1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.6211/97 Hari Mohan Gurjar vs. State & Ors. Date of order : 18/3/2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri M.C. Jain for the petitioner. Shri Ganesh Meena, Government Counsel for the respondents. ****** This writ petition has been filed with the prayer that the respondents be directed to absorb him on the post of LDC and they be further directed on completion of 9 and 18 years of service from the date he was declared permanent and the order dated 18.10.1997 be set aside and respondents be required to absorb the petitioner on the post of Lab Assistant or LDC. The petitioner was appointed as Mate in the Irrigation Department on 5.9.1979 on work charge basis. He was declared permanent on 4.9.1989. Thereafter, the Government by order dated 27.2.1992 decided that surplus work charge employees could be appointed on the post of LDC. The petitioner was declared surplus and absorbed on the post of Lab Boy in the scale of Rs.775-1025. One Phool Singh according to the petitioner was junior to 2 him and he was also absorbed on the post of Lab Boy. Two persons namely Hariom Mathotra and Girraj Prasad Soni were declared surplus, but they were absorbed as LDC in the month of October, 1992, but despite the fact that petitioner had eligibility, he was not absorbed on the post of LDC. Shri M.C. Jain, learned counsel for the petitioner has argued that the Government vide order Annexure-4 dated 7.10.1995 directed that the persons who have been declared surplus and absorbed employee be granted selection grade from the date of their initial appointment. One Ekam Singh, who was junior to petitioner was granted selection scale on completion of 9 years service on 25.1.1992. Similarly, Shri Phool Singh was also granted such benefits, though he was junior to the petitioner. Petitioner made several representation, but the respondents did not consider the same till now. Instead the respondents by order dated 18.10.1997 had withdrawn the absorption of the petitioner on the post of Lab Boy and rather absorbed him on the post of Class IV employee, whereas persons junior to him such 3 as Phool Singh and Ekam Singh were continued on the post of Lab Boy. Petitioner served notice for demand of justice and thereafter filed the present writ petition. The respondents in reply to the writ petition have denied the claim of the petitioner. It is submitted that the petitioner never placed sufficient material before the respondents to prove that he was qualified for absorption as LDC. He cannot take advantage of his own fault. The persons mentioned by the petitioner were absorbed as LDC because they disclosed their qualification to the respondents. Moreover, at this belated stage, such claim of the petitioner could not be considered. The petitioner has not brought on record any proof having passed matriculation examination. Petitioner was initially appointed on work charge basis and was not regularised in the post, thus he cannot be given benefit of selection scale. Since the petitioner was earlier declared surplus in the year 1992, he could not be declared permanent in Irrigation Department. If two persons namely Ekam Singh and Phool Singh 4 Lab Boy were wrongly granted such benefits of selection scale, the petitioner cannot claim any parity with them. Learned counsel for the petitioner rejoined and submitted that the qualification of the petitioner was clearly mentioned in the year in which he was declared surplus and absorbed on the post of Lab Boy that he was secondary school pass. His name appears in the order Annexure-3 dated 27.7.1992. Upon hearing the parties, I find that stand of the respondents that the petitioner's qualification was not disclosed is wholly unjustified in view of their own order dated 27.7.1992. They not only treated him not qualified on the post of Lab Boy, but subsequently have withdrawn his absorption on the post of Lab Boy and rather directed that he shall be posted as Class IV employee. There was no occasion for the respondents to deviate from their earlier order of absorption by passing order Annexure-8 dated 18.10.1997 because the petitioner was very much eligible to hold the post of Lab Boy. Secondly, no notice was 5 served upon the petitioner prior to changing the absorption from the post of Lab Boy to that of Class-IV, which in effect would tantamount to reversion. The fact that some of the juniors of the petitioner were absorbed as LDC, cannot be allowed to be agitated at this stage when the writ petition was filed in the year 1997 and absorption was made in the year 1992. The writ petition on that aspect deserves to be dismissed on the ground of delay and latches. However, claim of the petitioner for grant of selection scale on completion of 9, 18 and 27 years in terms of the Government Circular dated 25.1.1992 is fully justified because he was declared permanent by order dated 4.9.1989, which is on record. Moreover, his juniors Ekam Singh and Phool Singh were also granted such benefits. The Government by Circular dated 4.3.1998 has decided to confer such benefits to work charge employees, but subsequently by another Circular dated 30.9.1998 superseded the earlier Circular to say that the benefit of selection scale shall be granted from the date work charged employees are declared 6 semi permanent. In the result, this writ petition is partly allowed. The prayer of the petitioner with regard to his absorption on the post of LDC is rejected. However, the order Annexure-8 by which the petitioner was sought to be reverted to the post of Class IV employee from that of Lab Boy is quashed. Petitioner is entitled to continue on the post of Lab Boy in regard to the benefit of selection scale. The respondents are directed to consider the case of the petitioner for grant of selection scale computing the period of 9, 18 and 27 years from the date he was declared semi permanent and accordingly grant him all the consequential benefits in terms of the Government Circular No.P.1(3) Finance/Expenditure-3/98 dated 30.9.1998 read with Circular No.P.1(3) Finance/Expenditure-3/93 dated 4.3.1998 and pay all the consequential benefits to the petitioner together with interest @ 6% per annum within a period of three months. (MOHAMMAD RAFIQ), J. 7 RS/