Rajasthan High Court

Superintendent Swai Mansingh vs Dinesh Kumar Sharma on 27 May, 2022

Bench: Sameer Jain

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

           S.B. Civil Writ Petition No. 11343/2014

Superintendent Swai Mansingh Hospital, Jaipur And Others
                                                                  ----Petitioner
                                   Versus
Giriraj Prasad Sharma S/o Shri Harshai Sharma, R/o Village,
Gangadbari, Tehsil Sikray, District Dausa, Presently Residing At
Survey Number 115, Parwatiya Colony, Telepada-B, Shashtri
Nagar, Jaipur Through Dharmendra Rana President Samida
Kramchari Sangh, 53, Guru Nanak Pura, Raja Park, Adarsh
Nagar, Jaipur
                                                                ----Respondent

Connected With S.B. Civil Writ Petition No. 11344/2014 Superintendent Swai Mansingh Hospital, Jaipur And Others

----Petitioner Versus Dinesh Kumar Sharma S/o Shri Harshai Sharma, R/o Village, Gangadbari, Tehsil Sikray, District Dausa, Presently Residing At Survey Number 115, Parwatiya Colony, Telepada-B, Shashtri Nagar, Jaipur Through Dharmendra Rana President Samida Kramchari Sangh, 53, Guru Nanak Pura, Raja Park, Adarsh Nagar, Jaipur

----Respondent

For Petitioner(s) : Mr. Harsh Sahu, Addl. G.C.

For Respondent(s)        :     Mr. Rambabu Khandelwal
                               Mr. Anshuman Saxena



             HON'BLE MR. JUSTICE SAMEER JAIN

                                Judgment

Judgment Reserved on                                              18.04.2022
Judgment Pronounced on                                            27.05.2022





                                            (2 of 9)                       [CW-11343/2014]

1. The present writ petition is filed against the order dated

14.02.2014, whereby claims of the claimant/non-petitioner were

allowed by learned Tribunal and directions for granting regular pay

scale on the post of cook, and for regularizing the claimant on the

post of cook were given. It is urged that the award passed by

learned Industrial Tribunal is non-est and wholly without

jurisdiction as it has no authority to direct for grant of regular pay

scale to an employee as per the provisions of Industrial Dispute

Act, 1947 in terms of Section 2A of the Act of 1947. It is further

urged that the non-petitioners have not shown any document

depicting that there was an employer-employee relationship inter

se between both the parties. He further submits that the non-

petitioners were contractual employees appointed through a

placement agency against non sanctioned post and no

appointment letter was even issued by the State to the

petitioners. Therefore, the impugned award is bad.

2. Per contra, the non-petitioners have submitted that the

order passed by learned Tribunal is well reasoned as they were

serving the petitioner hospital in capacity of a cook ever since

15.12.1999/17.10.1999 till 15.05.2002 and thereafter through a

placement agency in an indirect manner. They further submitted

that if in any institution, a person has served for more than 240

days on a continuous basis, he/she is entitled for regularization

and in this regard, work charge rules are also created. The

respondent has further urged that it is not only for 240 days, but

in the given case they have served for more than 10 years, i.e.

ever since 1999 and therefore they should be regularized, as per

the settled proposition of law. Learned counsel for the respondents

has relied upon judgment of Hon'ble Apex Court in the case of

(3 of 9) [CW-11343/2014]

State of Bombay Vs. Hospital Mazdoor Sabha: AIR 1960 SC

610 Karnani Properties Ltd. Vs. State of West Bengal: 1990

(4) SCC 472, Mahershi Dayanand Saraswati Vs. Labour Court

Cum Indu And Anr.: 2016 (2) CLR 794, Hari Nandan Prasad

& Anr. Vs. Employer I/R To Mangmt of FCI & Anr.: 2014 (7)

SCC 190 and ONGC Ltd. Vs. Petroleum Coal Labour Union &

Ors.: 2015 (6) SCC 494.

3. The contention of non-petitioners is that as per dictums

of Hon'ble Apex Court, it has been held that hospital is an industry

within the meaning of Industrial Disputes Act and if more than

240 days of service is rendered and that too in continuity, for

more than 10 years, then they are entitled for regularization.

Further, learned counsel for the respondent/non petitioner has

also relied upon DB SAW No.603/2021 titled as State of

Rajasthan Vs. Krishna Kumar Saini decided on 10.11.2021,

wherein the Division Bench of this Court has held that if the

employees have worked for more than 10 years and they are not

regularized, it is an exploitation of the employees by not giving

them the benefit of regularization.

4. Scanned the record of the writ petitions, heard the

arguments advanced by respective counsels and gone through the

judgments cited at bar.

5. It is an admitted fact, as shown in the statement of

witness dated 24.09.2013 by the non-petitioner, that they were

rendering their services through a contractor and that ever since

2002, the payment was received by them through the contractor.

