Rajasthan High Court - Jodhpur
Vijay Kumar Joshi And Ors vs State And Anr on 2 September, 2024
Author: Farjand Ali
Bench: Farjand Ali
[2024:RJ-JD:32663]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 2961/2016
1. Vijay Kumar Joshi S/o Shri Shiv Narayan Joshi, aged about 40
years, resident of 125, Vijay Nagar, Jodhpur
2. Mahaveer Jain S/o Shri Ram Karan Ji Jain, at present working
at Government Ayurved Aushdhalaya, Paraliya, Distt. Barmer
3. Balveer Dan Charan S/o Shri Bhanwar Singh Ji Charan,
resident of Gram Deshnok, District Bikaner.
4. Yogendra Nath Sharma S/o Shri Dwijendra Nath Sharma,
resident of Bijolia, Bhilwara
5. Sunil Vyas S/o Shri Bhanwar Lal Ji Vyas at present working at
Government Ayurved Aushdhalaya, Bapu Nagar, Bhilwara
6. Satish Chandra Sharma S/o Shri Kedar Nath Ji Sharma, at
present working at Government Ayurved Aushdhalaya, Shivrati,
Bhilwara
7. Devendra Sharma S/o Radhe Shyam Sharma, at present
working at Government Ayurved Aushdhalaya, Soniyana,
Bhilwara
8. Ashok Kumar Bairwa S/o Shri Laxman Ji Bairwa at present
working at Government Ayurved Aushdhalaya, Chandji ki Khedi,
District Bhilwara.
9. Gyanendra Goyal S/o Shri Babu Lal ji Goyal at present working
at Government Ayurved Aushdhalaya, Hoda, District Bhilwara.
10. Anjana Gautam w/o Shri Arvind Kumar at present working at
Government Ayurved Aushdhalaya, Dhamania, Distt. Bhilwara
11. Ram Swaroop Meena Sio Lal Ji Meena, at present working at
Government Ayurved Aushdhalaya, Sajjangarh, Banswara
12. Surendra Vashistha S/o Shri Kanhaiya Lal Ji Sharma, at
present working at Government Ayurved Aushdhalaya, Atma,
District Rajsamand.
(Downloaded on 06/09/2024 at 09:35:45 PM)
[2024:RJ-JD:32663] (2 of 21) [CW-2961/2016]
13. Vandana Saini w/o Shri Lalit Mohan Saini, at present working
at Government Ayurved Aushdhalaya, Dhayala, Rajsamand.
14. Lalit Mohan Saini S/o Shri Pira Ramji Saini at present
working at Government Ayurved Aushdhalaya, Shishoda,
Rajsamand.
15. Jitendra Verma S/o Kesarmal Ji Verma at present working at
Government Ayurved Aushdhalaya, Lalas, District Nagaur
16. Rahul Gupta S/o Ramavtar Ji Gupta at present working at
Government Ayurved Aushdhalaya, Khajawana, District Nagaur
17. Vidhveshwar Dutt S/o Shri Ramadutt Ji, at present working
at Government Ayurved Aushdhalaya, Kuchaman City, District
Nagaur
18. Rekha Dadhich D/o Shri Ramavtar Ji Shastri at present
working at Government Ayurved Aushdhalaya, Tejrasar, District
Bikaner.
19. Harish Saini S/o Shri Jeeva Ram ji Saini, at present working
at Government Ayurved Aushdhalaya, Bhimsar, District Churu
20. Nidhi Bhatt W/o Shri Parijat Audichya, resident of 2B4, Akara
Bhatta, Abu Road, District Sirohi
21. Parijat Auditchya S/o Shri Kewal Ji Audhichya resident of
2B4, Akara Bhatta, Abu Road, District Sirohi.
22. Mahendra Arya S/o Bhanwar Lal Ji Arya, at present working
at Government Ayurved Aushdhalaya, Pipli, District Udaipur.
23. Bhawana Sanadya W/o Shri Hemendra, resident of Mayur
Colony, Sector-5, Udaipur.
24. Upma Acharya D/o Muru Govind Ji resident of New Modern
Complex, Bhuwana, Udaipur.
25. Vinod Mishra S/o Shri Rajendra Prasad Ji Mishra, resident of
33, Gupteshwar Nagar, Ward-27, Udaipur.
