1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR 1. S.B. CIVIL WRIT PETITION NO.2110/2000 Dev Mitra vs. State & Ors. 2. S.B. CIVIL WRIT PETITION NO.7831/02 Nemi Chand vs. Municipal Board Bhawani Mandi & Anr. 3. S.B. CIVIL WRIT PETITION NO.8001/02 Girja Shanker vs. Municipal Board, Bhawanimandi & Anr. 4. S.B. CIVIL WRIT PETITION NO.8002/02 Ram Singh vs. Municipal Board & Anr. 5. S.B. CIVIL WRIT PETITION NO.8364/02 Mukesh Kumar Choudhary vs. Municipal Board, Bhawanimandi & Anr. Date of Order : : 26th November, 2008 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri K.N. Gupta for the petitioner. Shri Hemant Gupta, Addl. Govt. Counsel for the State. Shri Rajendra Prasad for the respondents. ****** REPORTABLE All the aforesaid five writ petitions have been filed by employees working with Municipal Board, Bhawani Mandi praying for a similar direction to the respondent to regularise their services on the post held by them. They were therefore heard together and are being decided by this common judgement. Facts of Civil Writ Petition No.2110/2000, Dev Mitra vs. State of 2 Rajasthan & Ors.: The petitioner in this case was initially appointed on contract basis as Junior Engineer on 16.11.1996 and worked upto 31.5.1997. After break of six months, he was again engaged as per contract executed between the parties on 25.11.1997 as Junior Engineer on payment of consolidated remuneration of Rs.2,210/- per month. Such contract between the petitioner and the respondents was executed on month to month basis and in this manner the petitioner has been continued on contractual basis which was executed every month between the parties. Although in the later period the mode of payment of remuneration was changed to per day basis and he was paid a sum of Rs.125/- per day. There was only one post of Junior Engineer available with the respondent Board against which the services of the petitioner were being availed of by the respondents on contract 3 basis. The State Government vide its order dated 3.3.2000 however appointed one Prakash Chand Sharma on regular basis against the said post of Junior Engineer initially for a period of one year. He was eventually regularised. Petitioner at that stage apprehending his removal approached this Court by filing the present writ petition challenging the order of appointment of Prakash Chand Sharma dated 3.3.2000 and with the prayer for regularisation. Although Prakash Chand Sharma, respondent no.4 joined the duties on 15.3.2000, this Court vide its order dated 3.7.2000 directed the respondents to maintain the status quo with regard to the petitioner. Thus he continues to serve the respondent-Board even now as a surplus contractual employee. Respondent no.4 Prakash Chand Sharma who was posted with respondent Municipal Board, Bhawani Mandi was in the meantime by order dated 15.1.2001 transferred to Municipal Board, Anta and 4 in his place Rajendra Prakash Dadhich was posted at Bhawani Mandi on 16.2.2001. Subsequently, Rajendra Prakash was transferred to Peelibhanga on 1.11.2001 and respondent no.4 Prakash Chand Sharma was posted back at Bhawanimandi by order dated 18.12.2001 and one Narendra Kumar Sharma was posted at Bhawani Mandi vide order dated 31.7.2007. Facts of other four writ petitions: Petitioner Nemi Chand in S.B. Civil Writ Petition No.7831/02 was initially engaged as a light helper on contractual basis for doing the work of Class IV employee. He filed the writ petition in the year 2002 seeking a direction to the respondent to regularise his service. This Court by its order dated 31.10.2002 directed the respondents to maintain status quo with regard to him and in this manner he has continued till date. Like him, petitioner Ram Singh in S.B. Civil Writ Petition No.8002/02 was also engaged as light helper on 1.10.1996. He 5 also filed writ petition in the year 2002 claiming regularisation in service. This Court by its order dated 12.11.2002 directed the respondents to maintain the status quo with regard to him. In this manner he also continued in the services of the respondents. Petitioner Mukesh Choudhary in S.B. Civil Writ Petition No.8364/02 was engaged on contractual basis for doing the typing work. He filed the writ petition in the year 2002 with the prayer that the respondents be required to regularise him in service. This Court by its order dated 21.11.2002 directed the respondents to maintain status quo with regard to him and in this manner he too has continued till date in the services of the respondents. Similarly one Girja Shanker in S.B. Civil Writ Petition No.8001/02 was also engaged as a Driver on contractual basis by the respondents on 1.8.1999 on payment of daily wages of Rs.50/-. He also filed 6 the writ petition in the year 2002 with the prayer that the respondents be directed to regularise his services. This Court by its order dated 12.11.2002 required the parties to maintain status quo with regard to him and in this manner he has also continued in the services of respondents. What is common in all these four writ petitions and the writ petition filed by Dev Mitra is that these five writ petitioners were engaged by the respondents on contractual basis which was renewed on month to month basis. These petitioners were initially paid consolidated monthly remuneration but eventually it was revised to per day basis. All these writ petitions were ordered to be clubbed together under