Anil Gehlot vs State Of Rajasthan ...
2023 Latest Caselaw 4344 Raj

[2023/RJJD/014438]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR (1) S.B. Civil Writ Petition No. 15081/2021

Omprakash S/o Shri Bohra Ram, Aged About 34 Years, Village Basni Benda, District Jodhpur, Rajasthan.

----Petitioner Versus

1. State Of Rajasthan, Through Principal Secretary, Ayurved And Indian Medical Department, Government Of Rajasthan, Jaipur.

2. Dr. Sarvepalli Radhakrishanan Rajasthan University, Karwar, Jodhpur - Nagaur Highway Road, Jodhpur (Raj.) Through The Registrar.

3. Registrar, Dr. Sarvepalli Radhakrishanan Rajasthan University, Karwar Jodhpur-Nagaur Highway Road, Jodhpur, Rajathan.

----Respondents Connected With (2) S.B. Civil Writ Petition No. 15341/2021 Om Prakash S/o Banshi Lal, Aged About 42 Years, Maderna Colony, Kalka Mata Mandir Road, Opposite Adhrakh Colony, Bhadwasiya, Jodhpur, Rajasthan.

----Petitioner Versus

1. State Of Rajasthan, Through The Principal Secretary, Ayurved And Indian Medicine Department, Government Of Rajasthan, Jaipur.

2. Dr. Sarvepalli Radhakrishnan Rajasthan Ayurved University Karwar Jodhpur, Nagaur Highway Road, Jodhpur (Raj.) Through The Registrar.

3. Registrar, Dr. Sarvepalli Radhakrishnan Rajasthan Ayurved University, Karwar Jodhpur Nagaur Highway Road, Jodhpur, Rajasthan.

----Respondents (3) S.B. Civil Writ Petition No. 15212/2021 Mahendra Singh S/o Kishore Singh, Aged About 33 Years, Chandpole Chauka, Jnv Colony, Jodhpur, Rajasthan.

----Petitioner

[2023/RJJD/014438] (2 of 15) [CW-15081/2021]

Versus

1. State Of Rajasthan, Through The Principal Secretary, Ayurved And Indian Medical Department, Government Of Rajasthan, Jaipur.

2. Dr. Sarvepalli Radhakrishnan Rajasthan Ayurved University Karwar Jodhpur, Nagaur Highway Road, Jodhpur (Raj.) Through The Registrar.

3. Registrar, Dr. Sarvepalli Radhakrishnan Rajasthan Ayurved University, Karwar Jodhpur Nagaur Highway Road, Jodhpur, Rajasthan.

----Respondents (4) S.B. Civil Writ Petition No. 15332/2021 Anil Gehlot S/o Late Damodar Lal Gehlot, Aged About 33 Years, House No.205, Air Force Road, Sharda Park Indira Colony, Ratanada, Jodhpur, Rajasthan.

----Petitioner Versus

1. State Of Rajasthan, Through The Principal Secretary, Ayurved And Indian Medicine Department, Government Of Rajasthan, Jaipur.

2. Dr. Sarvepalli Radhakrishnan Rajasthan Ayurved University Karwar Jodhpur, Nagaur Highway Road, Jodhpur (Raj.) Through The Registrar.

3. Registrar, Dr. Sarvepalli Radhakrishnan Rajasthan Ayurved University, Karwar Jodhpur Nagaur Highway Road, Jodhpur, Rajasthan.

----Respondents (5) S.B. Civil Writ Petition No. 15380/2021 Puran Singh S/o Shri Bheem Singh, Aged About 34 Years, Om Colony, Ganchiyon Ki Gufa, Madhuban Basni, Jodhpur, Rajasthan.

----Petitioner Versus

1. State Of Rajasthan, Through Principal Secretary, Ayurved And Indian Medicine Department, Government Of Rajasthan, Jaipur.

2. Dr. Sarvepalli Radhakrishnan Rajasthan Ayurved

[2023/RJJD/014438] (3 of 15) [CW-15081/2021]

University, Karwar, Jodhpur Nagaur Highway Road, Jodhpur (Raj.) Through The Registrar.

3. Registrar, Dr. Sarvepalli Radhakrishnan Rajasthan Ayurved University, Karwar Jodhpur Nagaur Highway Road, Jodhpur, Rajasthan.

----Respondents (6) S.B. Civil Writ Petition No. 15563/2021 Bhagwan Singh Chandawat S/o Shri Chotu Singh Chandawat, Aged About 51 Years, Melawas, Tehsil Bavri, Jodhpur, Rajasthan.

