1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.7190/2002. Satya Narain Kumawat Vs. State of Rajasthan & Ors. WITH S.B. CIVIL WRIT PETITION No.3485/1999. Director College Education, Jaipur & Anr. Vs. Labour Court No.1, Jaipur & Anr. : : Date of Order 23.3.2009 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Mr. Rajendra Prasad Sharma for the petitioner in SBCWP No.7190/02. Mr. Zakir Hussain, Addl.Govt.Counsel for the State. These two writ petitions were clubbed together because they pertain to the same employee. The Writ Petition No.3485/1999 was filed by Director, College Education, Rajasthan, Jaipur and others assailing award of the Labour Court, Jaipur dated 5.3.1999 whereby it has held termination of Shri Satya Narain by Principal of Government College, Tonk on 2.8.1988, as illegal and directed for reinstatement with continuity in service and full back wages. Second Writ Petition No.7190/2002 has been filed by employee Shri Satya Narain himself with the prayer that 2 since the petitioner was working on the post of LDC having been appointed on 1.8.1986, his case for screening and regularization should be considered in terms of Rule 25 (10) of Rajasthan Subordinate Offices Ministerial Staff Rules, 1957 (for short “the Rules of 1957”). 2. The writ petition filed by employee has been opposed by the respondents on the ground that case of the petitioner under Rule 25 (10) of the Rules of 1957 cannot be considered because against the award passed by the Labour Court dated 5.3.1999, pursuant to which he was reinstated in service, is subject matter of challenge in writ petition i.e. SBCWP No.3485/99, which is pending before this Court. 3. The petitioner has categorically pleaded that though he was initially engaged as Class-IV employee on 1.1.1986, but subsequently he was given appointment on the post of LDC w.e.f. 1.8.1986 against a vacant post by duly constituted Committee. He continuously worked on such post till he was removed on 1.8.1988. When removal of the petitioner was held illegal with direction to reinstatement, his reinstatement obviously should be made on the same post on which he was actually working i.e. the post of LDC. Petitioner 3 has produced certificate issued by Principal of Government College, Tonk dated 26.8.1987 (Annex.1), 26.8.1988 (Annex.2) and 22.12.2000 (Annex.5) and the recent certificate dated 3.10.2005, which is on record at Annexure- R-2/4 in Writ Petition No.3485/99, to substantiate the fact that he was actually working on the post of LDC when he was removed and subsequently also after his reinstatement. 4. Respondents in reply to the writ petition filed by employee have not disputed the aforesaid certificates. It was contended that challenge to award passed by Labour Court is solely based on the fact that prior to raising the dispute, petitioner had approached this Court and filed a writ petition, which was dismissed and this fact was concealed by petitioner from Labour Court. 5. Learned counsel for the petitioner-Satya Narain has however submitted that this fact was clearly mentioned by petitioner in statement of claim and affidavit filed by employee before the Labour Court. Reference has been made to affidavit of employee (Satya Narain) especially in para No.8 thereof, wherein it is clearly stated that writ petition was earlier dismissed for alleged concealment. When the 4 petitioner filed review petition, the Division Bench although dismissed the review petition, but granted him liberty to approach the competent Court for appropriate relief by filing suit or petition. Petitioner, therefore, raised industrial dispute which has been answered by the award in question. Learned counsel for the petitioner has cited judgment of Supreme Court in Anil K. Sharma Vs. State Insurance & GPF Department & Anr. : Civil Appeal No.6434/1998 and argued that in similar circumstances where termination of an employee was held illegal vide judgment of this Court and whose case fell within purview of Rule 25 (10) of the Rules of 1957, the Supreme Court while reversing judgment of Division Bench directed the State Government to consider case of the employee concerned in accordance with Rule 25 (10). 6. Learned counsel for the respondents is not in position to dispute the averments of the writ petition filed by employee and the documents annexed therewith and also the subsequent certificate issued on 3.10.2005 showing that petitioner has actually been reinstated on the post of LDC even after the award was implemented by employer. In so far as the writ petition filed by employer Director, College 5 Education, it is evident from the copy of the order dated 16.3.1989 passed in review petition of the employee that liberty was indeed granted to him to approach the competent court for appropriate relief. When despite dismissal of writ petition, such liberty has been granted by Division Bench, it cannot be said that any concealment was made by the employee, particularly when he asserted this fact in statement of claim and also in affidavit filed before the Labour Court. After reinstatement with continuity he would obviously be entitled to be treated as continuous in service as LDC at least from 1.8.1986 from when he started working on the post of LDC. Amended provisions of sub-rule (10) of Rule 25 of