1 STATE OF RAJASTHAN THROUGH THE DIRECTOR, STATE INSURANCE & GENERAL PROVIDENT FUND(G.P.F.), RAJASTHAN, JAIPUR & ANR. VS. RAJENDRA KUMAR SHARMA (D.B. CIVIL SPECIAL APPEAL (W) NO.310/09) Date of Order :: 23.3.2009 HON'BLE MR. JUSTICE A.M. KAPADIA HON'BLE MR. JUSTICE SANGEET LODHA Mr. K.K. Bissa, for the appellant. 1. This special appeal is directed against order dated 1.12.08 passed by the learned Single Judge of this court , whereby the writ petition preferred by the writ petitioner, respondent herein seeking direction for grant of regular pay scale admissible to the post of Lower Division Clerk( for short “LDC” hereinafter) and for regularisation of his services , has been allowed and accordingly, the appellants have been directed to allow minimum regular pay scale to the respondent with all other admissible allowance including dearness allowance with effect from the date of his reinstatement in service i.e. 15.9.05 and further to consider his candidature for regularisation in the cadre of LDC in the office of appellant no. 2 after screening as per the provisions of Rule 25 (10) of the Rajasthan Subordinate Offices Ministerial Staff Rules, 1957( in short “the Rules of 1957” hereinafter). 2. The respondent entered the services of the appellants as LDC on daily wages basis on 6.5.86. By an order dated 31.1.88, the respondent was terminated from service. Aggrieved by the 2 same, the respondent raised an industrial dispute which was referred by the appropriate Government for adjudication to the Labour Court,Jodhpur. The reference was answered by the Labour Court vide award dated 11.2.05 in terms that the termination of services of the respondent w.e.f. 31.1.88 was bad in law. Accordingly, the appellants were directed to reinstate the respondent with continuity of service and 25% of back wages. The said award has attained finality and stands implemented by the appellants. 3. It was contended by the respondent before the learned Single Judge that in terms of the award dated 11.2.05 , the respondent has to be treated in continuous employment of the appellants w.e.f. 6.5.86 therefore, as per the provisions of Rule 25(10) of the Rules of 1957 , he is entitled to be considered for confirmation of his service . That apart, it was contended that the respondent is discharging the same duties of the post of LDC which are being discharged by other regularly selected LDCs therefore, on the basis of the principle of “equal pay for equal work”, he is entitled to be fixed in the regular pay scale admissible to the post of LDC. 4. On the other hand, it was contended on behalf of the appellants before the learned Single Judge that the respondent was a daily wages employee and he is not entitled to regular pay scale admissible to the post of LDC. It was further submitted that 3 the respondent was employed as LDC in the year 2005 therefore, the provisions of Rule 25(10) of the Rules of 1957 has no application in his case. 5. After consideration of the rival submission, the learned Single Judge has arrived at the findings that since vide order dated 11.2.05, the Labour Court has directed reinstatement of the respondent with continuity in service therefore, he is required to be treated in continuous employment from the date of his initial appointment i.e. 6.5.86 and accordingly, he is entitled to be considered for regularisation of his services under Rule 25(10) of the Rules of 1957. Since, it was not disputed that the respondent was discharging the duties of the LDC therefore, the learned Single Judge held that the respondent is entitled for payment of salary in minimum of regular pay scale admissible to the post of LDC with admissible allowance including dearness allowance from the date of his reinstatement i.e. 15.9.05. 6. It is contended by the learned counsel for the appellant before us that since the respondent was only a daily wages employee therefore, he has no right to claim regularisation in service on the basis of alleged continuity in service w.e.f. 6.5.86. It is submitted by the learned counsel that for the parity of the reasons, he is also not entitled for payment of salary in the regular pay scale. 7. We have considered the rival submission and perused the 4 order impugned so also the other material on record. 8. Rule 25(10) which was inserted in the Rules of 1957 vide notification dated 12.10.92 provides that notwithstanding anything contained in Rule 7, all persons appointed as LDC on ad hoc basis or on daily wages basis during the period from 1.1.85 to 31.3.90 and are still working as such on the date, the said amendment has come into force , shall be appointed on regular basis on availability of the vacancy subject to the condition that they pass a performance test conducted by the Head of the Department concerned within a period of three years in accordance with the syllabus prescribed in part IV of Schedule I appended to the Rules of 1957. It has been further provided that such persons shall be allowed three chances to pass the said test to be available within a period of three years, provided that if a person fails to pass the said test in three chances, to be availed within a period of three years, he shall be liable to be removed from service. 9. Admittedly, the respondent was appointed as LDC on daily wages basis on 6.5.86 i.e. during the period 1.1.85 to 31.3.90 and in view of continuity of service granted by the Labour Court vide award dated 11.2.05, he has to be treated in service on 12.10.92 i.e. date on which the amendment introduced in the Rules of 1957 as aforesaid has come into force. In this view of the matter, respondent cannot be denied the screening and 5 consideration of his case for regularisation in terms of Rule 25 (10) of the Rules of 1957. 10. It is not disputed before us that the respondent is discharging the same duties which are being discharged by the regularly appointed LDC with the appellants therefore, independent of his claim for regularisation of his service in terms of Rule 25(10) on the principle of “equal pay for equal work” , he is entitled for the payment of salary in minimum of the regular pay scale admissible to the post of LDC alongwith all other admissible allowance including dearness allowance. 11. In view of the discussion above, in our considered opinion, the order passed by the learned Single Judge granting the relief to the respondent as aforesaid does not suffer from any error warranting interference by us in this intra court appeal. 12. In the result, the special appeal fails, it is hereby dismissed. (SANGEET LODHA),J. (A.M.KAPADIA),J. Aditya/-