Farukh Hussain vs State of Rajasthan and Others

Dr. Vineet Kothari, J.—Both the learned counsel for the parties state at Bar that the controversy involved in the present case is squarely covered by the decision of this Court in the case of Hukam Singh & Ors. Vs. State of Rajasthan & Ors. along-with connected 28 writ petitions (SBCWP No. 6188/2009 decided on 15th July, 2010) wherein this Court has held as under:-

Heard learned counsel for the parties.

This writ petition has been filed by the petitioners working as ''Gram Rojgar Sahayak'' employed on contract basis for fixed periods by the State Government in various Panchayat Samiti(s) to undertake and implement the works of Government under the National Rural Employment Guarantee Scheme (for short, hereinafter referred to as ''NREGA'') under National Rural Employment Guarantee Act. The apprehension of the petitioners in the present set of cases is two folds viz. (i) that the State Government during the course of their employment as ''Gram Rojgar Sahayak'' has issued an advertisement dated 05.06.2009, as far as Panchayat Samiti(s) viz. Pindwara, Reodar, Abu Road, Sheoganj and Sirohi are concerned, vide (Annex-9 in SBCWP No. 6188/2009) inviting applications for the said post of ''Gram Rojgar Sahayak'' on contract basis; and (ii) during the course of their employment, the State Government issued orders that unless such ''Gram Rojgar Sahayak'' sign revised contracts of employment for fixed periods replacing the earlier set of contract which according to learned counsel for the petitioners contained less favourable terms than the previous contract, and in the event of their failure to sign such revised less favourable contract, they were threatened to be removed from the said post of ''Gram Rojgar Sahayak''.

Upon these two premises, these writ petitions were filed under Article 226 of the Constitution of India before this Court on the ground that the State Government is not entitled to replace one set of ad hoc/contracted employees like the present petitioners by another set of ad hoc/contracted employees as was sought to be done by aforesaid advertisement dated 05.06.2009 (Annex-9).

Learned counsel for the petitioners for this proposition relied upon a decision of Hon''ble the Supreme Court delivered in the case of (1988) Supp. SCC 428 , which being a short order, is reproduced herein below for ready reference:

i) The petitioner is an ad hoc lecturer. He was appointed for a term. His grievance is that he is likely to be removed from service so that he may be deprived of his vacation salary. It appears that the practice of the respondents is to appoint fresh people every time.

ii) This Court in a number of writ petitions (W.P. Nos. 125 of 1987 and 317 of 1987) has allowed the ad hoc teachers to continue in service until persons regularly selected by the PSC are appointed to the posts. The respondents ought to extend the benefit of that order to all other ad hoc lecturers. It is not proper to drive them to this Court for securing similar relief. We make it clear that the petitioner and other similar ad hoc teachers are entitled to the benefit of the order of this Court made in the aforesaid writ petitions.

iii) These observations, in our opinion, are sufficient to safeguard the interest of the petitioner.

iv) The writ petition is accordingly disposed of.

During the course of arguments, Mr. Manoj Bhandari, learned counsel for the petitioners pointed out that in SBCWP No. 6188/2009 (Hukam Singh & Ors. Vs. State of Raj. & Ors.), he has filed an additional affidavit along with copy of order dated 09.04.2010, passed by Zila Parishad (Gramin Vikas Prakosth), Sirohi whereby the State Government has decided that instead of making recruitment of ''Gram Rojgar Sahayak'' through a placement agency, the State Government itself would recruit such ''Gram Rojgar Sahayak'', and accordingly in terms of this present petitioners were given contract of employment up-to 30.06.2010. Therefore, as far as the grievance regarding impugned advertisement dated 05.06.2009 (Annex-9) for inviting fresh applications through private placement agency is concerned, that has been put to an end by the State Government vide the aforesaid order dated 09.04.2010 (Annex-11) filed with additional affidavit and the State Government extended the employment of these petitioners up-to 30.06.2010.

By another order of the State Government ''Gramin Vikas & Panchayati Raj Vibhag'' (Gr. 3) dated 26.02.2010, learned counsel pointed that under the said ''Mahatma Gandhi National Rural Employment Guarantee Scheme'', the employment of various persons on various positions under the contract/deputation, their employment, in general, has been extended up to 28.02.2011 in all Panchayat Samiti(s). The position of ''Gram Rojgar Sahayak'' is also included in the said extension vide Clause-D of the said order passed by Additional Commissioner-II EGS of the said ''Gramin Vikas & Panchayati Raj Vibhag'' on 26.02.2010, in which 9168 posts of contracted ''Gram Rojgar Sahayak'' are shown in Clause-D of the said order and their employment term is extended up to 28.02.2011. By this order, therefore, employment of present ''Gram Rojgar Sahayaks'' up to 28.02.2011 has been assured by the State Government. In view of this, the threat to continuity of employment through contract of present set of petitioners up to 28.02.2011 no longer exists.

The only aspect, which is required to be considered is as to whether such employment on contract basis to be continued up to 28.02.2011 by the State Government can be made subject to present petitioners signing the revised contract of employment after 30.06.2010 which according to learned counsel is much less favourable to the petitioners and same take away certain benefits which existed in the previous contract of agreement like maternity leave, PF etc.

On the other hand, Mr. G.R. Punia, Addl. Advocate General and Mr. K.K. Bissa, Addl. Govt. Counsel submitted that it is a matter of contract between two parties and the freedom of contract given to the State also has to be maintained. They also submitted that looking to nature of work and employment of the petitioners on contract basis for limited period, petitioners cannot insist upon the terms of contract as they existed at the time of initial employment and the State is at liberty to revise the terms of the contract and this Court cannot go into these disputed questions of facts in writ jurisdiction.

Having heard learned counsel for the parties, this Court is of the opinion that both the parties are at their respective freedom to enter into contract of employment and terms and conditions between them is to be mutually settled and this Court at the present stage is not inclined to pronounce upon the validity of the action of the respondent-State to ask the petitioners to sign such revised contract of employment. However, since the respondent-State has extended the term of employment of various persons of different positions under NREGA Scheme by aforesaid general order dated 26.02.2010 and these terms of contract were sought to be revised during pendency of the present set of writ petitions where the very continuation of employment of present petitioners was threatened to be discontinued, this Court is of the opinion that their continued employment up to 28.02.2011 stipulated in the aforesaid general extension order dated 26.02.2010 can be continued without insisting upon the execution of the fresh revised contracts at this stage by these petitioners which according to these petitioners contain less favourable terms and conditions. While not pronouncing upon the validity of such revised contracts, it is considered expedient to direct the State to apply their mind once again to the terms of such revised contract before the next cut off date i.e. 28.02.2011 vis-a-vis the previous contract and if considered appropriate after reconsidering and re-visiting the terms of contract to be settled, they may draft a new contract, which they may apply for employment of ''Gram Rojgar Sahayak'' on contract basis after 28.02.2011. Though in the order dated 26.02.2010 it is stipulated that except computer operator with machine all other posts on contract basis, the employment will be in term of new contract vide order dated 19.02.2010; it is made clear that notwithstanding said stipulation in the order dated 26.02.2010, the employment of the present petitioners [Gram Rojgar Sahayak] up to 28.02.2011 shall be continued without insisting upon the execution of said revised contract up to next cut off date i.e. 28.02.2011. It is made clear that this order in no way shall be conspired to confer any right on the petitioners to seek any re-employment or continuation of the employment beyond 28.02.2011.

In the result, the writ petitions stand disposed of accordingly. No order as to costs.

Accordingly, the present writ petitions are also disposed of in the same terms. No costs. A copy of this order be sent to the concerned parties forthwith.