SBCWP NO.4310/02. SBCWP NO.3969/02. SBCWP NO.3921/02. SBCWP NO.4467/02. SBCWP NO.3857/02. SBCWP NO.5084/02. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R 1) S.B. CIVIL WRIT PETITION NO.4310/2002. Veer Singh Sankhala Vs. State of Rajasthan and others 2) S.B. CIVIL WRIT PETITION NO.3969/2002. Mahaveer Singh Vs. State of Rajasthan and others 3) S.B. CIVIL WRIT PETITION NO.3921/2002. Pooran Chand Vs. State of Rajasthan and others 4) S.B. CIVIL WRIT PETITION NO.4467/2002. Yogesh Kumar Sharma Vs. State of Rajasthan and others 5) S.B. CIVIL WRIT PETITION NO.3857/2002. Mohan Lal Sharma and another Vs. State of Rajasthan and others 6) S.B. CIVIL WRIT PETITION NO.5084/2002. Hari Ram Yadav Vs. State of Rajasthan and others SBCWP NO.4310/02. SBCWP NO.3969/02. SBCWP NO.3921/02. SBCWP NO.4467/02. SBCWP NO.3857/02. SBCWP NO.5084/02. 2 Date of order:- May 21, 2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Suresh Kashyap Shri Anil Upman Shri D.V. Tholia with Shri Manish Choudhary Shri S.K. Singodiya and Shri P.S. Tomar for the petitioners. Shri Zakir Hussain, Additional Government Counsel for the respondents. **** Reportable BY THE COURT:- All the aforesaid writ petitions seek to challenge the order dated 14/6/2002 which has been passed by the Director of Panchayati Raj Department, Government of Rajasthan, Jaipur requiring Block Development Officers of various Panchayat Samitis through out the State of Rajasthan to repatriate services of such of the excess employees of the Irrigation and Forest Department, who were working in those departments on daily wage basis and were declared excess therefrom and sent to different panchayat samitis for being posted as Gram Sewaks. In each of the petitions, petitioners have also challenged consequential orders SBCWP NO.4310/02. SBCWP NO.3969/02. SBCWP NO.3921/02. SBCWP NO.4467/02. SBCWP NO.3857/02. SBCWP NO.5084/02. 3 passed by the panchayat samitis where they were working repatriating them to their parent department namely; Forest Department in SB Civil Writ Petition Nos.3921/2002, 4310/2002, 3969/2002, 3857/2002 and 5084/2002. In SBCWP No.4467/2002, however, petitioner was originally working on the post of Beldar with the Irrigation Department under the Assistant Engineer Irrigation Sub Division Bayana. Notices of writ petitions in all these cases were issued to the respondents in the year 2002 and interim-orders were passed on various dates, which orders have continued to remain in force till the operation of the order relieving them from the post of Gram Sewak cum Secretary of different Gram Panchayats of the State Government. Petitioners have not only been absorbed on the post of Gram Sewak-cum- Secretary but they were also sent for training on such posts and were thereafter continuously working as such. In all these petitions, challenge is also posed to these relieving orders passed in compliance of the instructions issued by the Director Panchayati Raj dated SBCWP NO.4310/02. SBCWP NO.3969/02. SBCWP NO.3921/02. SBCWP NO.4467/02. SBCWP NO.3857/02. SBCWP NO.5084/02. 4 14/6/2002 on the ground that such orders were passed without providing an opportunity of hearing to the petitioners and in violation of principles of natural justice. The orders were thus passed in violation of Articles 14 and 16 of the Constitution of India inasmuch as, petitioners had not only been substantively appointed on the post of Gram Sewak-cum- Secretary but also successfully completed training of such posts at the instance of respondents themselves and had completed substantive time as such. 2) Petitioner-Yogesh Kumar Sharma in SBCWP No.4467/2002 was relieved vide order dated 5/7/2002 and 15/7/2002 to join back with the Assistant Engineer Irrigation Sub Division Bayana District Bharatpur. Petitioner has cited the examples of surplus employees from various Municipalities and Gram Panchayats who were declared surplus due to abolition of octroi and pursuant to the order No.F.28/GS/adjustment/PR Deptt./2/2000/795 dated 13/11/2001 issued by the Panchayati Raj Department, Government of Rajasthan, the surplus employees were directed SBCWP NO.4310/02. SBCWP NO.3969/02. SBCWP NO.3921/02. SBCWP NO.4467/02. SBCWP NO.3857/02. SBCWP NO.5084/02. 