----Petitioner Versus

1. State Of Rajasthan, Through Principal Secretary, Ayurved And Indian Medicine Department, Government Of Rajasthan, Jaipur.

2. Dr. Sarvepalli Radhakrishnan Rajasthan Ayurved University, Karwar, Jodhpur - Nagaur Highway Road, Jodhpur (Raj.) Through The Registrar.

3. Registrar, Dr. Sarvepalli Radhakrishnan Rajasthan Ayurved University, Karwar Jodhpur-Nagaur Highway Road, Jodhpur, Rajasthan.

                                                                   ----Respondents


 For Petitioner(s)           :    Dr. Nikhil Dungawat
 For Respondent(s)           :    Mr. Sunil Purohit
                                  Mr. Himanshu Shrimali



                       JUSTICE DINESH MEHTA

                                       Order

10/05/2023

1. All these writ petitions involve common question of facts and

law and, thus, the same are being decided conjointly by this

common order.

[2023/RJJD/014438] (4 of 15) [CW-15081/2021]

2. The facts, however, are being taken from S.B. Civil Writ

Petition No. 15081/2021 (Omprakash vs. State of Rajasthan &

Ors.).

3. The petitioner was engaged as a Class IV employee by the

respondent University through a Contractor on 03.05.2005; he is

continuing as such till today, of course, through different

contractors/placement agencies.

4. The petitioner earlier preferred a writ petition bearing

number 12596/2018 seeking regularization of his services on the

post of Class IV. When the bunch of writ petitions alongwith writ

petition filed by the petitioner was being heard by the co-ordinate

Bench of this Court on 04.08.2020 (Annexure-12), an assertion

was made on behalf of the petitioner that services of one Manoj

Dave working as a contractual employee through placement

agency has been regularized by the respondent - University.

5. It is to be noted that such assertion made by the petitioner

was disputed by the respondent - University, as can be discerned

by reading Para 4 of the judgment aforesaid. The Court

nevertheless deemed it appropriate to dispose of those writ

petitions per viam order dated 04.08.2020 with the direction to

the respondent - University to consider petitioner's representation

for regularization in accordance with law.

6. In furtherance of above order, the petitioner moved a

representation dated 22.08.2020 (Annexure-13) before the

Registrar, University claiming regularization of his services.

7. The respondent - University constituted a committee, which

considered the petitioner's representation and rejected the same

by way of a detailed order dated 06.04.2021 (Annexure-14).

[2023/RJJD/014438] (5 of 15) [CW-15081/2021]

Resultantly, petitioner's right of regularization has been

repudiated.

8. Impugning the order dated 06.04.2021, Mr. Dungawat,

learned counsel for the petitioner argued that though services of

one Manoj Dave had been regularized by the respondent -

University by way of the order dated 03.11.2017, but such benefit

was not extended to the petitioner, who has been working with the

respondent - University for more than fifteen years. He added

that the respondent - University has always found petitioner's

services to be satisfactory and certificate in this regard had also

been issued by the University from time to time.

9. Learned counsel submitted that the petitioner, who has been

working for the last so many years has become age barred and if

the respondent - University does not regularize the petitioner's

services, his future will be jeopardized, inasmuch as, he will not

be able to get employment anywhere.

10. Learned counsel relied upon the judgment dated 13.12.2013

passed by this Court in the case of Jitendra Kumar vs. Jai

Narayan Vyas University & Ors. (S.B. Civil Writ Petition No.

8660/2011), wherein this Court had directed the Jai Narayan

Vyas University to regularize the services of similarly situated

employee/petitioner therein. He informed the Court that the said

order has been affirmed by the the Division Bench and the Apex

Court.

11. Learned counsel for the petitioner took the Court through

Table Agenda No.1 of the minutes of meeting dated 24.04.2015 to

contend that the respondent - University in the meeting decided

to regularize the services of the contractual employee. Reliance

[2023/RJJD/014438] (6 of 15) [CW-15081/2021]

was also placed on agenda Nos. 6 & 12 of the minutes of meeting

dated 15.01.2021.

12. In support of his contentions, learned counsel for the

petitioner has relied upon following judgments:

(i) State of Karnataka & Ors. vs. M.L. Kesri & Ors., reported in AIR 2010 SC 2587.

(ii) Sheo Narayan Nagar & Ors. vs. State of UP & Ors., reported in (2018) 13 SCC 432.

(iii) Narendra Kumar Tiwari & Ors. vs. State of Jharkhand & Ors., reported in (2018) 8 SCC 238.