(Downloaded on 06/09/2024 at 09:35:45 PM)
[2024:RJ-JD:32663] (3 of 21) [CW-2961/2016]
26. Ravi Prakash Pachar S/o Shri Dalu Singh Ji resident of Village
Sherda, District Hanumangarh.
27. Amit Kumar Sharma Sio Jagdish Prasad R/o sardar-sahar
Dist. Churu
----Petitioner
Versus
1. The State of Rajasthan, through the Principal Secretary,
Department of Ayurved, Ajmer
2. Director, Ayurved Department, Jaipur.
----Respondent
For Petitioner(s) : Mr. M.S. Singhvi, Senior Advocate,
assisted by Mr. Abhishek Mehta
For Respondent(s) : Ms. Rakhi Choudhary, DyGC
HON'BLE MR. JUSTICE FARJAND ALI
Order
REPORTABLE
Order pronounced on : 02/09/2024
Order reserved on : 05/08/2024
1. The petitioners, who are working as Ayurved Chikitsak in the
Department of Ayurved, Government of Rajasthan, or have retired
from the said post during the pendency of the writ petition, have
preferred this writ petition under Article 226 of the Constitution of
India jointly as a common grievance has been raised herein. The
petitioners have made the following prayers in the writ petition :-
"(i) by appropriate writ, order or direction the
respondents may be directed to regularize the services
of the petitioner from the date of initial appointment on
the post of Ayurved Chikitsak and grant them regular
scale of pay with all consequential benefits;
[2024:RJ-JD:32663] (4 of 21) [CW-2961/2016]
(ii) by appropriate writ, order or direction, the
respondents may be directed to count services
rendered by the petitioners from the date of initial
selection (on contractual basis) towards probation with
all consequential benefits including fixation of pay,
confirmation, assured career progression etc.;
(iii) by appropriate writ, order or direction, in the
alternative the respondents may be directed to count
services of the petitioner on substantive basis from the
date of their selection and regular appointment made in
the year 2009 with all consequential benefits;
(iv) by appropriate writ, order or direction, the action
of the respondents in paying fix salary during the
period of probation be declared illegal and it may be
declared that the petitioners are entitled to regular
scale of pay during the period of probation;"
2. Succinctly stated, facts of the case necessary for
adjudication of the instant case are that the respondents
published advertisements dated 19.12.2001 and 06.10.2003
inviting applications for appointment on the post of Ayurved
Chikitsak on contract. On both occasions, the select lists were
prepared on the basis of merit as per the criteria determined by
the Department of Ayurved, Government of Rajasthan and the
same were issued on 14.02.2002, 09.02.2004 and 11.11.2004.
Pursuant to the aforesaid select lists, the petitioners were granted
appointment on contract basis on consolidated remuneration and
they started working as such.
[2024:RJ-JD:32663] (5 of 21) [CW-2961/2016]
3. In the year 2008, the respondents framed the Rajasthan
Rural Ayurvedic, Unani, Homeopathy and Naturopathy Service
Rules, 2008 (for short, hereinafter referred to as 'the Rules of
2008'). Under the Rules of 2008, a separate wings of Ayurved,
Unani, Homeopathy and Naturopathy services were constituted.
The Rules of 2008 provided for initial recruitment, direct
recruitment and promotion. The intitial recruitment was provided
to take care of all those Ayurved Chikitsak, who were working on
contractual basis. Pursuant to the Rules of 2008, an
advertisement dated 21.07.2008 was issued inviting applications
to fill up 320 posts of Ayurved Chikitsak. The petitioners, who
were working on contractual basis submitted their applications for
selection to the post of Ayurved Chikitsak and after being
subjected to selection process, their names found place in the
select list and they were given appointment to the post of Ayurved
Chikitsak on substantive basis vide order dated 02.06.2009.
4. A bunch of writ petitions came to be filed before this court at
Jaipur Bench led by S.B. Civil Writ Petition No.5259/2009
challenging the selection process undertaken by respondents in
pursuance of the advertisement dated 21.07.2008 on the ground
that no criteria of selection was prescribed for determination of
merit. The Single Bench allowed the said writ petitions vide order
dated 29.04.2011 and held that the selection and appointments
made by the respondents pursuant to the advertisement dated
21.07.2008 were illegal and they were directed to hold fresh
selection process after determining the criteria for selection.
