Arjun Singh vs Union Of India
2021 Latest Caselaw 5536 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 2378/2021

1. Arjun Singh S/o Shri Malla Ram, Aged About 34 Years, R/o- Maliyon Ka Bass, Village/post- Palasani, District- Jodhpur.

2. Dr. Saroj Kumar Chouhan S/o Shri Hastimal Chouhan, Aged About 40 Years, R/o 21/513, Chopasni Housing Board, Jodhpur.

3. Naresh Kumar S/o Shri Pukhraj, Aged About 40 Years, R/o Village Hapala (Barar), Tehsil Bhim, District Rajsamand.

4. Kapil Dev S/o Shri Mahendra Singh, Aged About 35 Years, R/o Village / Post - Paroli, Tehsil Kotadari, District Bhilwara.

5. Rajkumar Jingar S/o Shri Roshan Lal, Aged About 31 Years, R/o 4/408, R.h.b. Colony, Goverdhandas Vilas, Sector - 14, Udaipur.

6. Mahendra Chouhan S/o Shri Himmta Ram, Aged About 34 Years, R/o 10-B, Ramdev Colony, Jalore.

7. Jitendra Kumar S/o Shri Kundan Ram, Aged About 32 Years, R/o Meghwalo Ka Bass, Ahore, District Jalore.

8. Anil Ujjwal S/o Shri Jaidev Ujjwal, Aged About 28 Years, R/o 76/5/7, P.w.d. Colony, Barmer Road, Jaisalmer.

9. Sobha Soni D/o Bhopaldas Soni, Aged About 36 Years, R/o Taloti Vyas Para, Jaisalmer.

10. Gautam Chand S/o Shri Tikam Chand, Aged About 33 Years, R/o D-392, Shankar Nagar, Pal Road, Jodhpur.

11. Dinesh Vaishnav S/o Shri Babudas Vaishnav, Aged About 35 Years, R/o 1-D-61, Old Housing Board, Pali.

12. Naveen Kishore Kakerda S/o Sohan Lal Teli, Aged About 31 Years, 3-C, Gandhi Nagar, Sector-5, Chittorgarh.

13. Pooja Teli D/o Shri Bheru Lal, Aged About 30 Years, R/o 3-C, Gandhi Nagar, Sector - 5, Chittorgarh.

14. Mohit Kumar Chouhan S/o Ramesh Kumar Chouhan, Aged About 35 Years, Teliyo Ki Gali, Pratapgarh.

15. Kapil Vaishnav S/o Shri Prakash Chandra Vaishnav, Aged About 35 Years, R/o Village / Post - Odavadiya, District Dungarpur.

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16. Kapil Joshi S/o Raghunath Prasad Joshi, Aged About 34 Years, Bapu Gali, Pratapgarh.

17. Mukesh Patel S/o Shri Babu Lal Patel, Aged About 33 Years, R/o 1/34, New Housing Board Colony, Banswara

18. Prakash Joshi S/o Shri Lal Shanker Joshi, Aged About 34 Years, R/o Patelwara, Durga Chowk, Talwara, District Banswara.

19. Laxman Kumar Mali S/o Shri Manak Chand Saini, Aged About 35 Years, R/o Maliyo Ka Mohalla, Ward No. 1, Village Dujar, District Nagaur.

20. Rahul Deve S/o Shri Kamlesh Dave, Aged About 28 Years, R/o Sikhwalo Ki Pole, Gotan, District Nagaur.

21. Kanhaiya Lal S/o Shri Champat Lal Mali, Aged About 31 Years, R/o Sarneshwar Road, Sadulpura, Sirohi.

22. Dileep Dhawal S/o Shri Bhura Ram, Aged About 37 Years, R/o Dhawal Niketan, Sarneshwar Road, Sirohi.

23. Rakesh Manat S/o Shri Manohar Lal, Aged About 28 Years, R/o Village / Post - Baladit (Thana), District Dungarpur.

----Petitioners Versus

1. Union Of India, Through The Under Secretary, Ministry Of Women And Child Development, Government Of India, Shastri Bhawan, New Delhi - 110001.