Neither any certificate of experience nor appointment letter was

ever issued by the petitioners to them. In the statement rendered

on 07.11.2013, Dr. Anil Dubey, Deputy Superintendent of SMS

(4 of 9) [CW-11343/2014]

Hospital has stated that the payment to non-petitioner was made

through contractor, the placement agency. No appointment order

or regularization order was ever issued by the petitioners. Nothing

has been brought on record either by the petitioner or non-

petitioner with regard to nature of appointment other than the

admitted fact that non-petitioners were contractural employee

appointed by placement agency. Co-ordinate Bench of this court,

in S.B. CWP No.6232/2021 titled as Deepak Kumar Gupta Vs.

State of Rajasthan, decided on 06.04.2022, by relying upon

judgment of Hon'ble Apex Court in the case of K.K. Suresh &

Anr. Vs. Food Corporation of India & Ors. reported in (2018)

17 SCC 641, has held as under:

12. 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 in para No.7, has held as under:-

"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 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."

13. The Division Bench of this court in the matter of Rakesh Kumar & Ors. Vs. State of Rajasthan & Ors. (D.B. Special Appeal Writ No.1040/2021 and other connected appeals, decided on 20.12.2021) has held as under:-

(5 of 9) [CW-11343/2014]

"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."

14. Admittedly, there is no relationship of employee and employer between the petitioners and the respondents as the offer of appointment was given to the petitioners by the placement agency and the salary/remuneration was also paid to the petitioners by the placement agency. Initially, the contract was for a period of one year and the term of petitioners' services was further extended from time to time by the placement agency. The Rules of 2022 referred by the counsel for the petitioners relate to the persons appointed by the State Government on contract basis through public advertisement and admittedly the petitioners were not engaged as contractual employees directly by the State Government rather were appointed by the placement agency, as such the Rules of 2022 are not at all applicable in the case of the petitioners.

15. In view of the above discussion, these writ petitions filed by the petitioners deserve to be dismissed for the reasons; firstly, the petitioners have failed to establish their relationship of employee and

(6 of 9) [CW-11343/2014]

employer with the respondent-State and only narration in the petition cannot be considered to be a justifiable ground to grant the relief prayed for, unless it is supported by cogent evidence on record as has been held by the Hon'ble Supreme Court in the matter of K.K. Suresh (supra); secondly, as per own version of the petitioners, they were appointment by the placement agency but failed to implead the placement agency as party respondent in the writ petitions; thirdly, the salary/remuneration was also paid to the petitioners by the placement agency and not by the State Government; and lastly claim of the petitioners for regularisation in the State cannot be approved by this court as the petitioners were never appointed by the State Government against sanctioned post on regular basis, rather, as already observed above they were appointed by the placement agency; therefore, in the facts and circumstances, the petitioners have completely failed to make out a case against the respondents, as such I am not inclined to exercise the jurisdiction of this court under Article 226 of the Constitution of India.

6. It is an admitted fact that the non-petitioner were

engaged in a service through a placement agency/contractor and

therefore there was no employer and employee relation. No

cogent evidence has been brought on record which rebuts said

contention and, therefore, the judgment of Deepak Kumar

Gupta (supra) is squarely applicable. Further, it is also an

admitted fact that the appointment of petitioner was through a

placement agency and the salary also was not paid to the non-

petitioner by the State. The State Government had never

appointed the non-petitioners on a sanctioned post on regular

basis, rather they were appointed by the placement agency. The

Hon'ble Apex Court in the celebrated judgment of Secretary,

State of Karnataka & Anr. Vs. Uma Devi reported in (2006) 4

SCC 1 has held as under:

"47. When a person enters a temporary employment or gets engagement as a contractual or casual worker

(7 of 9) [CW-11343/2014]

and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.

49. It is contended that the State action in not regularizing the employees was not fair within the framework of the rule of law. The rule of law compels the State to make appointments as envisaged by the Constitution and in the manner we have indicated earlier. In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedings in Tribunals and courts initiated at the instance of the employees. Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, the people of India. It is therefore not possible to accept the argument that there must be a direction to make permanent all the persons employed on daily wages. When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution.

53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa

(8 of 9) [CW-11343/2014]

(supra), R.N. Nanjundappa (supra), and B.N. Nagarajan (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme"

7. The Hon'ble Apex Court in Umadevi (supra) has held

that when a person enters in a temporary engagement on

contractual basis or as a casual worker and engagement is not

against sanctioned post in regular establishment, in that case the

illegal/irregular appointment cannot be regularized, especially by

the intervention/order of court or tribunal.

8. Learned Tribunal, inspite of admitting in the order that

the appointment was through contractual/placement agency and

there was no employer-employee relationship, directed the

regularization of services of non-petitioners with consequential

benefits, which is erroneous. The judgments cited by the non-

petitioner are in the situations where service were rendered for