Item No. 9, DJ/- SBCWP NO. 8297/2010 Hasran Khan & Ors. Vs. State of Rajasthan & Ors. Order dt: 19th October, 2010 1/12 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S. B. Civil Writ Petition No. 8297/2010 Hasan Khan & Ors. Vs. State of Raj. & Ors. DATE OF ORDER ::: 19th October, 2010 P R E S E N T HON'BLE DR. JUSTICE VINEET KOTHARI Mr. Rajendra S. Charan, for the petitioners. --- 1. Heard learned counsel for the petitioners. 2. The petitioners were appointed as Nurse Grade-II through Medical Relief Society on a fixed monthly honorarium of Rs.4,500/- vide appointment order Annex-2 dated 19.12.2009 for a fixed period up to 31.03.2010 and they were attached with Dr. S.N. Medical College and Group of Hospitals, Jodhpur. Thereafter, vide order Annex-5 dated 30.04.2010, the period of contract for nursing and para-medical staff on contractual basis was extended up to 31.05.2010. Thereafter, there was no extension of contractual period in favour of petitioners to work on the said position and in these circumstances, the petitioners approached this Court by filing present writ petition on 18.08.2010 claiming the relief that the impugned action of the respondent-authority in treating the services of the petitioners as terminated as after June, 2010, may be quashed and Item No. 9, DJ/- SBCWP NO. 8297/2010 Hasran Khan & Ors. Vs. State of Rajasthan & Ors. Order dt: 19th October, 2010 2/12 set aside; and the petitioners may be allowed to continue on the post of Nurse Grade-II. 3. Learned counsel for the petitioners relying upon the decision of this Court delivered in the case of Mahendra Singh & Ors. Vs. State of Rajasthan & Ors. [SBCWP No. 5753/2010, decided on 05.08.2010] submitted that the petitioners have been working on the said position of Nurse Grade-II uptill now though the period of contract has not been extended after 31.05.2010. Learned counsel for the petitioners further submitted that the petitioners' case is also similar to that of involved in the aforesaid case of Mahendra Singh (supra) and, therefore, the petitioners are entitled to the same relief. 4. Recently, this Court in another matter in SBCWP No. 9137/2010 – Ram Swaroop Vs. State of Raj. & Ors., decided on 06.10.2010, has dealt with similar controversy relating to continuation of fixed terms contractual employees by the Panchayat Samiti- Degana on a fixed monthly honorarium as Social Scientist. In that matter, learned counsel for the petitioner relied upon a decision of the Hon'ble Supreme Court in the case of State of Haryana Vs. Piara Singh & Ors., reported in (1992) 4 SCC 118 and decision of this Court given in the case of Devendra Kumar & Ors. Vs. State of Rajasthan & Ors., reported in 2009 WLC (Raj.) UC 498. This Court repelled the contentions of the learned counsel for the petitioner in that matter in the following terms: Item No. 9, DJ/- SBCWP NO. 8297/2010 Hasran Khan & Ors. Vs. State of Rajasthan & Ors. Order dt: 19th October, 2010 3/12 “6. The difference between adhoc employment or temporary employment, which was the subject matter of controversy before the Apex Court in the case of Piara Singh (supra), from the case in hand, namely, fixed term contractual employment, is of two different natures. While saying so in Para 46 of the said judgment, which is quoted below, the context of the case arising before the Hon'ble Supreme Court has to be kept in mind, that would be clear from the following extracts from Para 3, 9 & 10 of the said judgment, which is also reproduced hereunder. “In the States of Punjab and Haryana over the last several years a large number of appointments were made to Class III and IV services on ad hoc basis i.e., without reference to Public Service Commission or the Subordinate Services Selection Board and without adhering to employment exchange requirements. As a result of this policy, a large number of ad hoc employees came into existence in both the States, who were continuing over several years without being regularised and were agitating for their regularisation. To meet the situation, both the Governments issued orders from time to time for regularisation of such employees subject to certain conditions. (See paras 6 to 8). Only those ad hoc/temporary employees who could not be regularised for want of satisfying one or the other of the conditions prescribed in the respective orders had approached the High Court by way of writ Item No. 9, DJ/- SBCWP NO. 8297/2010 Hasran Khan & Ors. Vs. State of Rajasthan & Ors. Order dt: 19th October, 2010 4/12 petitions. They contended that the conditions prescribed in the said orders were arbitrary, discriminatory and unrelated to the object. Besides the work-charged employees, daily-wagers, casual labour and those employed in temporary/time- bound projects too wanted to be regularised. The High Court in a common judgment accepted the pleas and gave certain directions (see para 16) regarding regularisation. Allowing the State's appeal.” 