1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B. CIVIL WRIT PETITION NO.2444/1996 (Shiv Ratan Soni Vs. State of Raj. & Ors.) Date of order : 1.4.2008 P R E S E N T HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS Mr. M.Mridul, Senior Advocate assisted by Mr. R.N. Upadhyay, for the petitioner. Mr. Shyam Ladrecha, Dy. Govt. Counsel. By way of filing the present writ petition, the petitioner has prayed for quashing of order dated 9.7.1996 Annexure-7 passed by Commissioner (Colonization), Government of Rajasthan, Bikaner whereby the petitioner was ordered to be reverted from the post of patwari to the post of Class-IV employee. According to the facts of the case, the petitioner was initially appointed as Camel Sawar in the Office of the Deputy Commissioner (Colonisation), Bikaner vide order dated 6.4.1967. Thereafter, the 2 petitioner was promotion to the Post of Patwari in the pay scale of Rs.65-110 vide order dated 1.6.1967 on ad hoc basis. On 22/24.7.1972, the petitioner was reverted to the post of Class IV servant but again the petitioner was promoted on the post of of Patwari on temporary basis. It is stated in para 5 of the writ petition that the petitioner was informed vide letter dated 3.11.1972 that those who are not possessing qualification of metric and have not passed Patwar Examination are not eligible to be appointed as Patwari but the petitioner was promoted on the post of Patwari again on 8.12.1972 in the newly created Tehsil for Rehabilitation of Displaced Persons from the Catchment Area of Pong Dam. Thereafter, the petitioner passed the patwar examination in the year 1973, which is evident from Annexure-5. All these facts are not disputed by the respondents in their reply. The petitioner has also placed on record Annexure-6 whereby it was decided by the Government to regularize those patwaris who were possessing basic qualification of middle and have not passed matriculation examination and has passed the patwar examination or has completed 15 years of service of patwari, they will be treated to be regularized on the post of Patwari. 3 The case of the petitioner is that he was working on the post of patwari since 8.12.1972 and he was allowed pay scale of patwari in the pay scale No.7, so also, his pay was revised as per Rajasthan Civil Services (Revised Pay Scale) Rules, 1976, 1983 and 1987 but the petitioner was not allowed the benefits of fixation of pay as per Rajasthan Civil Services (Revised Pay Scale) Rules, 1989. On 9.7.1996, the Commissioner (Colonization) has passed an order that the petitioner's case which was sent for regularization on the post of Patwari to the State Government has been turned down on the ground that the petitioner does not fulfill qualification as laid down in Rule 4 (c) (v) of the Rajasthan Land Revenue (Land Record) Rules, 1957, therefore, the order of reversion from the post of patwari to the post of Class IV employee was passed. The petitioner has placed on record the abstract of the said order as Annexure-7. In this writ petition, the petitioner has challenged the order Annexure-7 whereby the petitioner was ordered to be reverted from the post of patwari to the Class IV employee on the ground that the petitioner was not possessing qualification at the time of his promotion in the year 1972. Learned counsel for the petitioner first of 4 all argued that initially the petitioner was promoted on the post of patwari on 1.6.1967 and he was allowed pay scale for the post but later on after reversion, the petitioner was again promoted and he passed the patwar examination, therefore, the petitioner's services were to be regularized in view of Annexure-6 when case of the petitioner was sent to the State Government for regularization. Further, it is argued by the learned counsel for the petitioner that in view of judgment rendered by Hon'ble Supreme Court in case of Bhagwati Prasad Vs. Delhi State Mineral Development Corporation, reported in (1990) 1 SCC 361 in which the Hon'ble Supreme Court has held that the educational qualifications can be seen at the time of initial entry into the service and not on the date of confirmation. Further it is held in the aforesaid decision by Hon'ble Apex Court that at the stage of confirmation when the worker gained long practical experience, he cannot be throw out of the job on the ground that he was lacking qualification at the time of promotion. In para No.6 of the aforesaid judgment, Hon'ble Apex Court has held as follows : “6. The main controversy centres round the question whether some petitioners are possessed of the requisite qualifications to hold the posts so as to entitle them to be confirmed in the respective posts held by them. The indisputable facts are that the petitioners were appointed between 5 the period 1983 and 1986 ever since, they have been working and have gained sufficient experience in the actual discharge of duties attached to the posts held by them. Practical experience would always aid the person to effectively discharge the duties and is a sure guide to assess the suitability. The initial minimum educational qualification prescribed for the different posts is undoubtedly a factor to be reckoned with, but it is so at the time of the initial entry into service. Once the appointments were made as daily rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualifications. In our view, three years' experience, ignoring artificial break in service for short period/periods created by the respondents, in the circumstances, would be sufficient for confirmation. If there is a gap of more than three months between the period of termination and re- appointment that period may be excluded in the computation of three years period. Since the petitioners before us satisfy the requirement