S.B.CIVIL WRIT PETITION NO. 6568/2010 Mooli Devi Choudhary & Ors. vs. State & Ors. & 20 other connected matters Judgment dt: 25th August, 2010 1/81 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B.CIVIL WRIT PETITION NO. 6568/2010 Mooli Devi Choudhary & Ors. v e r s u s State of Rajasthan & Ors. and other 20 connected writ petitions & contempt petitions (See Schedule) DATE OF ORDER : 25th August, 2010 P R E S E NT HON'BLE DR.JUSTICE VINEET KOTHARI REPORTABLE Mr.R.S.Saluja, ] Mr.Ramesh Purohit, ] Mr.Anish Ahmed, ] Mr.J.S.Bhati, ] Mr.R.S.Choudhary, ] Mr.V.R.Bishnoi, ] for the petitioners. Mr.M.P.Pareek, ] Mr.P.R.Singh, ] Mr.Hemant Choudhary, ] for the respondents. S.B.CIVIL WRIT PETITION NO. 6568/2010 Mooli Devi Choudhary & Ors. vs. State & Ors. & 20 other connected matters Judgment dt: 25th August, 2010 2/81 BY THE COURT: 1. गरभ नम: ! `Salute the Teachers', used to be Indian ethos and culture in olden times. Sounds hollow now? Yes ! If the controversy thrown up for consideration in the present set of cases raised by impugned action of “State” is to be taken as a prism or audio meter to look or chant again the aforesaid beautiful Sanskrit Shlok. 2. “Sarva Shiksha Abhiyan”, S.S.A. an ambitious and flagship Project launched by the Government of India for achievement of Universalization of Elementary Education (UEE) within the time frame as mandated by the 86th Amendment to the Constitution making free and compulsory education to the children of 6-14 years of age group a fundamental right under the Constitution of India. The said Project SSA is being implemented in partnership with the State Governments of the Country to address the need of about 192 million children and the programme seeks to open new schools for those habitants, who do not have school facilities and strengthen the present school system through provisions of rooms, toilets, drinking water, S.B.CIVIL WRIT PETITION NO. 6568/2010 Mooli Devi Choudhary & Ors. vs. State & Ors. & 20 other connected matters Judgment dt: 25th August, 2010 3/81 maintenance, improvement in the existing schools with inadequate teacher strength are to be provided with additional teachers adding capacity to the existing teachers and the capacity of teaching method is being strengthened by extensive training. The said Project of SSA seeks to provide quality elementary education with special focus to girls education and children with special needs. 3. 'Kastoorba Gandhi Balika Vidhyalaya' (KGBV for short) is a Scheme launched in July 2004 for setting up residential schools at Upper Primary School for girls belonging predominantly to the Scheduled Caste, Scheduled Tribe, OBC and minority communities. The Scheme is being implemented in educationally backward blocks of the Country where the female rural literacy is below the national average and gender gap in literacy is above the national average. The Scheme provides for minimum reservation of 75% of the seats for girls belonging to Scheduled Caste and Scheduled Tribes, OBCs and Minority Communities and priority for the remaining 25% is accorded to girls from families below poverty line. The said Scheme is being implemented by the funds provided by the Government of India in 27 States and Union Territories of the Country and Rajasthan S.B.CIVIL WRIT PETITION NO. 6568/2010 Mooli Devi Choudhary & Ors. vs. State & Ors. & 20 other connected matters Judgment dt: 25th August, 2010 4/81 is one of them. The said KGBV Scheme was merged with the SSA under the 11th Plan. 4. The petitioners in the batch of writ petitions, vide details given in the Schedule, and large number of them in joint writ petitions before this Court are the teachers, who were appointed as such under fixed term contract of service through private placement agencies on various dates in the year 2007 to 2010 and these teachers have approached this Court against the threatened termination of their contract of service, though the Project of SSA including KGBV continues, because of change of placement agencies to be appointed by the respondent State Government, who are so appointed after inviting tenders on yearly basis. 5. These petitioner-teachers, who have worked as teachers in the said Project of SSA for one year or more either appointed through the same placement agency or if they were lucky enough even through the second placement agency, which got such contract in the next year, thus some of the petitioners have even continued for more than two years in such service and now again with the fresh tenders invited S.B.CIVIL WRIT PETITION NO. 6568/2010 Mooli Devi Choudhary & Ors. vs. State & Ors. & 20 other connected matters Judgment dt: 25th August, 2010 5/81 to change the placement agency, the petitioners apprehending their termination of service by the previous placement agency have filed the present writ petitions. 