that he was appointed by the Staterespondents. The petitioner was engaged on contractual basis only, hence he has no right to seek regularization. The judgments cited by the learned counsel for the petitioner in the case of Hukum Chand (Supra) and Omprakash (Supra) are not applicable in the facts and circumstances of the case. 15. In view of the discussions made hereinabove, this Court is not inclined to exercise the jurisdiction contained under Article 226 of the Constitution of India. 16. Accordingly, the writ petition as well as all pending application(s), if any, also stands dismissed.