1 S.B.CIVIL WRIT PETITION NO. 1787/1998 Kashi Ram Vs. R.S.R.T.C. & Anr. Date of Order :: 03.03.2009 HON'BLE MR. JUSTICE GOVIND MATHUR Mr V.K. Aggarwal, for the petitioner/s. Mr M.S. Godara for Mr. V.K. Mathur, for the respondents. ... Under an advertisement No.42/91 the President, Service Selection Board, Rajasthan State Road Transport Corporation invited applications from eligible desirous candidates to be considered for appointment as Driver in the pay scale of Rs. 950-1680 against 228 anticipating vacancies. The petitioner in pursuant to the advertisement aforesaid submitted an application and he was subjected to a process of selection. It appears that on 17.3.1992 the Service Selection Board submitted a panel of selected incumbents to competent authority of the respondent – Corporation wherein name of the petitioner was also existing. Accordingly, under an order dated 10.4.1992 appointment was given to the petitioner as Driver at Bikaner Depot of the Corporation on daily rate basis. The petitioner by submitting representation and also a notice for demand of justice claimed for regular appointment as Driver from the date of his initial appointment i.e. 10.4.1992. On receiving no response from the employer's corner, by way of filing present petition for writ he is seeking a direction for respondents to treat him a regular 2 driver since 10.4.1992 and also to allow regular pay scale with all other admissible allowances from the date of his initial appointment. In reply to the writ petition respondents have stated that, “as a matter of fact in the advertisement itself it was specifically mentioned that the vacancies are only the anticipated vacancies and for the recruitment the panel is being prepared but no regular vacancy has occurred during the aforesaid period and, therefore, the persons selected could not be accorded regular appointment. However, on availability of temporary vacancies of daily wages employee the petitioner and his likes were accorded appointment vide order dated 10.4.1992 on daily wages basis for a period of 6 months and the same was extended time to time.” Certain other facts relating to conduct of the petitioner subsequent to his employment are also referred in reply to the writ petition and rejoinder filed on behalf of the petitioner but those are not having any relevance with the grievance sought to be redressed by this petition for writ, therefore, I am not referring those events and incidents in this order. The contention of learned counsel for the petitioner is that an appointment was accorded to him as a consequent to regular process of selection conducted in pursuant to advertisement No. 42/1991 issued by President, Service Selection Board. In the advertisement itself the 3 pay scale in which appointments were to be made was given, therefore, an illegality is committed by the respondents by making appointment of the petitioner and the persons alike on daily rate basis. As per learned counsel for the petitioner the respondents should have acted upon the promise made by them for giving appointment to the selected incumbents in the pay scale of Rs. 950-1680. Sh. M.S. Godara, learned counsel for the respondents while meeting with the contention raised by learned counsel for the petitioner has empathetically urged that all the vacancies referred under the advertisement No.42/1991 were in anticipation, however, due to non-availability of those, appointment was accorded to the petitioner on daily rate basis. I have considered rival contentions and also the record available. It is not in dispute that the respondent-corporation conducted a process of selection for appointment of Drivers against 228 anticipating vacancies. It is also a position admitted that immediately after completion of the process of selection a panel of selected incumbents was forwarded by the selection committee to competent authority of the Corporation on 17.3.1992. The Corporation by acting upon the select list remitted to it by selection committee, accorded appointments to the selected incumbents including the petitioner. It is 4 stated by the respondents in para 3 of reply to the writ petition that appointments were accorded to the selected incumbents as aforesaid on availability of temporary vacancies. It is really strange that the corporation is coming with a stand that no vacancy was available with it, though a regular process of selection took place to employ huge number of Drivers. It is no where stated by the respondents that why the anticipated vacancies did not come into existence. As a matter of fact, the stand taken by the respondents regarding non-availability of vacancies does not bear confidence in view of the fact that as a consequent to process of selection initiated in pursuant to advertisement No.42/91 appointments were given as early as possible after completion of the process concerned. The persons so employed remained in employment of the respondents without any break for years together and are still serving. If the vacancies were not available with the respondent-corporation then there was no need to give appointment to the petitioner and the persons alike. It is also pertinent to note that even according to the respondents the appointments were given against temporary vacancies, however, it is not their case that such vacancies were fortuitous. A vacancy may remain temporary for years together due to fortuitous reason such as non-grant of administrative sanction, therefore, nature of vacancy is required to be determined by various factors including 5 reasons of its creation, its lifespan, mode adopted while filling that etc. If a vacancy is created to satisfy permanent and perennial work of the establishment for an indefinite period, then such a vacancy is nothing but a permanent vacancy, though no formal declaration would have been made in this regard. Such temporary vacancies, on becoming part of the cadre strength are required to be treated as regular vacancies from the date of their coming into existence. The respondents could have made even ad-hoc appointments against these vacancies, but in the instant case the respondents were never intending to do so as that is apparent from perusal of the advertisement No.42/91 that refers for regular appointments in very specific terms. The appointment was given to the petitioner after holding regular process of selection against a post created for indefinite period, therefore, he is required to be treated as a substantive appointee. The petitioner was certainly entitled to be employed in regular pay scale referred in the advertisement No.42/1992 from the date of his initial appointment. No just reason is available to deny the pay scale referred in the advertisement concerned to the petitioner from the date of his initial appointment. Accordingly, this petition for writ is allowed. The petitioner is required to be treated as a substantive Driver with respondent- Corporation from the date he joined service in pursuant to the order 6 dated 10.4.1992. The respondents are directed to make fixation of the petitioner's pay in regular pay scale i.e. of Rs.950-1680 from the date he joined service in pursuant to the order dated 10.4.1992. The petitioner shall also be entitled to get all consequential benefits. Cost made easy. (GOVIND MATHUR), J. Jgoyal '