6. Reply to the writ petitions have also been filed in some of the petitions and some contempt petitions have also been filed by some of the petitioners against the alleged violation of interim protection order granted to some of the petitioners by this Court against their apprehended termination from service and by this common order the Court proposes to dispose of these writ petitions as well as contempt petitions. 7. The arguments were heard at length on both the sides and counsels were also permitted to file written arguments and supply case laws relied upon by them, which they have done and such written arguments and case laws have been considered by this Court. FACTS OF THE CASE 8. The facts of lead case SBCWP No.6568/2010 (Mooli Devi S.B.CIVIL WRIT PETITION NO. 6568/2010 Mooli Devi Choudhary & Ors. vs. State & Ors. & 20 other connected matters Judgment dt: 25th August, 2010 6/81 Choudhary & ors. vs. State of Rajasthan & Ors.) are briefly discussed for ready reference. 9. The petitioners in the said writ petition have stated in para 3 of the writ petition that they are aggrieved of the action of respondents, whereby, every now and then, the placement agencies are changed, whereas, instead of such contractual appointments there should have been a regular process of selection of teachers since the programme of education under the SSA is a continuing education programme and cannot be said to be a fixed term Project. The petitioners further stated in said para that initially from 1.4.2007 to 31/3/2009 the placement agency M/s Maa Vaishanav Devi Security Services was so appointed, whereas, from 1.4.2010 till September 2010 M/s Rajasthan Rojgar Paramarsh Centre, Sirohi was appointed as placement agency, which even made payment to the petitioners of the fixed honorarium from July 2009 till September, 2009. The grievance of the petitioners is that every time new placement agency is appointed by the State Government upon tenders being issued and such placement agency issued fresh advertisement inviting applications from the aspirants seeking appointment as teachers and petitioners have to again S.B.CIVIL WRIT PETITION NO. 6568/2010 Mooli Devi Choudhary & Ors. vs. State & Ors. & 20 other connected matters Judgment dt: 25th August, 2010 7/81 compete every year with the candidates seeking such appointments and this process has not only made their appointment for fixed terms an ever hanging Damocles' sword on their head with no assurance of continuity of employment and is also hoax and fraud played by the respondent State on the said prestigious Project SSA itself because the need of continuity of teachers in the Programme cannot be over emphasized and the experience gained by such petitioner-teachers in a year or two goes wastes if such petitioner-teachers are not reappointed by the new placement agency for whatever reason and the new incumbents who are so appointed again have to undergo fresh training & experience and in the process the entire education system created for poor children is bound to suffer serious setback and the very mandate of Constitutional guarantee of education to the younger generation of the Country is bound to suffer, if this process of employment through private placement agency is to be continued. CONTENTIONS ON BEHALF OF PETITIONERS 10. Mr.R.S.Saluja and other learned counsels for the petitioners relied upon various judgments of Supreme Court and this Court and S.B.CIVIL WRIT PETITION NO. 6568/2010 Mooli Devi Choudhary & Ors. vs. State & Ors. & 20 other connected matters Judgment dt: 25th August, 2010 8/81 vehemently submitted that the practice of providing appointment to the teachers like the present petitioners through private placement agencies is itself a practice which deserves to be deprecated and quashed since there are no guidelines or Rules framed either by the Central Government or the State Government as to on what criteria or basis such placement agencies would be selected. They urged that giving such appointment through private placement agencies is not only abrogation or delegation of sovereign function of the State but in the absence of any experience with the ever changing placement agencies, entire selection process of such teachers is rendered totally arbitrary and at the mercy of such private placement agencies. They urged that there is no guideline from the State Government in this regard and persons so selecting and appointing teachers themselves may be highly uneducated and inexperienced persons as there are no requirement laid down for the persons so making selection of the teachers that they should possess any minimum qualification like Graduation etc., nor any Govt. officials have any role to play in the selection process of the teachers and thus it is clearly at the mercy of the placement agency where large scale corrupt activities also cannot be ruled out in such process of mass employment being provided S.B.CIVIL WRIT PETITION NO. 6568/2010 Mooli Devi Choudhary & Ors. vs. State & Ors. & 20 other connected matters Judgment dt: 25th August, 2010 9/81 through the medium of private placement agencies. 