2. The State Of Rajasthan, Through The Principal Secretary Cum Director, Department Of Child Rights, 22/198, Kaveri Path, Sector-2, Mansarovar, Jaipur.

3. The Chief Executive Officer, Rajasthan State Child Protection Society, 22/198, Kaveri Path, Sector-2, Mansarovar, Jaipur.

4. The Assistant Director, District Child Protection Unit, Jodhpur.

5. The Assistant Director, District Child Protection Unit, Rajsamand.

6. The Assistant Director, District Child Protection Unit, Bhilwara.

7. The Assistant Director, District Child Protection Unit, Udaipur.

8. The Assistant Director, District Child Protection Unit,

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Chittorgarh.

9. The Assistant Director, District Child Protection Unit, Banswara.

10. The Assistant Director, District Child Protection Unit, Pratapgarh.

11. The Assistant Director, District Child Protection Unit, Pali.

12. The Assistant Director, District Child Protection Unit, Dungarpur.

13. The Assistant Director, District Child Protection Unit, Jalore.

14. The Assistant Director, District Child Protection Unit, Sirohi.

15. The Assistant Director, District Child Protection Unit, Jaisalmer.

16. The Assistant Director, District Child Protection Unit, Nagaur.

----Respondents

For Petitioner(s) : Mr. R. S. Saluja For Respondent(s) : Mr. Anil Kumar Gaur, AAG assisted by Mr. Salman Agha and Mr. Anupam Gopal Vyas Mr. Mukesh Rajpurohit, ASGP assisted by Shashank Joshi

JUSTICE DINESH MEHTA

Judgment

25/02/2021

1. By way of the present writ petition, the petitioners herein

(23 in number) have challenged the impugned order dated

01.02.2021 (Annex.11) and notices issued in furtherance thereof.

2. The precise facts relevant for the present purposes are that

the Central Government, vide notification dated 17.05.2013,

promulgated a scheme for welfare of the children in furtherance

whereof the respondents issued a notification dated 09.12.2016

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and invited applications from all eligible candidates for the post of

Protection Officer and Outreach Workers. The notification clearly

stipulated that the engagement shall be on the contractual basis

for a period of three years.

3. The petitioners herein took part in the selection process and

were offered contractual employment and agreement(s) came to

be executed in their favour initially for a period of one year from

07.04.2017 to 06.04.2018.

4. The contracts of all the petitioners have been extended even

after April, 2018 or beyond three years' period - in some cases

upto 28.02.2021 and in some cases even upto 28.02.2022.

5. It will not be out of place to reproduce the relevant details of

petitioners' contractual engagement and the period of contract of

each of the petitioners, as has been given in para No.12 of the

writ petition :

Sr. Name Post Place of Date of Fixed Date/Month No. Posting Appointment Remuneration Last Extension

1. Arjun Singh ORW Jodhpur 07.04.2017 8,000/- April, 2020 (till 28.2.2022)

2. Dr. Saroj Kumar PO Jodhpur 07.04.2017 21,000/- April, 2020 (till 28.2.2022)

3. Naresh Kumar PO Rajasamand 01.05.2017 21,000/- March, 2020 (till 28.2.2021)

4. Kapil Dev ORW Rajasamand 01.05.2017 8,000/- March, 2020 (till 28.2.2021)

5. Rajkumar Jinger PO Udaipur 01.05.2017 21,000/- March, 2020 (till 28.2.2021)

6. Mahendra ORW Jalore 01.01.2020 8,000/- March, 2020 Chouhan (till 28.2.2021)

7. Jitendra Kumar PO Jalore 01.01.2020 21,000/- March, 2020 (till 28.2.2021)

8. Anil Ujjwal ORW Jaisalmer 24.05.2017 8,000/- March, 2020 (till 28.2.2021)

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9. Sobha Soni PO Jaisalmer 22.06.2017 21,000/- March, 2020 (till 28.2.2021)

