^. , ^..,....1 ^"s^f' ^p-b- n^^\ ^ ^/^ tF-(. @ ^cr5 PETITIONER: »^:^e IN THE HIGH COURT OF CHHATTISGARH 1+ B\LASPW ^ SERgteBasii W.P.(S)NO. /^oqg Rajeev Rathore S/o Late Shri Babulal Rathore Agedabout49 years Excise Police,0ffice of Excise Sub Inspector, AmbagarhChawki DistRajnandgaon, (C.G.) VERSUS RESPONDENTS:1. State of Chhattisgarh, Through: The Secretary, Excise Department, Mantralay at D. K. S. Bhawan. Chhattisgarh, Raipur The Commissioner, Exdse Department Raipur (C.G.) 3. The District Excise Officer, Dist- Rajnandgaon (C.G.) WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTIONOFINDIA sffl g(M^G^ .-\s\^ . .l^fi^ 2 y°f\.^- s^ ^^ 7 HIGH COURT OF CHHATTISGARH : BILASPUR PETITIONER RESPONDENTS WRIT PETmON CS) N0. 2369 of2009 Rajeev Rathore Versus Sta.te ofChhattisgarh & Others ^, Post forpronouncement ofjudgment & ordcr on..d. day ofMarch, 201 Sd/- Satish K. Agnihotri Judge ^^^^^ HIGH COURT OF CMHATTI8GARH : BILASPUR WRIT PETITION (S) N0. 2369 of2009 PET'ITIONER RESPONDENTS Rajeev Rathore Versus State ofChhattisgarh& Others (Writ Petition under Article 226 ofthe Constitution oflndia) Single Bench : PIon'ble Shri Satish K. Agnihotri, J. Present:- Shri Rakesh Anthony, Advocate for the petitioner. Shri N.N. Roy, Panel Lawyer for the State. :I. -\-. (Delivered on ..&^.ayofMarch,2011) By this petition, the petitioner seeks a direction to the respondents to grant regular pay scale from the date of his imfial appointment i.e. w.e./04.04.1985. The facts, in brief, as projected by the petitioner, for proper adjudication ofthe case, are that initially the petitioner was appointed as Salesman in Government Country Liquor Shop, as daily wager employee vide order dated 04<04.1985 (Annexure P/l) passed by the Collector (Excise), Khargoun. However, in view of change ofpolicy, the services of the petitioner as well as other employees were terminated w.e.f. 21.06.1990. Being aggrieved by the said action, the termmated employees preferred an original application before the State Administrative Tribunal (A?r short "the rr^M7M/")beingOANQ. 1006/1990 (MP. Class III Government Employees Association and Others v. State of MP. and Others). The said original appllcation was disposed ofby the Tribunal in favour ofthe employees. -^^ ^^•^^ /^-^ 's^s^^ ^^ss^^l ^?-->.^g^^ N|Nliliil«^r 6. 7. 2 According to the petitioner, thereagainst, the Government preferred an appeal before the Supreme Court. The Supreme Court while dismissing the appeal of the Government directedto frame scheme within six months. In spite of the order passed by the Supreme Court, the services ofthe petitioner has not been absorbed. The Collector (Excise), Rajnandgaon, byorderdated 26.03.1993 (Annexure P/3) appointed the petitioner on the post of Salesman for a period of 89 days on temporary basis. When the services of the petitioner was not absorbed, he prefen'ed a writ petition before this Court i.e. W.P.No.397/2003. The said writ petition was disposed of by this Court by order dated 02.04.2003 (Annexure P/4) with a direction to the respondent authorities to consider and decide the representation of thc petitioner. In compliance ofthe order ofthe Supreme Court, as weU as this Court, the services of the petitioner was absorb6d by order dated 26-07-2004 (Annexure P/5) in the Excise Department on the post of Excise Constable. Since then the petitioner has been working in the. respondent department. However, no annual increments have been granted to the petitioner from the date of initial appointment of the petitioner till the date of absorption. Being aggrieved by the said inaction on the part of the respondent authorities, the petitioner submitted representations before the respondent authoritics, but no action has been taken till date. Thus/this petition. Shri Anthony, learned counsel appearmg fbr the petitioncr, wou5d submit that the impugned action ofthe respondents is illegal, arbitrary and against the well settled prmciples oflaw. The petitioner worked on the post of salesman contmuously; therefbre, the petifioner is 88 ^^^^.,.,. ^'" vi •wfi% -j ^^ 3 •. ' entitled to get the benefit of annual increments. In spite of the order passed by the Supreme Court, the respondents havenot absorbed the services of the petitioner immediately. The impugned action of the