11. Learned counsels for the petitioners also drew the attention of the Court towards the Notice Inviting Tender No.2/2010 dated 10/5/2010 issued by the office of the District Coordinator, SSA, Jodhpur inviting tenders from the registered placement agencies for giving contract to them for employing persons for 149 posts for the work of teachers, Computer Operators, LDCs, Cooks, Helpers, Chowkidars and Assistants etc. for a contract worth Rs.95 lacs to be given by the State Government to such successful bidder placement agency. Another order Annex.4 dated 11/5/2010 issued by the Commissioner of SSA, Shiksha Sankul, Jaipur in which the guidelines for deciding the eligibility of the teachers to be appointed by such placement agencies for the academic session 2010-11 were laid down by the said Commissioner of SSA which gives the outline for educational qualification required for the post of Warden teachers, work experience, nature of work for full time residential Wardens in such school/hostel for girls and monthly honorarium payable to the extent of Rs.9000/- to be employed by such placement agencies. Likewise, educational qualification for other posts are also narrated S.B.CIVIL WRIT PETITION NO. 6568/2010 Mooli Devi Choudhary & Ors. vs. State & Ors. & 20 other connected matters Judgment dt: 25th August, 2010 10/81 in the said order of Commissioner. 12. Learned counsels for the petitioners also submitted that the said guidelines in the order dated 11/5/2010 of the Commissioner also laid down the Calender or time schedule to be adopted by the placement agencies so that such teachers appointed by them can start new session from July 2010 and certain guidelines for marks to be awarded by the placement agencies for preparing the merit of candidates seeking such appointment were also laid down in the said order Annex.4 dated 11/5/2010. From the perusal of the said part of the order dated 11/5/2010, it appears that while 90% marks were allocated for educational qualification of the candidates, 10 % marks only were allocated for the previous experience in the KGBV for such teachers. For 10th Class passed candidates 10 marks are allocated, for 12th class passed candidates 15 marks are allocated, for Graduate candidates 25 marks, for Post Graduate 10 marks, for B.Ed. Candidates 20 marks and for BSTC course 10 marks. Thus, for different stages of qualifications, separate marks were allocated. Further, within the particular qualification, marks were further required to be distributed depending upon the percentage of marks S.B.CIVIL WRIT PETITION NO. 6568/2010 Mooli Devi Choudhary & Ors. vs. State & Ors. & 20 other connected matters Judgment dt: 25th August, 2010 11/81 secured by the candidates in such qualification-examination, for example if 10th class passed candidate had secured 50% marks – 2 marks for that, if marks were between 51%-60% then 6 marks, for percentage of marks between 60%-75% - 8 marks and above 75% - 10 marks. Similarly, for experience in KGBV school, if the concerned candidate has been teaching in the KGBV for full session (Maximum 5 sessions) then 2 marks, if experience is of six months or more then 01 mark and if experience is of three to six months then ½ mark and for experience for less than three months – Nil marks. 13. Learned counsels for the petitioners also drew the attention of the Court towards the terms and conditions of the notice inviting tenders from such placement agencies and condition no. 9 clearly stipulated that for the persons so employed by that placement agency, the placement agency will be responsible for complying with the provisions of Industrial Disputes Act, 1947 and similarly, the placement agency vide condition no. 8 would be also bound to comply with the provisions of Contractual Employment (Prohibition) Act, 1970. Learned counsels urged that this would amount to teachers so appointed to be treated as industrial workmen which the teachers S.B.CIVIL WRIT PETITION NO. 6568/2010 Mooli Devi Choudhary & Ors. vs. State & Ors. & 20 other connected matters Judgment dt: 25th August, 2010 12/81 are simply not and it is also contrary to the Supreme Court decision in the case of Miss A.Sundarambal vs. Govt. of Goa (AIR 1988 SC 1700) in which it was clearly laid down by the Hon'ble Supreme Court that provisions of Industrial Disputes Act, 1947 do not apply to teachers as they cannot be treated as workmen. 