1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ORDER (1) S.B. Civil Writ Petition No. 8988/2014 Anand Purohit Vs. The State of Rajasthan & ors. & ors. (2) S.B. Civil Writ Petition No. 9332/2014 Jhanwer Lal Vs. The State of Rajasthan Gehlot & ors. & ors. (3) S.B. Civil Writ Petition No. 9333/2014 Madhusudan Vyas Vs. The State of Rajasthan & ors. & ors. (4) S.B. Civil Writ Petition No. 9615/2014 Hemant Kumar Vs. The State of Rajasthan Bohra & ors. & ors. India.

under Article 226 of the Constitution of

Date of Order:

19.05.2016

PRESENT HON'BLE MISS JUSTICE JAISHREE THAKUR Mr. B.S. Sandhu, Advocate, for the petitioners. Ms. Shweta Bora for Mr. Anil Bissa,AGC for respondents. BY THE COURT: 1.

In all these writ petitions similar question is involved,

therefore, they are being disposed of by this common order. For the

sake

of

convenience,

facts

of

S.B.Civil

Writ

Petition

No.8988/2014 are taken. 2.

The present writ petition has been filed under Article 226

of the Constitution of India for a direction to be issued to revise and enhance the remuneration of petitioners National

Rural

Health

Mission

Scheme

appointed under

(for

short

'NRHM

Scheme'), to give increment upon the remuneration of the

2 petitioners as per the terms of the contract along with arrears after revision of the pay, as has been enhanced to various employees

appointed

on

contract

basis

vide

order

dated

10.12.2010 (Annex.9). 3.

The petitioners hereby came to be appointed under the

National Rural Health Mission , which is a scheme for ensuring effective health care. The said NRHM provides broad operational framework for health sector. That the main goal of the mission is for reducing infant mortality rate and maternal mortality ration, universal access to public health such as woman health and child health, water, sanitation etc. For the implementation of the scheme, there are two divisions, one is the para-medical side and another is the non-para medical side on the administrative side.

Under

the

non-paramedical

side,

the

scheme

is

implemented thorough three tire system starting from the Block level of the Panchayat to the State level. At the Block level, Units are Block Level Program Management Units (for short 'BPMU'), at the District level, the Unit is District Programme Management Unit (for short 'DPMU') and at the State level, the Unit is State Programme Management Unit (for short 'SPMU)'. 3.

The petitioners applied under the said scheme and came to

be appointed as an Accountant at various Primary Health Centres and various block level. They were appointed on contract basis and an agreement was executed between the petitioners and the respondents. The agreement was executed for two years for a consolidated remuneration of Rs. 8000/- per month with a condition that same can be increased by 10% per annum on

3 preceding years package amount for ensuing year on the appraisal report. The agreement entered into with the State Government was subsequently extended upto 31.8.2012 and by an order dated 13.8.2012, the agreement was extended up-till 31.3.2013 or till regularly selected candidates are appointed. The petitioners continue to work as per the agreement entered into with the same remuneration as given to them at the time of their initial appointment. The posts under DPMU, BPMU and SPMU were

made

on

contractual

basis

through

a

common

advertisement that was issued with the identical terms and conditions, other than the remuneration. In the year 2010, the remuneration of the posts covered under the SPMU and DPMU was increased along with increments but was done for mostly managerial positions. The petitioners were working under BPMU, have been denied equal enhancement of remuneration, nor had they been given regular 10% increment under the terms of the contract. Aggrieved against the denial of enhancement and revision of pay or salary, several representations were moved to the department, either individually or through Union, but no heed has been paid, therefore, the present writ petition has been filed. 4.

Mr. B.S. Sandhu, learned counsel appearing on behalf of

the petitioners submits that all posts under DPMU, BPMU and CPMU are filled on contract basis and identical agreement is executed between the candidates and the respondent and the condition of the agreement provides for increment at the rate of 10% per annum. It is submitted that others appointed through

4 the same advertisement but at the managerial posts, have been given regular increments and by order dated 10.12.2010, pay stands also revised, which has not been done in the case of the petitioners. It is contended that the petitioners' salary ought to be revised by giving parity to them, as has been done to persons under the order dated 10.12.2010. It is argued that action of the respondents is violative of Article 14 of the Constitution of India, being discriminatory and arbitrary. 5.

