Writ petition dismissed. The court held that requiring petitioners to sign a renewal agreement does not affect their settled seniority rights under the Division Bench judgment and is not maintainable on apprehension alone.
The direction was issued that the petitioners should submit an agreement within two weeks.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH, JAIPUR
S.B. Civil Writ Petition No.16707/ 2011 Shahdab Mirza & Ors. Versus State of Rajasthan & Ors.
Date of Order : : 01st December, 2011
HON ' BLE MR. JUSTI CE M.N. BHANDARI
Mr.Raj Kumar Kasana, for the petitioners.
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The petitioners are aggrieved by the order dated 29.6.2011. The aforesaid order was passed pursuant to the judgment of the High Court in the earlier writ petitions.
Learned counsel for petitioners submits that the aforesaid order dated 29.6.2011 has been passed in violation of the judgment of this Court in S.B. Civil Writ Petition No.4731/ 2009 and the Division Bench's judgment in D.B. Civil Special Appeal (Writ) No.574/ 2010 decided on 7.12.2010. In those cases, a direction was issued that Vidhyarthi Mitra can be discontinued only when regularly selected candidates become available and even while doing so it should be based on state level seniority list.
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Learned counsel for petitioners further submits that by virtue of the impugned order dated 29.6.2011, the respondents are asking for the bond from the petitioners, which seems to be with an intention to discontinue them or to reckon their seniority again from the date of fresh appointment. If the petitioners are given seniority now as per the new appointment order, it may have consequential effect, thus the impugned order may be set aside.
I have considered submissions aforesaid.
It is a matter where number of writ petitions were earlier decided by the learned Single Judge by a detailed judgment and therein it was directed that Vidhyarthi Mitra may not be replaced unless regularly selected candidates either by way of recruitment or promotion become available. In the event of termination, it should be based on the principle of “last come first go” after drawing state-level seniority list. The judgment of the learned Single Judge was challenged by the State. In the appeals, judgment of the learned Single Judge was maintained but with some modifications that seniority list may be prepared at the level on which seniority of such incumbents is maintained under
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the Rules and thereby principle of “last come first go” be applied. After the judgment of the Division Bench, matter again came up before the Coordinate Bench and therein referring to the Rules, determination of seniority was ordered to be maintained at the district level. The grievance of petitioners is now that in the garb of the impugned order dated 29.6.2011, their seniority would be affected and thereby in the event of termination, they would go out first.
I have considered the aforesaid and perused the impugned order dated 29.6.2011, which is quoted hereunder for ready reference: -
“ राजस्थान सरकार िश्षा [ �ुप-2] िवभाग
�मांक: प.17[ 7] िश्षा-2/ जयपुर, िदनांक-29.6.2011
आयु�, माध्यिमक िश्षा राजस्थान, बीकानेर। िनदेशक �ारिम्भक िश्षा राजस्थान, बीकानेर िनदेशक, संस्कृत िश्षा, राजस्थान,जयपुर।
िवषय: - शैि्षक स� 2011-12 हेतु संिवदा पर िव�ाथ� िम� लगाये जाने के सम्बन्ध म�।
महोदय,
उपरो� िवषयान्तगर्त लेख है िक �ाख्याता, विर�
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अध्यापक,अध्यापक तृतीय वेतन �ृंखला के िर� पद� पर शैि्षक स� 2010-11 म� संिवदा पर काय र ्त रहे िव�ाथ� िम�� को पूवर् म� जारी शत� एवं मानदेय के आधार पर तथा माननीय उ� न्यायालय �ारा पािरत िनणर्यानुसार शैि्षक स� 2011-12 हेतु जुलाई,2011 से संिवदा पर लगाये जाने की स्वीकृित �दान की जाती है। इनके मानदेय भुगतान स्वीकृत िर� पद� हेतु उपलब्ध बजट म� से िकया जावेगा। वषर् 2011-12 के िलए शै्षिणक स� 2010-11 म� काय र ्त रहे �त्येक िव�ाथ� िम� से पूवर् म� िनधार्िरत शत� के अनुसार नया अनुबन्ध िकया जावेगा।
उ� स्वीकृित िव� ( �य-1) िवभाग की आई.डी. संख्या101102056 िदनांक-27.6.2011 �ारा �ा� सहमित के आधार पर �दान की जाती है।
भवदीय ह०/ - ( अशोक सम्पत राम) �मुख शासन सिचव"
Perusal of the order quoted above shows that pursuant to the judgment of this Court sanction has been granted to continue the contractual employees who were working in the session of 2010-2011 and it has further been directed to sign the agreement containing the same terms and conditions as were existing in the original agreement. Much objection has been raised for signing of the agreement though it has not been disputed that petitioners were initially engaged on the contract basis and they had signed agreement also. Even as per the judgment of the Division Bench, contractual employees cannot be replaced by another set of contractual employees but then petitioners being contractual employees are under an obligation to sign the agreement. The impugned
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order does not show that the seniority position of the petitioners would be affected or is to be counted from the date of agreement rather judgment of this Court in the case supra directs for application of “last come first go” and petitioners having been continued in service, are wrongly apprehending any effect on their seniority. Mere submission of agreement for the present session is not going to affect them rather rights settled in favour of the petitioners in the judgment supra still hold field though with a clarification as given by the Division Bench. Thus, I find that the present writ petition has been filed only on the apprehension and thus are not maintainable. In any case, while dismissing the writ petition, it is clarified that submission of agreement will not affect the continuance of the petitioners' service and their rights as settled by the Division Bench of this Court in the case supra. No action should be taken by the respondents in violation of the direction given by the learned Single Judge and as upheld by the Division Bench though with some modifications.
The petitioner/ s are accordingly directed to submit an agreement pursuant to the circular dated 29.06.2011 and they would not be debarred to continue merely for the reason
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that the agreement was not signed on or before 4.7.2011. However, petitioner/ s should sign the agreement within a period of two weeks from today.
In case, the respondents find any difficulty in carrying out the order or any clarification, they would be at liberty to move an application for modification or recalling of the order.
p r eet y , Jr .P.A.
All cor r ect ion s m ade in t h e j u d gm en t / or d er h ave b een
in cor p or at ed in t h e j u dgm en t / or der bein g em ailed.
Pr eet y Asop a Jr .P.A.
2 issues framed by the court
Whether the requirement of future contractual appointees to sign a new bond would affect petitioners' seniority and lead to their termination.
Whether the petitioners can claim stay on the direction given in the petitioners to sign the agreement.
Shahdab Mirza & Ors.
State of Rajasthan & Ors.
M.N. Bhandari
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