5 to be absorbed on the post of Gram Sewak in relaxation of Rules 265, 266, and 270 to 273 of Rajasthan Panchayati Raj Rules, 1996 in the pay scale of Rs.3200-4900. Petitioners have also cited the Order No.F.28/GS/adjustment/PR Deptt./2/2000/1096 dated 5/5/2003 issued by the Panchayati Raj Department, Government of Rajasthan by which the earlier order dated 13/11/2001 and various other orders were passed by the government that surplus employees who were absorbed on the post of Gram Sewak would be initially paid @Rs.1200/- per month for the period of two years and subsequently their honorarium would be increased by 20% on completion of two years and thereafter by 10% on completion of three years and thereafter, they would be paid regular pay scale of the post of Gram Sewak. According to the petitioners, when respondents have now absorbed even those who were initially appointed on temporary basis on honorarium of Rs.1200/- per month, there was no reason not to give the similar treatment to the petitioners. He has been in this manner discriminated against. SBCWP NO.4310/02. SBCWP NO.3969/02. SBCWP NO.3921/02. SBCWP NO.4467/02. SBCWP NO.3857/02. SBCWP NO.5084/02. 6 3) Petitioner-Mohan Lal Sharma in SBCWP No.3857/2002 has submitted that many of the employees who were junior to the petitioners in the Forest Department were retained in the Panchayati Raj Department as Gram Sewak and the petitioners were sent back and petitioner has not only completed the training but has also continued to work with the respondents under the impugned-order dated 5/7/2002. 4) Petitioner-Pooran Chand has contended that he was initially appointed as Beldar with the Forest Department on 19/2/1984 and the order dated 1/5/1988 by which he was removed was set-aside by the labour court vide order dated 23/2/1993 where against the writ petition and special appeal filed by the Forest Department were dismissed. He was held entitled to continuity in service w.e.f. 19/2/1984. Petitioner along with other similarly situated persons was already granted semi-permanent states in the Forest Department itself w.e.f. 1/4/1990. Such proposal was forwarded in the SBCWP NO.4310/02. SBCWP NO.3969/02. SBCWP NO.3921/02. SBCWP NO.4467/02. SBCWP NO.3857/02. SBCWP NO.5084/02. 7 year 3/10/1998 by the Conservator of Forest to Divisional Forest Officer Bharatpur. Before however any order could be passed, he was absorbed in the Panchayati Raj Department. He has also undertaken training and has continuously discharged the work of Gram Sewak on the basis of interim order passed by this court on 10/7/2002. 5) Petitioner-Mahaveer Singh in SBCWP No.3969/2002 has submitted that he also cannot be treated as daily wage employee because pursuant to the order dated 7/9/1999 passed by the DFO Tonk he was declared semi-permanent and was granted the regular pay scale of Rs.2550- 3200. The order dated 14/6/2002 has been misapplied in his case. Describing such appointment on daily wage basis was misnomer and in any case now he has been granted regular scale of pay. Petitioner has not only completed training of the post of Gram Sewak but has also discharged the duties on such post ever since the stay order was passed in this case on 10/8/2002. SBCWP NO.4310/02. SBCWP NO.3969/02. SBCWP NO.3921/02. SBCWP NO.4467/02. SBCWP NO.3857/02. SBCWP NO.5084/02. 8 6) Petitioner-Veer Singh in SBCWP No.4310/2002 has submitted that he had completed more than 12 years of service with the forest department where he was entitled to be declared surplus. He was instead sent to the Panchayati Raj Department. Benefit of semi- permanent status and regular pay scale was granted to the juniors Vishram, Kailash and Dilip. One of these persons namely Dilip was also absorbed on the post of Gram Sewak and has not been sent back. If the forest department did not take timely steps to grant regular pay scale, petitioner cannot be blamed. Thus, he was entitled to semi-permanent status on completion of two years because initial appointment of the petitioner as Cattle Guard in the Forest Department was made in the year 1990 and his termination order passed in the year 1993 was declared illegal by the award of labour court dated 7/6/1996, by which he was granted reinstatement as well as continuity in service. The State Government issued an order on 4/3/1998 granting him semi-permanent status on the said post on completion of two and ten SBCWP NO.4310/02. SBCWP NO.3969/02. SBCWP NO.3921/02. SBCWP NO.4467/02. SBCWP NO.3857/02. SBCWP NO.5084/02. 9 years of service respectively. Petitioner has not only undertaken the training but has also continued to work of respondents ever since the interim order passed on 29/7/2002. 7) Petitioner-Hari Ram Yadav in SBCWP No.5084/02 has contended that he had completed 14 years of service when he was declared surplus as Cattle Guard with the Forest Department and was absorbed in the Panchayat Raj Department. Though his initial appointment was made in the year 1988, if the DFO did not take timely steps for granting semi-permanent status to him, he cannot be blamed for that. He has also completed the training course and has been continuously working on the post of Gram Sewak ever since interim order was passed on 13/8/2002. 