Anil and Others vs State of Rajasthan and Others

Vineet Kothari, J.�This batch of writ petitions is being disposed of by this common order.

The facts are illustratively taken from SBCWP No. 6543/2009 - Smt. Anil and Ors. Vs. State of Rajasthan and Ors.

The petitioner was appointed on contractual basis as Auxiliary Nursing Midwife (ANM) after being trained as Health Workers (Female) conducted by the Rajasthan Nursing Council vide order Annex. 1 dtd. 14.12.2003 on monthly fixed payment of Rs. 3500/- by the respondent - Medical, Health and Family Welfare Department of Government of Rajasthan. While they were working as such, the respondent - Department appears to have taken a decision on 7.10.2006 for hiring of the additional ANM under the RCH Programme (Rehabilitation Child Health) through the specified service agency/NGO on service contract basis and even existing ANMs like the present petitioners on the expiry of their present contractual term were required to be recruited through such placement agency, in case their services were to be extended for future period and the contract was thus sought to be executed by the petitioners and other likes for working in the aforesaid Scheme under the flagship Scheme of the Government of India, known as National Rural Health Mission (NRHM). The petitioner apprehending the termination of their contractual services and also certain terms in such contract which according to them were adverse to them, approached this Court by way of present set of writ petitions and while issuing notices to the respondents, the coordinate bench of this Court granted interim protection to the petitioners by directing the respondents not to insist upon the execution of the fresh annual contracts by the petitioners. The petitioners have been admittedly continued in the said position of ANMs since then and long period of almost 11 years has passed by now and irrespective of execution of fresh annual contract, which in one case was stated to have been executed by Smt. Saroj Devi in SBCWP No. 10517/2010. The said contract is said to have been executed by the petitioner on 16.9.2009. Irrespective of such execution of contract, the petitioners have continued in such position uptill now.

The learned counsel for the petitioners, Mr. R.S. Chaudhary has urged that the petitioners had been duly trained for the aforesaid job of ANMs and have continued for a long period of 10 to 11 years in the respondent - Medical and Health Department and the Scheme in question, namely, RCH/NRHM are continuing even now and therefore, the insistence of the respondent - Department upon the petitioner to execute the fresh annual contracts was not only unfair labour practice but was wholly uncalled for and the same was in fact intended to push out the petitioners from the said job as per the discretion of the respondents without any assurance of continuity of employment. He also submitted that recently, this Court in the case of Damodar Prasad Meena Vs. State of Rajasthan and Ors. - SBCWP No. 1702/010 decided on 13.3.2014 while dealing with the similar case of ''Computer Operators with Machine'' has allowed such writ petitions and the respondent - State has been directed to continue such Computer Operators until the regular selection process is held and the State Government has been asked to make a comprehensive and fair policy for their employment in such cases.

On the other hand, Mr. Anil Bissa, the learned counsel appearing for the respondent - Department has urged that there is no unfair labour practice involved in the present case and the State Government was free to ask the petitioners to execute the contract as per the prevailing practice for various Schemes of the State Government/Central Government being implemented by the respondent - State under the NREGA or NRHM and therefore, no imputation can be made against the State for any unfair labour practice and he, therefore, submitted that the impugned communication Annex. 3 dtd. 3.10.2006 cannot be validly assailed by the petitioner.

I have heard the learned counsels at some length and perused the record.

The impugned communication Annex. 3 dtd. 7.10.2006 is quoted below in extenso for ready reference:

"GOVERNMENT OF RAJASTHAN DIRECTORATE OF MEDICAL, HEALTH & FAMILY WELFARE SERVICES SWASTHYA BHAWAN, TILAK MARG, JAIPUR

The Chief Medical & Health Officer, (Banswara/Barmer/Bikaner/Dungarpur/Jaisalmer/Jalore/ Jodhpur/Nagaur/Pali/Udaipur"

Sub.:- Hiring of Additional ANM under RCH Programme.