Per contra, Ms. Shweta Bora, learned counsel appearing on

behalf of the respondents submits that the petitioners were appointed purely on contract basis and would not be entitled to any revision in the pay package. It is further submitted that it is the absolute

discretion

of the respondents to revise the

consolidated package by maximum amount not exceeding 10%. 6.

I have heard learned counsel for the parties and have

perused the record of the case. 7.

Admittedly, the petitioners came to be appointed and as

per the advertisement which was issued on 1.8.2007, the posts of Accountants at PHC level and at CHC level were to carry a remuneration of Rs. 8000/- per month and as per the same advertisement, Data Assistant at District level were to carry Rs. 12,000/- per month , District Accounts Managers were to carry Rs. 15,000/- per month,. District Programme Managers were to carry a remuneration of Rs.22,000/- per month. The State Institute of Health and Family Welfare, Rajasthan also issued an advertisement wherein the District Accounts Managers were given

a

remuneration

of

Rs.

15,000/-

per

month

and

5 Accountants were given a remuneration of Rs. 8,000/- per month. The agreement which was entered into on 13.10.2008, (between of one of the petitioners Manish Purohit,)

specified

that the Accountants would be entitled to a consolidated remuneration of Rs. 8,000/- per month. As per clause 15 of the agreement, “ Annual Appraisal Report will be prepared by second party which shall also form basis of extensions of agreement period. Second party based on quality and efficiency of service rendered in the preceding year, may on its discretion, revise the consolidated package by a maximum amount not exceeding 10% of preceding years package amount for the ensuing year only after the approval of the Mission Director.” 8.

Even in the subsequent agreement that came to be

entered by which the contractual services of the petitioners have been extended, there was a specific clause therein that their appraisal work report is to be prepared, which would form the basis of extension of agreement period and based on the quality and efficiency of service rendered in the preceding years, the respondents may on its discretion, revise the consolidated package by a maximum amount not exceeding 10% of preceding year's package after the approval of the Mission Director. By an order dated 10.12.2010,

the remuneration of District Project

Manager, (Annexure-9) persons working for the District and State level Units, has been enhanced. A person who was initially appointed at the same time as the petitioners, on a consolidated remuneration of Rs.22,000/- has been given an enhanced remuneration of Rs. 38,000/- per month. In the reply, there is

6 no reasonable explanation forth coming as to why the petitioners have not been given the benefit of increment and revision in their remuneration. As per the agreement itself, after due appraisal and finding that if the work of the incumbent is satisfactory, an increment of 10% was to be given, which has not been done. Obviously, the work of the petitioners was found satisfactory, because after the initial appointment in the year 2008, which was for an initial period of two years, fresh agreement came to be entered into and the contract period came to be extended and the petitioners continue in service. 9.

The argument raised by the learned counsel for the

respondents that it is at the discretion of the respondents as to whether

the remuneration is to be increased is not tenable.

The respondents, as per the contract, had neither carried out the appraisal

of

the

work

performance

nor

they

given

10%

increment as stipulated in the contract itself. There is no plausible explanation that is forth coming as to why the petitioners and similar sets of employees have been denied the benefit of any revision. 10.

In Kumari Shrilekha Vidyarthi and others v. State of

U.P. and others, (1991) 1 SCC 212, a question came to be decided by the Hon'ble Apex Court pertaining to the office Government Counsel

of

in the State Government . In that case,

the Government took a decision to terminate the engagement of all the Government Counsels engaged throughout the State of Uttar Pradesh and to make appointments in place on the basis of a new panel prepared for the purpose. The said circular came to

7 be challenged on the ground of arbitrariness. It was argued on behalf of the State that appointments made were contractual in nature and, thus, the matter should not be entertained in writ jurisdiction. The Hon'ble the Supreme Court, held that judicial review

is

possible

unreasonableness

or

on

the

ground

irrationality

once

of

arbitrariness

Article

14

of

or the

Constitution is attracted. It was further held that if it is shown that the impugned action of State

is arbitrary and violative of

Article 14 of the Constitution of India, there can be no impediment in striking out the impugned act irrespective of the question whether an additional right, contractual or statutory, if any, is also available to the aggrieved persons. It was further held as under:“27. Unlike a private party whose acts uninformed by reason and influenced by personal predilections in contractual