the direction of this Court as they raised common question of law and also substantially of facts. I have heard Shri K.N. Gupta, the 7 learned counsel for the petitioner, Shri Rajendra Prasad, learned counsel for the Municipal Board and Shri Hemant Gupta, learned Additional Government Counsel for the State. Shri K.N. Gupta, the learned counsel for the petitioner argued firstly in the case of Dev Mitra that petitioner has been working with the respondents continuously since 25.11.1997. The monthly contact is only a camouflage and in fact the petitioner has been appointed against a duly sanctioned post of Junior Engineer. Learned counsel referred to the certificate issued by the Executive Officer of the Municipal Board Bhawani Mandi dated 27.2.2000 which proves that the petitioner was engaged against a sanctioned post and is working satisfactorily. It is argued that when the petitioner was already working against the said post, the Government could not after appointing respondent no.4 post him at Municipal Board, Bhawani 8 Mandi because there was no vacant post to accommodate him. It is submitted that the petitioner had better right to continue on such post than the respondent no.4 because respondent no.4 was not appointed by any acceptable mode of recruitment. He was appointed temporarily in Avas Vikas Sansthan and when the said Sansthan was dissolved, its employees were illegally absorbed in different local bodies. Out of that lot, he was adjusted in the Municipal Board, Bhawani Mandi. Learned counsel argued that the petitioner has a preferential claim to regularisation against the post of Junior Engineer on which he was already working from before. It was argued that monthly vouchers and the certificate issued by the Executive Officer does not indicate that the petitioner was appointed on contract basis. The kind of contract executed, which is said to have been signed by the petitioner, would be therefore inconsequential. Learned counsel argued 9 that the action of the respondents in seeking to consume the only post of Junior Engineer by appointing respondent no.4 thereaginst and not considering the claim of the petitioner, is wholly discriminatory and arbitrary. Shri K.N. Gupta, relied on the division bench judgment in Anand Kumar Purohit vs. The Judge, Industrial Disputes Tribunal & Ors.-2005(5) RDD 1154 (Raj.) (DB) to substantiate this argument. He also relied on the judgement of Supreme Court in U.P. State Electricity Board vs. Pooran Chandra Pandey & Ors.-2007 AIR SCW 6904 and argued that the judgment of Constitutional Bench of Supreme Court in Secretary, State of Karnataka & Ors. vs. Uma Devi & Ors.-(2006) 4 SCC 1 cannot be applied mechanically to every case whereever the prayer for regularisation is made without appreciating the facts of such cases. The said judgement cannot be applied to a case where regularisation was sought in pursuance of Article 14. In 10 the present case, there is ample proof of discrimination against the petitioner. His right cannot be defeated in this manner. Learned counsel also relied on the judgement of Supreme Court in State of H.P. & Ors. Vs. Gehar Singh-2007 AIR SCW 1798 and submitted that even after the Uma Devi's case, the Supreme Court in the aforesaid case has upheld the judgement of the High Court directing regularisation of an employee. Shri K.N. Gupta also relied on the judgement of Single Bench of this Court in Dara Singh vs. State of Rajasthan & Ors., S.B. Civil Writ Petition No.8316/02 decided on 11.6.2004. It was argued that in the case of Dara Singh the respondent themselves screened all such Junior Engineers who were working in different municipalities for the purpose of regularisation while some were regularised, but petitioners in that bunch of writ petitions were not regularised on the ground that posts were not available with the Municipalities. 11 The order of state government refusing to regularise them even after they were screened was quashed and their services were directed to be regularised. Learned counsel argued that the case of the petitioner is identical to that of Dara Singh and those others, therefore, they also deserves to be regularised and the writ petition be allowed. As regards other four writ petitioners, learned counsel Shri K.N. Gupta argued that they have also been discharging their duties continuously since the date of their initial appointment and rendering satisfactory services. There has been no break in their services and the fact that they have been working with the respondents continuously prove that the need of the post on which they are working exist. They ought to be therefore regularised in service. Learned counsel referred to the unanimous resolution of the Municipal Board in its meeting dated 13.8.2002 and 12 argued that the Municipal Board in the aforesaid resolution unanimously resolved to continue all these petitioners in their services and accordingly requested the Government to pass the appropriate orders for their regularisation. Shri Rajendra Prasad, learned counsel for the respondent-Municipal Board opposed the writ petition and argued that the respondent Municipal Board has got only one sanctioned post of Junior Engineer in its staffing pattern. The appointment on the post of Junior Engineer has to be made by the Government under the Rajasthan Municipality (Subordinate and Ministerial Service) Rules, 1963 (for short-Rules of 