Full Judgment
S.B. Civil Writ Petition No.1702/2010 Damodar Prasad Meena & Ors. Vs. State of Rajasthan & Ors. Along-with connected 23 writ petitions. Order dt:
13. 03/2014 1/28 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
ORDERS.B. Civil Writ Petition No.1702/2010 Damodar Prasad Meena & 73 Ors. Vs. State of Rajasthan & Ors. & Along-with connected 23 writ petitions, mentioned in SCHEDULE. DATE OF
ORDER:::
13. h March 2014 PRESENT HON'BLE Dr. JUSTICE VINEET KOTHARI REPORTABLE Appearance: Dr. Nupur Bhati, Mr. T.S. Rathore ]. Mr. Kuldeep Mathur, Mr. H.S. Sidhu ]. Mr. Shardul Bishnoi, Mr. A.D. Charan].- for the petitioner(s). Mr. S.S. Ladrecha, AAG with Mr. Vikram Choudhary, for the State. Mr. Manish Patel, Addl. Govt. Counsel (Panchayati Raj Deptt.) -- BY THE COURT:
1. These writ petitions involving common question are being decided by this common judgment. The facts are illustratively taken from CW No.1702/2010-Damodar Prasad Meena & Ors. Vs. State of Rajasthan & Ors. Some of the writ petitions are joint petitions, in which several petitioners, 498 to be precise, have joined the array of S.B. Civil Writ Petition No.1702/2010 Damodar Prasad Meena & Ors. Vs. State of Rajasthan & Ors. Along-with connected 23 writ petitions. Order dt:
13. 03/2014 2/28 cause title and the respondents are State of Rajasthan and the Panchayati Raj Department of the State implementing the National Rural Employment Guarantee Scheme (NREGS) under the National Rural Employment Guarantee Act, 2005 (Act of 2005).
2. The petitioners were given contractual employment in 2009 as Computer Operator with Machine ('COM' for short) in pursuance of the Advertisement issued by the Coordinator of the said Scheme at District Level-cum-District Collector(s) and were to be given fixed monthly honorarium of Rs.6,000/- per month for their working in various Panchayat Samiti(s) to undertake the work of feeding data/s relating to works of NREGS in the computers, to be bought by them with printers and upload these data/s on internet to the Government sites, where the State Government could compile such datas for taking further policy decision in this regard. The individual contracts of employment were entered on various dates in the year 2009 and the period of contract initially was stipulated to be a quarter or so, with a further stipulation that the said period of contract can be extended by mutual contract for a period of one year, but such extended period of contract will not exceed a total period of 5 years in any case, or the date of which the Scheme in question closes, whichever is earlier. The agreement also provided for a premature termination of the contract in case the work or services of such contractual (COM) was not found to be satisfactory.
3. The State Government by general orders extended the period of contracts up to 28.02.2010 and these petitioners S.B. Civil Writ Petition No.1702/2010 Damodar Prasad Meena & Ors. Vs. State of Rajasthan & Ors. Along-with connected 23 writ petitions. Order dt:
13. 03/2014 3/28 indisputably have been working right from their initial date of contract but when their contracts were sought to be terminated or rather not extended after 28.02.2010, by an order issued by the Commissioner- cum-Secretary, Employment Guarantee Scheme (EGS) of the Rural Development & Panchayati Raj Department, Govt. of Rajasthan, vide order (Annex.6) dated 09.02.2010, wherein the State Government decided to recruit such COM(s) through specified companies, viz. CMS Computer Ltd., Shri Kripa Computers and HCL Info-system Ltd., the petitioners approached this Court by way of present writ petition and they were given interim protection by this Court directing the State Government not to discontinue their contractual employment in the position of COM(s). Those interim orders are continuing as of now.