matters

may

result

in

adverse

consequences to it alone without affecting the public interest, any such act of the State or a public body even in this field would adversely affect the public interest. Every holder of a public office by virtue of which he acts on behalf of the State or public body is ultimately accountable to the people in whom the sovereignty vests. As such, all powers so vested in him are

meant to be exercised

for public good

and

promoting the public interest. This is equally true of all actions even in the field of contract. Thus, every holder of a public office is a trustee whose highest duty is to the people of the country and, therefore, every act of the holder of a public office, irrespective of the label classifying that act, is in discharge of public duty meant ultimately for public good. With the diversification of

8 State activity in a Wel- fare State requiring the State to discharge its wide-ranging functions even through its several instrumentalities, which requires entering into contracts also, it would be unreal and not pragmatic, apart from being unjustified to exclude contractual matters from the sphere of State actions re- quired to be non-arbitrary and justified on the touchstone of Article 14. 28. Even assuming that it is necessary to import the concept of presence of some public element in a State action to attract Article 14 and permit judicial review, we have no hesitation in saying that the ultimate impact of all actions of the State or a public body being undoubtedly on public interest, the requisite public element for this purpose is present also in contractual matters. We, therefore, find it difficult and unrealistic to exclude the State actions in contractual matters, after the contract has been made, from the purview of judicial review to test its validity on the anvil of Article 14. 29. It can no longer be doubted at this point of time that Article 14 of the Constitution of India applies also to matters of governmental policy and if the policy or any action of the Government, even incontractual matters, fails to satisfy the test of reasona- bleness, it would be unconstitutional. See Ramana Dayaram Shetty v. The International Airport Authority of India and Ors., [1979] 3 SCR 1014 and Kasturi Lal Lakshmi Reddy v. State of Jammu and Kashmir & Anr., [1980] 3 SCR 1338. In Col. A.S. Sangwan v. Union of India and Ors., [1980] Supp. SCC 559, while the discretion to change the policy in exer- cise of the executive power, when not trammelled by the statute or rule, was held to be wide, it was emphasised as imperative and implicit in Article 14 of the Constitution that a change in policy must be made fairly and should not give the impression that it was so done arbitrarily or by any ulterior criteria. The wide sweep of Article 14 and the requirement of every State action qualifying for its validi- ty on this touch-stone, irrespective of the field of activi- ty of the State, has long been settled. Later decisions of this

9 Court have reinforced the foundation of this tenet and it would be sufficient to refer only to two recent decisions of this Court for this purpose.” 11.

In Balmer Lawrie & Company Limited & ors. vs.

Partha Sarathi Sen Roy & ors., (2013) 8 SCC 345, certain sets of employees joined the services of the appellant-Company as Management Trainee and were later confirmed by order dated 1.6.1976 subject to the terms and conditions mentioned therein. The services came to be terminated in view of clause 11(a) of letter of appointment which provided that the Company would have a right which would be exercised at its sole discretion to terminate the services by giving three months’ notice in writing, without assigning any reason for such decision. The termination order was challenged at the High Court by way of a writ petition. The appellant-Company contested the said writ petition on the ground that the terms and conditions of contractual rights and obligations could not be enforced through writ jurisdiction. The writ petition was allowed by holding that the appellant was a State within the meaning of Article 12 of the Constitution of India. This decision came to be challenged and ultimately, an SLP came to be filed before the Hon'ble Supreme Court. After discussing the case law, the Hon'ble Supreme Court came to hold as under:“30. Where the actions of an employer bear public character and contain an element of public interest, as regards the offers made by him, including the terms and conditions mentioned in an appropriate table, which invite the public to enter into contract, such a matter does not relegate to a pure and simple

