Allowed

Sanjay Kumar Sharma S/O Shri Shambhu Dayal Sharma v. State of Rajasthan through the Principal Secretary

Rajasthan HC12 Feb 2021CW/1873/2019

Case brief

AI extract

What is this about?

Petitioners seeking continuation of their contractual employment after the State issued a new advertisement for similar posts. The Court examined whether prior interdicts against replacing contractual employees applied given changes in funding sources and the differential qualifications/salary in the new advertisement.

What did the court decide?

Vacated the interim order restraining replacement of petitioners; respondents directed to complete selection process within one month with preference to petitioners if they clear the exam.

Sanjay Kumar Sharma S/O Shri Shambhu Dayal… — Public Procurement and Tenders | Rajasthan HC (2021)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Writ Petition No. 6429/2018

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Chandrakant Sharma S/o Daudayal Sharma, R/o Raja Bacchu Singh Marg, Dariba Mohalla, Deeg, Bharatpur, Rajasthan.

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Gaurav Pareek S/o Rajendra Pareek, R/o A-1, Vijay Singh Pathik Nagar, Bhilwara, District Bhilwara, Rajasthan.

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Vinay Chauhan S/o Shyam Singh Chauhan, R/o 813, Avas Vikas Colony, Sector 7, Opp. Rd Complex, Sikandara Yojna, Agra, District Agra, Uttar Pradesh.

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Mukesh Harsh S/o Krishna Kumar Harsh, R/o D-676, M.d.v. Nagar, Bikaner, Rajasthan.

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Anil Kumar Dhank S/o Bholaram, R/o Vpo Gandala, Tehsil Behror, District Alwar, Rajasthan.

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Yogesh Kumar S/o Vipin, R/o Village Basai Badi, Fatehabad, Agra, Uttar Pradesh.

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Neetesh Kumar S/o Mahavir Singh, R/o Village Lalai Post, Khairagarh, District Firozabad, Uttar Pradesh.

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Vijay Kumar S/o Inder Dev, R/o Village Rohiranwali Sutharan, Tehsil And District Srigangangar, Rajasthan.

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Virender Singh S/o Surjeet Singh, R/o House No. 213, Street No. 5, Bhambhu Colony, Ward No. 18, Sri Ganganagar, Rajasthan.

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Seema Varshney D/o Bhajan Lal Varshney, R/o P. No. 5, Flat No. F-2, Near Kailashpuri, Chhatrasal Nagar-Iind, Jagatpura, Jaipur, Rajasthan.

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Vijay Kumar Garg S/o Manoj Kumar Garg, R/o H. No. 8/160, Raghuveerpuri, Near Masoodabad Bus Stand, Aligarh, Uttar Pradesh.

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----Petitioners

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Versus

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The State Of Rajasthan Through Its Secretary, Medical, Health And Family Welfare Department, Secretariat, Rajasthan, Jaipur.

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Mission Director, National Health Mission N.h.m., Medical And Health Department, Swasthya Bhawan, Tilak Marg, C-Scheme, Jaipur.

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(2 of 10)

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[CW-6429/2018]

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The Additional Director Administration, Medical And Family Welfare Department, Rajasthan, Sawasthya Bhawan, C-Scheme, Jaipur.

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The District Reproductive And Child Health Officer, District Dholpur.

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The District Reproductive And Child Health Officer, District Bhilwara.

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The District Reproductive And Child Health Officer, District Tonk.

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The District Reproductive And Child Health Officer, District Sikar.

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The District Reproductive And Child Health Officer, District Pali.

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The District Reproductive And Child Health Officer, District Sawaimadhopur.

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The District Reproductive And Child Health Officer, District Karauli.

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The District Reproductive And Child Health Officer, District Hanumangarh.

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The District Reproductive And Child Health Officer, District Sriganganagar.

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The District Reproductive And Child Health Officer, District Dausa.

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The District Reproductive And Child Health Officer, District Jhunjhunu.

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----Respondents

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Connected With

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S.B. Civil Writ Petition No. 6445/2018

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Arshad Ahmed Mansuri S/o Abdul Razaq Mansuri, R/o Ward No. 8, Masjid Ke Pass, Post Mandan, District Kota, Rajasthan.

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Harshika Gupta D/o Sudhir Kumar Gupta, R/o H. No. 146, Sector 2, Suhag Nagar, Akashdeep, Near Ramesh Chanchal Kothi, Firozabad, Uttar Pradesh.

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Fateh Singh Aasarwa S/o Ram Singh Aasarwa, R/o Opposite New Fruit Mandi, Beawar Road, Ajmer, Rajasthan.

