Rajasthan High Court
Manish Kumar Sharma S/O Shri ... vs State Of Rajasthan on 18 August, 2022
Bench: Inderjeet Singh
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 8348/2020
1. Manish Kumar Sharma S/o Shri Jagdish Prasad Sharma,
Aged About 38 Years, Resident Of Village Post Sewar,
Setaram Mandir Ke Pass, Sewar, Bharatpur (Raj.)
2. Mohit Kumar Manocha S/o Shri Raghuveer Singh
Manocha, Aged About 30 Years, Resident Of Telipara
Mohalla Deeg, Laxman Mandir Ke Pass, Bharatpur (Raj.)
3. Kushal Mittal S/o Shri Surendra Kumar, Aged About 29
Years, Resident Of Mittal Communication, Bayana Bye
Pass Road, Ucchain, Tehsil Roopbas, District Bharatpur
(Raj.)
4. Manish Kumar Shri Suresh Chand, Aged About 38 Years,
Resident Of Chandpole Gate, Namak Ka Katara, Bharatpur
(Raj.)
5. Pramod Kumar S/o Shri Jagpatiram, Aged About 34 Years,
Resident Of Vpo Siras, Tehsil Weir, District Bharatpur
(Raj.)
6. Jitendra Kumar Bhardwaj S/o Late Shri Madhusudan Lal
Bhardwaj, Aged About 39 Years, Resident Of Kartar
Colony, Anamika School Ke Pass, Kaman, District
Bharatpur (Raj.)
7. Banai Singh S/o Shri Girdhari Lal, Aged About 42 Years,
Resident Of Village Ramnagar, Post Office Roopwas, Tehsil
Roopwas, District Bharatpur (Raj.)
8. Deepak Mishra S/o Shri Jagesh Mishra, Aged About 33
Years, Resident Of 2-E-21, S.t.c. Housing Board Colony,
Bharatpur (Raj.)
9. Vijay Parashar S/o Shri Janak Kishor Sharma, Aged About
33 Years, Resident Of House No. 2-E-20, S.t.c. Housing
Board Colony, Near Sharda School, Bharatpur (Raj.)
10. Gulab Singh S/o Shri Mangal Ram, Aged About 35 Years,
Resident Of Mahawar Colony, Bhim Nagar, Bayana,
District Bharatpur (Raj.)
11. Sushil Kumar S/o Shri Hari Kishan, Aged About 31 Years,
Resident Of Ware House Road, Katara Nadbai, Bbn School
Ke Pass, Ward No. 23, District Bharatpur (Raj.)
12. Ashutosh Agrawal S/o Shri Vinod Kumar Agarwal, Aged
About 21 Years, Resident Of Kamsain Dharamshala Ke
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Pass, Guddi Mohalla, Bharatpur (Raj.)
13. Kush Kaushik S/o Shri Suneel Dutt Sharma, Aged About
28 Years, Resident Of Village Didwani Tehsil Kumher,
District Bharatpur (Raj.)
14. Gajendra Kumar Sharma S/o Shri Naveen Chand Sharma,
Aged About 45 Years, Resident Of Mohalla Gopal Gargh,
Near Ghasso Ki Chakki, Bharatpur (Raj.)
15. Kishan Sharma S/o Shri Siyaram Sharma, Aged About 39
Years, Resident Of Nagla Store, Bayana, District
Bharatpur (Raj.)
16. Laxman Singh S/o Shri Shoji Ram, Aged About 54 Years,
Resident Of Village Khohari, Post Suhans, Tehsil Weir,
District Bharatpur (Raj.)
17. Shyam Sharma S/o Shri Girdhari Lal Sharma, Aged About
36 Years, Resident Of Kartar Colony, Near Pathwari
Mandir, Kaman, District Bharatpur (Raj.)
18. Jitendra Singh S/o Shri Bijendra Singh, Aged About 49
Years, Resident Of Rewari Mohalla, Bhuda Gate, Deeg,
District Bharatpur (Raj.)
19. Rakesh Sharma S/o Shri Gyasi Ram Sharma, Aged About
36 Years, Resident Of V Kheriya Post Supa, Tehsil Bayana,
District Bharatpur (Raj.)
20. Ramesh Chand S/o Shri Mohan Singh, Aged About 42
Years, Resident Of Village Malipura, Post Sewar, District
Bharatpur (Raj.)
21. Purushottam Sharma S/o Shri Kanni Ram Sharma, Aged
About 50 Years, Resident Of House No. 1414, Stc Housing
Board, Bharatpur (Raj.)
22. Devi Singh S/o Shri Yadram, Aged About 52 Years,
Resident Of Village Malipura, Post Sewar, District
Bharatpur (Raj.)
23. Atul Kumar Agrawal S/o Shri Kailash Chand Agrawal,
Aged About 47 Years, Resident Of Ganga Mandir Colony,
Roopwas, District Bharatpur (Raj.)