10 private law dispute, without the insignia of any public element whatsoever. Where an unfair and untenable, or an irrational clause in a contract, is also unjust, the same is amenable to judicial review. The Constitution provides for achieving social and economic justice. Article 14 of the Constitution guarantees to all persons, equality before the law and equal protection of the law. Thus, it is necessary to strike down an unfair and unreasonable contract, or an unfair or unreasonable clause in a contract, that has been entered into by parties who do not enjoy equal bargaining power, and are hence hit by Section 23 of the Contract Act, and where

such

a

condition

or

provision

becomes

unconscionable, unfair, unreasonable and further, is against public policy. Where inequality of bargaining power is the result of great disparity between the economic strengths of the contracting parties, the aforesaid principle would automatically apply for the reason that, freedom of contract must be founded on the basis of equality of bargaining power between such contracting parties, and even though ad idem is assumed, applicability of standard form of contract is the rule. Consent or consensus ad idem as regards the weaker party may therefore, be entirely absent. Thus, the existence of equal bargaining power between parties, becomes largely an illusion. The State itself, or a state instrumentality cannot impose unconstitutional conditions in statutory rules/regulations vis-à-vis its employees, in order to terminate the services of its permanent employees in accordance with such terms and conditions. (Vide: Central Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguly, AIR 1986 SC 1571; D.T.C. v. D.T.C. Mazdoor Congress, AIR 1991 SC 101; LIC of India (supra); K.C. Sharma v. Delhi Stock Exchange & Ors., AIR 2005 SC 2884; and Punjab National Bank by Chairman & Anr. v. Astamija Dash,

11 AIR 2008 SC 3182).” 12.

What can be culled out from the judgments referred

above, is if the action of the employer State which is unjust illegal arbitrary or unreasoned and where public element is involved such action would certainly be open to judicial review, even where contracts are involved.

The Constitution provides

that for achieving social and economic justice and Article 14 of the Constitution of India guarantees equality before law as well as equal protection of law. 13.

In the present case, the contract, which had been entered

into between the parties, specified a remuneration of Rs.8000/for Accountants and the same was to be reviewed after annual appraisal is done and an increment given accordingly.

An

identical contract specifying the same terms and conditions of the agreement was entered into between the District Programme Managers, with an identical clause of annual appraisal

to be

conducted of the work done and on the basis of the annual appraisal report, 10% increment to be given. Evidently, no appraisal work has been done in the case of the Accountants nor was any increment given to them as per the terms and conditions of the agreement entered into, however, without following the same yardstick or having an annual appraisal done, remuneration of

District Account Manager has been increased

from Rs. 15,000/- Rs. 30,000/- and State Finance Manager at State level has been increased from Rs. 20,000/- to Rs. 40,000/and District Programme Managers, who had been appointed at the same time as the petitioners on remuneration of Rs.22,000/-

12 per

month,

have

been

given

the

remuneration of Rs.38,000/- per month.

benefit

of

enhanced

The petitioners would

be entitled to the same enhancement as has been afforded to the District Programme Managers and others, who have been given the benefit under the letter dated 10.12.2010. 14.

The State a Model employer is expected to act fairly

without

any

discrimination

or

arbitrariness

in

treating

its

employees, as has been held in the case of Kumari Shrilekha Vidyarathi(supra).

If

the

policy

or

any

action

of

the

Government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional. Therefore, this Court has no hesitation in holding that the petitioners have been discriminated upon by the State in not getting the same benefits of enhanced remuneration which has been given to persons who are employees under the same employer and under the same scheme, though in different cadre. 15.

Resultantly, the above noted writ petitions are allowed and

a direction is given to the respondents to adhere to the terms and conditions of the contract entered into by clause 15 by conducting annual appraisal reports of the petitioners and if the work of the petitioners is found satisfactory, may consider to afford them 10% increment from the date it became due. However since the State by an order dated 10.12.2010 took a decision to enhance the remuneration of a certain set of its contractual employee working under the same scheme as the petitioners , it is held

the same enhancement is due to them.

The action of ignoring their claim is violative of Article 14 of the

13 Constitution of India since all set of employees have to be treated by the same yardstick. The discrimination has not been explained nor does it stand the test of reasonableness. 15. Resultantly the writ petitions are allowed with a direction to consider the claim of the petitioners for increments as per Clause 15 of the agreements and to revise the remuneration of the petitioners has been done vide order dated 10.12.2012 so as to bring them in parity with other contractual employees. The needful shall be

done within a period of three months from

receipt of certified copy of this order. After the remuneration is re-fixed and increments, if any,

are due , the arrears be

released within a period of three months thereafter,

failing

which the amounts payable will carry an interest of 6% from the date due till date of disbursement. 16.

No order as to costs.

(JAISHREE THAKUR), J. mlt.