CW-13581/09 (1) In the High Court of Judicature for Rajasthan Jaipur Bench, Jaipur O R D E R S.B. Civil Writ Petition No.13581/2009 Jagmohan Sain Vs. State of Raj. & Ors. Date Of Order :: 15/09/2010 Hon'ble Mr. Justice Ajay Rastogi Mr. Jagmohan Sain, petitioner ] in person. Mr. Sameer Sharma, OIC-Dy. Director, SIPF ] in person. By the instant petition, petitioner is seeking direction from this Court for regularization of services in the cadre of class-IV from the date persons junior to him in the cadre were regularized with all other consequential benefits flowing thereof. It has come on record that the petitioner was initially appointed as daily wager in the office of respondent-department at Sawaimadhopur on payment of Rs.9/- per day w.e.f. 05.01.1983. However, his services at one stage were terminated by verbal order dt.17.08.1984, against which industrial dispute was raised for adjudication. The learned Labour Court, Bharatpur after adjudication of the dispute passed an award dt.14.02.1996 holding verbal termination of the petitioner to be invalid and granted compensation to the tune of Rs.10,000/- in lieu of reinstatement. Feeling aggrieved by CW-13581/09 (2) the final relief granted to him under the impugned award dt.14.02.1996, petitioner preferred CWP-6211/1996 which was allowed by this Court vide order dt. 09.11.1998 (Annx.2) and it was held that the petitioner is entitled for reinstatement on the post of Chawkidar/Class-IV with continuity in service, however, he will be entitled for 50% of back wages. In compliance of the order of this Court dt.09.11.1998 (Annx.2) petitioner was reinstated in service in the cadre of class-IV and 50% back wages were also paid vide order dt.15.01.2001 (Annx.3) but at the same time DB Special Appeal was also preferred by the respondent which was decided by judgment dt. 10.03.2008 (Annx.4). The Division Bench while upholding the order of reinstatement on the consent of petitioner being recorded set aside back wages to the extent of 50% as granted to him by the learned Single Judge and accordingly partly allowed the appeal preferred by the respondent and the order of the learned Single Judge was modified as referred to supra. However, instant petition has been filed by the petitioner with the grievance that once he stood reinstated with continuity in service, his initial appointment CW-13581/09 (3) in the cadre of class-IV, which was of 05.01.1983, stood restored and those who were appointed in the cadre of class-IV at much later point of time, were regularized by the respondent as evident from the order dt.12.05.1989 (Annx.9) and also evident from the seniority list of class-IV published by the department dt.01.11.1991 (Annx.8) in which one Shri Mali Ram who was appointed on daily wages basis on 05.12.1983 on a sum of Rs.9/- per day as evident from the order dt.23.12.1983 (Annx.6), was regularized in the cadre of class-IV and his name finds place in the seniority list dt.01.11.1991 (Annx.8) at serial no.61 and those who are placed in the seniority list thereafter have been regularized subsequently. It has been averred by the petitioner in para 9 & 10 of the writ petition that those who were appointed in the cadre of class-IV on daily wages basis after his appointment they all have been regularized by the respondent in the cadre of class-IV as evident from the order dt.12.05.1989 (Annx.9). Petitioner appeared in person and submits that once persons junior to him in the cadre of class-IV have been regularized by the respondent, there appears to be no justification to deny the same relief to the CW-13581/09 (4) present petitioner and on being reinstated with continuity in service he was entitled to claim his benefits from the date of his first appointment i.e.05.01.1983, which has not been disputed by the respondent, denial thereof is in violation of Article 14 & 16 of the Constitution, more so when the posts in the cadre of class-IV are lying vacant, there appears to be no justification to deprive the petitioner from claiming regularization of service. Respondents have filed reply to the writ petition. However, it has been averred in para 10 that all such employees working as daily wager were regularized vide order dt.11.05.1989 and became member of class-IV cadre but so far as case of the present petitioner is concerned, since he was not in service of the department as a daily wage employee at the relevant point of time, his name could not be included therein. On a question