the Rules of 1957 provides as under :- “(10) Notwithstanding anything contained in Rule 7 during the period from 1.1.1985 to 31.3.1990 all persons appointed as junior clerk on ad hoc or daily wages basis, who have been working in that capacity as on the date of coming into force of this amendment, on availability of the vacancy would be appointed on regular basis under the same terms provided they shall pass the efficiency examination within a period of three years to be conducted by the concerned Head of the Department according to the syllabus 6 prescribed in Part IV of Schedule I. Three chances would be provided to such persons to qualify the said examination, which would have to be availed of within the period of three years. Provided that if any persons is unsuccessful in qualifying the said examination in three chances within the period of three years, he would be liable to be terminated from the services.” The Supreme Court while considering a similar dispute in Anil K. Sharma (surpa) held as under :- “The only contention raised by Mr. Jain, appearing for the appellant is that by virtue of the order of the learned Single Judge of the High Court, the appellant having been held to be deemed to be in service on 13th December, 1988, and the statutory rule amending rule 25 having conferred the benefit of all daily wage appointees appointed between 1.1.1985 and 31.3.1990, the right of consideration flowing from the aforesaid amended provisions cannot be denied to the appellant and, therefore, the Division Bench of the High Court was in error in allowing the appeal. Ms. Goswami, appearing for the respondent, on the other hand, contended that the appellant not being in service factually on the date the amended provisions came into force and 7 by virtue of the order of the High Court his deemed service from 1988 would not confer a right of consideration under the amended provisions, particularly when the High Court itself has circumscribed the so-called deemed appointment with the condition that it would stand terminated the moment candidates duly selected by the Rajasthan Public Service Commission are available. In view of the rival submissions, the only question that arises for consideration is, whether in the facts and circumstances of the present case, the appellant was entitled to the benefit of being considered under the amended provisions of sub-rule (1) of rule 25 ? As has been stated earlier, the amended provisions conferred a right of consideration for regularization of ad hoc or daily wage junior employees who had been appointed between 1.1.1985 and 31.3.1990, it is undoubtedly true that the amended provision applies to all those who were in service on the date the amendment came into force i.e. 12th October, 1992 and on that date the appellant was obviously not in service. But by virtue of the judgment of learned Single Judge of the Rajasthan High Court, he having been deemed to be in service w.e.f. 13.12.1988, the right flowing from the statutory provisions as amended cannot be denied to the appellant notwithstanding the fact that the High Court itself had indicated that 8 he could be terminated the moment candidates duly selected by the Rajasthan Public Service commission are available. It is obvious that the High Court passed the impugned direction earlier not being aware of the fact that the rules have been amended in the meantime. At any rate, the status of the appellant pursuant to the order of the High Court would not be altered in any way and, therefore, the so-called deemed in service from 1988 would entitle him for being considered for regularization under the amended provisions of statutory rules. In the aforesaid premises we have no doubt in our mind that the Division Bench of the High Court committed error in allowing the appeal. We, therefore, set aside the impugned judgment of the Division Bench of the High Court and direct that the appellant be considered in terms of the amended provisions of sub-rule (10) of rule 25 of the recruitment rules. The order of the Tribunal is restored. We make it clear that the appellant would not be entitled to any backwages.” Aforesaid observations made by the Supreme Court would apply with full force to the present case because herein also the employee was granted not only the benefit of reinstatement but also continuity. Immediately before the date of removal, he was appointed as LDC and subsequently 9 also he was reinstated on the post of LDC, this case would therefore be covered by sub-rule (10) of Rule 25 of the Rules of 1957. In the result, the writ petition filed by the employee Satya Narain i.e. SB Civil Writ Petition No.7190/2002 is allowed and the writ petition filed by employer Director, College Education i.e. SB Civil Writ Petition No.3485/1999 is dismissed. The respondents are directed to consider the case of the employee Satya Narain in terms of provisions of sub-rule (10) of Rule 25 of the Rules of 1957. It is however, made clear that petitioner-Satya Narain would only be entitled to notional benefits from the date such regularization which were granted to his immediate junior. Compliance of judgment be made within a period of three months from the date its copy is produced before the respondents. (MOHAMMAD RAFIQ)J. A.Arora/- Item No.50 & 51.