Ganga Prasad Purohit and Others vs State of Rajasthan and Others

Nirmaljit Kaur, J.—All the above seventeen writ petitions shall stand decided by this common order as the issue involved is identical.

The above mentioned writ petitions have been filed seeking quashing of Orders dated 01.08.2014 and 05.08.2014 vide which the services of the petitioners were terminated.

For convenience, the facts are being taken from S.B. Civil Writ Petition No. 5800/2014.

The petitioner was initially appointed on 01.10.2013 on contractual basis on the post of L.D.C. Thereafter, vide Order dated 20.08.2009 he was given appointment on the post of Cataloger-cum-Classifier by the respondent No. 2 on ad hoc basis. On 17.08.2009, the respondent No. 2 granted regular pay scale to 16 non-teaching employees while also granting the status of ad hoc and temporary employees. However, the case of one Jai Kishan Purohit was kept in abeyance by the same order. Jai Kishan Purohit filed S.B. Civil Writ Petition No. 8327/2011 before this Court seeking regular pay scale. The said writ petition was allowed vide Order dated 26.02.2014 with a direction to the respondents to grant the same pay scale as was given to the others. Meanwhile, on 02.04.2011 a policy decision was taken by the respondent No. 3 that the non-teaching staff could not be regularized because of ensuing elections and the restriction of Code of Conduct. Subsequently, the respondent No. 2 wrote a Letter dated 06.02.2013 to the respondent No. 3 for regularizing the services of those ministerial staff who were working in the college from long time. A committee of three members was also constituted. The said committee recommended that the persons whose service period is less than 08 years and more than 03 years may be considered for regularization. However, instead of regularizing the services of the said non-teaching staff, the respondent No. 1 wrote a Letter dated 01.08.2014 to the respondent No. 3 to terminate the services of those non-teaching employees who were granted ad hoc employment w.e.f. 2009. The respondent No. 3 while complying with the Letter dated 01.08.2014 terminated the services of the petitioner and others vide Letter dated 05.08.2014. However, while terminating the services of the petitioner and others, it was mentioned that in case, the petitioner wants, he may render his services through some contractor. The present writ petition has, therefore, been filed for quashing of the Orders dated 01.08.2014 and 05.08.2014 vide which the services of the petitioner and other petitioners in the connected writ petitions have been terminated.

While praying for setting aside the orders impugned, learned counsel for the petitioners contended that the said termination order has been passed without any valid reason and that the language of the termination order itself shows that the posts still exist with the respondent No. 3 and the petitioner has already been granted benefit of regular pay scale and other service benefits. Reliance is also placed on the Order dated 19.07.2012 passed in S.B. Civil Writ Petition No. 7243/2012 which has been disposed of vide Order dated 25.11.2013 with a direction to the respondents not to terminate the services of the petitioners therein belonging to the non-teaching staff. Further, the petitioner after rendering more than 10 years services has now become overage and has lost all opportunities of seeking fresh employment in another department. Besides, the posts on which the petitioner and similarly situated non-teaching staff are working, are still available with the respondents and that the petitioner cannot be replaced by another set of contractual employee or any other employee through contractor for managing the services of the respondent college. His case for regularization was also recommended by authorized committee constituted by the Board of Governors and in these circumstances, the petitioner and similarly situated members of the non-teaching staff have a legitimate expectation of regularization of their services. Moreover, the respondents had issued an advertisement dated 07.05.2012 for direct recruitment of various non-teaching cadre posts but the same was withdrawn vide Order dated 14.02.2013 passed by the Principal Secretary, Department of Technical Education i.e. respondent No. 1.

Learned counsel for the respondents, on the other hand, submitted that no appointment order was issued as the services were hired by placement agency only. The decision of conferring a temporary or ad hoc status was taken by the respondent College but the same was not in accordance with the rules and regulations and the decision was ultra vires to the rules and regulations and an enquiry has already been initiated by setting up a Committee over the said matter named as Dhannaram Committee. The only blue eyed persons were appointed and that the order of termination was passed in compliance of an order of the Department of Technical Education, State of Rajasthan dated 01.08.2014 in which it was observed that out of 178, 18 appointments were made on ad hoc basis from 2007 and that the Engineering College, Bikaner has made neither any rules nor regulations. The persons who are more competent and qualified and had a long experience of service were dropped without any rhyme and reason, whereas, the blue eyed persons who were much juniors to others have been selected. In fact, the question with respect to the illegal appointment was also raised in the Vidhan Sabha where it was clarified that the ad hoc appointments were made only for a year with a further undertaking that only regular appointments will be made in the Engineering College, Bikaner. It is further contended that their services have been terminated in the light of requirement of deserving and most particularly "needed" staff and not unwanted extra staff. Learned counsel for the respondents has also raised the apprehension with respect to the regular pay scale and submitted that the petitioner is in any case not entitled to the regular pay scale as he is appointed on temporary contractual and ad hoc basis.

Reliance has been placed on the judgments rendered by the Hon''ble Supreme Court in the case of Secretary, State of Karnataka and Others Vs. Umadevi and Others, AIR 2006 SC 1806 : (2006) 6 CompLJ 1 : (2006) 4 JT 420 : (2006) 2 LLJ 722 : (2006) 4 SCALE 197 : (2006) 4 SCC 1 : (2006) 3 SLJ 1 : (2006) AIRSCW 1991 : (2006) 3 Supreme 415 and Md. Abdul Kadir and anr. Vs. Director General of Police, Assam and ors. reported in AIR 2009 SC (Supp) 1054 to state that their services cannot be regularized.

