Khemraj Mali S/O Shri Rodulaal ... vs State Of Rajasthan
2021 Latest Caselaw 3000 Raj/2

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                    S.B. Civil Writ Petition No. 4999/2021

Khemraj Mali S/o Shri Rodulaal Mali
                                                                                  ----Petitioner
                                             Versus
State Of Rajasthan
                                                                               ----Respondent

For Petitioner(s) : Mr. Laxmi Kant Malpura, through V.C.

Mr. Ashwinee Kumar Jaiman For Respondent(s) : Ms. Archana on behalf of Mr. Anil Mehta, AAG Mr. Sanjay Rahar

HON'BLE MR. JUSTICE INDERJEET SINGH

Order

19/07/2021

Heard on the application for vacation of the interim order

dated 22.04.2021 filed on behalf of the respondent(s).

This Court while issuing notices to the respondent(s) passed

the following order on 22.04.2021:-

"Issue notice of the writ petition as well as stay application, returnable within six weeks.

In the meanwhile, the petitioners who are working on contract basis shall not be replaced by another set of contractual employees on account of change of placement agency or otherwise. The petitioners shall be allowed to draw salary".

Again when the matter was listed on 06.07.2021, this Court

passed the following order;

                "Counsel for        the petitioner is
             directed    to   place   on   record    the

appointment order or their contract agreement.

Heard on application for impleading M/s G.C.K.C. Projects and Works Pvt. Ltd. as party respondent in the writ petition.

For the reasons mentioned in the application, the same is allowed. The applicant-M/s G.C.K.C. Projects and Works

(D.B. SAW/557/2021 has been filed in this matter. Please refer the same for further orders)

(2 of 5) [CW-4999/2021]

Pvt. Ltd. is allowed to be impleaded as party respondent in the writ petition Counsel for the petitioner may file amended cause title.

List this matter on 19.07.2021".

Counsel for the petitioners submits that the respondents are

going to terminate their services. Counsel further submits that

petitioners are employees of the Respondent-Department. Counsel

further submits that one set of contractual employees cannot be

replaced with another set of contractual employees. Counsel

further submits that petitioners have also raised an industrial

dispute against the Project Manager, Bisalpur (L &T) before the

Industrial Tribunal at Jaipur through Bisalpur Jal Praday Pariyojana

Karmchari Sangh with regard to their service conditions as the

earlier contract for maintenance was allotted to M/s Larsen &

Toubro, Chennai Ltd. and that is still pending consideration before

the Industrial Tribunal.

In support of his contention counsel relied upon the

judgment passed by the Hon'ble Surpeme Court in the matter of

Hargupratap Singh Vs. State of Punjab and Others, (2007)

13 SCC 292 and further on the judgment passed by the Division

Bench of this Court in the matter of Ram Sahay Gurjar Vs.

State of Rajasthan and Ors. and further on the judgment

passed by the High Court of Jharkhand at Ranchi in the matter of

Pankaj Kumar and Another Vs. The State of Jharkhand

through Chief Secretary and Others 2018 2 JLJR 90.

Counsel appearing on behalf of State of Rajasthan submitted

that the petitioners were never appointed by the Department and

made reference of Para No. III of reply filed by them which reads

as under-;

"That the contract awarded to M/s Larsen & Toubro, Chennai for a period of five years

(D.B. SAW/557/2021 has been filed in this matter. Please refer the same for further orders)

(3 of 5) [CW-4999/2021]

came to an end and after expiry of period of contract, a new contract has been awarded to the new contractor i.e. M/s GCKC Projects and Works Pvt. Ltd. And work order has been issued in favour of M/s GCKC Projects and Works Pvt. Ltd. on 15.03.2021 for a period of five years. A copy of the work order dated 15.03.2021 issued in favour of M/s GCKC Projects and Works Pvt Ltd. Is submitted herewith and markes as Annexure-R2. As per work order issued in favour of M/s GCKC Projects and Works Pvt. Ltd., it is for the said company to engage its staff having requisite qualifications after approval of their Curriculum vitae/biodata by the answering respondents. Under such circumstances, the petitioners cannot seek any relief of continuing their services with the answering respondents. The writ petition is, therefore, not maintainable and the same deserves to be dismissed on this ground also".

Counsel further submits that after completion of period of

maintenance contract of Bisalpur Water Supply Project, fresh

tender was issued by the Department and work was assigned to

M/s G.C.K.C. Projects and Works Pvt. Ltd.

