Rajasthan High Court

Babu Lal Yadav S/O Shri Girdhari ... vs State Of Rajasthan Through ... on 22 January, 2021

Bench: Sanjeev Prakash Sharma

         HIGH COURT OF JUDICATURE FOR RAJASTHAN
                     BENCH AT JAIPUR

               S.B. Civil Writ Petition No. 20572/2018

Babu Lal Yadav S/o Shri Girdhari Lal Yadav, Aged About 51
Years, R/o Village And Post Butiyana, Tehsil Laxmangarh, District
Alwar.
                                                                   ----Petitioner
                                   Versus
1.       State Of Rajasthan Through Principal Secretary To The
         Government, Rural Development And Panchayati Raj
         Department, Secretariat, Jaipur (Rajasthan)
2.       Secretary Cum Commissioner, Rural Development And
         Panchayati Raj Department, Secretariat, Jaipur Through.
3.       Zila Parishad Alwar, Through Chief Executive Officer.
                                                                ----Respondents

For Petitioner(s) : Mr. Rakesh Kumar Sharma For Respondent(s) : Mr. Vaibhav Thakuriya on behalf of Dr. Ganesh Parihar

HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA

Order

22/01/2021

1. This is a second round of litigation initiated by the

petitioner. Earlier, the petitioner was appointed on the post of

Driver on 17.11.1988. His services were terminated on

24.11.1989. Petitioner raised dispute before the Labour Court and

an award was passed on 24.05.2007 whereby the termination of

the petitioner was declared illegal and he was ordered to be

reinstated with continuity of service and his seniority over and

above the daily rated employees appointed after 17.11.1988 and

25% backwages.

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2. The Department challenged the award in S.B. Civil Writ

Petition No.6622/2007 which was dismissed by this Court and his

services were deemed to be continued from 17.11.1988.

3. Second round of litigation arose when the petitioner

filed a writ petition No.6588/2013 claiming regularisation on the

post of Driver and other consequential benefits and this Court vide

judgment dated 16.02.2017 observed as under:-

"6.After hearing counsel for the parties as well as perusing record of the case alongwith the precedent law cited, this Court is of the opinion that the respondents should consider regularization of services of the petitioner in the light of the judgment passed by Division Bench of this Court in the case of Ajeet Kumar Jain & 14 ors. Vs. State of Rajasthan & ors. (supra) taking into consideration his continuous service from 17/11/1988 and also taking into consideration the fact that the post of Driver was vacant from 01/07/2002. The petitioner is directed to prefer a representation making aforementioned facts. The respondents are directed to consider the representation in terms of the judgment passed by the Apex Court in the case of Secretary, State of Karnataka & Ors. Vs. Umadevi (3) & ors (supra) and Ajeet Kumar Jain (supra) and decide it within a period of three months by passing a speaking order and if the petitioner is entitled for any relief strictly in accordance with law, the same shall be granted to him.

However, independent of aforesaid consideration, the respondents are directed to given the petitioner the minimum of the pay- scale on the lowest grade in the regular pay scale extended to regular employees holding the same post in view of the judgment passed by the Apex Court in the case of State of Punjab and others Vs. Jagjit Singh and others: (2017) 1 SCC 148 w.e.f. the date of filing of this writ petition i.e. 22/04/2013."

4. The petitioner thereafter preferred a Contempt Petition

No.164/2018 which was decided on 06.07.2018 giving liberty to

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challenge the order passed on his representation dated

14.03.2018 whereby the prayer for regularisation was rejected.

5. The order is, therefore, under challenge before this

Court in the present writ petition.

6. I have considered the facts of the case and perused the

order impugned.

7. From the perusal of the order dated 14.03.2018, it

appears that respondents have rejected the representation of the

petitioner on two counts; firstly, the petitioner has not completed

ten years of service on 10.04.2006 as a daily wage driver and

secondly, he did not possess heavy duty license on the date when

he was initially appointed on 17.11.1988. The Notification which

was issued by Government of Rajasthan on 27.02.2009 is as

under:-

                    "     Government of Rajasthan
                          Department of Personnel
                               (A-Group-II)
                         No.F.5(2)DOP/A-II/2008

                    Jaipur,                                    dated: 27-02-09.
                              NOTIFICATION