8) All the petitioners have raised the argument that orders repatriating them to their parent department has been passed without application of mind to the fact narrated above and without providing them opportunity of hearing in utter violation of Articles 14 & 16 SBCWP NO.4310/02. SBCWP NO.3969/02. SBCWP NO.3921/02. SBCWP NO.4467/02. SBCWP NO.3857/02. SBCWP NO.5084/02. 10 of the Constitution of India. 9) Learned counsel for the petitioners have in all the cases relied on the judgment of this Court in SBCWP No.4246/2002 (Jai Prakash Bhargava Vs. State of Rajasthan & Ors. decided on 28/1/2009 and argued that this court in the aforesaid case while considering the fact that petitioner was granted semi-permanent status in his parent department in forest department which was his parent department and underwent training continuously on the post of Gram Sewak and that the order repatriating him to Forest Department back from Panchayati Raj Department was passed without opportunity of hearing, quashed such orders with direction to the respondents to allow him to continue to work as Gram Sewal cum Secretary. 10) Learned Additional Government Counsel appearing for the respondents however opposed the writ petitions and submitted that petitioners when declared surplus, were absorbed in the Panchayati Raj Department, where actually they were working on daily wage SBCWP NO.4310/02. SBCWP NO.3969/02. SBCWP NO.3921/02. SBCWP NO.4467/02. SBCWP NO.3857/02. SBCWP NO.5084/02. 11 basis and therefore there was no question of their being declared surplus. It was contended that in such a way, when the order was originally passed to treat them surplus itself was wrong and thus the action of the respondents in absorbing them in the Panchayati Raj Department as Gram Sewak was contrary to the rules. The impugned-orders were passed to rectify such mistake, there was no need to serve any notice on them or of violation of principle of natural justice. Reliance was placed on the judgment of Bheem Singh & Anr. Vs. State & Ors. (SBCWP No.3845/02) decided on 15/1/2009. Learned counsel contended that petitioners who were working on daily wage basis were required to join back with the Panchayati Raj Department and that they were rightly repatriated back to their parent department. 11) Shri Anil Upman, learned counsel for the petitioner for some of the petitioners in these cases, who also represented the petitioners in Bheem Singh supra, has rejoined and submitted that the writ petition in the SBCWP NO.4310/02. SBCWP NO.3969/02. SBCWP NO.3921/02. SBCWP NO.4467/02. SBCWP NO.3857/02. SBCWP NO.5084/02. 12 case of Bheem Singh was dismissed because the petitioners in that case stood relieved and had not continued in between during the pendency of the writ petition with Panchayati Raj Department because this court did not pass any interim-order in their favour. Not only this, petitioners in that case filed separate writ petitions for declaring them semi-permanent and were eventually declared semi-permanent from the forest department and thus, they were well settled in the forest department. However, in the present case, petitioners were not only relieved but they had also undergone training of the post of Gram Sewak and were continuously working as Gram Sewak as such, albeit, pursuant to interim orders passed by this court. This court on consideration of the similar facts allowed writ petition of Jai Prakash Bhargava supra, on the premise that at this distance of time, settled position cannot be unsettled. 12) Having heard the learned counsel for the parties and considering the aforesaid submissions and on perusal of the material on record, I find that contention of the SBCWP NO.4310/02. SBCWP NO.3969/02. SBCWP NO.3921/02. SBCWP NO.4467/02. SBCWP NO.3857/02. SBCWP NO.5084/02. 13 petitioners that the impugned-orders were passed without affording them opportunity of hearing and thus there was violation of Articles 14 and 16 of the Constitution of India, appear to be well founded because respondents are not in a position to satisfy the court as to the compliance of the principle of natural justice prior to passing the impugned-orders relieving them from service. It was persuasive strength of this argument which led this court into passing interim orders in all these cases staying operation and effect of the relieving orders of the petitioners. It is not disputed that some of the petitioners were declared semi-permanent and were granted regular scale of pay in the forest department itself whereas some others had completed much more than 2/10 years of service in their parent department whether Forest or Irrigation Department and yet, were not granted semi- permanent/permanent status, which they were entitled to as per the Work Charged Rules. Judgment of this Court in Bheem Singh supra is distinguishable because in that case SBCWP NO.4310/02. SBCWP NO.3969/02. SBCWP NO.3921/02. SBCWP NO.4467/02. SBCWP NO.3857/02. SBCWP NO.5084/02. 