respondents is bad in law. Thus, the respondent authorities may be directed to grant necessary fmancial benefits to the petitioner, as aforestated. On the other hand, Shri Roy, leamed Panel Lawyer appearmg for the State, would submit that during the service of the petitioner as daily wager employee/there had been several complaints against the petitioner with regard to sale of country liquor on highcr price and purchase of empty bottles in lower price. On the basis of said complaint, an enquiiy was contemplated against the petitioner. Looking to the situation/the petitioner tendered resignation on 31,05.1995 (Annexure R/l), which was duly accepted by the Collector, Rajnandgaon on 15.06.1995 (ArmexureR/2),butthe said fact has not been disclosed by the pefitioner, before this Court. However, looking to the application ofthe petitioner for withdrawal of resignation aiid considering the several representations made by the petitioner, the Collector, Rajnandgaon appointed the petitioner again on daily wages basis ^v.e.f. 05.01.1996 foraperiod of 89 days. Thereafter, on the basis ofdirection issued by the Supreme Court, this Gourt as well as by the Tribunal, the services ofthe petitioner was absorbed as Excise Constable on 30.07.2004. Shri Roy would further submit that the present petition suffers from delay and laches, as the cause of action arose in the year 2004 whereas, the petitioner has preferred this petition on 05.05.2009. Therefore, the petitioner is not entitled to any relief and the petition ^^.., ^^ 'deserves to be dismissed on the ground of delay and laches and also on concealment ofrelevant facts. 10. I have heard learned counsel appearmg for the parties, perused the pleadings and the documents appended thereto. 11. Against termination of the service ofthe petitioner, an application was filed by the association, before the Tribunal being O.A. No. 1006/1990, whereinthe Tribunal, ia its order dated 01.08.1990 (Annexure P/2) held as under: "11... State Govemment shall within four months or even earlier if possible, frame some scheme absorbing the applicants and other retrenched or removed employees (Salesmen and Chowkidars) in its various departments taldng into consideration their suitability for various posts falling vacant. The age bar shall be relaxed for such ex- employees. It will not be necessary for such retrenched employees to get their names sponsored by the Employment Exchange.5' 12. Thereagainst, according to learned counsei for the petitioner, an appeal was preferred by the respondents to the Supreme Court wherein, the Supreme Court dismissed the appeal with a direction to frame a scheme within six months. However; no order ofthe Supreme Court has been produced for perusal of this Court. Thereafter, the petitioner was again appointed on the post of salesmaii for a period of 89 days on temporary basis on 26.03.1993 (Annexure P/3). The petitioner filed a writ petition, being W.P. No. 397/2003, in this Court seeking compliance of the order passed by the Tribunal and the decision of the Supreme Court. This Gourt, while disposing of the matter, by order dated 02.04.2003 (Annexure P/4), granted liberty to the petitioner to make a fresh representation with a dlrection to the respondents to consider the representatlon within a period offour months. The fespondents, by orderdated 26.7.2004 (Annexure P/5) f/ ..^. appointed the petitioner on the post of Excise Constable, on absorption, on temporary basis. In the instant petition, the petitioner claims seniority and regular pay scale after granting annual increments w.e.f. 04.04.1985, i.e. the date, he was appointed on daily wages for a period of89 days. 13. The petitionCT remained out of service on his termination w.e./ 21.6.1990, till he was re-appointed on 26.03.1993 again for 89 days on daily wages basis. The petitioner resigned from the service on 31.05.1995 (Annexure R/l) whichwas duly accepted on 15.06.1995 (Annexure R/2). The said fact was not disclosed by the petitioner in this petition. Thereafter, on the basis of several representations made by the petitioner, the Collector, again appointed the petitioner on 05.01.1996 for a period of 89 days. This fact was also not disclosed by the petitioner. The petitioner was thereaffer sanctioned proper pay scale by order dated 17.6.2010 (AnnexureR~J/2)treatmgthe period of absencefrom 13.02.1991 to 31.03.1993 as extraordmary leave for 'no work-no pay' Thereafter, the pay scalewasfixedw.