However, looking to the peculiar facts and circumstances of the
[2024:RJ-JD:32663] (6 of 21) [CW-2961/2016]
case and to avoid sufferance of the public at large in rural areas in
absence of Ayurved Chikitsak, it was directed that till process of
selection as per the Rules of 2008 based on proper criteria for
selection and determination of merit is undertaken, selected and
appointed candidates apart from other candidates may not be
disturbed. However, if any candidate, already appointed, was not
selected in the fresh selection, he was directed to vacate the
regular post for newly selected meritorious candidate. Thus, the
petitioners continued their services without interruption. The
judgment of the Single Bench was unsuccessfully challenged
before the Division Bench of this court by filing a bunch of intra
court appeals and while dismissing the appeals vide judgment
dated 31.10.2011, the Division Bench observed that that as the
selection process has been quashed, without disturbing the
directions issued by the Single Bench, it was made clear that the
employees who are serving shall continue to serve till fresh
selection process is complete. The SLP preferred against the
aforesaid judgment also came to be dismissed vide judgment
dated 26.03.2012.
5. In pursuance of the directions issued by the Single Bench, an
advertisement dated 30.04.2012 came to be issued inviting
applications for selection to the post of Gramin Ayurved Chikitsak
for 378 posts, which were subsequently increased to 382. Again a
bunch of writ petitions came to be filed before the Single Bench of
this court at Jaipur challenging the selection process on the issues
of cut off date for determination of eligibility, prescription of marks
for educational qualification, experience and interview etc. The
[2024:RJ-JD:32663] (7 of 21) [CW-2961/2016]
said writ petitions came to be allowed vide order dated
24.04.2014. However, the Division Bench while allowing the
appeals preferred against the judgment of the Single Bench vide
judgment dated 29.06.2015 held that the selection proces
adopted by the State was not arbitrary, rather in pursuance of the
directions of the order dated 29.04.2011 passed by the Single
Bench. Accordingly, the State Government was directed to declare
the select list forthwith. After passing of the judgment of Division
Bench, the State Government issued a select list of Rural Ayurved
Chikitsak prepared pursuant to the advertisement dated
30.04.2012 as amended on 05.11.2012. The name of the
petitioners found place in the select list. Subsequently, order of
appointment dated 25.08.2015 was issued granting appointment
to the selected candidates including the petitioners. The
petitioners joined the duties on the post of Ayurved Chikitsak.
Most of the petitioners are still in service, while some of them
have retired on attaining the age of superannuation.
6. The petitioners have preferred the instant writ petition
raising the grievance that even though they had been continuously
working on the post of Ayurved Chikitsak since the year
2002/2004 and further they had completed the period of
probation in pursuance of the appointment order dated
02.06.2009 before issuance of the direction by the Single Bench to
hold the selection afresh, the respondents have again subjected
the petitioners to probation for a period of two years on fixed
remuneration vide appointment order dated 25.08.2015. In this
[2024:RJ-JD:32663] (8 of 21) [CW-2961/2016]
regard the petitioners submitted a representation to the
respondents and also served a legal notice, but to no avail.
7. Another grievance raised by the petitioners is that despite
putting in uninterrupted services by them for more than a decade,
the respondents are not taking into account the services rendered
by them for the period prior to joining services in pursuance of the
order of appointment dated 25.08.2015, which would cause
serious monetary loss to them as many of them would not even
complete the qualifying service for getting pension. Further many
retiral benefits like gratuity are calculated based on the length of
service. The petitioners are also deprived of the privilege leave
earned during the aforesaid period.
8. The petitioners have also raised the issues regarding
regularization from the initial date of appointment, assured career
progression etc., but the learned counsel for the petitioners has
chosen not to press them.
