Rajasthan High Court
The State Of Rajasthan Through Its ... vs Gopal Bijawat S/O Sh. Chandan Mal ... on 8 December, 2023
Bench: Arun Bhansali, Ashutosh Kumar
[2023:RJ-JP:38687-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Special Appeal Writ No. 348/2023
1. The State Of Rajasthan Through Its Principal Secretary,
Ayush Department, Government Of Rajasthan,
Government Secretariat, Jaipur
2. The Director, Ayurved Department, Government Of
Rajasthan, Ajmer
3. Director, Homeopathy Department, Government Of
Rajasthan, Ayush Bhawan, Near Pani Ki Tanki, Sector 26,
Nri Circle, Pratap Nagar, Jaipur
----Appellants
Versus
Gopal Bijawat S/o Sh. Chandan Mal Bijawat, Father/o Sh.
Chandan Mal Bijawat, R/o Tara Tea Stall, Opposite Malwa Hotel,
Jaipur Road, Ajmer
----Respondent
For Appellant(s) : Mr. Chiranji Lal Saini, AAG.
For Respondent(s) : Mr. Ankit Agarwal.
Mr. Ram Mohan Sharma.
HON'BLE MR. JUSTICE ARUN BHANSALI
HON'BLE MR. JUSTICE ASHUTOSH KUMAR
Order
08/12/2023
1. This appeal is directed against order dated 30.11.2022
passed in SBCWP No.28/2017 by learned Single Judge, whereby,
the writ petition filed by the respondent/petitioner has been
allowed, the recommendation of the Screening Committee has
been set aside and respondents have been directed to consider
the regularization of the petitioner in view of the notification dated
27.02.2009. The petitioner has been held entitled for
regularization and consequential benefits from the date when he
[2023:RJ-JP:38687-DB] (2 of 7) [SAW-348/2023]
became eligible to get regularization in view of the notification,
which were ordered to be paid within a period of six weeks after
the date of regularization.
2. The matter has a chequered history. The respondent
workman was appointed as a part-time employee on 01.05.1993
and claimed that he was discharging duties as a full time
employee as attendant i.e. Class IV employee, his services were
discontinued on 03.07.1994.
3. The workman raised an industrial dispute before the
Labour Court and the Industrial Tribunal, Ajmer, wherein, an
award dated 23.11.2001 came to be passed, whereby, his
termination of services were set aside and he was ordered to be
reinstated in service. Further, directions were given to consider his
case for regularization.
4. When the directions given by the Labour Court were
not complied with the workman, filed SBCWP No.4293/2007,
wherein, directions were given to pay minimum wages to the
petitioner w.e.f. 01.05.1993.
5. The State filed SBCWP No.2030/2002 challenging the
award dated 23.11.2001, which came to be disposed of on a
statement recorded on behalf of the State that case of the
petitioner was required to be considered for regularization in view
of Circular dated 23.10.2013, in case, he agreed to forgo his
experience/arrears on account of regularization and that his case
would be considered within a period of three months.
6. Despite making submissions about regularization before
the learned Single Judge, DBSAW No.976/2014 was filed by the
State, which also came to be dismissed by order dated
[2023:RJ-JP:38687-DB] (3 of 7) [SAW-348/2023]
01.07.2015, wherein, the Division Bench directed that the case of
the workman was required to be considered under the award of
the Labour Court as well as the Rules of 2009 framed by the State
Government and refused to interfere with the order passed by the
learned Single Judge.
7. The appellant, thereafter by order dated 28.06.2016
rejected the case of the petitioner for regularization.
8. Feeling aggrieved, the writ petition was filed before this
Court.
9. Learned Single judge after hearing the parties came to
the conclusion that reasons assigned for rejecting the prayer for
regularization were not justified and that it was too late in the day
for the State to treat the petitioner's appointment as illegal after
the Labour Court has set aside the termination of the petitioner
from service, which was upheld up to the Division Bench.
