Rajasthan High Court
Mukesh Kumar vs State And Ors on 12 February, 2021
Bench: Sanjeev Prakash Sharma
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 525/2007
Mukesh Kumar Son Of Shri Har Chand Ram, Village Sheel Ganva
Post Basni, Tehsil Mundawar, District Alwar
----Petitioner
Versus
1. The State Of Rajasthan Through Secretary To The
Government, Social Welfare Department, Government Of
Rajasthan, Jaipur
2. The Director, Social Welfare Department, Government Of
Rajasthan, Jaipur
3. The Assistant Director, Social Welfare Department,
Government Of Rajasthan, Alwar
----Respondents
For Petitioner(s) : Mr. R.C. Joshi
For Respondent(s) : Mr. Nalin G. Narayan, AGC
HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA
Order
12/02/2021
The matter comes up on an application for early hearing.
The case has been heard finally as it is pending since 2007.
Learned counsel for the petitioner submits that in the case of
State of Rajasthan Vs. Mod Singh, (Special Leave to Appeal (Civil)
No.21173/95 decided on 29.03.1996), the Supreme Court has
made following observations in regard to part time employee:-
"We have heard the learned counsel for the
State of Rajasthan as well as the respondents in
the present case. The learned counsel for the
State of Rajasthan has placed before us the
Scheme drawn by the State for regularisation of
part time employees in question for the purpose
of dividing them into three groups. The first
group comprising those who have completed
five years of service on May, 1995. The second
(2 of 5) [CW-525/2007]
group comprises those who have completed two
years of service in May, 1995 and in the third
group comprises those who have been working
on 1.5.1995 and have continued to work
thereafter. These employees are intended to be
regularised from 15.8.1996, 1.4.1997 and
1.4.1998 respectively. The seniority will be
determined on the basis of the first working day
in accordance with the relevant rules. The
eligibility in regard to age, educational
qualification and physical fitness have also to be
determined in accordance with the Rules
applicable to Class IV employees in different
departments at the relevant point of time. The
final implication has also been separately
worked down. The Scheme has been appended
to the list of dates as Annex. 'A' which we taken
on record. The Scheme appears to be
reasonable and acceptable and the Government
of Rajasthan may proceed to finalize and
implement the same except that in first phase a
clarification would be required since it says that
employees who have completed five years on
May, 1995 and ' those part time employees who
have given pay scale in compliance of various
Court judgments" which gives the impression
that they may not have completed five years of
service and even they are accepted to be
regularized. The learned counsel for the State of
Rajasthan stated that in regard to the later
groups of five years falling into the first phase a
clarificatory statement may be required to be
made which the State would be at liberty to
comply. Taking this Scheme to be just and
reasonable. We dispose of these petitions by
substituting the High Court's order by an order
directing regularisation as per the scheme.
The petitions are disposed of accordingly."
In terms of the said order, the Social Welfare Department
issued order on 01.10.1996 whereby they framed a scheme for
regularization of part time employee in the two phases. In the
first phase, those who had completed 5 years of continuous
service upto May, 1995 in the pay scale No.1 were required to be
regularized from 15.08.1996. In the second phase, those part
time employees who had less than 5 years of service upto May,
1995 were to be regularized in two phases as on 01.04.1997 and
01.04.1998 by preparing the seniority list.
(3 of 5) [CW-525/2007]
Learned counsel for the petitioner has pointed out that
instead of considering the candidature of the petitioner his
services were dismissed and he was terminated by verbal order
dated 19.06.1997 from the post of Chowkidar. He, therefore, filed
a writ petition bearing No.3433/1997 which was allowed vide
order dated 20.09.2006 with direction to the respondent/s to
consider the candidature of the petitioner as per the scheme
framed by the State Government and if he is found suitable, he be
given benefit of regularization. Thereafter, the petitioner was
reinstated vide order dated 06.01.2007 as part time Chowkidar.
However, vide another order dated 08.01.2007, the Director,
Social Welfare Department considered the candidature of the
petitioner and found that the petitioner has worked on part time
basis from 01.12.96-1997 and as the petitioner was not on duty
after 1996-97, on the date when the screening committee met, he
cannot be given the benefit of the scheme of regularization and
his representation was rejected and his service was dispensed
with.
The petitioner, thereafter, filed the present writ petition
wherein an interim order was passed in his favour directing that
the petitioner shall be allowed to continue vide order dated
29.01.2007 and stayed the operation of the order dated
08.01.2007. Learned counsel for the petitioner submits that
inspite of the interim order was passed, the petitioner was not
allowed to continue to perform his duties. However, he submits
that as the order dated 08.01.2007 was stayed, the petitioner was
entitled to be regularized. However, no exercise was conducted in
the said aspect and prays that the petitioner's candidature ought
to be considered as per the existing scheme which was invoked at
(4 of 5) [CW-525/2007]
the time when the petitioner was in service and was continuing,
admittedly, upto 19.06.1997.
Learned counsel appearing for the respondent/s submits that
the Screening Committee met and taken into consideration the
candidature of those part time employees who were working on
the day when the Screening Committee met, therefore, it had
rightly rejected the candidature of the petitioner for
regularization.
I have considered the submissions.
As per the scheme placed on record dated 01.10.1996, in
the first phase the case of the petitioner was not to be considered,
however, in the second and third phase all the employees who
were working as on 01.04.1997 and as on 01.04.1998 were
required to be considered.
Admittedly, as on 01.04.1997 the petitioner was working
with the respondent/s and his services were wrongfully and orally
dispensed with from 19.06.1997. Thus, he was to be considered
for the second phase itself for regularization which was not done.
The order impugned dated 08.01.2007 has ousted the petitioner
treating that he could not be considered by the third phase as he
was not in service after 1996-97. The reason given out palpably
goes contrary to the scheme as firstly the candidature of the
petitioner was to be considered as on 01.04.1997 and as on
01.04.1998. The third phase for those who were working upto
01.04.1996 while second phase those who were working
01.04.1997, the name of the petitioner would, therefore, fall
within the employees who were working upto 01.04.1997.
Accordingly, the directions issued by the Court earlier on
20.09.2006 were required to be followed. No challenge has been
(5 of 5) [CW-525/2007]
made to the judgment passed by the Court in the earlier writ
petition filed by the petitioner and the same has attained finally.
This Court, therefore, directs the respondent/s to now consider
the case as directed earlier on 20.09.2006 by this Court in writ
petition No.3433/97 and give consequential benefits to the
petitioner.
The writ petition is accordingly allowed. The exercise shall be
conducted within a period of two months henceforth.
If compliance is not made within a period of two months, the
petitioner shall be free to initiate the contempt proceedings
without further notice.
(SANJEEV PRAKASH SHARMA),J
Arun/30
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