being put to Officer-in-charge about the availability of vacancies in the cadre of class-IV, it has been informed that post in the cadre of class-IV are available with the department. The Officer-in-charge submits that petitioner's services could not have been regularized in view of the judgment of Hon'ble CW-13581/09 (5) Apex Court delivered in the case of Secretary, State of Karnataka and others Vs. Uma Devi (3) and others, reported in (2006) 4 Supreme Court Cases 1 as he was not in service at the relevant point of time when employees working on daily wages basis were regularized, as such no parity can be claimed by the petitioner. I have heard the parties and perused the material on record. The date of first appointment of the writ petitioner in the cadre of class-IV on daily wages is dt.05.01.1983 which has not been disputed and once the judgment of the learned Single Judge of this Court dt.09.11.1998 (Annx.2) passed in CWP-6211/1996 modifying the impugned award and directing the respondent to reinstate the petitioner with continuity in service has been upheld by the Division Bench as well vide judgment dt.10.03.2008 (Annx.4) passed in DB Special Appeal No.1116/1998, the petitioner indeed is entitled to claim benefits flowing thereof on being reinstated in service. So far as the order granting back wages is concerned, same being set aside by the Division Bench the recovery has been ordered by the respondent to be made from his salary vide order dt.11.09.2009 (Annx.5), certainly it has to be CW-13581/09 (6) adjusted from the legitimate dues of the petitioner. It will be relevant to observe that State Government in exercise of powers conferred by the proviso to Article 309 of the Constitution added sub-rule(4) to Rule 6 of the Rajasthan Class-IV Service (Recruitment and other Service Conditions) Rules,1999 which also postulates that such persons who were irregularly appointed and completed ten years of service on 10.04.2006 without any intervention of the Court or Tribunal and continuously working on the date of issuance of notification shall be screened by a committee constituted for the purpose thereof. The fact remains that the Government has also taken a decision in view of the amendment referred to supra by notification dt.27.02.2009 that such of the employees who are working as daily wager in the cadre of class-IV and had worked for more than ten years continuously shall be considered for regularization of service by way of screening in terms of sub-rule(4) to Rule 6 of the Rules, 1999. So far as the case of present petitioner is concerned, this fact remains un- controverted that all such employees who were working as daily wager in the cadre of class- IV were regularized by the respondent vide CW-13581/09 (7) order dt.12.05.1989 (Annx.9) and the only defence taken by the respondent is that since the petitioner was not in service at the relevant point of time as such could not be considered for regularization is without substance for the reason that once his termination has been held to be invalid and ordered to be reinstated with continuity of service, by legal fiction it can be presumed that he was in service for all practical purposes on the date of passing of the order and when the decision was taken to regularize the employees who were working on daily wages basis in the cadre of class-IV dt.12.5.1989 (Annx.9) and the artificial distinction which has been made by the respondent, in the opinion of this Court, is wholly arbitrary and in violation of Article 14 & 16 of the Constitution. So far as the judgment on which respondent has placed reliance is of no assistant in the facts of the instant case. Consequently, the writ petition stands allowed. The respondents are directed to consider candidature of the petitioner for regularization of service from the date persons similarly situated were regularized in the cadre of class-IV. Necessary orders may be passed within three months from today. CW-13581/09 (8) However, it is made clear that petitioner will be entitled for notional benefits in the pay- scale of cadre of class-IV and the amount towards 50% of back wages paid to him, pursuant to order dt.11.09.2009 (Annx.5) may be adjusted from the amount which is payable to the petitioner on being regularized in service and he will be entitled for actual monetary benefits from the date of filing of the writ petition i.e.27.10.2009. No costs. (Ajay Rastogi),J. VS Shekhawat/p.8 13581cw09Sep15FnlDsps.doc