14 petitioners stood relieved and joined back in the Forest Department where they claimed semi- permanent status by filing two independent writ petitions. Facts of the case are akin to those of SBCWP No.4246/2002 in which on consideration of the similar arguments, this court allowed the writ petition by observing thus:- “In view of the fact that the petitioner was subsequently granted regular pay scale and permanent status in the Forest Department itself w.e.f. 1.9.1996 and irregularity or illegality, if there was any, with regard to absorption of the petitioner in the Panchayati Raj Department, stands cured and there is no point now in unsetting the settled position. In the result, the writ petition is allowed. The impugned orders dated 14.6.2002 and 1.7.202 are quashed and set aside. The petitioner is entitled to all consequential benefits.” 13) Even the respondents on their own have absorbed the employees from the Panchayati Raj Department, who were declared surplus following abolition of the octroi and some of them were such, who too were working on daily wage basis. Some were initially granted consolidated salary of Rs.1200/- per month. Juniors of the petitioners named above were granted regular SBCWP NO.4310/02. SBCWP NO.3969/02. SBCWP NO.3921/02. SBCWP NO.4467/02. SBCWP NO.3857/02. SBCWP NO.5084/02. 15 scale of pay. Case of the petitioners cannot be said to be different than those persons because in the present set of cases also, petitioners were entitled to semi-permanent status soon upon completion of two years of service under the Work Charged Rules, 1964 and in fact, atleast some of the petitioners were actually granted semi-permanent status before they were declared surplus and absorbed in the Panchayati Raj Department. Some others who were not granted the semi-permanent status inspite of the fact that they had completed two years and permanent status despite completion of 10 years, they cannot be blamed for such a situation which is the creation of respondents because their parent department, Forest/Irrigation, was expected to take timely steps for granting them such status. It is although true that the daily rated employees were not required to be declared surplus for being absorbed but at the same time, various orders passed by the respondents clearly show that they were as such not declared surplus but the respondents preferred to call them excess SBCWP NO.4310/02. SBCWP NO.3969/02. SBCWP NO.3921/02. SBCWP NO.4467/02. SBCWP NO.3857/02. SBCWP NO.5084/02. 16 employees in their parent department and then decided to adjust, and not absorb, them in the Panchayati Raj Department. This was based on policy decision of the State Government similar to the decision taken by the respondents in relation to surplus employees of the Municipalities/Panchayati Raj Department. In fact, some of the petitioners had completed more than 10 years of service with continuity having been granted to them from the date of their initial appointment by award of the labour court and yet, respondents did not timely take steps to declare them semi- permanent/permanent. Once they were declared semi-permanent, they would be entitled to regular scale of pay. Even if the petitioners are allowed to be sent back to the parent department, they would be entitled to semi- permanent and permanent status on completion of two and ten years of service respectively from the date of initial appointment. Now that they have already completed such length of service starting from the date of initial appointment, out of which, they have served the Panchayati SBCWP NO.4310/02. SBCWP NO.3969/02. SBCWP NO.3921/02. SBCWP NO.4467/02. SBCWP NO.3857/02. SBCWP NO.5084/02. 17 Raj Department for a substantial period, they cannot be at this distance of time, allowed to be repatriated back to Forest Department/Irrigation Department. 14) In the result, all these writ petitions are allowed. The order dated 14/6/2002 is quashed and set-aside and also are quashed different impugned-orders by which the petitioners were relieved. Petitioners would be entitled to continue in the Panchayat Raj Department itself. Costs are made easy. (MOHAMMAD RAFIQ), J. anil