Rajasthan High Court

Vikas Mishra S/O Shri Surendra ... vs The State Of Rajasthan on 8 July, 2021

Bench: Inderjeet Singh

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

            S.B. Civil Writ Petition No. 5709/2021

1.    Vikas Mishra S/o Shri Surendra Kumar Mishra, Aged
      About 38 Years, R/o B-61, Barkat Nagar Vistar, Tonk
      Road, Jaipur.
2.    Rajendra Kumar Verma S/o Late Shri Prabhu Dayal, R/o
      B-42, Majlook Nagar, Ajmer Road, Jaipur.
3.    Phol Chand Sharma S/o Sh. Shankar Lal Sharma, Aged
      About 37 Years, R/o Village Sarna Dungar, Post- Khora
      Bisal, Tehsil Jhotwara, Jaipur
4.    Lokesh Sharma S/o Shri Manohar Lal Sharma, Aged
      About 37 Years, R/o 50, Krishna Colony, Ramgarh Mod,
      Jaipur
5.    Lalaram S/o Shri Benaram, R/o Plot No 48, Narvarpuri
      Colony, Purana Ramgarh Mod, Jaipur
6.    Kousal Sain S/o Shri Radhy Shyam Sain, R/o 493 Shri
      Ram Ji Tila, Lankapuri, Shatri Nagar, Jaipur
7.    Zoheb Anwer S/o Sh. Anwer Hasan, Aged About 38 Years,
      R/o, Islam Colony, Near Kabla Ki Dagha, Ramgarh Modh,
      Jaipur
8.    Rohitash Kumar S/o Shri Om Prakash, Aged About 37
      Years, Presently Residing At B-61, Barkat Nagar Vistar,
      Tonk Road, Jaipur
9.    Sanjay Kumar S/o Late Shri Prem Chand, Aged About 31
      Years, R/o H-32, Jagan Path, Chomu House, C-Scheme,
      Jaipur 302001
10.   Gopal Lal Sharma, S/o Shri Jagdish Sharma, Aged About
      37 Years, Resident Of G-1 Swastic Residency, Plot No
      197/198, Pratap Nagar Visthar, Charan Nadi, Murlipura
      Jaipur.
11.   Pinky Gauttam W/o Shri Vijay Kumar Sharma, Aged
      About 38 Years, R/o Plot No 77- Priya Vihar, Niwaro Road
      Govindpura Jaipur
12.   Nisha Kumari W/o Shri Gaje Singh, Aged About 31 Years,
      R/o A-22, Shyam Ganga Residency, Mangal City, Kalwar
      Road, Jaipur
13.   Mahesh Kumar Rathi S/o Shri Mool Chand, Aged About 31
      Years, R/o Dhani- Kotra, Post Kotra, Neem Ka Thana,
      Sikar
14.   Kamla Devi W/o Late Shri Prem Chand, R/o H-32, Jagan
      Path, Chomu House, C- Scheme, Jaipur 302001
15.   Renu Kanwar W/o Shri Kishan Singh, Aged About 39
      Years, R/o H-41, Majdoor Nagar, Ajmer Road, Jaipur
16.   Prakash Sharma S/o Shri Vinod Kumar Sharma, Aged
      About 42 Years, R/o 14-B, Dadu Marg, Tonk Phatak,
      Jaipur
17.   Umar Farrokh S/o Sh. Ayyub Khan, Aged About 34 Years,

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        R/o House No. 170, Near Noorani Masjid Jalupura, Jaipur.
18.     Kuldeep Kumar Sharma S/o Shri Ashok Kumar Sharma,
        R/o Via Post Urdain Tehsil Todabhim, Dist Karauli
19.     Jitendra Kumar Bairwa S/o Shri Ram Prasad Bairwa, R/o
        Village- Brahman Bairada, Tehsil Sikari, Dist- Dausa .
                                                                  ----Petitioners
                                   Versus
1.      The State Of Rajasthan, Through Secretary, Medical And
        Health Services, Government Of Rajasthan, Government
        Secretariat, Jaipur.
2.      Director (Public Health), Government Of Rajasthan And
        President (Rajasthan Nursing Council) , Department Of
        Medical And Health Services, Swastha- Bhawan, Tilak
        Marg, Jaipur.
3.      Rajasthan Nursing Council, Through Its Registrar , B-39
        Sardar Patel Marg, C- Scheme, Jaipur 302001
4.      Secretary, Jaipur Ex Serviceman Multi State Welfare
        Cooperative Society Limited, Purva- Sainik Durg, 1St
        Floor,17/1 Sector-4 , Vidhyadhar Nagar,jaipur.
                                                                ----Respondents

For Petitioner(s)        :     Dr. Saugath Roy.
For Respondent(s)        :     Mr. P.C. Sharma.
                               Mr. Vivek Tyagi, Dy. G.C.
                               Mr. Neeraj Batra.



          HON'BLE MR. JUSTICE INDERJEET SINGH

                                    Order

08/07/2021

This writ petition has been filed by the petitioner with the

following prayer:

"i) It is therefore, most respectfully prayed that Your Lordship may most graciously be please to accept and allow this writ petition and the impugned communication dated 30.04.2021 (Annexure-4) issued by Registrar, RNC (Respondent No.3) of replacement of the petitioners 1 to 19 by another set of contractual appointment be quashed and set aside and further direction be issued to the respondents to allow the petitioners to serve and not to replace them by another set of contractual employees.

ii) Further directions be issued to the respondents to release 10% increase in salary

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and to grant minimum of the regular pay-scale to the petitioners.

iii) Any prejudicial order, if passed during the pendency of the writ petition be taken on record and further be quashed and set aside.

iv) Any other appropriate writ, order or direction, which this Hon'ble Colurt may consider just and proper, in the facts and circumstances of the case, may kindly be passed in favour of the humble petitioners.

v) Cost of the writ petition may kindly be awarded to the petitioner."

