1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR ORDER S.B.CIVIL WRIT PETITION NO.8051/2008 Kailash Meena Versus The State of Rajasthan and others DATE OF ORDER --- December 03,2010 PRESENT HON’BLE MR.JUSTICE PREM SHANKER ASOPA Mr.B.B.L. Sharma, for the petitioner Dr.Vibhuti Bhushan Sharma, for the respondents REPORTABLE BY THE COURT (1) Heard learned counsel for the parties. (2) By this writ petition, the petitioner is seeking an appropriate writ, order or direction for quashing the order dated 19.12.2007 (Anx.6) with the direction to the respondents to consider his case for regularisation on the post of Ward Boy/Class IV in regular pay scale as per the judgment of the Division Bench dated 21.3.2006 in State of Rajasthan and others V. Smt.Naurati Devi and others DB SAW No.243/1997. (3) The facts of the case, in brief, are that the petitioner, who was a member of Schedule Tribes, was initially appointed as Class-IV servant on daily wages from 21.2.1987 and since then he is working. The petitioner requested for regularisation of his services and when no action was taken by the Department, the petitioner and other similarly situated persons preferred DB CWP No.4063/1988 which was allowed vide judgment dated 10.4.1989 and it was directed that the petitioners in that writ petition will get the regular pay in the pay scale of Class IV servant from October, 1988 i.e. the month during which the said writ petition had been filed and they will continue to get the regular salary so long as they are in employment. The State Government did not challenge the aforesaid judgment dated 10.4.1989 and the same attained finality. It is further stated in the writ petition that the State Government passed an order dated 4.12.1989 allowing minimum pay and 2 dearness allowance of regular pay scale of Ward Boy to the petitioner and his name existed at Sl.No.6 in the said order and since then, the petitioner is getting minimum pay scale plus dearness allowance. However, the respondents have not regularised his services. Ultimately, the petitioner preferred SBCWP No.2881/2002 for regularisation of his services, which was decided on 7.11.2006 with a direction to file representation before the respondents. After filing representation, the respondents have passed order dated 19.12.2007 (Anx.6) whereby case of the petitioner for regularisation has been rejected on the ground that the requisite educational qualification for the post of Class-IV /Ward Boy is Vth class pass and the State Government has also not granted relaxation. Since the petitioner has not passed Vth Class, his services cannot be regularised. Thus, the dispute between the parties is of qualification of Vth Class and weightage to be given to experience while considering the case for regularisation. (4) Counsel further submits that the aforesaid issue of qualification and experience has been decided by the Division Bench of this Court in State of Rajasthan and others V. Smt.Naurati Devi and others (DB SAW No.243/1997) decided on 21.3.2006 wherein it has been held that “In case the respondents were not discharging their duties efficiently, their services would have been terminated long back. It seems to us that their qualifications have not come in the way of discharge of their duties. The learned Single Judge in the circumstances of the case, was entirely right in directing the appellants to regularise the services of the respondents.” (5) Counsel for the respondents does not dispute the aforesaid Division Bench judgment. However, he insists that even for regularisation, the educational qualification of Vth Class is to be considered. (6) The Division Bench in the aforesaid case has given weightage to the experience while considering the issue of qualification and upholding the judgment of the learned Single Judge, for regularisation. (7) The educational qualification of the candidate is to be seen at the time 3 of appointment and not at the time of regularisation after completion of 23 years of service. In the instant case, when the petitioner was appointed on 21.2.1987, the Rajasthan Class IV Services (Recruitment and Other Service Conditions) Rules, 1963 (in short `the Rules of 1963') were in force and according to Rule 10, read with Schedule-I, Entry No 4 thereof, there is provision for relaxation of the academic qualification prescribed in column 4 for SC and ST candidates in case sufficient number of candidates belonging to SC/ST are not available. The fact of appointment of the petitioner as a member of the Scheduled Tribes and further continuation from 1987 till date come under the Rules of 1999 which clearly reveal that the qualification of the petitioner was relaxed and if not relaxed by a specific order, then the same would be deemed to have been relaxed. The relevant Entry 4 in Schedule-1 appended to the Rules of 1963 is as under: S.No. Name of Post Method of recruitment with percentage Qualification for direct recruitment Post from which promotion is to be made Minimum qualificatio n and experience for promotion Remarks 1 2 3 4 5 6 7 4 (i) Peon (2) Cycle Peon (3) Orderly (4) Waterman (5) Chowkidar (6) Farrash (7) Equivalent posts sanctioned for office work in lowest scale 100% by direct recruitment Passed Vth Class from a recognised School .. .. The Appointing Authority may relax the qualification prescribed in Column-4: (i) if sufficient number of candidates belonging to Scheduled Caste and the Scheduled tribes are not available. (ii) if sufficient women candidates are not available for Class IV Female posts. (emphasis supplied) (8) I am of the view that the qualification is to be looked into at the time of entry in the service and not to be given much weightage after 23 years of satisfactory service at the time of regularisation. (7) The writ petition is allowed in terms of the aforesaid Division Bench judgment dated 21.3.2006 and the respondents are directed to regularise the 4 services of the petitioner without giving much weightage to the fact that the petitioner has not passed Vth Class, for the reason of experience of 23 years of service. The aforesaid exercise shall be completed by the respondents within a period of three months from the date of receipt of copy of this order. (Prem Shanker Asopa) J. गोpa ल