1963). The petitioner was simply engaged on contract basis on from month to month but his engagement was dehors the rules and without resorting to the regular mode of recruitment. The State Government appointed respondent no.4 on regular basis. It was argued that the certificate 13 issued by the Executive Officer in no manner improves the case of the petitioner because even if he was initially engaged against a vacant post, that past is no longer available for continuing the petitioner because of the appointment of respondent no.4. The petitioner has been continuing in the service of the respondents only for three years and thereafter when the respondent no.4 joined, his services were liable to be terminated, but he has been continued on the same terms as before i.e. on month to month contractual basis, in view of the order of status quo passed by this Court on 3.7.2000. As regards two petitioners who were working on the post of light helper, it was argued that the Municipal Board has only five sanctioned posts of Class IV employees and as against those, 11 persons are already working, which is much more than the sanctioned strength. There is no encadered post of light helper. The post 14 of Class IV employee is even otherwise required to be filled up in accordanc3e with Rajasthan Municipalities (Class-IV) Employees Service Rules, 1964. The petitioners were appointed on month to month contractual basis and their appointment was made dehors the rules and without adopting any legal procedure. As regards petitioner Girja Shanker, he was engaged by the permission of the Board on 1.8.1999 as a Driver on contractual basis because the Municipality at that time purchased the Tata Sumo Vehicle. His services would have been discontinued long ago, but he continued because of the status quo order passed by this Court on 12.11.2002. The post of the driver has to be filled as per the procedure provided under the Rajasthan Municipality (Subordinate and Ministerial Service) Rules, 1963. Similarly petitioner Mukesh Choudhary was also engaged on contractual basis for doing the typing work in January, 1998 as per requirement of that 15 time. There is presently no typing work available with the Municipal Board because of computerisation and the post of LDC is required to be filled on regular basis as per the Rules of 1963. The petitioner did not face any regular selection. He was being continued because of the status quo order passed by this Court on 21.11.2002. In all these cases, the remuneration of the petitioners were paid as per the BSR rates and as per the stipulation of the contract. The recommendation of the Municipal Board vide resolution dated 13.8.02 was never accepted by the State Government, which is the appointing authority. It is argued that the Municipal Board is already facing scarcity of funds because of the abolition of octroi. It is wholly dependent on the grants received by the State. Shri Rajendra Prasad relied on the judgement of Supreme Court in State of Karnataka & Ors. Vs. Uma Devi, supra and the subsequent judgement in Surinder 16 Prasad Tiwari vs. U.P. Rajya Krishi Utpadan Mandi Parishad & Ors.-(2006) 7 SCC 684 and argued that this Court in the facts of the present case where the petitioner Dev Mitra and Girja Shanker who have worked with respondents for a period of three years or so and petitioner Ram Singh and Nemi Chand for about six years and petitioner Mukesh Choudhary for a period of about four years and all of whom have thereafter continued in the services of the respondents because of the interim order of status quo passed by this Court, are not entitled to claim any mandamus directing their regularisation. Learned counsel argued that the writ petitions deserves to be dismissed in view of the law laid down by the Constitutional Bench of Supreme Court in Uma Devi, supra which has been followed subsequently by the Supreme Court as well as by this Court in number of cases. Case of the petitioners is not covered even in the exception 17 carved out by the Supreme Court in para 53 of the aforesaid judgement. The judgement in the case of Dara Singh, supra relied on by the petitioner, is distinguishable because in that case, the Junior Engineer working in Jawahar Rojgar Yojna were summoned and petitioner Dev Mitra was never summoned. No such case has been set up by the petitioner Dev Mitra in the present case and their being no factual foundation, the argument in that respect cannot be accepted. The other judgement relied on by the petitioners are also distinguishable. It is therefore prayed that the writ petition be dismissed. I have given my anxious consideration to the arguments aforesaid and respectfully studied the cited precedents and perused the material on record. In all these cases, what is common is that the petitioners were engaged on contract basis. Such contract was executed every month. Payment of their 18 remuneration was made as per BSR rates which was revised from time to time. Petitioners duly signed the contract which inter alia states that they agree to their engagement for the contractual period and payment of salary as per BSR rates and that this contract will have no co-relation with the recruitment service rules. The fact that petitioners were engaged on contractual basis is not even disputed by the petitioners themselves. The petitioners were not engaged by any acceptable mode of recruitment. They