Shailesh Chobisa vs State of Rajasthan

Dr. Vineet Kothari, J.—The lawyers are observing strike contrary to various Hon''ble Supreme Court decisions.

None is present on behalf of petitioners, though name of Mr. S.K. Verma, counsel for the petitioner is shown in the cause list. The case is listed at serial No. 39 in the today''s cause list under the category ''for orders''. Heard the OIC and perused the record.

The petitioners have preferred this writ petition in this Court on 27.11.2013 seeking following relief(s):-

"It is, therefore, respectfully prayed that this writ petition may kindly be allowed with costs and this Hon''ble Court may be pleased to issue appropriate writ, order or direction; and

(i) the respondents may kindly be directed to allow the petitioner to serve continuously at their respective place of posting described in Schedule-A with regular salary; and

(ii) the respondents may kindly be directed to pay the remuneration to the petitioners directly and not through the placement agency.

(iii) the respondents may kindly be directed to continue the petitioners on the post of Computer Operator till the continuance of Mukhya Mantri Nishult Dava Yojna; and

(iv) impugned communication dated 29.10.2013 (Annex. 12) may kindly be quashed and petitioner may be permitted to work.

(v) The respondents may kindly be directed not to replace the petitioners with the other set of contractual employees; and

(vi) the respondents may kindly be directed to pay outstanding remuneration to the petitioners with interest @ 18% p.a. thereon; and

(vii) the respondents may kindly be directed to pay full salary i.e. Rs. 6500/- to the petitioners; and

(viii) the respondents may kindly be directed to not appoint informatics assistant in place of the petitioners.

(ix) The respondents may kindly be directed to continue the petitioners in any project where post are lying vacant of computer operator.

(x) Any other appropriate writ, order or direction which this Hon''ble Court deems just and proper on the facts and in the circumstances of the case may also be passed in favour of the petitioner with cost of the petition."

Perused the record.

The controversy involved in the present writ petition is squarely covered by a recent decision of this Court rendered in the case of Ashok Godara Vs. State of Rajasthan & Ors. (S.B.C.W.P. No. 3503/2014 decided on 22.05.2014), wherein while dealing with the case in relation to Computer Operators, this Court held as under:-

"11. As far as the question of giving mandamus direction to the State to continue the petitioners in contractual employment beyond 30/4/2014 is concerned, this Court is of the considered opinion that such a mandamus direction cannot be given. It is within the domain and discretion of the State Government to extend the contractual term upto the period, which they think proper looking to their requirements, availability of posts, availability of financial sanction & approval from the State Govt. under Free Medical Aid Scheme by the Central Government for NRHM under which the said projects are continuing. There is no material placed on record by the petitioners that without the employment of petitioner on contractual basis, the State Government would not be able to run these DDCs under the Chief Minister''s Free Medical Aid Scheme, which undoubtedly is continuing even after the change of Government after Legislative Assembly Elections in 2013. The administrative structure required for manning such DDCs is within the control of the State & the State has already held regular selection process for Pharmacists & the Information Assistants in recent past. It may do so even now for remaining posts as sanctioned by the State.

It is true that after continuing for 3-4 years, the discharge of contract of employment causes dislocation and renders the persons like the petitioners unemployed and certainly causes financial loss and prejudices to them but this Court finds no legal foundation and basis for directing the State to continue the petitioners on contractual employment beyond the date of expiry of the contract itself. The State in the present case is not seeking to replace one set of contractual employees by another set of contractual employees, which as an unfair practice could be injuncted against by this Court. Here the State has decided to simply continue only those Pharmacists employed through RMRS that too against 423 posts vide order Annex. R/1 dated 16/5/2014 till the regular selection process for such posts of Pharmacists is held by the State. From the reply of the State Government, quoted above, it is clear that the final decision has been taken by the respondent State in this regard. The justification for restricting the continuance of Pharmacists employed only through RMRS also cannot be said to be unreasonable & hit by any invidious classification so as to be violative of Article 14 of the Constitution of India. The petitioner Ashok Godara, who was employed through other placement agency, of course with the authority of the State at the time of recruitment given to Jodhpur Upbhokta Wholesale Bhandar Ltd. but he, cannot claim that extension of contractual employment to the persons employed through RMRS creates any unreasonable classification, which is hit by Article 14 of the Constitution of India. It appears to be a reasonable classification and that too under a temporary arrangement made by the State till the respondent State holds the regular selection process for these 423 posts of Pharmacists as per the communication Annex. R/1 dated 16/5/2014.

"13. The contention of the learned counsels for the petitioner that for the post of Helpers, no decision has been taken by the State Government is also belied by the reply filed by the respondent State that the extension of term of Helpers was upto April, 2014 and, "thereafter, the financial approval and sanction for the post of Helper is not granted". This averment made in reply by the State Government has not been controverted and there is no document to the contrary placed on record, therefore, the Court cannot presume that no decision was taken by the State with regard to the post of Helpers.

As far as Computer Operators are concerned, there is no dispute that with a different name and designation known as "Information Assistants" the regular selection process has already been held by the State Government in the year 2013 and since the regularly selected persons or Information Assistants became available for the post of Computer Operators, some of the present petitioners, who are Computer Operators, cannot claim any preferential right over the regularly selected and appointed Computer Operators/Information Assistants.

This Court is, therefore, of the considered opinion that present set of writ petitions do not have any merit & deserve to be dismissed and no mandamus direction can be given to the respondent State to extend the term of contractual employment of the Pharmacists employed through agencies other than RMRS, Computer Operators and Helpers working in the various DDCs, run and operated by the State Government under the Chief Minister''s Free Medical Aid Scheme.

Consequently, the writ petitions are hereby dismissed. No costs. Copy of the order be sent to the concerned parties forthwith."

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