State And Ors vs Paras Mal Mali And Ors
2022 Latest Caselaw 1102 Raj

     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR
                D.B. Spl. Appl. Writ No.252/2009

1.     State of Rajasthan through the Secretary, Rural
       Development    and    Panchayati Raj Department,
       Government of Rajasthan, Jaipur
2.     The Addl. Chief Executive Officer, Zila Parishad, Barmer
3.     The Vikas Adhikari, Panchayat Samiti, Siwana, District
       Barmer
4.     Gram Panchayat, Samdari                    through       the   Sarpanch,
       Samdari, District Barmer


                                                                  ----Appellants
                                   Versus
1.     Parasmal Mali S/o Shri Achla Ram, R/o Near Mahadeo
       Temple, Samdari Station, District Barmer
                                                (...petitioner)
2.     Shri Champa Lal S/o Shri Mangilal, By caste Bheel, Gram
       Panchayat Kundal, Panchayat Samiti Siwana, District
       Barmer                       (...proforma respondent)
3.     Shri Paras Mal S/o Shri Sawaram, by caste Kumhar,
       Resident of Keshar Colony, Samdari, District Barmer
                                     (...proforma respondent)


                                                                ----Respondents


For Appellant (s)        :     Mr. Karan Bishnoi, Associate to
                               Mr. Sunil Beniwal,AAG
For Respondent(s)        :     Mr. Lakshay Singh Udawat, Associate
                               to Shri Kuldeep Mathur



          HON'BLE MR. JUSTICE SANDEEP MEHTA
             HON'BLE MR. JUSTICE SAMEER JAIN

                             J U D G M E NT

Judgment pronounced on                 :::             24/01/2022

Judgment reserved on                   :::            20/12/2021


BY THE COURT : (PER HON'BLE MEHTA, J.)

The instant intra-court appeal has been preferred by the

State of Rajasthan for assailing the order dated 20.08.2008

(2 of 11) [SAW No. 252/2009]

passed by learned Single Bench of this Court whereby writ

petition No.4994/2005 preferred by the respondent Parasmal

Mali S/o Shri Achla Ram was accepted and the appellants

were directed to allow the respondent to join duty as Gram

Sewak in pursuance of the order dated 31.03.2001 and to

grant him all consequential benefits of seniority, fixation of

pay etc. on notional basis without back wages.

Brief facts relevant and essential for disposal of the

instant appeal are noted hereinbelow:-

The respondent Parasmal was engaged as an Octroi

Collector (Chungi Nakedar) purely on temporary basis by the

Panchayat Samdari between the years 1995 to 1997.

Subsequently, the octroi duty was abolished and accordingly,

the respondent was not continued on daily wages. Being

aggrieved with the dispensation of his engagement, the

respondent-writ petitioner approached this Court by filing a

writ petition No.2591/2003 for assailing the action of the

respondents. The writ petition was disposed off by order

dated 06.08.2004 directing the respondents to consider the

case of the petitioner for absorption as a Gram Sewak

pursuant to being declared as surplus from the post of Octroi

Collector (Chungi Nakedar). Parity was sought for by the

respondent with one Balkishan Ojha who had allegedly been

given appointment as a Grem Sewak in similar

(3 of 11) [SAW No. 252/2009]

circumstances. The representation so submitted by the

respondent was dismissed by communication dated

20.06.2005 wherein it was observed that Shri Parasmal was

engaged by the Gram Panchayat Samdari on 07.04.1995 as

an Octroi Collector on daily wage basis @ Rs.32/- per day.

He continued as such till July, 1997 whereafter, his

engagement was discontinued. It was further observed in the

order that the respondent's claim of parity with Balkishan

Ojha was not tenable because neither Balkishan Ojha nor the

respondent were appointed against any sanctioned post. So

far as the appointment on Class IV post was concerned, the

said process also required adherence to Rule 259 (7) of the

Panchayati Raj Rules whereas, neither any such post of Class

IV employee/Octroi Collector was prescribed in the Rules nor

was the respondent provided appointment on such post after

following the regular process of recruitment. The said order

was challenged by filing petition No. 4994/2005. The learned

Single Judge accepted the writ petition of the respondent in

light of the order dated 24.04.2003 passed by the Division

Bench of this Court in DBSAW No.165/2001 filed by

Balkishan Ojha wherein, the claim of the said Balkishan for

absorption as a Gram Sewak was accepted while allowing his

petition.