24. Pushpendra Kumar Sharma S/o Shri Naveen Chand
Sharma, Aged About 46 Years, Resident Of Mohalla Gopal
Garh, Near Ghasso Ki Chakki, Bharatpur (Raj.)
25. Santosh Kumar S/o Shri Hari Kishan, Aged About 36
Years, Resident Of Ware House Road, Nadbai, Ward No.
23, Bbn School Ke Pass, Bharatpur (Raj.)
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26. Man Singh S/o Shri Gomati Prasad, Aged About 51 Years,
Resident Of Naharganj Mohalla, Kumher, District
Bharatpur (Raj.)
----Petitioners
Versus
1. State Of Rajasthan, Through The Principal Secretary,
Education Department, Government Secretariat, Jaipur
(Raj.)
2. The Additional Administrative Officer And Joint Director,
School Shiksha, Bharatpur Sambhag, Bharatpur (Raj.)
3. The Rajasthan School Shiksha Parishad, Through Its
Commissioner, School Shiksha, Srk Sankul, J.l.n. Marg,
Jaipur (Raj.)
4. The District Project Coordinator, Samagra Shiksha
Abhiyan, Bharatpur (Raj.)
5. The Additional District Project Coordinator, Samagra
Shiksha Abhiyan, Bharatpur (Raj.)
6. The Chief Executive Officer, Zila Parishad, Bharatpur
(Raj.)
7. The Chief Block Education Officer And Incharge, Samagra
Shiksha Abhiyan, Deeg, Distt Bharatpur (Raj.)
8. The Chief Block Education Officer And Incharge, Samagra
Shiksha Abhiyan,, Kumher, Bharatpur (Raj.)
9. The Chief Block Education Officer And Incharge, Samagra
Shiksha Abhiyan,, Bayana, District Bharatpur (Raj.)
10. The Chief Block Education Officer And Incharge, Samagra
Shiksha Abhiyan Kaman, District Bharatpur (Raj.)
11. The Chief Block Education Officer And Incharge, Samagra
Shiksha Abhiyan, Sewar, District Bharatpur (Raj.)
12. The Chief Block Education Officer And Incharge, Samagra
Shiksha Abhiyan, Roopbas, District Bharatpur (Raj.)
13. The Chief Block Education Officer And Incharge, Samagra
Shiksha Abhiyan, Weir, District Bharatpur (Raj.)
14. The Chief Block Education Officer And Incharge, Samagra
Shiksha Abhiyan, Nadbai, District Bharatpur (Raj.)
----Respondents
For Petitioner(s) : Mr. Tanveer Ahamad
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For Respondent(s) : Mr Rajneesh Gupta
HON'BLE MR. JUSTICE INDERJEET SINGH
Order
18/08/2022
This writ petition has been filed by the petitioners with the
following prayer:-
"It is, therefore humbly prayed that
Your Lordship may graciously be pleased to
accept and allow this writ petition and by
an appropriate writ, order or direction:-
1. The respondents may kindly be directed
to allow the humble petitioners to continue
on the post of Office Assistant cum
Computer Operator and Assistant
Employees as they are working since 2002
and onwards and the action/ omission in
discontinuing the services of the petitioners
may be declared as arbitrary and
accordingly be quashed and they should
not be adversely subjected to any order of
termination, in the interest of justice.
2. The action/ omission on the part of the
respondents in replacing the services of the
petitioners by another set of contractual
employees may be held to be arbitrary and
illegal and accordingly the petitioners may
be allowed to be continue till the work is
available and respondents may be
restrained from replacing the petitioners by
another set of contractual employees
through service providers or through mode
of tender etc.
3. Any other relief which this Hon'ble Court
may deem fit and proper in the facts and
circumstances of the case, may also kindly
be passed in favour of the Petitioners.
4. Cost of the writ petition may also be
awarded in favour of the petitioners."
Grievance of the petitioners is that the respondents vide
order dated 29.06.2020 took a decision for abolition of all the
posts in Samagra Shiksha Abhiyan on account of which the
services of the petitioners will be terminated.
Counsel for the petitioners submits that the petitioners are
working in the department for last more than ten years, however
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in the garb of the above order, the respondents are going to
terminate the services of the petitioners. Counsel further submits
although the petitioners were appointed through placement
agency but their services have been taken by the respondents-
State. Counsel further submits that the respondents have adopted
pick and choose policy in engaging the persons, which is in
violation of Article 14 of the Constitution of India. Counsel prayed
that the respondents be directed to continue the services of the
petitioners as the post are still available.
Counsel appearing on behalf of the respondents submitted
that admittedly all the petitioners were appointed through
placement agency and there is no relationship of employee and
employer between the petitioners and the respondents. Counsel
further submits that the respondents have taken a policy decision
of abolition of all the posts in the Samagra Shiksha Abhiyan vide
order dated 29.06.2020, therefore, they have written to the
placement agency on 30.06.2020 sending all the employees
working with them through placement agency back to the
placement agency. Counsel further submits that the respondents
neither issued any appointment order in favour of the petitioners
nor any termination order has been passed by them as admittedly
they were working through placement agency. Counsel further
submits that in absence of documentary evidence submitted by
the petitioners in support of their contention, no interference is
required by this court under Article 226 of the Constitution of
India as disputed questions of fact are involved in this writ
petition.