(iv) Amarkant Rai vs. State of Bihar & Ors., reported in 2015 (3) SLR 658.

13. Mr. Sunil Purohit, learned counsel for the respondent -

University, on the other hand, submitted that admittedly, the

petitioner was engaged through a placement agency on

03.05.2005, as has been stated by the petitioner himself in Para 2

of the memo of writ petition. He submitted that in the year 2013,

the respondent - University advertised 18 posts of Class IV

employees, however, the petitioner despite having competed for

the said post could not make it to the select list.

14. It was argued that after filling up 18 posts, the University is

not interested in taking more Peon on regular cadre. He submitted

that it is the decision and discretion of the University to appoint

regularly selected Class IV employee or to take services from

placement agency/contractor, while keeping in mind its financial

constraints and other administrative reasons.

15. Learned counsel submitted that the University awards a

contractor or engages a placement agency for supplying of

manpower and as and when a particular type of manpower is

[2023/RJJD/014438] (7 of 15) [CW-15081/2021]

required, requisite instructions are issued to the placement agency

/ contractor to deploy a person who fits in the requirement of the

University.

16. While inviting Court's attention towards work orders

(Annexure-R/2), learned counsel argued that there is no employer

- employee relationship between the petitioner and the

respondent - University. He added that the respondent -

University is neither having any direct control or supervision over

the manpower so supplied by the placement agency/contractor,

nor does it specify or indicate, the name of person. The placement

agency / contractor is paid according to the terms of contract and

no payment is made to individual person, engaged through the

agency.

17. Learned counsel for the respondent - University relied upon

the judgment of this Court dated 05.03.2021 passed in the case of

Ashish Dave vs. State of Rajasthan & Anr. (S.B. Civil Writ

Petition No. 7612/2018), which has been rendered in the case

of similarly situated person and argued that in the said case, this

Court has held that there is a complete absence of employer -

employee relationship and therefore, no relief can be granted to

the petitioner.

18. In support of his contention that in case of a person engaged

through placement agency / contractor, the order of regularization

cannot be passed, learned counsel for the respondent - University

relied upon the judgment dated 20.02.2019 rendered by Hon'ble

the Supreme Court in the case of Bharat Heavy Electricals Ltd.

vs. Mahendra Prasad Jakhmola & Ors., reported in (2019) 13

[2023/RJJD/014438] (8 of 15) [CW-15081/2021]

SCC 82 and Union of India & Ors. vs. Ilmo Devi & Anr.

reported in (2021) SCC Online SC 899.

19. In rejoinder, Mr. Dungawat, learned counsel for the petitioner

submitted that the respondent - University's stand that there is no

direct employer - employee relationship is incorrect, inasmuch as,

the respondent - University has paid the petitioner his salary,

which is evident from copy of Bank Statement (Annexure-17) filed

with the writ petition.

20. Heard the learned counsel for the parties and perused the

material available on record and judgments cited at the bar.

21. It is to be noted that the petitioner has firstly approached

this Court in the year 2018 by way of filing writ petition seeking

relief of regularization. During the writ proceedings dated

04.08.2020, an assertion was made on behalf of the petitioner

that services of one Manoj Dave working as contractual employee

through placement agency has been regularized. Said writ petition

was disposed of by a co-ordinate Bench of this Court on

04.08.2020.

22. In furtherance of the above order passed in petitioner's

earlier writ petition, a detailed representation dated 22.08.2020

was moved, in which not only Manoj Dave's case was relied upon,

but also judgments rendered in the case of Jitendra Kumar (supra)

and other cases relating to Jai Narayan Vyas University were cited.

23. It is to be noted that the respondent - University has passed

a detailed and well considered decision dated 06.04.2021 dealing

with each contention raised by the petitioner and the judgments

relied upon.

[2023/RJJD/014438] (9 of 15) [CW-15081/2021]

24. In the opinion of this Court, as petitioner's representation

was decided pursuant to an order passed in his writ petition, such

decision is final and binding upon the petitioner, unless it can be

shown to be perverse or illegal on the face of it. The petitioner has

failed to point out any flaw or infirmity in the above decision dated

06.04.2021 taken by the University.

25. This Court does not find any substance in petitioner's

contention claiming parity with the case of Manoj Dave. A simple

look at the appointment order given to Manoj Dave in the year

2004 reveals that he was engaged on adhoc / contract basis and

the appointment order was given by none other than the Registrar

of University itself. Thereafter, he continued as a contractual

employee with the University for a considerable period, before a

committee was constituted for considering his case and it was

pursuant to the committee's decision, that the services of said

Manoj Dave were regularized by way of the order dated

03.11.2017.