9. Mr. M.S. Singhvi, learned Senior Advocate, assisted by Mr.
Abhishek Mehta, submits that the action of the respondents in
subjecting the petitioners to probation again is highly arbitrary,
unreasonable and violative of Article 14 of the Constitution of
India. It is submitted that the petitioners have been serving on
the post of Aryurved Chikitsak since the year 2002/2004. Though
the services rendered by them prior to 2009 were contractual,
however, the nature of the same was akin to the services rendered
by regularly selected persons. He further submits that the
[2024:RJ-JD:32663] (9 of 21) [CW-2961/2016]
petitioners had already completed the period of probation on the
post of Gramin Ayurved Chikitsak pursuant to their selection and
appointment in the year 2009 and their services were found
satisfactory. Although the said selection process was declared
invalid later on by the learned Single Bench on the ground that the
respondents failed to prescribe the criteria of selection, but the
fact remains that the petitioners were holding all the requisite
qualifications to hold the post and completed the probation
successfully and thus, the purpose of putting them under
probation had been served and there was no occasion for the
respondents to subject them to probation again. Learned counsel
also pointed out that even after cancellation of the selection
process of the year 2009, the petitioners were allowed to continue
their services in the public interest pursuant to the directions
issued by the Single Bench, thus, for all practical purposes, the
petitioners were serving on the post of Gramin Ayurved Chikitsak
without interruption till joining again in pursuance of the
appointment order dated 25.08.2015. Learned counsel submits
that the purpose of placing a person on probation is to see as to
whether he is fit to be retained in service on the basis of his
performance and the said purpose has been duly served as the
performance of the petitioners was duly reported in their APARs
and reviewed by the competent authority and thus, subjecting
them again to probation would be highly unjust and unreasonable.
10. Learned counsel for the petitioners submits that though a
prayer is made in the writ petition seeking direction for
regularization of the services of the petitioners from the date of
[2024:RJ-JD:32663] (10 of 21) [CW-2961/2016]
their initial appointment on contractual basis, however, he is not
pressing the said prayer and instead is seeking a direction that the
services rendered by the petitioners from the date of their initial
appointment (2002 or 2004, as the case may be), may be taken
into account for the purpose of calculation of qualifying service for
the purpose of pension and other retiral benefits and for leaves.
Learned counsel submits that it is not a case where the petitioners
have been randomly chosen to serve on the post of Ayurved
Chikitsak. The respondents invited applications by issuing a public
advertisement and after scrutiny of the applications, the
meritorious candidates were appointed on contractual basis in the
year 2002/2004. They continued in service as such till their
regular appointment in pursuance of the appointment order dated
02.06.2009 and thereafter even though the selection process was
declared invalid, they were allowed to continue in service in public
interest under the orders of the court till they joined their duties in
pursuance of the appointment order dated 25.08.2015. The
contention of the learned counsel for the petitioners is that right
from the date of initial appointment in the year 2002/2004, the
petitioners have been discharging the same duties which are being
discharged by regularly selected Ayurved Chikitsak in the State of
Rajasthan. There was no distinction in the qualitative and
quantitative services rendered by the petitioners vis-a-vis those
who were working on regular basis. Thus, the petitioners are
entitled for counting of the services rendered by them from the
year 2002/2004 till 2015 for the purpose of pension, retiral benfits
and leaves.
[2024:RJ-JD:32663] (11 of 21) [CW-2961/2016]
11. To fortify the aforesaid submissions, the learned counsel for
the petitioners has referred to Rule 95 of the Rajasthan Service
Rules, 1951, as per which, a temporary employee, who has
worked for more than five years on contractual basis and is given
regular appointment on the said post without interruption in
service, then the employee shall be entitled to privilege leaves for
such period during which he was under contractual employment,
while treating the said term as regular period of service. He
further referred Rule 12(b) of the Rajasthan Civil Services
(Pension) Rules, 1996 and submits that for the purpose of
pension the qualifying service of a Government servant shall
commence from the date he takes over charge of the post to
which he is first appointed, either substantively or in an officiating
or temporary capacity. Learned counsel for the petitioners
submits that petitioners were duly selected on post of Ayurved
Chikitsak in the year 2002/2004 and they continued in service
without interruption, as such, they are entitled to get the services
rendered by them counted for the purpose of pension and leave
etc.
12. Learned counsel for the petitioners further submits that in
the meeting of the State Government officials held on 31.07.2008
in the chairmanship of the Chief Secretary, it was decided to
accommodate all the Ayurved Chikitsak who were working on
contract basis and in pursuance thereof, the selection process was
held in the year 2009, which was not limited to the Ayurved
Chikitsak working on contract basis. The petitioners got selected
and were given regular appointment in the year 2009. However,
[2024:RJ-JD:32663] (12 of 21) [CW-2961/2016]
due to litigation, the matter lingered on till the year 2015 when
the petitioners were again given appointment. During this entire
period from 2009 to 2015 the petitioners were working against the
substantive post of Ayurved Chikitsak, albeit under the directions
of this court and in the public interest. Thus, the services
provided by the petitioners cannot be undone for the technical
reasons when for all practical purposes they were discharging their
duties as Ayurved Chikitsak.
13. Learned counsel for the petitioners placed reliance on the
judgment of Hon'ble Supreme Court in the case of Central
Inland Water Transport Corporation Limited & Anr. Vs.