of three years' service as calculated above, we direct that 40 of the seniormost workmen should be regularised with immediate effect and the remaining 118 petitioners should be regularised in a phased manner, before April 1, 1991 and promoted to the next higher post according tot he standing 6 orders. All the petitioners are entitled to equal pay at par with the persons appointed on regular basis to the similar post or discharge similar duties, and are entitled to the scale of pay and all allowances revised from time to time for the said posts. We further direct that 16 of the petitioners who are ousted from the service pending the writ petition should be reinstated immediately. Suitable promotional avenues should be created and the respondent should consider the eligible candidates for being promoted to such posts. The respondent is directed to deposit a sum of Rs.10,000 in the Registry of this Court within four weeks to meet the remuneration of the Industrial Tribunal. The writ petitions are accordingly allowed, but without costs.” Learned counsel for the petitioner while inviting the attention of this Court towards above judgment submit that long experience on a particular post is sufficient to treat the incumbent eligible for regularization while considering long experience as qualification also. Therefore, the order impugned dated 9.7.1996 is patently illegal because the petitioner was allowed to work on the post of Patwari since 1972 to 1996 and in the year 1996, an order was passed by the Commissioner (Colonization) for reversion of the petitioner on the ground that at the time of promotion on the post of patwari he was not possessing qualification as per Rule 4 of the Rules of 7 1957. Learned counsel for the petitioner has vehemently argued that now the petitioner has been superannuated from the post of Patwari and this Court while admitting this writ petition has passed an order for maintaining status quo. Therefore, the order impugned dated 9.7.1996 deserves to be quashed in view of the law laid down by Hon'ble Supreme Court in case of Bhagwati Prasad (supra). Per contra, learned counsel for the State vehemently argued that though the petitioner was promoted on the post of Patwari but it also admitted case of the petitioner that he was lacking qualification at the time of promotion. The respondents are not disputing the fact that the petitioner passed the patwar examination so also he was promoted to the post of patwari and he was allowed to work on the post of Patwari right from 1972 to 1996 but the only ground raised in this writ petition is that the petitioner was not possessing qualification in accordance with Rule 4 (c) (v) of the Rules, therefore, the State Government has refused to regularise the services of the petitioner on the post of Patwari. Therefore, the order impugned dated 9.7.1997 is perfectly legal. Learned counsel for the State vehemently argued that if a person who is not possessing the academic qualification for the post 8 then he is not entitled to get the fruits of the post upon which he was promoted, therefore, the Commissioner (Colonization) has rightly passed the order of reversion of petitioner from the post of Patwari to the Class IV employee vide impugned order dated 9.7.1996. After hearing both the parties and considering the facts of the case, I am of the opinion that the order impugned dated 9.7.1996 which is passed by Commissioner (Colonization) is totally contrary to the law as laid down by Hon'ble Apex Court in case of Bhagwati Prasad (supra) because the respondents themselves promoted the petitioner on the post of patwari in the year 1972 and allowed him to work till 1996, so also the petitioner acquired the experience on the post of patwari because he was allowed to work on the post of Patwari since 1972 to 1996 for near about 24 years and thereafter in the evening of his service time, the respondents decided to revert the petitioner on the ground of qualification, which is not permissible under the law because the petitioner has acquired the qualification by way of long experience. In case of Bhagwati Prasad (supra), Hon'ble Apex Court has held that the academic qualification can be seen at initial appointment but not at the time of confirmation. Here in this case the matter of the 9 petitioner was sent to the State Government for regularization but it was turned down on the ground that the petitioner was not possessing qualification at the time of promotion on the promotion. In this view of the matter, I am of the view that the order impugned dated 9.7.1996 is not sustainable because it is contrary to the aforesaid adjudication made by Hon'ble Apex Court so also the judgment rendered by this Court in case of Girdhari Singh Rajpurohit Vs. State of Raj. (SB Civil Writ Petition No.528/2001), decided on 8.2.2001, which judgment was further upheld by Hon'ble Division Bench of this Court in that case also the service of an employee was terminated on the ground that at the time of entering into service, he was lacking academic qualification. Therefore, in view of the aforesaid discussion, the order impugned dated 9.7.1996 deserves to be quashed and is hereby quashed. Consequently, the writ petition is allowed. The respondents are directed to treat the petitioner on the post of patwari till his superannuation and grant him all consequential benefits, so also finalize his pension case because as per information given by learned counsel for the petitioner, the petitioner has retired from service after attaining the age of superannuation. The respondents are directed to comply with the directions within a period of three months from the date of receipt of certified copy of 10 this order. No order as to the costs. (GOPAL KRISHAN VYAS), J. arun