26. As against the case of Manoj Dave, petitioner's case as set

up by the petitioner himself is that, he was engaged through

placement agency in the year 2005. Obviouisly, he was never

engaged by the University. Since, the petitioner was engaged

through a placement agency, there is a complete absence of

employer - employee relationship between the petitioner and the

respondent - University. Hence, the petitioner's plea of claiming

parity with Manoj Dave falls flat on the ground. The payment of

the salary has been made to the agency and not to the petitioner.

Solitary or stray instances that too for the period of 2017 cannot

establish the employer-employee relationship.

[2023/RJJD/014438] (10 of 15) [CW-15081/2021]

27. So far as petitioner's reliance upon the judgment in the case

of Jitendra Kumar (supra) is concerned, this Court finds that in the

case of Jitendra Kumar (supra), the Court, as a fact, had found

that services of ten similarly situated Class IV employees, were

regularized, by the University, hence, the Court passed order for

regularization. It will not be out of place to reproduce Para 2 and 4

of the judgment in the case of Jitendra Kumar (supra) as under:-

"2. The learned counsel for the petitioner, Ms. Suman Agarwal has pointed out that vide Annex.20 dtd. 1.4.1999, 10 other similarly situated class IV employees were regularized in the regular pay scale by appointing them as Class IV employee by the respondent-University, but without disclosing any reason as to why the case of the present petitioner was not considered, the respondent - University has not regularized the services of the petitioner. She relied upon the decision of Hon'ble Supreme Court in the case of State of Karnataka V/s Uma Devi reported in 2006 (4) SCC 1.

3. xxxxx

4. Having heard the learned counsel for the parties, this Court is of the opinion that if the petitioner is working as Class IV employee as Chowkidar for last more than 20 years, his case is squarely covered by the exception clause of decision of Hon'ble Supreme Court in the case of State of Karnataka V/s Uma Devi (supra). In para 53 of the said judgment, the Hon'ble Supreme Court held as under:

xxxx xxxx"

28. The fact that the respondent - University has conducted

regular recruitment for the post of Class IV in the year 2013, in

[2023/RJJD/014438] (11 of 15) [CW-15081/2021]

which the petitioner appeared and failed to get appointment, does

not serve the cause of the respondent - University. Because, the

petitioner's endeavour of taking part in selection process cannot

take away his right of claiming regularization.

29. So far as petitioner's contention based on minutes of the

meeting dated 24.04.2015 is concerned, nothing turns out to be in

petitioner's favour. Relevant extract of Agenda No.1 is reproduced

hereunder:

Ø-la- ppkZ fcUnq fooj.k izcU/k cksMZ }kjk fy;k x;k fu.kZ;

Vscy ,ts.Mk 1- lafonk lsok ij fu;qDr lafonk lsok ij dk;Zjr dkfeZd iz"kklfud dkfeZdksa dks fu;fer foHkkx }kjk le;≤ ij tkjh funsZ"kksa dh djus ckcrA ikyuk esa fo"ofo|ky; ds dk;Z dks lqpk: :i ls fu'ikfnr djus gsrq lesfdr ikfjJfed ij j[kk x;kA izcU/k e.My dh cSBd esa bl lEcU/k esa ppkZ dh tkdj ;g lS)kfUrd lgefr iznku dh xbZ fd lafonk lsok ij dk;Zjr dkfeZdksa dk fu;fefrdj.k fd;k tkuk pkfg,A cSBd esa izdj.k fu;fefrdj.k djus gsrq iz"kklfud foHkkx dks izsf'kr fd;k tkus ckcr fu.kZ; fy;k x;kA

30. A simple look at Table Agenda No.1 reveals that the

respondent - University has decided to regularize the services of

contractual employees.

31. This Court feels that mere decision to regularize services of

contractual employees does not create any right in petitioner's

favour, more particularly when the petitioner was not even

contractual employee of the respondent - University. There was

no contract or employer - employee relationship between the

petitioner and the respondent - University. Services of Manoj

Dave, who was having a direct relationship seems to have been

regularized by the University on the basis of such resolution.

32. By way of agenda No. 6 & 12 of the meeting dated

15.01.2021, a simple decision to increase the honorarium / salary

[2023/RJJD/014438] (12 of 15) [CW-15081/2021]

has been taken and the same does not create a right in

petitioner's favour for being regularized, given that his prayer

seeking regularization has specifically been turned down by the

respondent - University vide order dated 06.04.2021.

