1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.219/1997 Ram Swaroop Sharma vs. State Date of order : 18/3/2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Noor Mohammad for Shri R.N. Mathur for the petitioner. Shri S.D. Khaspuria, Addl. Govt. Counsel for the respondents. ****** This writ petition was filed by the petitioner way back in the year 1997 inter alia with the prayer that the respondents be directed to treat the service rendered by him from the period 25.9.1975 to 9.6.1976 as if he was holding the post of Stenographer and accordingly pay him benefits of pay, increments and seniority treating his initial appointment itself to have been made on the post of Stenographer on 7.8.1972 and the break of period from 25.9.1975 to 9.6.1976 be directed to be regularised. Contention of the petitioner in the writ petition is that he was initially appointed on the post of LDC in the Election Department of the Government of Rajasthan. He was then appointed as Stenographer Gr.II 2 vide order dated 7.8.1972 passed by Dy. Chief Electoral Officer, Rajasthan, Jaipur though temporarily against the lien vacancy of Shri Zahoor Mohd. promoted temporarily as Stenographer Grade I. On his own request petitioner was transferred from the Election Department to the office of Director, Evaluation Organisation, Government of Rajasthan. Petitioner remained in the said department from 1.11.1972 to 11.8.1975. He was then transferred to the Department of Mines and Geology and this time also on his own request where he occupied the post of Stenographer Gr.II from 12.8.1975 to 24.9.1975. When the petitioner was working on that post, the Election Department, Government of Rajasthan made a request for lending his services to them in connection with the General Parliamentary Elections by its letter dated 18.9.1975. In that letter, the petitioner was prescribed as Stenographer. He was sent temporarily to the Election Department by order dated 24.9.1975. However, the General Parliamentary Elections were cancelled on 3 account of declaration of emergency in the country and the period of the then sitting Parliament was extended from 5 years to 6 years, but the petitioner was required to continue in the Election Department, where he continued to work on the post of Stenographer. There however he was given the salary of the post of LDC during the period from 25.9.1975 to 9.6.1996 for the total of 8 months and 15 days. He was confirmed on the post of Stenographer by order dated 13.3.1981. The yearly increments in the pay of the petitioner on the post of Stenographer for the period between 7.8.1972 to 24.9.1975 were eventually sanctioned by order dated 31.3.1978. The Chief Electoral Officer, Government of Rajasthan recommended to the Department of Finance that the period between 25.9.1975 to 9.6.1976 i.e. for 8 months and 15 days during which the petitioner was paid salary of the petitioner of LDC, while actually he was performing the duties of the Stenographer, is required to be regularised on the post of Stenographer. It is contended that had the services of the 4 petitioner were not even lended to Election Department, the petitioner would have worked as Stenographer in the parent department i.e. Mining & Geology Department to which he was transferred on his own request. The problem arise because the Election Department did not have the post of Stenographer and therefore paid the salary and emoluments against the post of LDC. The Finance Department however rejected the proposal. Hence the writ petition. The respondents have contested the writ petition and filed the reply. In the reply, it is submitted that the petitioner's services were borrowed by the department, but he was eventually repatriated to the parent Department for want of work in the Election Department. At the time of his joining in the Election Department, the post of Stenographer Gr.II was not available and therefore he was taken on the post LDC, but the respondents admit that his services were utlised as Stenographer. Though, initially he was appointed as LDC, but he was promoted as Stenographer Gr.II though temporarily on 5 7.8.1972. Petitioner was then temporarily appointed as Stenographer Gr.II vide order dated 10.6.1976. It is contended that petitioner should not be granted the benefits of the post of Stenographer from the period from 25.9.1975 to 9.6.1976 because the Finance Department turned down the proposal and if the petitioner is given benefit of the post of Stenographer Gr.II, the others will be affected. The petitioner in rejoinder to the reply submitted that vide order dated 15.3.1978, the services of those persons who were appointed as Stenographer Gr.II on ad hoc basis prior to 1.1.1976 were ordered to be regularised and it was ordered that they shall deemed to be regularly appointed in service and they shall get increments as normally due after 31.3.1972 as arrears. The case of petitioner is covered under sub- clause (b) of Circular dated 15.3.1978 as the petitioner passed High School Examination and has done the course conducted by Bhasha Vibhag vide order dated 15.3.1978. The petitioner was regularly 6 appointed as Stenographer Gr.II with effect from 7.8.1972 and this should have been considered as the date for the purpose of granting selection scale to him. Consideration of the arguments aforesaid and perusal of the reply submitted by the respondents clearly show that the Election Department admits the fact that the services of the petitioner were utilised as Stenographer Gr.II and though he worked as Stenographer Gr.II, but was posted against the post of LDC because of the non availability of the post of Stenographer Gr.II in the Election Department. What the petitioner wants is that prior to joining of services in the Election Department and after repatriation back to the Parent Department, the period of his working from 25.9.1976 to 9.6.1976 i.e. 8 months and 15 days should be treated to have been spent as Stenographer Gr.II so that their being no break in so far as working as Stenographer for the earlier and subsequent period is concerned. Now the petitioner has placed on record the fact with regard to the order 7 dated 15.3.1978 issued by the respondents themselves by which a decision was taken to regularise the services of persons appointed as Stenographer Gr.II on ad hoc basis prior to 1.1.1976. Petitioner's appointment as Stenographer Gr.II was made on 7.8.1972. It cannot be understood how the case of the petitioner be not considered in terms of that Circular which was purposely issued in the cases of this nature. In the face of the fact that respondents do not deny break of the petitioner as Stenographer in the Election Department and that he was paid towards the post of LDC because of non availability of the post of Stenographer, this could not be an impediment to treat his service as continuous for the period of 8 months and 15 days from 25.9.1975 to 9.6.1976. In the result, this writ petition is allowed. The respondents are directed to treat the petitioner as having worked on the post of Stenographer continuously including from the period 25.9.1975 to 9.6.1976 and accordingly consider his case in the light 8 of Circular dated 15.3.1978 issued by the Government of Rajasthan, Department of Personnel and Administrative Reforms, which is on record as Annexure-2 and pass appropriate orders within three months from the date copy of this order is received by them. (MOHAMMAD RAFIQ), J. RS/