Rajasthan High Court - Jodhpur

Kanhiya Lal Nai vs State Of Rajasthan on 30 September, 2022

Bench: Kuldeep Mathur

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 6469/2020

Kanhiya Lal Nai S/o Shri Bhanwar Lal, Aged About 59 Years, R/o Ward No 33, Hariram Ji Ka Chok, Lunkaransar , Bikaner , Rajasthan

----Petitioner Versus

1. State Of Rajasthan, Through The Chief Secretary , Department Of Rural Development And Panchayati Raj, Government Of Rajasthan , Jaipur , Rajasthan

2. Chief Executive Officer Zila Parisad, Bikaner , Rajasthan

3. Block Development Officer, Panchayat Samiti Lunkaransar , Bikaner , Rajasthan

4. Development Officer Of Panchayat, Lunkaransar , Bikaner , Rajasthan

----Respondents

For Petitioner(s) : Mr. Ajeet Singh For Respondent(s) : Mr. Manish Tak

HON'BLE MR. JUSTICE KULDEEP MATHUR

Order

30/09/2022

Briefly stated facts of the case are that the petitioner was

appointed as 'Gate Keeper' vide order dated 05.08.1981 in

Panchayat Samiti, Lunkaransar on temporary basis. The petitioner

joined services on 14.08.1981 which were extended from time to

time. In the year 1992, a resolution was adopted in the meeting of

Panchyat Samiti, Lunkaransar dated 23.10.1992 whereby the

petitioner was appointed on the post of 'Octroi Collector'.

After abolishment of octroi in the State of Rajasthan, the

Chief Executive Officer, Zila parishad, Bikaner enquired about the

status of employees working at Gram Panchayat, Lunkaransar

(2 of 6) [CW-6469/2020]

providing services related to octroi collection and consequently,

had been rendered surplus. The Gram Panchayat, Lunkaransar

furnished necessary details pertaining to all the employees who

had been rendered surplus to the Zila Parishad, Bikaner.

An order dated 06.08.1998, was passed by the State

Government stating inter alia that the employees who were

working in connection with collection and management of octroi

shall not be retrenched from services. Subsequently, the petitioner

continued in the employment of Gram Panchayat, Lunkaransar

uninterruptedly from the date of initial appointment i.e.

14.08.1981. The Zila Parishad, Bikaner vide letter dated

23.11.2007, forwarded a list of employees working in various

Gram Panchayats falling under its jurisdiction for accommodation

of employees on other posts who were rendered surplus due to

abolition of octroi in the State of Rajasthan.

The Department of Rural Development and Panchayati Raj,

Government of Rajasthan vide order dated 27.11.2016 allowed

minimum pay-scale of class-IV to employees, who were

discharging duties similar to the petitioner, after abolition of octroi.

However, the name of the petitioner did not find a mention in the

said list. The grievance raised in the present writ petition is that

his services had been utilized by the respondent-department for

40 years without any break yet the same had not been

regularised, in violation of Article 14 of the Constitution of India.

Learned counsel for the petitioner submitted that the

petitioner had continuously worked in the respondent-department

for almost 40 years discharging duties in similar fashion as of a

regular class-IV employee.

(3 of 6) [CW-6469/2020]

It was further submitted that Gram Panchayat, Lunkaransar

and Zila Parishad, Bikaner had time and again requested the State

Government through various communications along with

furnishing necessary details, pertaining to the services discharged

by the petitioner in the department for the purposes of

regularisation but to no avail. Counsel also submitted that the

petitioner had discharged duties in the respondent-department

against the post of class-IV employee which were perennial in

nature and it would be thus in violation of Article 39(d) r/w with

Article 43 of the Constitution of India if regularisation of the

petitioner in the pay scale applicable for employees working

against class-IV posts is not allowed to him. Counsel urged that

the petitioner during pendency of the writ petition had stood

superannuated from services in the month of October 2021,

therefore, respondents may be directed to release pension and

other retiral benefits by regularising petitioner's services from the

year 1981.