7. In Para 50 of the said judgment, the Apex Court proceeded to further say that “the proper course would be that each States prepares a scheme, if one is not already in vogue, for regularisation of such employees consistent with its reservation policy and if a scheme is already framed, the same way be made consistent with our observations herein so as to reduce avoidable litigation in this behalf. If and when such person is regularised he should be placed immediately below the last regularly appointed employee in that category, class or service, as the case may be.” 8. In Para 51, the Apex Court observed that “So far as the work-charged employees and casual labour are concerned, the effort must be to regularise them as far as possible and as early as possible subject to their fulfilling the qualifications, if any, prescribed for the post and subject also to availability of work. If a casual labourer is continued for a fairly long spell - say two or three years - a presumption may arise that there is regular need for his services. In such a situation, it becomes obligatory for Item No. 9, DJ/- SBCWP NO. 8297/2010 Hasran Khan & Ors. Vs. State of Rajasthan & Ors. Order dt: 19th October, 2010 5/12 the concerned authority to examine the feasibility of his regularisation. While doing so, the authorities ought to adopt a positive approach coupled with an empathy for the person. As has been repeatedly stressed by this court, security of tenure is necessary for an employee to give his best to the job. In this behalf, we do commend the orders of the Government of Haryana (contained in its letter dated 6.4.90 referred to hereinbefore) both in relation to work- charged employees as well as casual labour.” 9. Similarly, a coordinate Bench of this Court in Devendra Kumar & Ors. Vs. State of Rajasthan (supra) dealing with the employment of Vidhyarthi Mitras under a scheme framed by the State Government relating to appointment for Government schools run by the State Government, the factual aspect of the said judgment as narrated by the learned Single Judge is contained in Para 3 of the said decision, which is reproduced hereunder: “3. The facts leading to this controversy are that the petitioners have been appointed as Vidharthi Mitras after issuance of the circular by the State Government on 2nd June, 2008 and the Vidharthi Mitras have been given appointment on account of possible delay in availability of RPSC selected candidates for promotion on the 6000 posts of Lecturers, 5000 posts of Senior Teachers and 1200 posts of Teacher Grade-III. The said Vidharthi Mitra Scheme was approved by the Finance Department vide circular dated 9.1.2007 and these Vidharthi Mitras were appointed on fixed Item No. 9, DJ/- SBCWP NO. 8297/2010 Hasran Khan & Ors. Vs. State of Rajasthan & Ors. Order dt: 19th October, 2010 6/12 remuneration as per their posts with condition that said recruitment will be for the period till the candidates regularly selected by the RPSC/DPC are made available or till 29.2.2009. The term fixed originally was extended upto 15th April, 2009 and it was not extended thereafter.” 5. This Court came to the conclusion that the case of the present petitioners, appointed on fixed term contract, after lapse of period of contract, have no legal right to claim continuation in employment or renewal of contract of service as a matter of right and as such cases are distinguishable from repeated adhoc appointments adopted as matter of practice by the State Government which was the case before the Apex Court in the case of Piara Singh (supra) distinguishing those judgments this Court observed in para Nos. 11 to 14, which are reproduced herein below: 11. The difference in the judgments cited at Bar by the learned counsel and facts obtained in the present case is stark and clear. In the present case, a person, who was appointed on a fixed term contract, after