In support of the contention, counsel for the respondent has
relied upon the judgment passed by the Division Bench of this
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Court in the matter of Rakesh Kumar & Ors. Vs. State of
Rajasthan & Ors. (D.B. Spcial Appeal Writ No.1040/2021
alongwith other connected matters) wherein on 20.12.2021
the following order was passed:-
"This quite apart, there was clear
agreement between the Government and the
service provider which was essentially for
providing the workforce for implementing the
scheme. The entire responsibility of providing
the workforce was on the service provider. The
agreement clearly envisaged that upon
completion of the tenure of the contract the
workforce provided by the service provider
would be withdrawn. In clear terms thus there
was no privity of contract between
Government and the petitioners. This is not a
case of engagement of the employees by the
Government on contractual basis. The contract
was between the Government and the service
provider and if at all it may be an
understanding between the service provider
and the petitioners. In any case, the
engagement cannot be seen as engagement of
the petitioners by the Government on
contractual basis. Any other view would make
the task of the service provider wholly
redundant and would also amount to
overriding the agreement between the
Government and the service provider. The
general principle therefore that one set of
contractual employees cannot be replaced by
the another set of contractual employees as
long as the work lasts cannot be applied in the
present case.
In the result all the appeals are
dismissed. Pending applications if any also
stand disposed of."
Heard counsel for the parties and perused the record.
The Hon'ble Supreme Court in the matter of K.K. Suresh &
Anr. Vs. Food Corporation of India & Ors. reported in (2018)
17 Supreme Court Cases 641 wherein para No.7, has held as
under:-
"7. In the first place, the Appellants failed
to adduce any evidence to prove existence
of any relationship between them and the
FCI; Second, when the documents on
record showed that the Appellants were
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appointed by the FCI Head Load Workers
Co-Operative Society but not by the FCI
then obviously the remedy of the
Appellants, if at all, in relation to their any
service dispute was against the said
Society being their employer but not
against the FCI; Third, the FCI was able to
prove with the aid of evidence that the
Appellants were in the employment of the
said Society whereas the Appellants were
not able to prove with the aid of any
documents that they were appointed by
the FCI and how and on what basis they
claimed to be in the employment of the FCI
except to make an averment in the writ
petitions in that behalf. It was, in our
opinion, not sufficient to grant any relief to
the Appellants."
The Hon'ble Supreme Court in another judgment in the
matter of Rajasthan State Road Development and
Construction Corporation Ltd. Vs. Piyush Kant Sharma
reported in 2020 SCC Online SC 842 in para 8, has held as
under:-
"8. Having heard the learned Counsel
appearing on behalf of the respective
parties, we are of the opinion that the High
Court has committed a grave error in
passing such an interim order restraining
the Appellant Corporation from appointing
new set of contractual employees in place
of original writ Petitioners. No reasons,
whatsoever have been assigned by the
High Court while passing the impugned
interim order. The High Court has failed to
appreciate and consider the fact that
according to the Appellant Corporation,
there was no regular sanctioned post of
Computer Operator in the Appellant
Corporation and that there was no
employer-employee relationship between
the original writ Petitioner and the
Appellant Corporation and that the original
writ Petitioner was a employee appointed
by the contractor on contractual basis and
worked with the Appellant Corporation on
contractual basis. As the writ petition is
pending before the High Court, we refrain
ourselves from making any further
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observations on merits. However, we are of
the opinion that in the facts and
circumstances of the case narrated
hereinabove, the High Court ought not to
have passed such an interim order. Under
the circumstances, the impugned interim
order passed by the High Court requires to
be quashed and set aside."
This writ petition filed by the petitioners deserves to be
dismissed for the reasons; firstly, there is no relationship of
employee and employer between the petitioners and State-
respondents, as neither any appointment order nor any
termination order was passed by the State respondents; secondly,
there is no privity of contract between the petitioners and the
respondents as no agreement was executed between the
petitioners and the State respondents with regard to their service
conditions; thirdly, in view of the policy decision taken by the
respondents with regard to abolition of all the posts, the
employees have rightly been sent back to the placement agency
as they were provided by the placement agency; fourthly, the
petitioners have failed to implead the placement agency as party
respondent in the writ petition and failed to challenge the order
dated 29.06.2020 and lastly, in view of the judgments passed by
the Hon'ble Supreme Court in the matter of Rakesh Kumar, K.K.
Suresh & Rajasthan State Road Development and
Construction Corporation Ltd. (supra), I am not inclined to
exercise the jurisdiction of this Court under Article 226 of the
Constitution of India.
Hence, this writ petition stands dismissed.
(INDERJEET SINGH),J
JYOTI /59
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