In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Rajasthan hereby makes the following rules further to amend the Rajasthan Class-IV Service (Recruitment and other Service Conditions) Rules, 1999, namely:- 1. Short title and commencement.- (1) These rules may be called the Rajasthan Class-IV Service (Recruitment and other Service Conditions) (Amendment) Rules, 2009. (2) They shall come into force with immediate effect. 2. Amendment of rule 6.- After sub-rule (3) to rule 6 of the Rajasthan Class-IV Service (Recruitment and other Service Conditions) Rules, 1999 hereinafter referred to as the said rules, the following new subrule (4) shall be added, namely:- "(4) Notwithstanding anything contained in these rules the persons irregularly appointed on any duly sanctioned posts mentioned in column number 2 against serial number 4 of schedule and completed ten years service on 10-4-2006,

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without intervention of any court or tribunal, and continuously working as such on the date of commencement of these amendment rules, shall be screened by a committee consisting of- (i) Principal Secretary/Secretary to the Government, Department of Personnel; (ii) Principal Secretary/Secretary to the Government, Finance Department or his nominee not below the rank of Deputy Secretary; and (iii) Principal Secretary/Secretary to the Government, of the concerned department. Provided they were eligible for appointment, as per rules on the date of their initial irregular appointment and vacancy is available at the time of screening. The Appointing Authority shall issue appointment order of the person, who is adjudged suitable by the screening committee and appointment shall be effective from the date of issue of such appointment order.

3) Amendment of rule 32.- After the existing proviso (5) of rule 32 of the said rules following new proviso (6) shall be added, namely:- "(6) the inter-se seniority of the persons screened under sub-rule (4) of rule 6 shall be determined according to the length of continuous service after their irregular appointment. These persons shall rank junior to the persons appointed regularly before the commencement of these amendment rules."

8. The issue whether the direction of continuous service as

directed in Labour Court award shall be counted for the purpose of

continuing service under the notification dated 27.02.2009 came

to be adjudicated by this Court in Ajeet Kumar Jain & 14 Ors

Vs. State of Rajasthan & Ors. reported in 2016(1) WLC

(Raj.) UC 472. The relevant paragraph 25 & 26 are reproduced

as under:-

"25. From the statement filed by the department, it has come on record that there were five posts of Jamadar/Daftry, six posts of Class-IV and two posts of Security Guard which remained vacant almost from the date of its inception. Thus, 13 posts in all in the cadre of Class-IV were available at least from the date of exercise undertaken by the Screening Committee in its meeting dt.02.09.2009 and in these facts & circumstances, the decision of the

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Committee to reject the respective claims of the employees, as there was no sanctioned posts available in the cadre of Class-IV, appears to be factually incorrect and the other reason assigned that their continuance of ten years of service as on 10.04.2006 is under intervention of the Court/Tribunal is a sheer misinterpretation construed by the department for the reason that if the service of an employee, at one stage is terminated who subsequently approached to the Tribunal or court and the termination order stands set aside and the employee has been reinstated in service that will not be construed as intervention of the Court or Tribunal but if someone is allowed to continue with protection of the interim order of the Court/Tribunal certainly that will be an impediment while considering candidature of the employee while regularization of his services in terms of amendment Notification dt.27.02.2009 which is almost in the spirit of para-53 of the judgment in Umadevi's case (supra).

In the instant case either of the employee who had worked for more than ten years in the cadre of Class-IV on or before 10.04.2006 has not been allowed to continue because of some interim orders of the Court/Tribunal, as such, both the reasons assigned by the Screening Committee in its report dt.02.09.2009 appears to be wholly unjust, illegal and not sustainable in law and this what the ld.Single Judge also considered while passing the order impugned dt.29.05.2013.

26. We would further like to add and that can also be considered as one of the additional circumstance to be noticed that if an employee had worked for more than two decades and budget has been sanctioned by the State Government, pursuant to which they are paid their pay & allowance and each of them is working in minimum of the pay-scale in the cadre of Class-IV, in the given facts & circumstances, at least this court can take a judicial notice of the nature of work being discharged by such Class-IV Employee being perennial in nature and if the State Government for good reasons has sanctioned budget and failed to sanction the post for a sufficient long time that too for two decades, in the instant case. It may be presumed that continuance of the

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employees was against the sanctioned post but there was no formal order of sanction came to be issued by the department in the cadre of Class-IV and the submissions made by counsel for the State Government in the light of what has been discussed above are not sustainable and deserve rejection."

9. Admittedly, the petitioner was initially appointed on

17.11.1988 as a driver and he has been continuously performing

his duties. So far as Notification regarding heavy duty license is

concerned, he already possessed heavy duty license since 1985 as

per the averments made by him in the present writ petition.

10. Be that as it may the respondents have not even

considered the case of the petitioner while rejecting his

representation. Even otherwise, the requirement of heavy duty

license would not come in the way for the purpose of

regularisation under the Notification dated 27.02.2009 as the

circular issued thereafter dated 08.07.2009.

11. The petitioner would, therefore, be entitled for