10. Gautam Chand PO Pali 05.10.2017 21,000/- Oct, 2020 (till 31.10.2021)

11. Dinesh Vaishnav ORW Pali 02.02.2018 8,000/- Feb, 2020 (till 28.2.2021

12. Naveen Kishore PO Chittorgarh 01.04.2017 21,000/- Feb, 2020 (till 28.2.2021

13. Pooja Teli ORW Chittorgarh 01.04.2017 8,000/- Feb, 2020 (till 28.2.2021)

14. Mohit Kumar PO Pratapgarh 21.07.2020 21,000/- Feb, 2020 (till 28.2.2021)

15. Kapil Vaishnav PO Dungarpur 03.04.2017 21,000/- Feb, 2020 (till 28.2.2021)

16. Kapil Joshi ORW Pratapgarh 17.07.2020 8,000/- Feb, 2020 (till 28.2.2021)

17. Mukesh Patel PO Banswara 12.07.2017 21,000/- Feb, 2020 (till 28.2.2021)

18. Prakash Joshi ORW Banswara 12.07.2017 8,000/- Feb, 2020 (till 28.2.2021)

19. Laxman Kumar PO Nagaur 06.03.2017 21,000/- Feb, 2020 (till 28.2.2021)

20. Rahul Dave ORW Nagaur 06.03.2017 8,000/- Feb, 2020 (till 28.2.2021)

21. Kanhaiya Lal PO Sirohi 01.05.2017 21,000/- Feb, 2020 (till 28.2.2021)

22. Dileep Dhawal ORW Sirohi 01.05.2017 8,000/- Feb, 2020 (till 28.2.2021)

23. Rakesh Mannat ORW Dungarpur 10.08.2020 8,000/- Feb, 2020 (till 28.2.2021)

6. The petitioners have approached this Court being aggrieved

of the Government order dated 01.02.2021, issued by the

Commissioner & Special Secretary, Department of Child Rights,

vide which, the State has decided that the services of the subject

posts will be availed on job charge basis.

7. Apprehending termination of their contractual engagement

before the term of the contract, the petitioners have prayed that

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the petitioners - contractual employees cannot be replaced by

another set of contractual employees, as has already been settled

by this Court and Hon'ble the Supreme Court in catena of

judgments.

8. Mr. R. S. Saluja, learned counsel for the petitioners,

submitted that though advertisement dated 09.12.2016 stipulated

of three years' engagement/contract, but inspite of expiry of such

period the respondents have consciously extended the same and

have passed orders, extending their engagement till February,

2021 and in some cases till February, 2022 or otherwise.

9. His argument has been that the respondents' action more

particularly the Government order dated 01.02.2021 is contrary to

settled canons of law. According to him, since the petitioners'

engagement is co-terminous with the scheme, respondents cannot

bring an end to it, simply on the basis of order dated 01.02.2021.

10. He argued that the entire fund has been provided by the

Central Government and the State Government is only an

implementing agency and thus, the State's action cannot be

contrary to Integrated Child Protection Scheme (hereinafter

referred to as 'ICPS'), which envisages that the personnel under

the scheme shall be engaged firstly for a period of three years,

extendable by two years, as has been mentioned in Para No.3.3

and 3.4 of the scheme.

11. Learned counsel further submitted that during pendency of

the writ petition some of the petitioners have received notices

whereby their services have been dispensed with.

12. Mr. Anil Kumar Gaur, learned AAG, appearing for the

respondent - State, submitted that the recruitment notification

dated 09.12.2016 clearly provided that engagement would be for

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three years and even the first agreement, which was executed

between the petitioners and the concerned Assistant Director, was

also to the same effect though it was executed only for a period of

one year.

13. He invited Court's attention towards Clause No.1 of the

agreement and submitted that the petitioners cannot claim

extension of their contract beyond the period of three years in any

case.

14. The relevant Clause No.1 of the agreement reads thus :

"1. Period of Contract

(i) The period of contractual appointment shall be from 07.04.2017 to 06.04.2018.