the lapse of period of his contract, claims continuation of the same and resists the grant of similar contract to another person. Apparently, in the present case, the contractual employment by the Panchayat Samiti on the same position of Social Scientist was done in the case of the petitioner himself when he was initially given fixed term contract of service on monthly honorarium of Rs.6,000 per month on 09.11.2009 to work upto Item No. 9, DJ/- SBCWP NO. 8297/2010 Hasran Khan & Ors. Vs. State of Rajasthan & Ors. Order dt: 19th October, 2010 7/12 31.03.2010. This cannot be equated with the adhoc employment by the State of Punjab & Haryana, as was the case in the judgment in the case of Piara Singh (supra). The adhoc employment against the vacancy, by the State, repeated with a number of vacancies one after another, was construed to be an unfair labour practice and deprecating the same, the Apex Court directed that the State should frame a scheme for regularization of such employees consistent with the reservation policy, if not already framed. The ratio of the judgment in an entirely different context, cannot be blindly applied in the facts of the present case, where a person with the fixed term contractual employment, after the lapse of period of contract, claims continuation of the same to exclude other such persons from seeking similar fixed term contractual employment. The very purpose of giving short-term contractual employment by the Panchayat Samities in consonance with the scheme of providing employment under enactments like National Rural Employment Guarantee Act, 2005 is to provide large and widely spread employment to various unemployed persons in rural areas of the country. If one person, once given a fixed term contract was to be continued for ever by renewing his contract, the very purpose of enactment and scheme is likely to be defeated. Therefore, this contention of the learned counsel for the petitioner that Smt. Ratni Devi could not be given the contract of service to work as Social Scientist in his position even though his contract period Item No. 9, DJ/- SBCWP NO. 8297/2010 Hasran Khan & Ors. Vs. State of Rajasthan & Ors. Order dt: 19th October, 2010 8/12 lapsed on 30.09.2010, is of no avail to the petitioner. After 30.09.2010, no right of employment subsisted with the petitioner at all, and therefore, employment of Ratni Devi w.e.f. 01.10.2010 cannot be affected by any sort of the claim of the petitioner. 12. Similarly, another decision relied upon by the learned counsel for the petitioner in the case of Vidhyarthi Mitras in Devendra Kumar & Another (Supra) was relating to enmas employment of Vidhyarthi Mitras (Teachers) for manning the positions of the teachers in the Government schools in Rajasthan. The State of Rajasthan has large number of vacancies of such teachers at that time and continues to have even now and therefore for the purpose of giving education to the children within the State of Rajasthan, various schemes of State Government and Central Government are being implemented by the State Government for complying with their constitutional obligation under Article 21 A and the provisions of the Free and Compulsory Education Act, 2009. In that context, this Court in various decisions not only in the case of Devendra Kumar (Supra) but subsequent judgments, has directed that Vidhyarthi Mitras employed for fixed sessions may not be replaced by another set of adhoc appointed Vidhyarthi Mitras unless and until regular selections are held by the RPSC or DPC and regular appointments are made for such positions. That judgment also and equally inapplicable to the facts of the present case. Item No. 9, DJ/- SBCWP NO. 8297/2010 Hasran Khan & Ors. Vs. State of Rajasthan & Ors. Order dt: 19th October, 2010 9/12 13. As aforesaid, the fixed term contractual employment on various positions in the Panchayati Raj Department is given to encourage such employment to large number of persons, therefore, the persons who are given fixed term service contracts cannot claim any right of renewal of such employment after the period of contract is over. The same can neither be equated with repeated adhoc employments nor an unfair labour practice. It lies in the best wisdom of the employer, the concerned Panchyat Samiti, to grant such contracts of service for a fixed term to various persons and unless such decision making process is established to be arbitrary on the face of it, the Court loath to exercise its extraordinary jurisdiction to quash such employment on fixed term contractual basis. 