Rajasthan High Court

Ravidhar Bhardwaj vs State Of Raj And Ors on 13 August, 2021

Bench: Inderjeet Singh

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

                 S.B. Civil Writ Petition No. 10118/2018

Ravidhar Bhardwaj Son Of Shri Murlidhar Sharma, By Caste
Brahmin, Resident Of Sambhar Lake, Tehsil, Phulera, District
Jaipur, Rajasthan
                                                                     ----Petitioner
                                     Versus
1.      State Of Rajasthan Through Principal Secretary, Finance
        Budget Department, Secretariat, Bhawani Singh Road,
        Jaipur
2.      Senior Deputy District Education Officer Com Block
        Primary Education Officer, Panchayat Samiti, Phulera,
        District Jaipur
3.      Block Primary Education Officer, Panchayat Samiti, Dudu,
        District Jaipur
                                                                  ----Respondents

For Petitioner(s) : Mr. Ashok Kumar Mishra, Adv. For Respondent(s) : Mr. Bharat Saini, Addl. G.C.

HON'BLE MR. JUSTICE INDERJEET SINGH

Order

13/08/2021

1. Application for early listing is allowed.

2. This writ petition has been filed by the petitioner with the

following prayer:-

"It is, therefore, humbly prayed that your lordships may graciously be pleased to accept and allow this writ petition, to call for and examine the record and further to issue appropriate writ, order or direction in the nature thereof:-

i. to direct the respondents to provide the benefit of revised payment of Rs. 6500/- per month and Rs. 8000/- per month from the date of issuance of circular dated 25.07.2011 (Annexure-

9) and circular dated 01.07.2015

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(Annexure-10) with arrears along with 18% interest per year.

ii. to direct the respondents to consider the case of the petitioner for regularization of services and accordingly to prove the benefits thereof.

iii. to award the cost Any other order or direction which may deem just and proper in the facts and circumstances of the case may kindly also be passed in favor of the Petitioner."

3. Brief facts of the case are that the petitioner was initially

appointed on 01.04.2010 on the post of Computer Operator on

contact basis with the respondent-department on fixed salary of

Rs. 6000/- per month. Earlier the petitioner has filed S.B. Civil

Writ Petition No.5621/2013 which was decided by this court vide

order dated 27.04.2017 which reads as under:-

"Present petition has been filed under Article 226 of the Constitution of India praying that the petitioner be permitted to continue on the post of Computer Operator with Machine in Midday Meal Scheme.

Shri Parikshit Singh, learned Deputy Govt. Counsel, has referred to letter (Annx.3) to contend that the petitioner was appointed as Computer Operator with Machine in Mid-day Meal Scheme as a contractual employee through placement agency.

Learned counsel for the petitioner has disputed this fact and has submitted that vide Annexure-4 petitioner was appointed as Computer Operator with Machine by the respondents.

Be that as it may, it is not disputed that the petitioner as on today is working as Computer Operator with Machine on contractual basis.

After hearing learned counsel for the parties, present petition is disposed of with a direction that the respondents shall not replace the petitioner with another contractual employee."

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4. Counsel for the petitioner submitted that the petitioner since

the date of his initial appointment is working with the respondent

on a salary of Rs.6000/- per month which is an agreed amount as

per terms and conditions arrived at between the petitioner and the

respondents. Counsel further submits that the salary of similarly

situated persons has been increased firstly from Rs.6000/- to

Rs.6500/- and then from Rs. 8000/- to Rs.8500/- per month, but

the respondents failed to revise the salary of the petitioner and

prayed for enhancing salary of the petitioner at par with other

similarly situated persons.

5. Counsel for the respondent submitted that as per the

circulars dated 01.05.2014 and 01.07.2015, the salary of the

computer operator were revised by the State Government only to

the extent of the persons who have been hired through placement

agency and not for the persons engaged on personal contract/

agreement. Counsel further submits that the petitioner was

appointed in the department on contract basis on a fixed salary of

Rs.6000/- per month and he is not entitled for revision of salary in

view of the circulars (supra).

6. Counsel relied upon the judgment passed by the State of

Maharashtra & Ors. Vs. Anita & Anr. Reported in (2016) 8

SCC 293 wherein para No.11 to 16 has held as under:-

"11. In the Government Resolution dated 21.08.2006 while creating 471 posts in various cadres including Legal Advisors, Law Officers and Law Instructors in clause (3) of the said Resolution, it was made clear that the posts created ought to be filled up on contractual basis. Clause (3) reads as under:-

"The said posts instead of being filled in the regular manner should be kept vacant and should be filled on the contract

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basis as per the terms and conditions prescribed by the government or having prepared the Recruitment Rules should be filled as per the provisions therein."