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Mahendra Aachrya S/o Pushkar Lal Aacharya, R/o Mukam

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(3 of 10)

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[CW-6429/2018]

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Post Mohi, Badi Pol, District Rajsamand, Rajasthan.

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Rajesh Kumar Joshi S/o Sohan Lal Joshi, R/o Mandir Ke Pass, Post Boodh, Tehsil Gangrar, District Chittorgarh, Rajasthan.

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Rakhi Sharma D/o Late Sone Ram Sharma, R/o Ashok Vihar Colony, Near Umang Children School, Dholpur, Rajasthan.

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Ramesh Chandra Gogali S/o Nakhta Ram Gogali, R/o Vpo Khetolai, Tehsil Pokrau, District Jaisalmer, Rajasthan.

¶45

Lal Chand Panwar S/o Ami Chand Panwar, R/o Panwar Kirana Store, Kushalawa, Tehsil Phalodi, District Jodhpur, Rajasthan.

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Rahul Mangal S/o Mahesh Chandra Mangal, R/o Narmada Complex, A.b. Road, Shivpuri, District Shivpuri, Madhya Pradesh.

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Gyanendra Pratap Singh S/o Jang Bahadur Singh, R/o Village Dhaurahar, Post Kathehara, Block Handia, District Allahabad, Uttar Pradesh.

¶48

Neeraj Kumar Gupta S/o Saroj Kumar Gupta, R/o Vpo Wazeer Nagar, Block Pisawan, District Sitapur, Uttar Pradesh.

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Rajesh Ojha S/o Radha Krishna Ojha, R/o 1087, Bheruji Mandir Wali Gali, Ghoogra Ghati, Jaipur Road, Ajmer, Rajasthan.

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----Petitioners

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Versus

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The State Of Rajasthan Through Its Secretary, Medical, Health And Family Welfare Department, Secretariat, Rajasthan, Jaipur.

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Mission Director, National Health Mission N.h.m., Medical And Health Department, Swasthya Bhawan, Tilak Marg, C-Scheme, Jaipur.

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The Additional Director Administration, Medical And Family Welfare Department, Rajasthan, Sawasthya Bhawan, C-Scheme, Jaipur.

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The District Reproductive And Child Health Officer, District Kota.

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The District Reproductive And Child Health Officer, District Jaipur.

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(4 of 10)

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[CW-6429/2018]

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The District Reproductive And Child Health Officer, District Rajsamand.

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The District Reproductive And Child Health Officer, District Dholpur.

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The District Reproductive And Child Health Officer, District Jaisalmer.

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The District Reproductive And Child Health Officer, District Ajmer.

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The District Reproductive And Child Health Officer, District Nagaur.

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The District Reproductive And Child Health Officer, District Jodhpur.

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The District Reproductive And Child Health Officer, District Baran.

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The District Reproductive And Child Health Officer, District Jalore.

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The District Reproductive And Child Health Officer, District Chittorgarh.

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----Respondents

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S.B. Civil Writ Petition No. 1873/2019

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Sanjay Kumar Sharma S/o Shri Shambhu Dayal Sharma, Aged About 33 Years, Resident Of Pattikalan Bamanwas, District Sawai Madhopur-322211 (Raj.)

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----Petitioner

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Versus

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1. State Of Rajasthan Through The Principal Secretary, Medical And Health Department, Govt. Secretariat, Jaipur (Raj.)

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The Mission Director, Nhm, Swasthya Bhawan, Tilak Marg, C-Scheme, Jaipur (Raj.)

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----Respondents

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For Petitioner(s) : Mr. Dheeraj Palia for Mr. Ram Pratap Saini Mr. Tanveer Ahamad For Respondent(s) : Mr. Vivek Tyagi, Dy.G.C.

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HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA

(5 of 10)

[CW-6429/2018]

Order

12/02/2021

The matter comes up on an application for vacation of interim order passed by this Court dated 22.03.2018 whereby the respondents were restrained from dispensing with the services of the petitioners in order to replace another employees on contract/ Ad hoc/ temporary basis.

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Learned counsel for the petitioners submits that the petitioners were appointed after undergoing an interview process on the post of Vaccine Logistic & Cold Chain Manager by Strategic Alliance Management Services Pvt. Ltd. to perform the work with the respondents and they have been continuously performing their duties since 2015, however, now an advertisement has been issued on 8.03.2018 by the NHM for filling up the post along with other post of Vaccine Logistic & Cold Chain Manager. The appointment is on contract basis as per the advertisement dated 8.03.2018 and thus the petitioners are sought to be replaced by another set of contractual employees.