14. On the basis of aforesaid, this Court finds no merit in the submissions of the learned counsel and no ground is made out by the petitioner to interfere in the present matter and quash awarding of fresh fixed term contract in favour of Smt. Ratni Devi, who as aforesaid, has not even been impleaded in the writ petition, nor the order in her favour, Annex.3 dated 28.09.2010 has been specifically challenged by the present petitioner.” Sd/- (Dr. Vineet Kothari), J. 6. Though the said case pertained to employment of contractual employees in Panchayati Raj Department as Social Scientist, the situation in the present case is no different. The present Item No. 9, DJ/- SBCWP NO. 8297/2010 Hasran Khan & Ors. Vs. State of Rajasthan & Ors. Order dt: 19th October, 2010 10/12 petitioners were also employed on a fixed term contract on a fixed honorarium through Medical Relief Societies an independent Cooperative Society, even though their services were attached with Dr. S.N. Medical College & Group of Hospitals, Jodhpur. The extension once granted to the petitioners up to 31.05.2010 cannot be stretched beyond 31.05.2010. The contentions raised by the learned counsel for the petitioners that petitioners are working as Nurse Grade-II uptill now even beyond 31.05.2010, has no legs to stand upon. There is not even an averment in the writ petition to this effect, much less any document to support this contention on record before this Court. A perusal of para 8 onwards in writ petition only says that vide Annex-4, extension was granted up to 31.05.2010, and thereafter the petitioners have been making representations to the concerned department and Minister of Medical & Health Department, Government of Rajasthan, Jaipur for giving them regular appointment but no such order appears to have been passed by any competent authority in favour of present petitioners. Therefore, the inference that the petitioners have been working till the date of filing of this writ petition on 18.08.2010 cannot be drawn by this Court. The contention of learned counsel for the petitioner is, therefore, found to be devoid of merit and misconceived. 7. The judgment relied upon by the learned counsel for the petitioners given in the case of Mahendra Singh (supra) is distinguishable as would be clear from following factual matrix as Item No. 9, DJ/- SBCWP NO. 8297/2010 Hasran Khan & Ors. Vs. State of Rajasthan & Ors. Order dt: 19th October, 2010 11/12 given in that judgment in para 14 extracted below: “14. From the facts obtaining in the present case, it appears to this Court that a large number of vacancies of General Nurse Male Grade II and Lab Technicians are available with the respondent No.4, Dr. S.N. Medical College & Joint Hospital, Jodhpur, 21 vacancies for Lab Technicians and about 60 vacancies of General Nurse Male Grade-II. Learned counsel for the respondent- State also admitted before this Court that for these posts, the selection process for General Nurse Male Grade II has already been initiated by the State Government and it may take 5-6 months for making such regularly selected candidates available. The Principal and Controller of the said College vide his letter dated 30.04.2010 Annex-5 has already recommended to the Principal Secretary of Medical & Health Department of the Government of Rajasthan that the present petitioners, Lab Technicians as well as General Nurse Male Grade II deserve to be continued in such services till the regularly selected candidates are made available. The said respondent No.4 is obviously waiting only for the financial sanction for continuing the contract of service of the present petitioners for this interregnum period till the regularly selected candidates are made available. The Principal Secretary of the said department obviously has not responded to the said letter dated 30.04.2010 either way.” 8. In view of judgment in the case of Ramswaroop (supra) Item No. 9, DJ/- SBCWP NO. 8297/2010 Hasran Khan & Ors. Vs. State of Rajasthan & Ors. Order dt: 19th October, 2010 12/12 dated 06.10.2010, this Court finds no force in the present writ petition for the aforesaid reasons. 9. The writ petition is dismissed accordingly. No costs. A copy of this order be sent to the respondents forthwith. (DR. VINEET KOTHARI), J. DJ/- 9