14. Learned counsel for the petitioners also vehemently urged that the provisions of Rajasthan (Regulation of Appointment to Public Services and Rationalization of Staff) Act, 1999 ( `RAPSARS Act', for short) clearly prohibits appointment in public service on daily wages and even urgent temporary appointments without the prior permission of the competent authority under the said Act. 15. Drawing the attention of the Court towards the definition of `daily wages employees' as defined in Section 2 (ii) of the said Act and Section 4 containing prohibition against such appointment and regulation of temporary appointment, which provisions are reproduced hereunder for ready reference, learned counsels argued that the definition of `daily wages employees' is wide enough to cover even the fixed term contracted teachers employed by the placement S.B.CIVIL WRIT PETITION NO. 6568/2010 Mooli Devi Choudhary & Ors. vs. State & Ors. & 20 other connected matters Judgment dt: 25th August, 2010 13/81 agency in the present cases and, therefore, such appointments are hit by the provisions of Section 4 of RAPSARS said Act 1999 and, therefore, cannot be allowed to be made much less they can be encouraged to be so made by the State Government or placement agencies acting at the behest of respondent State. “2(ii) ‘daily wage employee’ means any person who is employed in any public service on the basis of payment of daily wages and includes a person employed, on the basis of nominal muster roll or consolidated pay either on full time or part time or piece rate basis, or as a workcharged employees, and also includes any other similar category of employees, by whatever designation called, other than, those who are selected and appointed on a sanctioned post in accordance with the relevant rules on a regular basis.” “4. Prohibition of daily wage appointments and regulation of temporary appointments. – (1) The appointment of any person in any public service to any post, in any class, category or grade as a daily wage employee shall be prohibited. (2) No urgent temporary appointment shall be made in any public service to any post, in any class, category S.B.CIVIL WRIT PETITION NO. 6568/2010 Mooli Devi Choudhary & Ors. vs. State & Ors. & 20 other connected matters Judgment dt: 25th August, 2010 14/81 or grade without the prior permission of the competent authority and such appointments shall also be consistent with such conditions as may be imposed by the competent authority.” 16. Thus all employments in public service by whatever name called on a consolidated pay other than on a sanctioned post made on regular basis is prohibited by this Act. 17. The arguments of the learned counsels for the petitioners can be thus summarized as under:- (a) The petitioners were appointed on the dates mentioned in Schedule of the writ petition between the year 2007 to 2009 & they are continuing from the sessions and the dates specified in the schedule in the SSA project as teachers. (b) That in the first place, they were appointed by M/s Maa Vaishno Devi Security Services. This agency was then replaced by M/s Rajasthan Rojgar Parmarsh Center, Sirohi and recently this has been replaced by yet another placement agency. Every time, a new S.B.CIVIL WRIT PETITION NO. 6568/2010 Mooli Devi Choudhary & Ors. vs. State & Ors. & 20 other connected matters Judgment dt: 25th August, 2010 15/81 placement agency has come. It has subjected the petitioners to a fresh process of selection and granted an appointment. It is submitted that as per own showing of the respondents, there is no employer – employee relationship between the petitioners and the respondents. The petitioners are appointed by the placement agency, they are being paid through the placement agency, but in the process, after such appointment being granted, the work of the petitioners is rendered the State run schools. They have to work as per the instructions issued from time to time by the authorities of the State. Every time a new placement agency is selected by the State, the petitioners have to face a fresh process of selection. It is submitted that the petitioners who have higher merit are fortunate to be successful every time so far, but the fact remains that there is every likelihood of petitioners being replaced by another set of candidates on any given date and this situation will clearly result in one set of temporary employees being replaced by another. This is hit by Article 14 of the Constitution of India. The reliance in this behalf is being placed on the following decisions: - (i) 2009 WLC (Raj.) UC p.498 – Devendra Kumar & 502 S.B.CIVIL WRIT PETITION NO. 6568/2010 Mooli Devi Choudhary & Ors. vs. State & Ors. & 20 other connected matters Judgment dt: 25th August, 2010 16/81 others Vs. State of Raj. & Ors. (ii) AIR (SC) 1991 p.1286 – Sri Rabinarayan Mohapatra Vs. State of Orrisa & Ors. (iii) 1991 WLR p.124 (iv) AIR 1987 (SC) p.748 (v) AIR (SC) 1987 p.478 – Rattanlal & Ors. Vs. State of Haryana & Ors (vi) SCC Suppl. (1988) p.428 – Rajbinder Singh Vs. State of Punjab & Ors. (c) That the job of providing appointment to the petitioners could not be given to the placement agencies. It is right from the date, the petitioners have been appointed on the respective dates, the placement agencies have been changed and in the process, the guidelines for appointments have been laid down, but at no stage, any of the petitioners’ work has been found to be lacking in any manner. The placement agencies alone have been changed on account of coordination of such placement agencies not being reached with the State or new NITs being issued by the State. Thus, it is due to the fault of the placement agencies and the respondent-State that the petitioners are again and again forced to face a fresh process of selection, although the posts on which they have been appointed are S.B.CIVIL WRIT PETITION NO. 6568/2010 Mooli Devi Choudhary & Ors. vs. State & Ors. & 20 other connected matters Judgment dt: 25th August, 2010 17/81 continuing and the work of the petitioners-teachers is perennial and permanent nature, as the SSA project cannot be termed as a fixed term project. (d) That guideline for selection of the employees are laid down, but there is no guarantee that placement agencies will act in accordance with these guidelines. It is submitted that very simple manner adopted by the placement agencies of ousting the meritorious candidates was seen at Nagaur Center wherein the placement agencies refused to even accept the application forms from the candidates in service. It was only on account of stay being granted by this Court that the placement agencies have ultimately accepted the application forms from such candidates. Thus, in this view of the matter, if at all fair selections are to be made, i.e., possible only when some Government officers are attached with the process of selection. (e) That so far as placement agencies are concerned, they have no guidelines as to who will be the person, with what qualification, he will be heading the process of selection. At any rate, there is no reason to appoint fresh Class-IV employees like cook and Chokidar S.B.CIVIL WRIT PETITION NO. 6568/2010 Mooli Devi Choudhary & Ors. vs. State & Ors. & 20 other connected matters Judgment dt: 25th August, 2010 18/81 etc. every time by a different placement agency. The very concept of entrusting the work to the placement agencies is illegal. It is submitted that through Sarva Siksha Abiyan, the State Government on receiving funds from the Central Government is discharging the duties conferred on it by Article 21A of the Constitution of India. Article 21A of the Constitution of India contemplates that right to education to the children has to be provided in accordance with law as laid down whereas no such law has been enacted so far providing that the source of recruitment for teachers will be the placement agencies. In the submission of the petitioners, the sovereign function is discharged by the State Government while providing right to education and such a sovereign function cannot be alienated or delegated to the private placement agencies. (f) That at any rate, the concept of providing work to the placement agencies is prohibited by Rajasthan (Regulation of Appointments to Public Services and Rationalisation of Staff) Act, 1999. Section 4 of the aforesaid Act, as quoted above, provides for prohibition of daily wage appointments and regulation on temporary appointments. S.B.CIVIL WRIT PETITION NO. 6568/2010 Mooli Devi Choudhary & Ors. vs. State & Ors. & 20 other connected matters Judgment dt: 25th August, 2010 19/81 (g) The Sarva Shiksha Abhiyan is a society registered under the Societies Registration Act as per the reply of the respondents. Thus, as per clause 2(v), this is a public service, wherein no daily wage employee could be employed. The term “daily wage employee” is defined by sub-section (ii) of Section 2 of the Act of 1999, as quoted above. (h) That the post of Teacher Grade-III falls within the purview of RPSC in the State of Rajasthan. Thus, the selection has to be made according to Section 7 of the aforesaid Act either by the Public Service Commission or at any rate by the Selection Committee as contemplated by sub-section (b) of Section 7 in accordance with the orders issued in this behalf. It has not been shown anywhere that such recruitment has been permitted by the State Government to be made through placement agency. Thus, the action providing appointment through placement agency is illegal. 18. Learned counsels for the petitioners summed up submitting that the petitioners-teachers are to be treated as employees of the placement agencies only even though they work for the SSA Project S.B.CIVIL WRIT PETITION NO. 6568/2010 Mooli Devi Choudhary & Ors. vs. State & Ors. & 20 other