Per contra, learned counsel for the respondents submitted

that the petitioner was not appointed through regular mode of

selection for class-IV post. It was also submitted that the

petitioner was engaged by Gram Panchayat, Lunkaransar for

collection of octroi on temporary basis, therefore after abolition of

octroi in normal course, petitioner's services should have been

retrenched but he was allowed to continue on humanitarian

grounds pursuant to the order of the State Government dated

06.08.1998. It was submitted that petitioner was appointed on

temporary basis and after superannuation from services, the

petitioner is not entitled to claim regularisation.

(4 of 6) [CW-6469/2020]

Heard learned counsel for the parties and perused the

material available on record.

Indisputably, the petitioner had served the respondent-

department continuously for 40 years. From the record of the

case, it is evident that Gram Panchayat, Lunkararsar and Zila

Parishad, Bikaner on various occasions requested the State

Government to regularise services of the petitioner. The

communications sent to the State Government is indicative of the

fact that petitioner had rendered satisfactory services continuously

as class-IV employee. There is no denial in the reply that the

services rendered by the petitioner are similar to that of any

employee working against regular class-IV post. Further, the

services of the petitioner were utilized by the department on its

own without there being any cover of the court's order. The

persons similarly situated to the petitioner were granted regular

pay scale as was applicable for class-IV employees, vide order

dated 27.11.2016, without annual increments.

A co-ordinate Bench of this Court while adjudicating similar

controversy in the case of Lala Ram Saini v the State of

Rajasthan and Ors. S.B. CWP No.11509/2011, held as

follows:

"This Court vide order dated 29.04.2013 allowed the petitioner to amend his prayer clause and as per his application for amendment, he had sought that he may be regularized on the post of Class-IV. It is an admitted position that the State Government has issued a notification on 27.02.2009 directing for regularizing of all the employees who were working as Class-IV on similar post on temporary basis or even those who were appointed on irregular basis.

(5 of 6) [CW-6469/2020]

This Court in the case of Magan lal Damore Versus State of Rajasthan: SBCWP NO.6038/2013 decided on 09.08.2016 examined the similar controversy in the light of the circular of the State Government and found that such cases where regularization is rejected of employees working on temporary basis for more than 10 years long time were unjustified. In the said case, the order of rejecting prayer for regularization by the Government was quashed and set aside and directions were given to regularize the petitioner's services in the light of the circular dated 27.02.2009 upon having completed 10 years of uninterrupted service. I have thoughtfully considered the facts of the present case and finds that the petitioner, admittedly as per the reply of the respondents, was working since 02.03.1983 as Bagwan (Gardner) (3 of 3) [CW-11509/2011] with the Panchayat Samiti and therefore, he can be said to have completed uninterrupted service from 1983 all throughout till he attained superannuation on 31.07.2020. Having rendered almost 37 years of service with the respondents, one cannot say that the service was on temporary basis. Such long service has to be treated as substantive service and the petitioner will be deemed to have been regularized in the light of the circular issued by the State Government. Any action on the part of the State or its authorities cannot deprive of person for claiming substantive right for the service which he has rendered with them. It is also noticed that he has been appointed vide order dated 24.9.1982 by Gram Panchayat, Bansur to work as a Bagwan (Gardner) as there is an appointment order and continuity of service.

This court directs the respondents to treat the petitioner as regularly appointed Class-IV employee and further directs to release the petitioner's pension and retiral benefits treating him as Class-IV employee on substantive basis from 1983 up till date of retirement. The consequential benefits arising out of the above order shall also be released. The exercise shall be completed within a period of three months."

In the light of the aforequoted precedent judgment and

pecuilar facts and circumstances of the case the respondents are

(6 of 6) [CW-6469/2020]

directed to regularise services of the petitioner from the date of

initial appointment as a class-IV employee. Further, respondents

are directed to release the pension and other retiral benefits in

favour of the petitioner with all consequential benefits. However, it

is made clear that the petitioner shall not be entitled to claim any

arrears of pay as a consequence of pay-fixation in the pay-scale

applicable for class-IV employees.

In the result, the writ petition is allowed.

No order as to costs.