10. Further, it was also concluded that under notification
issued by the State Government on 27.02.2009, the petitioner
was entitled to the reliefs and consequently passed the order
impugned.
11. Learned AAG made vehement submissions that learned
Single Judge was not justified in coming to the conclusion that the
respondent Workmen was entitled for regularization.
12. With reference to the provisions of Rajasthan
(Regulation of Appointments to Public Services and Rationalization
of Staff) Act, 1999 ('Act of 1999'), it was submitted that daily
wage employee and those appointed on an urgent temporary basis
have no right to claim for regularization of services on any ground
[2023:RJ-JP:38687-DB] (4 of 7) [SAW-348/2023]
whatsoever and, therefore, the order impugned deserves to be
set-aside.
13. Further, submissions were made that even under the
notification dated 27.02.2009, whereby, the Rajasthan Class IV
Services (Recruitment and other Service Conditions) Rules, 1999
('Rules of 1999') were amended, the person should have been
appointed on any duly sanctioned post for the purpose of
regularization and as the Authority has clearly indicated in the
order impugned dated 28.06.2016 that no sanctioned post was
available against which the petitioner was appointed, even the
provisions of amendment Rules, 2009 would have no application
and, therefore, the order impugned deserves to be quashed and
set aside.
14. It was reiterated, as was submitted before learned
Single Judge that issue was covered by judgment in State of
Rajasthan & Ors. Vs. Daya Lal & Ors.: (2011) 2 SCC 429 and on
that count also the petition was liable to be dismissed.
15. We have considered the submissions made by counsel
for the parties and have perused the material available on record.
16. It is not in dispute that the petitioner, when his services
were terminated, approached the Labour Court, wherein, his
termination was held to be bad being in violation of Section 25F of
the Industrial Disputes Act, 1947 and a further direction was given
for consideration of his regularization.
17. The award was duly challenged by the State, wherein,
before the learned Single Judge, the statement was made that the
plea of regularization would be considered under the Circular of
2013. However, the said submissions made before the learned
[2023:RJ-JP:38687-DB] (5 of 7) [SAW-348/2023]
Single Judge was sought to be disowned before Division Bench by
filing appeal, wherein, the Division Bench observed that the aspect
of regularization is required to be considered in terms of
amendment 2009 pertaining to Rules of 1999.
18. Thereafter, apparently a Screening Committee under
the said Rules inter-alia observed as under:-
"**Mh-ch-fl-Lis-
vihy ¼fjV½ la[;k 976@2014 jkt-
jkT; o vU; cuke xksiky chtkor esa ikfjr fu.kZ; fnukad
01-07-2015 esa ekuuh; U;k;ky; }kjk Jh xksiky chtkor dks
fof/k ,oa fof/kd dk;Z foHkkx ¼jktdh; okndj.k½ jkt- t;iqj
ds ifji= Øekad ,Q 12 ¼7½@jkt-@okn@2012 fnukad 23-
10-2013 ds ifjis{k esa dUlhMj fd;s tkus dh vkns'k iznku
fd;s x;sA mDr vihy esa ikfjr fu.kZ; fnukad 01-07-2015 dh
ikyuk dh gsrq tkjh iz"kklfud Lohd`fr vkns"k Øekad i-5¼08½
vk;q-@2004 ikVZ fnukad 20-07-2015 dh ikyuk esa LØhfuax
lfefr }kjk Jh xksiky chtkor dks ifji= fnukad 23-10-2013
ds ifjis{; esa ifjpkjd in ij fu;fefrdj.k gsrq iqu%
dUlhMj fd;k x;kA
fof/k ,oa fof/kd dk;Z foHkkx ¼jktdh; okndj.k½ jkt-
t;iqj ds ifji= Øekad ,Q-12¼7½@jkt-@okn@2012 fnukad
23-10-2013 ds ifjis{k esa Jh xksiky chtkor va"kdkyhu Jfed
dks fu;fefrdj.k ds laca/k esa LØhfuax desVh ds }kjk fopkj
foe"kZ fd;k x;kA Jfed Jh xksiky chtkor dh fu;qfDr
va"kdkyhu Jfed ds in ij dh x;h FkhA budh fu;qfDr ds
le; fof/kor :i ls in Lohd`r ,oa fjDr ugha FkkA vr%