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Learned counsel submits that this Court in the case of Chanchal Khurana & Anr. Vs. State of Rajasthan & Ors.: SBCWP No.13206/2019 and other connected petitions decided on 21.08.2019 has observed that the contractual employees should not be substituted by another set of contractual employees. Learned counsel had also relied on the judgment passed in Radha Rani Vs. State of Rajasthan: SBCWP No.7178/2011 and other connected writ petitions decided on 4.8.2011 wherein this Court observed that nomenclature of the post is changed and new persons are asked to undertake the work then the present Caregivers would be given preference to

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(6 of 10)

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[CW-6429/2018]

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continue. Learned counsel also relied on Anil Kumar Patwa Vs.

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State of Rajasthan: SBCWP No.5508/2011 and other connected writ petition decided on 20.09.2011 to submit that the principle of ‘last come first go’ is to be followed even for contractual employees.

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Per contra, learned counsel for the applicant and the State-NHM submits that originally the recruitment of the petitioners were conducted by a private firm which provided their services to a scheme which was funded wholly by the United Nations.

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The United Nations however has stopped funding the said scheme and the concerned firm namely Strategic Alliance Management Services Pvt. Ltd. was getting funds directly from the said United Nations. So far as State is concerned, it has although adopted the said scheme under the NHM, however they have issued the advertisement dated 8.03.2018 for filling up the post which include a post manned by the petitioners.

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Learned counsel submits that the petitioners too could have participated in the written examination and those who have participated in the written examination are waiting for the result and pray that the interim order therefore be vacated.

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In the connected writ petitions the candidates who have participated in the written examination have come up before this Court praying that their result be declared and the post may be allowed to be filled. Learned counsel appearing in the said writ petitions submits that the petitioners are only handful in number namely 11 in all while there are around 44 posts which have been advertised and therefore the result ought to be declared and the remaining post may be allowed to be filled.

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(7 of 10)

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[CW-6429/2018]

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I have considered the submissions.

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In Chanchal khurana (supra), the Court examined the aspects regarding the contractual appointments and after considering the law laid down by this Court in Anil Kumar Patwa (supra) and other judgments as well as the law laid down by the Supreme Court passed following order on 21.08.2019 as under:-

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“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.

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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 up to the mark; or (ii) the regularly selected employees are available with the respondents or (iii) the work/scheme/project/duties assigned to the

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(8 of 10)

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[CW-6429/2018]

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petitioners are no longer in continuance and the work itself is no longer required.

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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.

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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.”

¶104

The law is thus settled that contractual employees cannot be replaced by the another set of contractual employees however, the question arises whether the petitioner can be treated to be employees appointed on contract basis by the State Government.

¶105

In view of the peculiar facts to the present case, it is apparent that the petitioners were appointed by interview method by a firm Strategic Alliance Manager Services Pvt. Ltd. which provided services to the United Nations Organizations who were funding the scheme for universal program at the State and District level. Admittedly, the said program is no more being funded by the United Nations and said company has got no relations with the NHM.

¶106

The services of the petitioners cannot be said to be under the State Government or under the NRHM as they were appointed by a private agency solely for the purpose of UNO Scheme and were being funded by the UNO. The Scheme which has been adopted by the State Government therefore cannot be said to be in continuation. The State Government has already

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(9 of 10)

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[CW-6429/2018]

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issued an advertisement and the petitioners were free to participate in the said advertisement. It is not known as to whether petitioners have participated or not. Be that as it may, this Court approves that even for contractual, advertisement ought to be issued and therefore the procedure adopted by the State Government cannot be faulty. Such a advertisement gives fair chance of selection to all candidates.

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It is also noticed that the advertisement carries the same nomenclature of the post held by the petitioners but the educational qualifications mentioned therein and the salary being offered are different from what the petitioners were offered. Thus, the petitioners cannot claim parity neither on the ground of educational qualification nor on the ground of salary.

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It cannot therefore be said that the petitioners were working on the same contract post.

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In view thereof, this Court does not find it to be a case where the interim order requires to be continued in favour of the petitioners. The case of the petitioners cannot be said to be identical to the cases which have been cited at Bar by the learned counsel for the petitioners. Thus, the claim of the petitioners fails and the interim order passed by the Court stands vacated. In view of the aforesaid adjudication, nothing remains in the main writ petition and the same also stands accordingly disposed of.

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The respondents shall be now free to proceed with the selection process as advertised under the advertisement dated 08.03.2018 and fill up the post at the earliest within a period of one month. If any of the petitioners have also participated in the said selection process, their cases shall be considered on preference basis if they have cleared the examination.

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(10 of 10)

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[CW-6429/2018]

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