^./ 01.01.1996 and revisedpayscale w.^./ 01.01.2006. 14, Contention ofthe petitioner that the petitioner is entitled to get regular annual increments from the date of initial a^pointment and fixation of his salary accordingly, is noticed to be rejected as it is evident from the orderdated 17.6.2010 (Annexure R-J/2) that the petitioner was initially appointed as daily wager for a period of 89 days and further, there was also a break in his service not for one or two days, but from 21.06.1990 till 31.03.1993. Even otherwise, the appointment of the petitioner was not in accordance with the constitutional scheme of i .. . -- employment as appointment of the petitioner as daily wager was y^'\ 6 without mviting applications from other eligible candidates. Thus, that period cannot be held as an appointment in accordance with law and if the appointment was not in accordance with law^ the petitioner is not entitled to continuity in service for the purpose of fixation ofhispay scale. The petitioner, in fact was born in service on the date he was absorbed in service on regular post. 15. Reliance of the petitioner on a circular dated 19.07.1973 (Annexure P/9) is misplaced as the circular provides for absorption into service on declarmg an employee as surplus in other department. There should be continuity ofscrvice. In the case onhand, the petitioner was neither asurplus employee as the petitioner was employed on daily wages basis, and secondly, there was no continuity inhis employment also. Thc petitioncr remained absent from duties firstly on his termination w.e.f. 21.6.1990, till his reappointment on 26.03.1993 again for 89 days on daily wages basis. The petitioncr again remained absent from duties on submission of his resignation, which was accepted immediately on 15.6.1995 andthereafier, he was again appointed on daily wages basis on 05.01.1996 subsequentiy, on sympathetic consideration. Thus. the petitioner cannot get any advantage of the above stated circular. 16. The Supreme Court, in Shri Anil Kumr Cho-wdhury v. State af'Assam & Others , held as under: "12. Moreover, there is a break in the officiating service of the petitioner between March 3, 1996 and March 9, 1966. Continuity once disrupted, the claim breaks down. Service for long years comes to nought merely because of a week's discontmuity. In law a short gap may prove a costly failure. The plea that this little interval was bridged by the joinmg time taken bythe official may be good as (1975) 4 SCC 7 ,f ,,^, -'s,, ^ ..: • ^ '^ ij 'W^^Q. ,' ^Kh^.'^ • ^ %." -. j?i ^A^' 7 an explanation for not taking charge immediately, but cannot cover up the legal ingredient of oontinuity in ser^ice." 17. In Banaras Hindu University, Varanasi & Another v. Dr. Indra Pratap Singh , the Supreme Court held as under: "9. ..In case ofshifit: from one University to other- or from one institution to the other- it can reasonably be presumed that there is bound to be some interval. The mterval may be of a day, week or a month. What is relevant is not the length ofthe interval or break, as it may be called, but its nature. We do not niean to say that length of such interval is totally irrelevant; what we mean, however, is that one must take into consideration the reason for which break - or the circumstances in which such break - has occurred. Another factor to be taken into consideration in understanding and construing the said expression is the object underlying the said requirement.'5 18. In the case on hand, admittedly the break in serv'ice was on account of the nature of the appointment ofthe petitioner as the same was on daily wages basis and secondly, the petitioner tenderedresignation and thereafter, again he wa;s permitted to join the service on sympathetic consideration. Thus, the case of the petitioner does not comc within the expression of'continuous service''. 19. In view of the foregoing and for the reasons mentioned hereinabove, the petition is without merit and is accordingly dismissed. 20. There shall be no order asto costs. Sd/- Satish K. Agnihotri Judge ^ Amit (1992) Supp (2) SCC 2