budh fu;qfDr vfu;fer ugha gksdj voS/k fu;qfDr gSA izkFkhZ
Jfed xksiky chtkor U;k;ky;ksa ds vkns'kksa ls Jfed ds in
ij fu;ksftr gS blfy;s U;k;ky; vkns"k ds gLr{ksi ds fcuk
fnukad 10-04-2006 dks 10 o'kZ dh lsok iw.kZ ugha djrs gSa] tks
fd ifjpkjd in ij fu;qfDr gsrq vko";d 'krZ gSA Jh xksiky
chtkor orZeku esa va"kdkyhu@nSfud osru Hkksxh Jfed
ds :i esa dk;Zjr gSA blfy;s ifji= fnukad 23-10-2023 esa
tkjh funsZ"k buds izdj.k esa ykxw ugha gksrs gSA vr% LØhfuax
desVh ds }kjk Jh xksiky chtkor dks ifjpkjd ¼prqFkZ Js.kh
deZpkjh½ ds in ij fu;fefrdj.k ugha djus dk fu.kZ; fy;k
tkrk gSA
[2023:RJ-JP:38687-DB] (6 of 7) [SAW-348/2023]
izdj.k esa mi;qZDr fu.kZ; ds i"pkr cSBd l/kU;okn
laiUu gqbZA**
19. A perusal of the above would reveal that though
reference has been made to order dated 01.07.2015 passed by
the Division Bench, apparently the Screening Committee did not
read the said order, inasmuch as, the Division Bench, had at the
instance of State, observed that the issue was required to be
considered under the amended Rules, 2009.
20. Further, with reference to the Circular dated
23.10.2013, the matter was examined and an observation was
made that at the time of appointment no duly sanctioned post was
vacant and, therefore, his appointment was not regular but illegal
and further, as he has not completed 10 years without the
interference of the Court, he was not entitled for regularization.
21. A perusal of the order reveals that there is no
indication/material in the order/minutes as to on what basis the
fact of there being no duly sanctioned vacant post available has
been indicated. Apparently, the indications have been made only
with a view to disentitle the workman for regularization.
22. The indication made that his appointment was illegal,
as held by learned Single Judge, was too late and the observation
made by the respondents after the termination was set aside by
the Labour Court and upheld right up to the Division Bench were
apparently in teeth of such findings and, therefore, the plea raised
by counsel for the appellants that in absence of duly sanctioned
vacant post even in terms of amendment 2009, the workman was
not entitled for regularization cannot be countenanced.
[2023:RJ-JP:38687-DB] (7 of 7) [SAW-348/2023]
23. It is not in dispute that at the time of consideration of the
case of the petitioner, vacant post was available, which aspect is
fortified from the communication dated 17.08.2020 (Annex.7)
filed with the writ petition.
24. So far as the plea raised pertaining to the Rules of 1999 is
concerned, with the amendment introduced in 2009 in Rules of
1999 dealing with Rajasthan Class IV Service, the general
provision contained in Rules of 1999 would have no application to
the facts of the present case.
25. So far as the judgment in the case of Daya Lal (supra) is
concerned, the said judgment pertain to the permanent/temporary
employees of aided hostels and not the employees of the
Government, wherein, it was laid down that as they were
employees of the aided private charitable organizations, which run
such aided hostels they could not maintain any writ petition
claiming status or salary on part with the corresponding post
holders in the State Government service nor claim regularization
of service under the State Government, which judgment has no
application to the facts of the present case, as admittedly, the
petitioner was engaged by the State.
26. In view of the above discussion, the pleas raised on behalf of
the appellant has no substance.
27. The Special Appeal is, therefore, dismissed.
(ASHUTOSH KUMAR),J (ARUN BHANSALI),J
PRADEEP/-2
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