Brojo Nath Ganguly & Anr. [(1986) 3 SCC 156] and submit
that an unreasonable and unconscionable condition imposed by a
mighty employer like the State cannot be sustained. In the case
at hand even though the petitioners had put in service of over a
decade on the same post, still they had to undergo probation of
two years, which is highly unjust for them.
14. Learned counsel further placed reliance on the judgment of
this court passed in Ayurved Chikitsak Welfare Association,
Jaipur Vs. State of Rajasthan & Ors. [1997 (2) WLC (Raj)
452], to submit that if the appointment are made resorting to
procedure for regular appointments, the denomination as ad hoc
or temporary is not material and the same are equal to
substantive appointments. He submits that the appointment of
the petitioners was made following the selection process and
whatever name may be given to the services provided by them,
[2024:RJ-JD:32663] (13 of 21) [CW-2961/2016]
the same have to be counted for the purpose of calculation of
qualifying service for pension as well as for privilege leave and
other retiral benefits. The petitioners are not claiming the benefit
of seniority, assured career progression, arrears of pay etc. On
these grounds, learned counsel for the petitioners prays for
acceptance of the writ petition.
15. Per contra, learned counsel for the respondents Ms. Rakhi
Choudhary, DyGC, submits that the initial appointment of the
petitioners on the post of Ayurved Chikitsak was contract basis for
a fixed remuneration in order to provide facility to the general
public in the rural areas. The services of these employees cannot
be equated with the services of the regular employees. The
services of the petitioners prior to their selection in the year 2009
were purely contractual basis. She submits that though the
petitioners were selected on the post of Ayurved Chikitsak in
pursuance of the selection process held in the year 2009, however,
since the said selection process itself was declared illegal by the
Single Bench of this court, thus, the petitioners cannot claim any
right based on such selection. The petitioners were allowed to
continue in service after cancellation of the selection process of
2009 only under the directions of the court and to avoid
inconvenience to the public in rural areas. As such, these services
provided by the petitioner cannot be reckoned for the purpose of
counting qualifying service for pension.
16. Learned counsel for the respondent further submits that it is
the prerogative of the Government to set the conditions of service
[2024:RJ-JD:32663] (14 of 21) [CW-2961/2016]
for its employees. When the petitioners were given regular
appointment in the year 2015, they were subjected to probation
as per rules. There is no provision under the relevant service
rules to recognize the period served by the petitioners prior to
2015 as probation period and in such circumstances, the action of
the respondents in putting the petitioners under probation is
perfectly within the four corners of law and no interference therein
is called for.
17. Learned counsel for the respondent in support of her
contentions placed reliance on the judgments of Hon'ble Supreme
Court in the cases of State of Rajasthan Vs. Jagdish Narain
Chaturvedi [2009 (2) RLW 1481 (SC)] and State of
Rajasthan & Anr. Vs. Surendra Mohnot & Ors. [(2014) 14
SCC 77] submit that in these cases, the Hon'ble Apex Court held
that while reckoning the required length of service for the purpose
of granting stagnation benefits, the ad hoc services are to be
excluded. Applying the similar analogy, the petitioners are not
entitled for counting of any period of service till their regular
appointments were made in the year 2015. On these grounds,
learned counsel for the respondents prayed for dismissal of the
writ petition.
18. Heard learned counsel for the petitioners, learned counsel for
the respondents and perused the material available on the record
and the judgments cited by the learned counsel.
[2024:RJ-JD:32663] (15 of 21) [CW-2961/2016]
19. The issues for adjudication before this court in the instant
writ petition are :
(1) Whether the services rendered by the petitioners on the post
of Ayurved Chikitsak from the date of their initial appointment on
contract basis (2002 or 2004 as the case may be) till their joining
in pursuance of the appointment order dated 25.08.2015 are to be
reckoned for the purpose of counting of qualifying service for
pension and other retiral benefits as well as privilege leaves?
(2) Whether the respondents were justified in subjecting the
petitioners to probation of two years on fixed remuneration while
giving them regular appointment vide order dated 25.08.2015
despite the fact that they had been serving on the same posts and
discharging the same duties for last more than a decade?