Brief facts of the case are that all the petitioners were

engaged through placement agency in the Rajasthan Nursing

Council (herein after to be referred as 'RNC') started from the year

2005 to 2017 and their contract period through placement agency

was extended from time to time and lastly it was extended up to

30.06.2021 vide order dated 31.03.2021.

Counsel for the petitioners submitted that the respondent-

RNC has not extended the period/term of contract of the

petitioners as they want to replace services of the petitioners by

another set of contractual employees which is not permissible

under the law. Counsel further submits that the respondent-RNC is

in the need of employees to perform work in the office. Counsel

further submits that the respondent-RNC be directed to allow the

petitioners to continue to work with them till the regularly selected

employees are available.

In support of the contention counsel relied upon the

judgment passed by the Co-ordinate Bench of this court at

Principal seat Jodhpur in the matter of Mukesh Kumar Khatik

Vs. State of Rajasthan & Ors., reported in 2015 (4) RLW

3484.

(4 of 6) [CW-5709/2021]

Counsel further relied upon the judgment passed by the

Division Bench of this court in the matter of State of Rajasthan

& Ors. Vs. Kusum Devi & Ors. (D.B. Special Appeal (Writ)

No.1231/2017 and other connected matters) decided on

20.03.2018, where in certain directions were issued by the

Division Bench of this court with regard to engagement of

contractual employees and the said order passed by the Division

Bench was an agreed order based on the consent of both the

parties.

Counsel appearing on behalf of the respondent-RNC

submitted that the period/term of contract of the petitioners

through placement agency came to an end on 30.06.2021.

Counsel further submits that the respondent-RNC has taken a

conscious decision in its meeting on 18.05.2021 for creation of

permanent posts and for giving regular appointment to the

candidates with regular pay scale and in the said meeting it was

also decided not to continue the period/term of the petitioners

after 30.06.2021.

On asking of this court the respondent-RNC has filed an

additional affidavit where in para 7 it has been stated as under:-

"That it has been specifically pleaded by the respondents that the interim order was passed on the submission that the respondent RNC is going to replace the petitioners by another set of contractual employees which is not correct. The respondent RNC is not going to replace the petitioners by another contractual employees. It is further submitted that the employees named in the rejoinder are not continuing after 30.06.2021.

It is further submitted that no person is working under this contact after 30.06.2021 and respondents are not extending this contract as the period of the contract has come to an end on 30.06.2021.

(5 of 6) [CW-5709/2021]

In support of the contention counsel for respondent-RNC

relied upon the judgment passed by the Hon'ble Supreme Court in

the matter of Rajasthan State Roadways Transport

Corporation Vs. Paramjeet Singh reported in (2019) 6

Supreme Court Cases 250.

Heard counsel for the parties and perused the record.

The first argument raised by counsel for the petitioners that

the respondent-RNC is replacing services of the petitioners by

another set of contractual employee is not acceptable in view of

the additional affidavit filed on behalf of the RNC in which they

have specifically stated that they are not going to replace the

petitioners by another set of contractual employees; the second

argument raised by counsel for the petitioners that work is still

available in the office of RNC, therefore, they may be allowed to

continue with them is also not acceptable as it is for the employer

to take work from its employees as per requirement; lastly, the

argument raised by counsel for the petitioners that the petitioners

may be permitted to work until the regularly selected candidates

are available with the RNC is also not acceptable as it is for the

employer to select the employees on regular basis as per their

need and available budget. Since all the petitioners were not

regularly selected employees of RNC, therefore, their employment

is governed by the terms and conditions of their appointment

order/contract agreement. The Hon'ble Supreme Court in the

matter of State of Madhya Pradesh & Ors. Vs. Sandhya

Tomar & Anr. reported in 2013 (11) Supreme Court Cases

357 has been held as under:-

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"There can be no dispute with respect to the settled legal proposition that in the event that a person is not appointed on a regular basis, and if his service is not governed by any statutory rules, he shall be bound by the terms and conditions that have been incorporated in his appointment letter. (Vide State of Punjab v. Surinder Kumar). In such an eventuality, there can be no reason with respect to why the terms and conditions incorporated in the appointment letter should not be enforced against such an employee. In the instant case, Respondent No.1 was temporarily appointed in a project and thus, she had at no point of time, been appointed on a regular basis, owing to which, she cannot claim any lien with respect to the said post."

A bare reading of the contract agreement of the petitioners

shows that admittedly the period/term of the petitioners was

extended by the RNC from time to time, lastly up to 30.06.2021

and thereafter the term of the petitioners on contractual basis has

not been extended by the RNC any further, therefore, the

contractual appointees have no right to continue with RNC in view

of the judgment passed by the Hon'ble Supreme Court in the

matter of State of Madhya Pradesh (supra) as well as in the

matter of RSRTC (supra).

In view of the above discussions this writ petition stands

dismissed. However, the respondent-RNC is directed to pay one

month's salary to the petitioners in view of condition No.10 of