were directly picked up for being appointed and the record does not suggest that case of any other person was considered along with their case for being engaged in this manner. The petitioners have for first few years worked by the method of execution of monthly contract. Firstly when petitioner Dev Mitra apprehending his disengagement because of the posting of Prakash Chand Sharma, he approached this Court by challenging his appointment 19 and praying for a relief of regularisation. Respondent no.4 Prakash Chand Sharma has been appointed by the State Government pursuant to decision of the cabinet where surplus employees of the dissolved Avas Vikas Sansthan were decided to be absorbed in various local bodies of the State. Subsequently, he was transferred to other Municipalities of the State. Like any other Junior Engineer, another Juniors Engineer was posted at Bhawani Mandi vice him. It cannot therefore be accepted that the petitioner Dev Mitra would have superior and better right than respondent no.4 Prakash Chand Sharma just because he was engaged on contractual basis. The Supreme Court in para 53 of the judgement in Uma Devi has of course carved out an exception for those who have continued in the services of the State Government or Central Government or their instrumentalities, for more than 10 years without the cover of interim orders 20 passed by the Courts. It was held that the State Governments / Central Government should come out with the scheme as a one time measure for regularisation of their services. In the present case, the period of each of the petitioners falls far short of the requisite 10 years because subsequent to the initial period of 3, 6 and 4 years respectively in the case of the petitioners referred to above, they were all continued and in fact had to be continued by the respondents because of the status quo order passed by this Court. Such period as per the judgement of Supreme Court in Uma Devi is liable to be excluded while computing the period of 10 years. The judgement of this Court in Dara Singh does not provide any help to the petitioners because that was a case in which Junior Engineers working under the Jawahar Rozgar Yojana were screened and adjudged suitable and yet were not regularised by the State Government 21 citing the reason of inavailability of posts in the concerned Municipality, where they were serving. In the present case, no factual foundation has been laid by the petitioners to show whether they were working under the Jawahar Rozgar Yojana or whether they were ever screened. In order to make out a case of discrimination, the petitioners were required to lay down factual foundation which is completely absent in the present case. In fact, the aforesaid judgement of Dara Singh indicates that the State Government vide order dated 22.1.1998 took a decision to regularise the services of all such Junior Engineers temporarily appointed after November 30, 1997, who had two years service and who were in service on the date of issue of such order by subjecting them to screening. It is not even the case of the petitioners that they have completed two years of service as on 22.1.98. The other division bench judgement in Anand Kumar 22 Purohit also does not help the petitioners because in that case the appellant was working as typist on work charged basis and thereafter he was declared semi permanent and he was claiming permanent status and regularisation, wherefor the appropriate Government made a reference on such a dispute to the Labour Court for adjudication. The Supreme Court judgement in Gehar Singh also turned out on entirely different fact situation. In that case, the Government of H.P. itself had promulgated a scheme for regularisation of muster roll / daily wage workers, which was modified by the Supreme Court with direction to the Government to implement it. The respondent Gehar Singh approached the Administrative Tribunal claiming work charged status with effect from 1.4.1998 which was resisted by the Government that such status may be given only subject to availability of posts. The Tribunal 23 however allowed the application filed by the applicant Gehar Singh which was challenged by the State before the High Court. The High Court also affirmed the same. The Supreme Court upheld both the judgements observing that the modification made by the State Government in the scheme approved by Supreme Court was not in conformity with the earlier judgement of the Supreme Court. The judgement of Supreme Court in U.P. State Electricity Board, supra, also does not help the petitioner because that was again a case where the argument was raised that 34 daily wage employees of a cooperative society which was taken over by the Electricity Board be treated at par with such of daily wage employees originally engaged with the Electricity Board from 4.5.1990. While the Electricity Board regularised the services of their original employees but such of the daily wage employees of the society, who too were working from 24 4.5.1990 were denied this benefit. It was in that context that the Supreme Court found the case of discrimination substantiated and accordingly issued a mandamus. There is no such fact situation herein. In view of the aforesaid discussion, I do not find any merit in any of these writ petitions. The writ petitions are therefore dismissed with no order as to costs. (MOHAMMAD RAFIQ), J. RS/