20. The respondents vide a public advertisement dated
19.12.2001 invited applications from the eligible candidates for
filling up the posts of Ayurved Chikitsak on temporary basis for 3
years or till the availability of suitable candidates selected through
the Rajasthan Public Service Commission. As per clause 6 of the
advertisement, the selection was to be made on the basis of
merit. Another advertisement for temporary appointment on the
post of Ayurved Chikitsak was issued on 06.10.2003, which too
mentioned that the selection will be made on the basis of merit.
Thus, it is clear that the initial appointment of the petitioners was
made based on the merit. Though the appointments were on
contractual basis, but except for the pay and nature of term of
service; there was no distinction of work and job assigned
[2024:RJ-JD:32663] (16 of 21) [CW-2961/2016]
between the petitioners and the other Ayurved Chikitsak working
in the Department of Ayurved. The petitioners were working
against the regular posts and their placement too were made vis-
a-vis those who were working on substantive basis on the post of
Ayurved Chikitsak. The APARs of the petitioners were maintained
from the date of initial appointment. After framing of the Rules of
2008, vide advertisement dated 21.07.2008, the respondents
invited applications for making regular appointments on the post
Ayurved Chikitsak. As per the Annexure-A/11 of the S.B. Civil
Writ Petition No.5259/2009, the State Government had shown its
inclination way back on 31.07.2008 to give regular appointment to
all the Ayurved Chikitsak working on contract basis. The
petitioners went through the selection process in pursuance of the
advertisement dated 21.07.2008 and upon being selected they
were provided appointment on substantive basis vide order dated
02.06.2009. Though the said selection process was declared
illegal and cancelled by the Single Bench with direction to hold
fresh selection process, but the fact remains that the eligibility of
the petitioners to hold the post of Ayurved Chikitsak was never
questioned. Even after cancellation of the selection process in
pursuance of the advertisement dated 21.07.2008, the petitioners
were allowed to continue in service in the interest of the society
and thus, their services were never discontinued since their initial
appointment on contractual basis. The petitioners faced the
selection process three times and on each occasion they were
declared successful. Despite the fact that the State Government
had an intent to regularize the services of the petitioners, only
because of two rounds of litigation, the valuable time of the
[2024:RJ-JD:32663] (17 of 21) [CW-2961/2016]
petitioners lost and their substantive appointment on the post of
Ayurved Chikitsak could attain finality in the year 2015. However,
there is no denial of the fact that the petitioners have worked on
the post of Ayurved Chikitsak from their initial appointment in the
year 2002/2004 till their joining in the year 2015. Such long span
of services provided by the petitioners cannot be undone on
technical grounds. Further the petitioners are not claiming arrears
of pay, seniority, promotion and the benefit of assured career
progression scheme, rather they are praying for the counting of
the period of service for the purpose of calculating qualifying
service for pension and other retiral benefits and also for the
purpose of leave allowances.
21. The claim of the petitioners find support from Rule 12(b) of
the Rajasthan Civil Services (Pension) Rules, 1996, which reads as
under :-
QUALIFYING SERVICE
12. Commencement of qualifying service
(a) xxxx
(b) Subject to the provisions of these rules, the
qualifying service of a Government servant shall
commence from the date he takes over charge of the
post to which he is first appointed, either
substantively or in an officiating or temporary
capacity.
The petitioners were appointed in the year 2002/2004
temporarily on contract basis. Thereafter they continued their
services without interruption till the year 2015. The argument of
the learned counsel for the respondents that once the petitioners
joined the service in pursuance of the appointment order dated
[2024:RJ-JD:32663] (18 of 21) [CW-2961/2016]
02.06.2009, their contractual services came to an end and as the
selection process of the year 2009 was cancelled and the
petitioners were continued under the directions of the court, thus,
their services cannot be said to be uninterrupted, is not tenable.
It is undeniable fact that the petitioners provided their services
uninterruptedly till the year 2015 from the day one they joined the
office and any denomination as ad hoc or temporary assigned to it
is not material. Thus, taking resort to the Rule 12(b) of the
Rajasthan Civil Services (Pension) Rules, 1996, the petitioners are
entitled to get the services provided by him from the year
2002/2004 till the year 2015 counted for calculating the qualifying
service for the purpose of pension. If the petitioners are not given
such benefit, they shall be put in a very unjust position depriving
them of fruits of their longstanding services. Many of the
petitioners would retire without completing the qualifying service
for pension. So far as the judgments cited by the learned counsel
for the respondents in the cases of Jagdish Narain Chaturvedi
(supra) and Surendra Mohnot (supra) are concerned, they are
distinguishable inasmuch as the issue involved therein was
regarding reckoning of length of service for grant of selection
grade and it was held that such benefit was available for the
period of service after regularization and ad hoc service was to be
excluded. In the case at hand, the petitioners are not claiming
such benefit.