In reply filed before the learned Single Bench, a specific

assertion was made by the State that persons akin to

(4 of 11) [SAW No. 252/2009]

Balkishan Ojha who had been absorbed, were as a matter of

fact working on the post of Assistant Secretary and thus, Shri

Parasmal who was engaged purely on daily wage basis as an

Octroi Collector could not claim any parity and was not

entitled to continue on the post which had since been

abolished. The learned Single Bench was persuaded by the

language of the communication (Annexure-10) wherein it was

mentioned that Balkishan Ojha had not been appointed

against any vacant post by an open invitation and thus, a

review was being proposed in his matter as well. This Court

observed that the Government had conceded that akin to

Balkishan, one Champalal was also absorbed as a Gram

Sewak. The Court held that once the welfare State had taken

a decision to absorb those employees who were engaged in

the collection of octroi, then all similar employees were

required to be absorbed, considering them to be in service on

the date of abolition of octroi. Pursuant to such discussion,

the writ petition of the respondent was accepted.

Shri Karan Bishnoi, Associate to Shri Sunil Beniwal, AAG

vehemently and fervently urged that engagement of the

respondent by the Panchayat was purely on daily wage basis

as an octroi collector which was not an en-cadred post in the

Service Rules concerned and as such, no direction could have

been given to absorb him as a Gram Sewak. He placed

reliance on the Supreme Court judgment in the case of State

(5 of 11) [SAW No. 252/2009]

of Orissa & Anr. vs. Mamata Mohanty : (2011) 3 SCC

436 and urged that once it is noticed that a wrong order has

been passed, it becomes the solemn duty of the Court to

rectify the mistake rather than perpetuating the same. He

contended that as the respondent was never appointed

against a sanctioned post, there was no question of him being

declared surplus so as to stake a claim for absorption. He

urged that even if it is held that the circumstances governing

the case of the respondent are at par with Balkishan Ojha

and Champalal, then also, no direction could have been given

to absorb him in the regular cadre of Gram Sewaks as

illegality once committed cannot be allowed to be

perpetuated. On these submissions, Shri Bishnoi implored the

Court to accept the appeal and set aside the impugned order.

Per contra, Shri Lakshya Singh Udawat, Associate to Shri

Kuldeep Mathur, Advocate representing the respondent-writ

petitioner, vehemently and fervently urged that the direction

given by the learned Single Bench to absorb the respondent

as a Gram Sewak is based on the fundamental right of non-

discrimination enshrined under Article 14 of the Constitution

of India. Since, the respondents have themselves, absorbed

similarly placed persons Balkishan Ojha and Champalal as

Gram Sewaks, there was no reason to take a different view in

the case of the respondent as it would amount to hostile

(6 of 11) [SAW No. 252/2009]

discrimination. On these submissions, Shri Udawat sought

dismissal of the appeal.

We have given our thoughtful consideration to the

submissions advanced at bar and have gone through the

material available on record.

It is not in dispute that the engagement of the

respondent with the Gram Panchayat was purely on daily

wage basis for the purpose of collecting octroi duty. The

position was designated as Octroi Collector (Chungi Nakedar).

Admittedly, no such post existed in the Panchayats. Even if

for the sake of argument, it is surmised that the position of

Octroi Collector is to be equated as a Class IV employee, then

too, the engagement of the respondent on such a position

was not made after following any process of selection. The

respondent was engaged as an Octroi Collector on daily wage

basis without there being any advertisement, etc. The

direction to absorb such persons would clearly mean that

regularization is being ordered of a person who never

underwent a regular process of selection. Otherwise also, the

respondent worked as an Octroi Collector only for a period of

three years and therefore, any direction to regularize his

services/absorb him against an encadred post without

following the process of regular selection would be totally

against the mandate of the Supreme Court judgment in the

(7 of 11) [SAW No. 252/2009]

case of Secretary, State of Karnataka vs. Uma Devi :