Counsel appearing on behalf of M/s GCKC Projects and Works

Pvt. Ltd. submitted that against the interim order passed by this

Court they have preferred D.B. Special Appeal Writ No. 557/2021

where-in the Division Bench of the Court on 05.07.2021 passed

the following order;

Heard learned counsel for the appellant.

Issue notice to the respondents returnable by 12.07.2021.

'Dasti' service is permitted.

Learned counsel for the petitioner is directed to supply a copy of petition to Mr. Laxmi Kant Malpura, Advocate through Email also.

Name of Mr. Laxmi Kant Malpura, Advocate, be shown in the cause-list as counsel for the respondent(s).

List on 12.07.2021. Reply, if any, be filed in the meantime.

Till then, operation of the impugned order dated 22.04.2021 passed by learned Single Judge in S.B. Civil Writ

(D.B. SAW/557/2021 has been filed in this matter. Please refer the same for further orders)

(4 of 5) [CW-4999/2021]

Petition No. 4999/2021 shall remain stayed.

                        This order shall be effective only
                  after   service   of   notice  on    the
                  respondents.

Counsel further submits that the Division Bench of this Court

finally decided the appeal filed by them vide order dated

12.07.2021 which reads as under:-

"1. This intra court appeal is directed against the interim order dated 22.04.2021 passed by the learned Single judge of this Court in SBCWP No.4999/2021. The order reads as infra:

"Issue notice of the writ petition as well as stay application, returnable within six weeks.

In the meanwhile, the petitioners who are working on contract basis shall not be replaced by another set of contractual employees on account of change of placement agency or otherwise. The petitioners shall be allowed to draw salary".

2. Learned counsel appearing for the appellant submits that pursuant to NIT No.1/2020-21 the contract for operation, maintenance and repair for a period of five years of Bisalpur-Jaipur Water Supply Project (Transmission System) was awarded in favour of appellant herein and therefore, the employees who were working under the earlier contractor, could not have been continued by the learned Single Judge.

3. It is submitted that the respondents have obtained the interim order without impleading the appellant as partyrespondent, however, now vide order dated 06.07.2021 passed by the learned Single Judge the appellant has already been impleaded as party-respondent in the writ petition.

4. Since the appellant stands impleaded as party- respondent, it is always open for it to make appropriate application before the learned Single Judge for vacating the interim order under Article 226 (3) of the Constitution of india.

5. We are also informed that State has also filed an application under Article 226 (3) of the Constitution of India for vacating the interim order, which is coming up for consideration before the learned Single Judge on 19.07.2021.

6. It is noticed that vide order dated 05.07.2021 while issuing notices to the respondents, a Coordinate Bench of this Court has passed interim order in favour of appellant herein staying the

(D.B. SAW/557/2021 has been filed in this matter. Please refer the same for further orders)

(5 of 5) [CW-4999/2021]

operation of the order dated 22.04.2021 passed by the learned Single Judge

7. In this view of the matter, we do not find any good reason to keep the present special appeal pending. It will be open for the appellant to make a prayer before the learned Single Judge for vacating the interim order. Interim order dated 05.07.2021 passed by this Court staying the order dated 22.04.2021 passed by the learned Single Judge shall continue up to 19.07.2021.

8. The special appeal stands disposed of accordingly".

Counsel for the respondent(s) lastly submitted that the

interim order dated 22.04.2021 deserves to be vacated.

Heard counsel for the parties and perused the record

The interim order passed by this Court dated 22.04.2021

deserves to be vacated for the reasons firstly; admittedly, the

petitioners have raised an industrial dispute before the Industrial

Tribunal, Jaipur in case No. ITR/38/2017 with regard to their

terms and conditions of the employment which clearly shows that

the petitioners are employed by M/s. L& T Ltd. and not by the

State Government, secondly; the judgments referred by the

petitioners relate to the replacing services of employees by

another set of contractual employees whereas in the present

matter, the Department has never engaged the petitioners on

their pay-roll and maintenance and operation work of the Bisalpur

Water Supply Project which was earlier given to M/s L& T Ltd. has

now been given to M/s G.C.K.C.

In that view of the matter, the interim order dated

22.04.2021 is hereby vacated.

(INDERJEET SINGH),J

CHETNA BEHRANI /112

(D.B. SAW/557/2021 has been filed in this matter. Please refer the same for further orders)

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