(ii) The period of contract can however be extended by mutual consent for a period of not more than one year at a time but will not in any case exceed three years in all or the date on which the plan schemed projects programmes closes, whichever is earlier. In case of external/Central Government funding for project stops before the normal date of closure for any reason whatsoever, agreement shall stand terminated automatically at the end of one month from the date of such intimation by second party to the first party."

15. He further submitted that apart from the above clause, even

under Clause No.7 of the agreement, the contract stands

terminated automatically on expiry of stipulated period, if not

extended prior to stipulated date.

16. It was further argued that the respondents can terminate the

contract, while giving one month's notice or paying one month's

package and thus, no illegality or arbitrariness can be alleged in

respondents' action, particularly when the State has taken an in-

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principle decision to dispense with contractual engagement and

get the scheme implemented on job work basis.

17. Heard.

18. Indisputably, the recruitment notice/advertisement dated

09.12.2016 was for a period of three years and the agreement,

which was firstly executed with the petitioners on 07.04.2017, was

in tandem with the advertisement so issued by the respondents.

19. The period was, however, extended by the respondents with

conscious mind and the orders in furtherance of such decision

have been issued and as a result thereof petitioners' term is set to

expire on the date(s) indicated in para No.5.

20. Argument of Mr. Gaur that since the notification dated

09.12.2016 was for a period of three years and so were the

agreements, petitioners cannot claim right of engagement beyond

the period of three years, is not tenable, inasmuch as after expiry

of such period of three years, the respondents themselves have

extended the same in some cases upto 28.02.2021 and in some

cases upto 28.02.2022 or otherwise, as the case may be.

21. It will not be out of place to reproduce Clause No.7 of the

agreement, which is being done hereunder :

"7. Termination of Contract

(i) The contract can be terminated with notice of one month on either side or by depositing/paying one month's package/contract amount in lieu of notice.

(ii) Second party or any authority approving contractual appointment with first party shall be competent authority for termination of contract.

(iii) The agreement/contract period shall stand terminated automatically on expiry of stipulated period if not extended prior to stipulated date. First party will

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not be entitled for any claim for service rendered after expiry of stipulated date of contract."

22. A perusal of Sub-clause (iii) of Clause-7 clearly shows that

the agreement/contract period shall stand terminated

automatically on expiry of stipulated period, if not extended

prior to stipulated date.

23. Indisputably, period of petitioners' engagement has been

extended, as stated by the petitioners by separate orders passed

in their favour.

24. This being the position, once the period of contract has been

extended, the respondents cannot take plea of expiry of three

years' period.

25. The argument of Mr. Gaur, learned AAG, that in light of the

terms of the contract the respondents can issue a notice or

dispense with their engagement, cannot be countenanced. The

State cannot dispense with any contract or concluded rights

simply by issuing a notice, unless there is a valid reason so to do.

The same can generally be done, if the employee has violated the

terms of the contract or misconducted himself. Issuance of notice

and dispensing with the services mechanically, without cogent

reason subverts the rights of citizens and violates Article 14 of the

Constitution of India.

26. Adverting to the order dated 01.02.2021, which is the bone

of contention, this Court is of the view that even if the State has

taken an in-principle decision to get its obligation under the

scheme done on job basis, they cannot disturb already existing

position in midway and give a go bye to the mutually entered

agreement(s) between the parties.

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27. State's action in bringing an abrupt end to petitioners'

contractual engagement, which has led to infraction of civil rights,

cannot be permitted, in the manner attempted to.

28. The writ petition is, thus, allowed.

29. Impugned order oral or otherwise, including bringing an end

to the contract by notice issued before the expiry of the term is,

hereby, quashed.

30. Respondents are directed to continue petitioners'

engagement for the full term, as mentioned in para No.5 above.

31. On expiry of above referred period, the respondents shall be

free to take appropriate decision/action in accordance with law.

32. Needless to observe that the above order will not come in

the way of the respondents, if they want to extend petitioners'

engagement, to the extent of making it coterminous with other

employees.

33. The petitioners, whose term is expiring, may file their

representation before the respondents, in this regard.

34. Stay application shall stands disposed of accordingly.

(DINESH MEHTA),J 167-A.Arora/-

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