Chandrakant Sharmaandors vs State Of Raj And Ors
2021 Latest Caselaw 1566 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

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

1.    Chandrakant Sharma S/o Daudayal Sharma, R/o Raja
      Bacchu Singh Marg, Dariba Mohalla, Deeg, Bharatpur,
      Rajasthan.
2.    Gaurav Pareek S/o Rajendra Pareek, R/o A-1, Vijay Singh
      Pathik Nagar, Bhilwara, District Bhilwara, Rajasthan.
3.    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.
4.    Mukesh Harsh S/o Krishna Kumar Harsh, R/o D-676,
      M.d.v. Nagar, Bikaner, Rajasthan.
5.    Anil Kumar Dhank S/o Bholaram, R/o Vpo Gandala, Tehsil
      Behror, District Alwar, Rajasthan.
6.    Yogesh   Kumar        S/o     Vipin,      R/o     Village    Basai   Badi,
      Fatehabad, Agra, Uttar Pradesh.
7.    Neetesh Kumar S/o Mahavir Singh, R/o Village Lalai Post,
      Khairagarh, District Firozabad, Uttar Pradesh.
8.    Vijay Kumar S/o Inder Dev, R/o Village Rohiranwali
      Sutharan, Tehsil And District Srigangangar, Rajasthan.
9.    Virender Singh S/o Surjeet Singh, R/o House No. 213,
      Street No. 5, Bhambhu Colony, Ward No. 18, Sri
      Ganganagar, Rajasthan.
10.   Seema Varshney D/o Bhajan Lal Varshney, R/o P. No. 5,
      Flat No. F-2, Near Kailashpuri, Chhatrasal Nagar-Iind,
      Jagatpura, Jaipur, Rajasthan.
11.   Vijay Kumar Garg S/o Manoj Kumar Garg, R/o H. No.
      8/160, Raghuveerpuri, Near Masoodabad Bus Stand,
      Aligarh, Uttar Pradesh.
                                                                  ----Petitioners
                                  Versus
1.    The State Of Rajasthan Through Its Secretary, Medical,
      Health And Family Welfare Department, Secretariat,
      Rajasthan, Jaipur.
2.    Mission Director, National Health Mission N.h.m., Medical
      And Health Department, Swasthya Bhawan, Tilak Marg,
      C-Scheme, Jaipur.


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3.    The      Additional     Director       Administration,        Medical   And
      Family      Welfare        Department,           Rajasthan,      Sawasthya
      Bhawan, C-Scheme, Jaipur.
4.    The District Reproductive And Child Health Officer, District
      Dholpur.
5.    The District Reproductive And Child Health Officer, District
      Bhilwara.
6.    The District Reproductive And Child Health Officer, District
      Tonk.
7.    The District Reproductive And Child Health Officer, District
      Sikar.
8.    The District Reproductive And Child Health Officer, District
      Pali.
9.    The District Reproductive And Child Health Officer, District
      Sawaimadhopur.
10.   The District Reproductive And Child Health Officer, District
      Karauli.
11.   The District Reproductive And Child Health Officer, District
      Hanumangarh.
12.   The District Reproductive And Child Health Officer, District
      Sriganganagar.
13.   The District Reproductive And Child Health Officer, District
      Dausa.
14.   The District Reproductive And Child Health Officer, District
      Jhunjhunu.
                                                                  ----Respondents

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

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

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

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

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

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Post Mohi, Badi Pol, District Rajsamand, Rajasthan.

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

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

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

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

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

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

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

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

----Petitioners Versus

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

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

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

4. The District Reproductive And Child Health Officer, District Kota.

5. The District Reproductive And Child Health Officer, District Jaipur.

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6. The District Reproductive And Child Health Officer, District Rajsamand.

7. The District Reproductive And Child Health Officer, District Dholpur.

8. The District Reproductive And Child Health Officer, District Jaisalmer.

9. The District Reproductive And Child Health Officer, District Ajmer.

10. The District Reproductive And Child Health Officer, District Nagaur.

11. The District Reproductive And Child Health Officer, District Jodhpur.

12. The District Reproductive And Child Health Officer, District Baran.

13. The District Reproductive And Child Health Officer, District Jalore.

14. The District Reproductive And Child Health Officer, District Chittorgarh.

----Respondents S.B. Civil Writ Petition No. 1873/2019 Sanjay Kumar Sharma S/o Shri Shambhu Dayal Sharma, Aged About 33 Years, Resident Of Pattikalan Bamanwas, District Sawai Madhopur-322211 (Raj.)

----Petitioner Versus

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

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

----Respondents

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

HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA

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Order

12/02/2021

1. 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.

2. 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.

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

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.

4. 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.

5. 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.

6. 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.

7. 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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8. I have considered the submissions.

9. 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:-

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

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."

10. 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.

11. 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.

12. 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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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.

13. 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.

14. It cannot therefore be said that the petitioners were

working on the same contract post.

15. 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.

16. 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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17. The connected writ petitions also stand decided in the

aforesaid terms.

18. All pending applications stand disposed of.

(SANJEEV PRAKASH SHARMA),J

NITIN /46-48

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