After hearing the learned counsel for the parties at length and going through the pleadings before this Court, the following facts have emerged. The petitioner was initially appointed on contractual basis on the post of L.D.C. on 01.10.2003 and thereafter, was appointed on the post of Cataloger-cum-Classifier on ad hoc basis with effect from 20.08.2009. The petitioner and other petitioners in the connected writ petitions as mentioned above were granted regular pay scale vide Order dated 17.08.2009. All the petitioners in the above writ petitions except the petitioner-Jai Kishan Purohit in Writ Petition No. 5744/2014 was granted regular pay scale vide Order dated 17.08.2009. Subsequently, Jai Kishan Purohit was also granted regular pay scale vide Order dated 26.02.2014 passed in S.B. Civil Writ Petition No. 8327/2011 on the ground of parity. It is admitted by the respondents in their reply that they are ready to make temporary arrangements to accommodate the persons on temporary or contractual basis wherein the services of the petitioner and others can be taken. Inspite of availability of the posts, the services of the petitioner have been unceremoniously terminated.

Rejoinder has been filed on behalf of the petitioner. In para 2 of the rejoinder, the petitioner has very categorically stated that his prayer in the present writ petition is not for regularization of his service but the same has been filed for quashing of the Orders dated 01.08.2014 and 05.08.2014 vide which his services have been terminated and has also reproduced the prayer clause of the writ petition, which is as under:-

"It is, therefore, humbly and respectfully prayed that this Hon''ble Court may kindly be pleased to grant any writ, direction or order in the nature of mandamus, certiorari or prohibition to quash the impugned orders dated 1.8.2014 and 5.8.2014 and respondents may kindly be directed not to discontinue the services of the petitioner."

From the above, it is evident that the petitioner herein is not praying for regularization of the service. Hence, no direction requires to be passed qua the same. Thus, only two prayers require to be dealt with are as under:-

(1) Quashing of the impugned Orders dated 01.08.2014 and 05.08.2014

(2) Grant of regular pay scale.

From the above facts, it is evident that the petitioner is continuing since the year 2003. It is also not denied that till date, the respondents have not framed its own rules for regular appointment. The respondent No. 3 had also issued an advertisement dated 07.05.2012 for direct appointment of various non-teaching cadres. But subsequently, the same was withdrawn vide Order dated 14.02.2013 passed by the Principal Secretary, Department of Technical Education i.e. respondent No. 1. At the same time, it is admitted in Clause (4) of the Order dated 01.08.2014 passed by the Department of Technical Education that in case, the 18 non-teaching employees which includes the petitioner and others in the connected writ petitions, submit any application and want their appointment as it was prior to 2007 then they can give their services on the fixed emoluments. Meaning thereby, that, the posts still exist. In fact, it would not be wrong to hold that the posts are sanctioned posts as the said fact has not been denied in the reply or the affidavit filed by the respondents before this Court. It is also a well settled proposition of law that a contractual employee cannot be replaced by another contractual employee and similarly, an ad hoc employee cannot be replaced by another set of similar employee i.e. on ad hoc basis. In the present case, as observed above, the petitioner is not only continuing for a long period but is also working against the sanctioned post. It is also admitted in the termination order and in the reply that their services can be continued in case, they agreed to work as per their original appointment i.e. on fixed emoluments. No regular appointments have been made till date. In these circumstances, impugned Orders dated 01.08.2014 and 05.08.2014 cannot be sustained and deserve to be quashed.

Now, the only question left is with respect to the payment of regular pay scale. Admittedly, the regular pay scale was granted by the respondents themselves vide Order dated 17.08.2009 to 16 non-teaching employees including the petitioner and other petitioners in the connected writ petition except Jai Kishan Purohit. Jai Kishan Purohit raised his grievance before this Court by filing S.B. Civil Writ Petition No. 8327/2011. The said writ petition was allowed vide Order dated 26.02.2014 as under:-

"3. Having heard the learned counsels and after perusal of the record, it appears that there was no justification for the respondents to deny the similar benefit to the present petitioner also though his name was very much there in the order Annex.1 dtd. 17.8.2009.

Accordingly, this writ petition is allowed and the respondents are directed to grant the same pay scale as given to others under order Annex.1 dtd. 17.8.2009 and the said benefit including arrears thereof, if any may be given to the petitioner within a period of three months from today. No order as to costs. A copy of this order be sent to the parties concerned forthwith."

The aforesaid order has attained finality and has not been challenged till date. Moreover, the Orders dated 01.08.2014 and 05.08.2014 having been set aside by the order of this Court as above, the question of reducing their pay scale which was being regularly paid to the petitioners for the past so many years, cannot be reduced in any manner.

In view of the above discussion, all the above writ petitions are disposed of as under:-

(i) impugned orders dated 01.08.2014 and 05.08.2014 are quashed;

(ii) the petitioners who are working on ad hoc/temporary/contract basis shall continue to remain in service until regularly selected candidates are appointed against the vacancies;

(iii) the incumbents on the posts shall not be replaced by the appointment of other set of similarly situated employees;

(iv) they shall continue to get the pay scale being already received by them. However, it is clarified that the grant of regular pay scale will in itself not entitle the petitioners to claim regularization of their services.

A copy of this order be placed in the connected writ petitions.