With reference to above mentioned subject this is to inform you that the Addl. ANM to be hired on contract basis under RCH Programme should be hired through service agency/NGOs on Service Contract Basis without mentioning the name of the candidate. Please note that no direct appointment letter should be issued to any Addl. ANM to be hired on contract by you. A copy of the agreement to be executed with the service agency is enclosed along with the letter.

The above instructions should be adhered to strictly. You shall be personally responsible in case of failure in carrying out the above instructions/suiting to any legal liability.

(Dr. S.P. Yadav Director (RCH)."

The facts about employment of the present petitioners as ANMs after their due training even by Rajasthan Nursing Council have not been disputed by the respondents. The fact also remains that for some reason or other, the present petitioners have continued in the position of ANMs for the Scheme of RCH or NRHM in the State of Rajasthan since the year 2003 and uninterruptedly they have served the respondent - State for more than 10 years by now. The hire and fire policy reflected in the short term extension of contractual employment of such persons, has been deprecated consistently by this Court and the Hon''ble Apex Court and this issue was recently dealt with by this Court in the case of Damodar Prasad Meena V/s. State of Rajasthan (supra) and batch of some writ petitions and those writ petitions came to be disposed of by this Court on 13.3.2014 and this Court after relying upon its previous decision in the case of Mooli Devi Chaudhary V/s. State of Rajasthan reported in 2010 (4) WLC (Raj.) 3334 and the decision of Hon''ble Apex Court in the case of Secretary, State of Karnataka and Others Vs. Umadevi and Others, and some other decisions of coordinate benches held as under:

"23. It is true that the present petitioners viz. Computer Operators with machines, are not working as Teachers in the projects like ''Sarva Shiksha Abhiyan'' or ''Kastoorba Gandhi Balika Vidhyalaya'' or like Vidhya-Mitra, but conceptually there is little difference in the employment of the present petitioners as Computer Operators with machines, involved in the present writ petitions and the Teachers or the Vidhyarthi-Mitra, involved in those case-laws. In a way, the present petitioners, who had to buy their own machines (computers, equipment and printers) only to get such employment on contractual basis after investing their own money, which for poor people, it could be termed as a big investment and some of them, as stated by the learned counsel for th petitioners, even borrowed funds to manage to buy these equipments, so that they could get the monthly fixed honorarium of their contractual employment as Computer Operators with machine, stand on a better footing in comparison with those teachers who at least were not required to make any initial investment to get such employment.

The pitiable plight of the unemployment and the poverty, in our country, in which these young people sought employment from the State, and were only employed on annual contract basis, the change of the policy by the State Government in these circumstances, may be for bona fide reasons, seeking to throw them out of their contractual employment, taking a narrow and only legalistic approach like the period of contract being over and thus no right vested in them, can only be said to be ruthless, to say the least.

While this Court is aware that the Court cannot tread on the path of policy making, which is the sole domain of the State Government but at the same time, the Court also cannot permit the arbitrary policy decisions to shake and jerk the root of employment of such contractual persons who have hardly any choice in the matter, to take such contractual employment on the dictated terms, without any assurance of their continuity of employment or guarantee of employment even though they are supposed to work for the scheme which is enacted by the Parliament with the sole and avowed purpose of providing guaranteed employment to the persons in the rural area. What more conflict and contradiction of the avowed objectives of enactment and the implementation of the policies of the State Government can be there, if not the present case in hand.

In these circumstance, the Court can only expect the respondent - State to come out with a comprehensive, fair and uniform policy decision in this regard, which could take care not only of the requirements of the State to provide continuous supply of such Computer Operators with machines and for which no exception can be taken to the policy decision of the State Government to employ such persons through specified companies, which according to the State Government have large resources available for providing such services to the State Government, but such policy decision may also take care of the advantage and benefit which the persons like the present set of petitioners can provide and also the up-gradation of their machines, if required, can be provided either by the petitioners themselves or by the State or through such contracted companies to provide such support services, as the case may be. But, since these all are essentially various aspects of policy decisions, this Court cannot and, therefore, will not dictate the terms in this regard, but it certainly deserves to be said that the change of policy decision taken by the State Government as is on record vide Annex. 6 dated 10.02.2010, cannot be said to be a comprehensive and fair policy decision.