22. So far as the issue of leave admissible to the petitioners prior
to 2015 is concerned, Rule 95 of the Rajasthan Service Rules,
1951, in unequivocal terms provides that a temporary employee,
[2024:RJ-JD:32663] (19 of 21) [CW-2961/2016]
who has worked for more than five years on contractual basis and
is given regular appointment on the said post without interruption
in service, then the employee shall be entitled to privilege leaves
for such period during which he was under contractual
employment, while treating the said term as regular period of
service. The rule referred above makes it abundantly clear that
the employees like the petitioners are entitled for privilege leaves
even for the period they worked on contractual basis. Thus, the
petitioners are entitled for the benefit of privilege leave for the
entire duration since their initial appointment in the year
2002/2004.
23. Now coming to the question of subjecting the petitioners to
probation in the year 2015 after putting in service of 13/11 years,
first we look at the objective behind subjecting an employee to
probation. The probation period is a time when newly hired
employees are evaluated for their performance and suitability for
the job. The word "probation" takes its origin from the Latin verb
"probare", which would mean "to prove", "to test".
In Cambridge Dictionary, the word probation is defined as :-
"A period of time at the start of a new job when you
are watched and tested to see if you are suitable for
the job.
In Black's Law Dictionary it refers to a person's fitness for a
job and reads as :-
"A period of testing and trial to determine a person's
fitness for a job or school."
[2024:RJ-JD:32663] (20 of 21) [CW-2961/2016]
Thus, from the above, it can be said that the probation
period is the trial period for freshly recruited employees in a
company/Government institute. It is the fixed duration during
which a new employee's performance and suitability for a job are
assessed. The provision is meant as a trial run to confirm if the
hired individual aligns with the employer's expectations and fits
well within requirements. In the case at hand, by no stretch of
imagination, the petitioners can be termed as newly hired
employees or fresh selectee. At the time of issuing appointment
letter in the year 2015, they had already rendered their services
of 13 years/11 years to the department and their performance
was found satisfactory. During this entire period, they were
discharging exactly the same duties under the contractual/ad hoc
appointment and mere change in nomenclature of the type of
appointment, will not make any difference. During the entire
period for which the petitioners served earlier, the respondents
had evaluated their performance and suitability for the job, which
is clearly reflecting from the fact that the petitioners were selected
in all three selection processes. Had there been anything adverse
to the petitioners, they would not have been selected for the said
post. This fact is also reflecting from the experience certificates
annexed by the petitioners with the writ petition, wherein the
respondent authorities have found their services satisfactory. The
fact cannot be ignored that the respondent State had intended to
regularize the services of the petitioners in the year 2009. Thus,
the action of the respondents in subjecting the petitioners to
probation even after serving on the same post for 13/11 years is
highly unjust, unreasonable and mechanical. The view of this
[2024:RJ-JD:32663] (21 of 21) [CW-2961/2016]
court is fortified from the judgment passed by Hon'ble Supreme
Court in the case of Central Inland Water Transport
Corporation Ltd. (supra), whereby the Hon'ble Apex Court held
that unconscionable terms in contract of employment are void.
Thus, the action of the respondents cannot be allowed to sustain.
24. Resultantly, the writ petition is allowed in part. The
respondents are directed to include the services rendered by the
petitioners on the post of Ayurved Chikitsak from the year
2002/2004 (as the case may be) for the purpose of calculating
qualifying service for pension. The petitioners shall be entitled for
privilege leave for the entire period from the date of joining in the
year 2002/2004. The action of the respondents in subjecting the
petitioners to probation on fixed remuneration vide appointment
order dated 25.08.2015 is declared invalid and consequently, they
shall be entitled to full remuneration applicable for post of Rural
Ayurved Chikitsak from the date of their joining in pursuance of
the order dated 25.08.2015. The respondents shall make
necessary fixation of pay of the petitioners and give them arrears
of salary for the entire period commencing from their date of
joining in the year 2015. The petitioners, who have
superannuated from service upon attaining the age of retirement
during the pendency of this writ petition shall also be entitled for
the above relief.
25. No order as to costs.
(FARJAND ALI),J
Pramod/-
Powered by TCPDF (www.tcpdf.org)