33. The law, as to whether an employee engaged through

placement agency or contractor can be regularized or not, is well

settled by Hon'ble the Supreme Court in its judgment rendered in

the case of Bharat Heavy Electricals Ltd. (supra) so also in the

case of Ilmo Devi (supra).

34. The Supreme Court in the case of Balwant Rai Saluja &

Anr. vs. Air India Ltd. & Ors. [(2014) 9 SCC 407], while

dealing with various judgments has culled out factors to be

considered for deciding employer-employee relationship. Relevant

part reads thus:

(i) who appoints the workers;

(ii) who pays the salary/remuneration;

(iii) who has the authority to dismiss;

(iv) who can take disciplinary action;

(v) whether there is continuity of service; and

(vi) extent of control and supervision i.e. whether there exists complete control and supervision.

35. A gainful reference of the judgment dated 25.08.2020

passed by this Court in the batch of cases led by Mahaveer

Singh Rajpurohit & Ors. vs. State of Rajsthan & Ors., (S.B.

CWP No. 8872/2019) particularly following paras can be made:-

"13. Principle that 'one set of contractual employees cannot be substituted by another set of contractual employees, unless regularly selected candidates are

[2023/RJJD/014438] (13 of 15) [CW-15081/2021]

available', is alien to such type of engagements or arrangements.

14. The above referred principle can be applied only when the employer, instead of filling up the sanctioned posts through regular selection process, engages persons on contract basis while deferring or avoiding regular selection process for a long period. In such circumstances, if a candidate having direct employeremployee relation and having worked for considerable time, is sought to be replaced by another employee on contract basis, then in a given case, rights of such employee can be protected till regularly selected candidates are available for the change of guards.

15. In the opinion of this Court, order of regularisation or mandamus to continue the Contract beyond sunset, i.e., October, 2020, would amount to overriding the contract, which the respondent-University has executed with the contractor. Any such direction as prayed, would amount to rewriting the terms of the Contract, which is impermissible in law.

16. Petitioners are discharging different types of duties, as is evident from the schedule annexed with the captioned writ petition(s). No material has been placed to establish that there are sanctioned posts and if they are working against such posts. Omnibus assertions of general and vague nature have been made.

17. Petitioners who have been engaged by the contractor have neither chosen to implead the Contractor as a party-respondent, nor have they placed the agreement on record.

xxxx xxxx

22. Coming to the facts of the present case, petitioners are discharging different kinds of duties (LDC, Mistry, Class IV, to name a few) in the respondent-University, not against any sanctioned

[2023/RJJD/014438] (14 of 15) [CW-15081/2021]

posts; that apart they are performing non-teaching duties. If such protection is to be accorded to all and sundry, it would result in a chaotic situation. One cannot be oblivious of the financial burden on the University which is mainly dependent upon the State for even its day to day finances.

xxxx xxxx

26. Even in the judgment of State of Karnataka Vs. Uma Devi reported in (2006) 4 SCC 1, the Hon'ble Supreme Court has held that for a mandamus to be issued, it has to be ascertained that the relevant statute imposes a legal duty on the State to do the action for which mandamus is sought. It is pertinent to note that the Apex Court had observed that it is always open for the employer to hire workman on contractual or temporary basis.

xxxx xxxx

30. Having waded through the judgments aforesaid, this Court is of the firm opinion that the petitioners, discharging their duties through placement agency (which is not before this Court), do not have any direct relationship with the respondent University. As such, they cannot claim a mandamus for regularization or even for continuation of the contract."

36. In view of what has already been observed by this Court and

the guidelines provided by Hon'ble the Supreme Court in Balwant

Rai's case (supra), this Court does not find any employee-

employer relationship to exist between the petitioner and the

respondent - University.

37. Hence, following the judgment dated 05.03.2021 of this

Court in the case of Ashish Dave (supra), given in the case of the

very same University, it is held that the petitioner having been

[2023/RJJD/014438] (15 of 15) [CW-15081/2021]

engaged through placement agency cannot claim any right of

regularization. The mere fact that the petitioner is continuing for

last 18-20 years with the respondent - University through

different placement agencies does not give any carte-blanche to

continue to work in the University for indefinite period.

38. As a corollary of the discussion foregoing, all the writ

petitions seeking regularization are, hereby, dismissed.

39. Stay applications also stand dismissed.

(DINESH MEHTA),J 72-Mak/-

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