Therefore, the State is now required to take a comprehensive and fair policy decision in this regard. Till that is done, the interest of the present petitioners is required to be safeguarded. In view of the undisputed position that these petitioners employed on contractual basis in the year 2009, about 5 years back, have continued in such contractual employment extended from time to time up to 28.02.2010 and thereafter under the interim orders of this Court, they deserve to be continued as such till such comprehensive policy decision is taken by the State Government, which can consider all the aforesaid and other related aspects of the matter and earlier such a comprehensive policy decision is taken, the better it is for both, the petitioners and the State, so that a clarity in the employment of the present petitioners and others is achieved. Though no time frame for this purpose can be fixed, it would be appropriate and opportune, if such a comprehensive policy decision for engagement of Computer Operators is taken by the State Government, within a period of one year from now. The interim orders in favour of petitioners, shall continue till such decision is taken by the State Government.

The second limb of the argument taken by the learned counsel for the petitioners about the monthly honorarium of Rs. 6,500/-, presently being paid to the petitioners as a package, which was also said to be contrary to Clause 5 of the Agreement itself, which provided for annual increase of 10% also is left for the State Government to be decided. In view of the fact that the period of the contract itself was over and the impugned communication filed with the second stay petition by the petitioners dated 16.01.2012 (Annex. A/3), provides for the package limit of Rs. 6,500/- monthly honorarium, this Court does not find any sufficient ground to quash that order at this stage as the fixation of such monthly honorarium, is also governed by several factors like availability of funds, number of such persons working, requirement of the State Government and the availability such Computer Operators through different agencies, as aforesaid. Therefore, the State Government is expected to take a decision in this regard also while framing the aforesaid policy, as directed. However, till then no recovery of alleged excess already paid to such Computer Operators, as directed in the said communication dated 16.01.2012 shall be made.

With these observations and directions, the writ petitions are disposed of. No orders as to costs. A copy of this order be sent to the respondents as also to the Chief Secretary of the State Government, forthwith."

The learned counsels at bar admitted that regular recruitment process for this position of Female Health Worker was also undertaken by the state Government in the year 2012, but that selection has not yet been finalized on account of litigation which is pending with the Hon''ble Apex Court about the grant of bonus marks to the extent of 30% or 15% as decided by the Division Bench of this Court in the case of Archana Vs. State of Rajasthan & Ors. (SBCWP No. 4144/13) upon the reference made by the learned Single Judge on 25.09.2013 and Mahendra Singh and the present petitioners also have participated in the said regular selection process also and their fate of the regular selection process is still awaited to abide by the decision of the Hon''ble Supreme Court.

In the aforesaid circumstances and the legal position as narrated above, this Court is of the opinion that the present writ petition also deserves to be disposed of with a direction to the respondents to continue the present petitioners in the respective position of ANMs without insisting upon the execution of fresh annual contracts and as stated above since the petitioners have also participated in the regular recruitment process of the year 2012, which selection process is to abide by the final decision of the Hon''ble Supreme Court in the cases mentioned above. The final fate of continuity of employment of the present petitioners will of course depend upon the aforesaid judgment of Hon''ble Supreme Court. For those ANM - petitioners who have not participated in the fresh selection process for the year 2012, but have otherwise continued in service for more than 10 years, their cases would also deserve to be considered for regularisation in terms of decision of Hon''ble Supreme Court in the case of Secretary, State of Karnataka and Others Vs. Umadevi and Others, , particularly with reference to para 53 thereof.

Accordingly, the present writ petitions are disposed of with the aforesaid directions. No costs. A copy of this order be sent to the concerned parties forthwith.