4. Learned counsels for the petitioners urged that these petitioners are poor persons, who took loans to buy their own computers and printers as per the specifications given by the State Government in the year 2009, and they were given only monthly honorarium of Rs.6,000/-, which later on during the pendency of the writ petitions came to be increased marginally to Rs.6,500/- per month. Counsels for the petitioners also urged that that though the period of contract now being over and the petitioners not having been regularly appointed on the said position, the fact still remains that not only the work and the said NAREGA Scheme continues even now and is likely to continue indefinitely by the the very nature of their existence under the statutory enactment of the Parliament, under the S.B. Civil Writ Petition No.1702/2010 Damodar Prasad Meena & Ors. Vs. State of Rajasthan & Ors. Along-with connected 23 writ petitions. Order dt:
13. 03/2014 4/28 National Rural Employment Guarantee Act, 2005, the fact also remains that they have been continued from time to time under the general orders of the State Government up to 28.02.2010 and thereafter under the interim protection given by this Court under various stay orders passed in these cases.
5. Impugning the order of the State Government dated 10.02.2010, which directed various Panchayat Samiti(s) not to renew the individuals' contract of their employment as COM(s) after 28.02.2010 and only to take fresh COM(s) through the specified bigger computer or software companies like CMS Computers Ltd. etc., learned counsel for the petitioners urged that such change of policy decision by the State Government without taking into account or providing any protection or continuity of the contractual employment to the present petitioners, and who had gained experience of working in those positions for last 4-5 years without giving any opportunity of hearing to them, the State Government suddenly decided to discontinue and not to extend their contractual employment, without providing them any alternative employment in some other Scheme of the State. They also urged that the reasons assigned in the impugned order for change of such policy decision to take COM(s) only through the specified companies who can provide to the Government readily alternative Computer Operators in case the individual Computer Operators, are not available at the particular Panchayat Samiti level on particular days or to have upgraded computers or Operators with such upgraded computers, to be S.B. Civil Writ Petition No.1702/2010 Damodar Prasad Meena & Ors. Vs. State of Rajasthan & Ors. Along-with connected 23 writ petitions. Order dt:
13. 03/2014 5/28 provided by these companies and because they may have more comprehensive network to provide readily the data for all such Panchayat Samiti(s) to help the State Government to take a more appropriate view of the implementation of the Schemes like NREGS or NRHM at the State level, does not justify ignoring or exclusion of the presen petitioners' right to continue in such contractual employment on fixed monthly honorarium and even computers of the present petitioners could be allowed to be upgraded at their own end or by the support system to be hired from these companies. In fact, they also urged that in such other cases where contractual employment of Teachers, LDC(s) and other such capacities, the Court has directed to consider their regularization or at least their continuation in the services till the regularly recruited incumbents for those posts are made available by Public Service Commission and they are so recruited. A number of case laws for that purpose were relied upon by the learned counsel for the petitioners and a brief review of which shall be made herein after.
6. The reasons given in the impugned order dated 09.02.2010 for this shift in the policy decision can be extracted below at this stage, which reads as under: - “उपर क व षय न र लख ह क म नन य मखयमत दर रई बजट घ षण अनरप र जय सभ ग म पच य - ललए ए म1य2टर ऑपरटर मय मश न पद सव द आध र पर सदलभ पत द र सज8 ज क य ज च ह। S.B. Civil Writ Petition No.1702/2010 Damodar Prasad Meena & Ors. Vs. State of Rajasthan & Ors. Along-with connected 23 writ petitions. Order dt:
13. 03/2014 6/28 अ : आप जजल समस पच य - म< ए म1य2टर मय मश न सव द आध र पर उपलबध र । म1य2टर ऑपरटर मय मश न व त व भ र आदश एफ 9 (1) एफड -1 (1) ब य2ड /2004 ददन 28.07.2008 म< ददय रय ददश ननदC श- अनस र हD लर य ज । र जय स र पर भ ग म पच य - म1यट 2 र ऑपरटर मय मश न उपलबध रन पस व लभनन मपननय- स प प क य रय थ। इस सबध म< स एमएस म1य2टर लल., श 8प म1य2टस ए एचस एल इनफ लससटम लल. न अपन पस व भर ददय ह। इन पस - पन भ इस पत स थ लभज ई ज रहD ह। आप अपन स र पर उक फमJ म धयम स अथ अनय फमJ स म1य2टर ऑपरटर मय मश न रण रण आध र पर लर । जजन पच य - न र ए ष म< ई भ शलम ननय जज नहD क य रय ह अथ जह अभ इटरनट सव ध /व द आप2न उपलबध नहD ह प ई ह ऐस जरह आ शय नस र हD1