12. Subsequently, the said Resolution was modified by Government Resolution dated 15.09.2006. In the said Resolution, the column specifying "Pay Scale" was substituted with column "Combined Permissible Monthly Pay + Telephone & Travel Expenses". However, there was no change in the decision of the government on filling up the posts on contractual basis.

The Government Resolution dated 15.09.2006 stipulates the terms and conditions of the contractual appointments. Clauses 'A', 'B', 'C' and 'D' read as under:- "A) The appointment of the said posts would be completely on contractual basis. These officers/employees would not be counted as government employees. B) The said appointments should be made on contract basis firstly for 11 months. After 11 months the term of the agreement could be increased from time to time if necessary. Whereas, the appointing authority would take the precaution while extending the terms in this manner that, at one time this term should not be more than 11 months. The appointment in this way could be made maximum three times. Thereafter, if the competent authority is of the opinion that the reappointment of such candidate is necessary then such candidate would have to again face the selection process.

C) The appointing authority concerned at the time of the appointment would execute an agreement with the candidate concerned in the prescribed format. The prescribed format of the agreement is given in Appendix 'B'. It would be the responsibility of the office concerned to preserve all the documents of the agreement.

D) Except for the combined pay and permissible telephone and travel expenses (more than the above mentioned limit) any other allowances would not be admissible for the officers/employees being appointed on contract basis."

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13. The intention of the State Government to fill up the posts of Legal Advisors, Law Officers and Law Instructors on contractual basis is manifest from the above clauses in Government Resolutions dated 21.08.2006 and 15.09.2006. While creating 471 posts vide Resolution dated 21.08.2006, the Government made it clear that the posts should be filled up on contractual basis as per terms and conditions prescribed by the Government. As per clause 'B' of the Government Resolution dated 15.09.2006, the initial contractual period of appointment is eleven months and there is a provision for extension of contract for further eleven months. Clause 'B' makes it clear that the appointment could be made maximum three times and extension of contract beyond the third term is not allowed. If the competent authority is of the opinion that the reappointment of such candidates is necessary then such candidates would again have to face the selection process.

14. It is relevant to note that the respondents at the time of appointment have accepted an agreement in accordance with Appendix 'B' attached to the Government Resolution dated 15.09.2006. The terms of the agreement specifically lay down that the appointment is purely contractual and that the respondents will not be entitled to claim any rights, interest and benefits whatsoever of the permanent service in the government. We may usefully refer to the relevant clauses in the format of the agreement which read as under:-

"1. The First Party hereby agrees to appoint Shri/Smt._________ (Party II) as a ________ on contract basis for a period of 11 months commencing from __________ to __________ (mention date) on consolidated remuneration of Rs.___________ (Rupees _____________ only) per month, and said remuneration will be payable at the end of each calendar month according to British Calendar. It is agreed that IInd party shall not be entitled for separate T.A. and D.A. during the contract period....

2. ..........

3. .........

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          4. ...........

5. Assignment of 11 months' contract is renewable for a further two terms of 11 months (i.e. total 3 terms), subject to the satisfaction of the Competent Authority, and on its recommendations.

6. The Party No. II will not be entitled to claim any rights, interest, benefits whatsoever of the permanent service in the Government."

15. The above terms of the agreement further reiterate the stand of the State that the appointments were purely contractual and that the respondents shall not be entitled to claim any right or interest of permanent service in the government. The appointments of respondents were made initially for eleven months but were renewed twice and after serving the maximum contractual period, the services of the respondents came to an end and the Government initiated a fresh process of selection. Conditions of respondents' engagement are governed by the terms of agreement. After having accepted the contractual appointment, the respondents are estopped from challenging the terms of their appointment. Furthermore, the respondents are not precluded from applying for the said posts afresh subject to the satisfaction of other eligibility criteria.

16. The High Court did not keep in view the various clauses in the Government Resolutions dated 21.08.2006 and 15.09.2006 and also the terms of the agreement entered into by the respondents with the government. Creation of posts was only for administrative purposes for sanction of the amount towards expenditure incurred but merely because the posts were created, they cannot be held to be permanent in nature. When the government has taken a policy decision to fill up 471 posts of Legal Advisors, Law Officers and Law Instructors on contractual basis, the tribunal and the High Court ought not to have interfered with the policy decision to hold that the appointments are permanent in nature."

7. Heard counsel for the parties and perused the record.

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8. This writ petition filed by the petitioner deserves to be

dismissed for the reasons; firstly, the petitioner was engaged

purely on contract basis and after accepting the terms and

conditions of the contract agreement, the petitioner is estopped to

challenge the terms and conditions of the appointment order;

secondly, as per the terms and conditions of the contract

agreement, the salary of the petitioner was fixed as Rs.6000/- per

month which the respondents are paying to the petitioner,

therefore in view of the judgment passed by the Hon'ble Supreme

Court in the Matter of State of Maharashtra (supra), no relief can