1 D.B.CIVIL SPECIAL APPEAL (W) . 99/2006 Anoop Mathur v. State of Rajasthan & ors. Date of order : 24.01.2007 HON'BLE THE CHIEF JUSTICE SHRI S.N.JHA HON'BLE SHRI JUSTICE GOVIND MATHUR Shri D.K.Parihar for the appellant Shri B.L.Tiwari, Dy. Govt. Advocate This special appeal is directed against the order of the learned Single Judge dated 13.1.2006 in S.B.Civil Writ Petition no. 2420/2003 by which while admitting the writ petition of the State the learned Judge stayed the operation of the orders of the Rajasthan Civil Services Appellate Tribunal (in short 'the Tribunal') contained in Annexures 2 and 4 to the writ petition. Aggrieved by the order of stay the appellant has come to Division Bench in this appeal. By order dated 4.8.2006 the appeal was admitted and operation of the order of the learned Single Judge was stayed. The appeal came up for confirmation of stay on 22.1.2007. In course of hearing a point arose for consideration as to whether the appellant who was a daily wage employee can be said to be a holder of civil post within the meaning of section 2(c) of the Rajasthan Civil Services (Service Matters Appellate Tribunal) Act, 1976 (in short the Act). Hearing was adjourned to enable the counsel for the appellant to examine the matter. It is relevant to mention here that under the Act the Tribunal 2 has jurisdiction to entertain disputes relating to service matters in respect of government servants. Today counsel for the parties agreed that instead of deciding the stay matter the appeal itself may finally be decided and in the light of our observations which we made in course of hearing, the writ petition may also be disposed of. We heard counsel for the parties at length. Facts of the case are that on 18.11.1985 the appellant was appointed as lower division clerk on daily wage basis. His services were terminated on 5.9.1986. He raised industrial dispute and the Labour Court, Jodhpur under award dated 23.12.1999 held that he was entitled to reinstatement with back wages. The State challenged the award by way of writ petition in this Court and a learned Judge of this Court deleted the wages part of the award but upheld the reinstatement part. The State preferred appeal before Division Bench which was dismissed. The appellant was reinstated on 31.1.2001 and he submitted his joining on 5.2.2001. His services however were again terminated on 2.8.2002. The appellant filed appeal before the Tribunal. On 29.8.2002 the order dated 2.8.2001 terminating his services was stayed. The State filed application for vacation of stay which was rejected by the Tribunal on 27.12.2002. The State then filed the connected writ petition in which, as stated above, while 3 admitting the writ petition, the orders contained in Annexures 2 and 4 were stayed. By order Annexure 2 the Tribunal had stayed the order terminating the services of the appellant; by Annexure 4 the Tribunal had rejected the stay vacating application of the State, as mentioned above. We are conscious of the fact that not only the writ petition before the Single Bench but the appeal before the Tribunal is pending and our findings are going to affect the result of both, but as stated above, counsel for the parties agreed that the point may be decided irrespective of the consequences. The point for consideration is whether the Tribunal has jurisdiction to entertain dispute arising from termination of the appellant's services. The Act has been enacted to provide for the constitution of an Appellate Tribunal for service matters and matters incidental thereto. Under section 4 the Tribunal has power to decide appeals against orders passed by any officer or authority on any service matter or matters affecting a government servant in his personal capacity. Section 2(f) defines 'service matter' to mean matters relating to government servant with respect to seniority, promotion, confirmation, fixation of pay, order denying or varying pay, allowances, pension and other service conditions to the disadvantage 4 of a government servant, otherwise than as a penalty, reversion, withholding pension or denying the maximum pension and any other matter notified by the Government. The term 'government servant' has been defined in section 2(c) to mean a person who is or has been a member of a Civil Service or who holds or has held a Civil post under the Government of Rajasthan. The question is whether being a daily wage employee, the appellant can be said to be holder of civil post so as to be called a government servant conferring jurisdiction on the Tribunal to entertain his appeal against the order terminating his services. In support of his contention counsel for the appellant placed reliance on decision of the Supreme Court in State of Assam v. Kanak Chandra Dutta, AIR 1967 SC 884 and in particular, drew our attention to observations in para 10 of the judgment. We are afraid, the decision lends no help to the appellant; it is rather against him. In para 10 there is an observation to the effect that casual labour is not the holder of a post. Counsel then referred to the case of Surendra Kumar Gyani v. State of Rajasthan, AIR 1993 SC 115. The dispute in that case related to regularisation of daily wage employees and decision therefore, is not at all relevant. Counsel finally placed reliance on a decision of the Sikkim High Court in Ganga Prasad Gurung v. Vijoy Kumar, 1982 Lab. I.C. 1884. The case related to an 5 employee drawing monthly salary in the pay scale and is, therefore, clearly distinguishable. No decision has been brought to our notice in which it has been held that a daily wage employee holds civil post. Counsel referred to rule 23A (2)(a) of the Rajasthan Service Rules; the rule deals with termination of services of temporary employees and there is nothing therein to suggest that a person working on daily wage basis holds a civil post. Counsel submitted that the appellant was working on the post of lower division clerk and therefore, he was holding a post under the government. We find no merit in the submission, for, the appellant no doubt was working and drawing salary against the post of LDC but that does not mean that he was holding the post. A person holds the post only when he holds it on substantive basis and has a lien on it. The employment of daily wage employee is for the day. His employment ends at the end of the working hour and he cannot be said to be holding post. In this view of the matter the appellant cannot be said to be a government servant. The conclusion therefore is that the Tribunal has no jurisdiction to entertain the appeal of the appellant. The learned Single Judge therefore rightly stayed the orders by which the Tribunal had stayed operation of the orders terminating the services of the appellant and rejecting the State's stay vacating application. 6 In view of our finding counsel for the appellant agreed that the appeal as well as the writ petition may be disposed of. The appeal is accordingly dismissed while the writ petition of the State is allowed. The impugned orders of the Tribunal in Annexures 2 and 4 are quashed. Let a copy of this order be placed in the file of S.B.Civil Writ Petition no. 2420/2003. (GOVIND MATHUR) J. (S.N.JHA), C.J. mathur/