(2006) 4 SCC 1. The judgment in the case of Uma Devi

was followed in the case of Upendra Singh vs. State of

Bihar & Ors. : (2018) 3 SCC 680. The appointment of the

respondent was a back-door entry and thus, no direction to

regularize his services can be given. In Uma Devi's case

following observations were made by Hon'ble the Supreme

Court:-

"42. The argument that the right to life protected by Article 21 of the Constitution of India would include the right to employment cannot also be accepted at this juncture. The law is dynamic and our Constitution is a living document. May be at some future point of time, the right to employment can also be brought in under the concept of right to life or even included as a fundamental right. The new statute is perhaps a beginning. As things now stand, the acceptance of such a plea at the instance of the employees before us would lead to the consequence of depriving a large number of other aspirants of an opportunity to compete for the post or employment. Their right to employment, if it is a part of right to life, would stand denuded by the preferring of those who have got in casually or those who have come through the back door. The obligation cast on the State under Article 39(a) of the Constitution of India is to ensure that all citizens equally have the right to adequate means of livelihood. It will be more consistent with that policy if the courts recognize that an appointment to a post in government service or in the service of its instrumentalities, can only be by way of a proper selection in the manner recognized by the relevant legislation in the context of the relevant provisions of the Constitution. In the name of individualizing justice, it is also not possible to shut our eyes to the constitutional scheme and the right of the numerous

(8 of 11) [SAW No. 252/2009]

as against the few who are before the court. The Directive Principles of State Policy have also to be reconciled with the rights available to the citizen under Part III of the Constitution and the obligation of the State to one and all and not to a particular group of citizens. We, therefore, overrule the argument based on Article 21 of the Constitution.

43. Normally, what is sought for by such temporary employees when they approach the court, is the issue of a writ of mandamus directing the employer, the State or its instrumentalities, to absorb them in permanent service or to allow them to continue. In this context, the question arises whether a mandamus could be issued in favour of such persons. At this juncture, it will be proper to refer to the decision of the Constitution Bench of this Court in Dr. Rai Shivendra Bahadur Vs. The Governing Body of the Nalanda College [(1962) Supp. 2 SCR 144]. That case arose out of a refusal to promote the writ petitioner therein as the Principal of a college. This Court held that in order that a mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. This classical position continues and a mandamus could not be issued in favour of the employees directing the government to make them permanent since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent.

44. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of

(9 of 11) [SAW No. 252/2009]

tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.

45. It is also clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, will stand denuded of their status as precedents."

Furthermore, the engagement of the respondent was

purely on daily wage basis and was not made after due

advertisement/recommendation of selection panel. The posts

were not sanctioned and hence, no direction could have been

given to regularize/absorb the respondent as a Gram Sewak.

In the case of State of Orissa & Anr. vs. Mamata

Mohanty : (2011) 3 SCC 436, Hon'ble the Supreme Court

(10 of 11) [SAW No. 252/2009]

held that illegality once committed cannot be perpetuated. It

was observed as below:-

"18. The Orissa Aided Educational Institutions Employee's Common Cadre and Inter transferability Rules, 1979 (hereinafter called Rules 1979), make the post of teaching staff transferable to any other college, affiliated to any other University.

19. In view of the above, University means all the four universities of Orissa, not only Utkal University at Bhubneshwar. It is the Selection Board constituted under the Rules 1974, which could call the candidates for interview/tests and make the selection according to merit. The Selection Board shall make the teachers available to individual colleges as per their need. Thus, the Committee of Management does not have a right to make the appointment of a teacher of its own. More so, the teachers so appointed are liable to be transferred throughout the State of Orissa even to a College which may be affiliated to either of the aforesaid universities.

(B) RELEVANT PART OF NOTIFICATIONS/ CIRCULARS/ LETTERS:

20. Government of Orissa - Education and Youth Services Department Resolution dated 5.9.1978 dealt with the subject-qualification for recruitment of lecturers in affiliated colleges of the State of Orissa and the relevant part reads as under:

"A consistently good academic record with at least Ist or high second class (B in the seven point scale) at the Master's degree in a relevant subject. In other words, the University Grants Commission intended to determine high second class as average of minimum percentage of marks of second division and first division as (48+60) 54%....."

21....

(11 of 11) [SAW No. 252/2009]

36. Therefore, it is a settled legal proposition that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates. If any appointment is made by merely inviting names from the Employment Exchange or putting a note on the Notice Board etc. that will not meet the requirement of Articles 14 and 16 of the Constitution. Such a course violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered. A person employed in violation of these provisions is not entitled to any relief including salary. For a valid and legal appointment mandatory compliance of the said Constitutional requirement is to be fulfilled. The equality clause enshrined in Article 16 requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit."

As a consequence of the above discussion, the instant

appeal thus, deserves to be and is hereby accepted. The

impugned judgment passed by learned Single Bench is

quashed and set aside. There shall be no order as to costs.

                                   (SAMEER JAIN),J                                       (SANDEEP MEHTA),J

                                    Sudhir Asopa/-









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