SBCWP No.1782/96 – Kanti Lal Ojha v. State & ors Date of Order: 16.02.2009 1 of 6 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT J O D H P U R ::: O R D E R ::: Kanti Lal Ojha v. State of Rajasthan & others S.B. CIVIL WRIT PETITION NO.1782 OF 1996 ::: Date of Order: 16th February, 2009 ::: P R E S E N T HON'BLE MR JUSTICE GOVIND MATHUR Mr P.S. Chundawat, for the petitioner None present for respondents Though the petitioner has claimed for assigning seniority to him in the cadre of Lower Division Clerks with effect from 20th April, 1978, however, during course of arguments he confined his claim for reckoning his seniority with effect from 20th April, 1980, the day on which he was selected on regular basis for appointment as Lower Division Clerk. The factual matrix necessary for adjudication of instant petition for writ is that the petitioner SBCWP No.1782/96 – Kanti Lal Ojha v. State & ors Date of Order: 16.02.2009 2 of 6 entered in the service of the Agriculture Marketing Committee, Krishi Upaj Mandi Samiti, Rani on 20th April, 1978, on daily rate basis. The respondent Mandi Samiti allowed regular pay scale to the petitioner with effect from 02nd August, 1978, however, the same was withdrawn subsequent to 31st March, 1979. The respondent Rajasthan Agriculture Marketing Board, Jaipur initiated process of selection for appointment to the posts of Lower Division Clerks/ Auction Clerks/Auctioneers in different Marketing Committees in the State of Rajasthan and the petitioner, while working on daily rate basis with Krishi Upaj Mandi Samiti, Rani; faced process of selection, result of which was declared subsequently. Under an order dated 24th October, 1980, the Director (Agriculture Marketing), Rajasthan, Jaipur instructed the Secretary, Krishi Upaj Mandi Samiti, Rani to issue necessary order of appointment in favour of the petitioner and two other persons, namely – Messers Madan Singh Purohit and Prem Prakash Pareek. The Director (Agriculture Marketing), in the order dated 24th October, 1980, in quite unambiguous terms stated that selections of the petitioner and other two persons referred in the order concerned was as per provisions of clause (b) of sub-rule (6) of rule 64-I of the Rajasthan Agriculture Produce Markets (Marketing Committee Employees' Service) Rules, 1975. SBCWP No.1782/96 – Kanti Lal Ojha v. State & ors Date of Order: 16.02.2009 3 of 6 Though petitioner was continuing with the respondents on daily rate basis, no order of appointment in terms of order dated 24th of October, 1980 was issued for a pretty long time, that is up to the month of November, 1981. The petitioner then submitted a formal joining report on 01st December, 1981. A seniority list subsequent thereto was issued on 19th June, 1984 by the Assistant Director, Agriculture Marketing Department, Jodhpur; treating the petitioner a regular employee with effect from 01st December, 1981. Being aggrieved by the same, a petition for writ was filed by the petitioner and that came to be decided on 25th october, 1994 with a direction to respondents to consider and decide representation, if any submitted by the petitioner, claiming seniority. The representation submitted by the petitioner came to be disposed of by the Director (Agriculture Marketing), Rajasthan on 15th May, 1995. Being aggrieved by the same, this petition for writ is preferred. It is contended by learned counsel for the petitioner that the petitioner, as a matter of fact, is in continuous employment of the respondents since 20th April, 1978 and while in service, he was regularly appointed with effect from 24th October, 1980 and therefore, there is no valid reason for assigning seniority to him in the cadre of Lower Division Clerks with effect from 01st December, 1981. SBCWP No.1782/96 – Kanti Lal Ojha v. State & ors Date of Order: 16.02.2009 4 of 6 In reply to the writ petition, stand taken by the respondents is that though selection of the petitioner was made for appointment as Lower Division Clerk on 24th October, 1980 but the order of appointment was made on 01st December, 1981 and as such, his seniority has been rightly reckoned under the seniority list dated 19th June, 1984. Heard learned counsel for the petitioner. From perusal of the averments contended in the writ petition and also reply to the writ petition, it is apparent that the petitioner is continuously working with the respondents as Lower Division Clerk since 20th April, 1978. Regular pay scale, at the first instance, was awarded to him with effect from 02nd August, 1978 but that was withdrawn with effect from 31st March, 1979. Be that as it may, while working as Lower Division Clerk on daily rate basis, petitioner faced a process of selection and stood selected for appointment as Lower Division Clerk on 24th October, 1980. True it is, that the order of appointment consequent to selection made on 24th October, 1980 was issued in the month of November, 1981 and petitioner formally joined as Lower Division Clerk on 01st December, 1981; but fresh joining of petitioner was nothing but a formality as he was already continuing in the service of respondents. Once the petitioner was SBCWP No.1782/96 – Kanti Lal Ojha v. State & ors Date of Order: 16.02.2009 5 of 6 selected as Lower Division Clerk under order dated 24th October, 1980, there was no reason for detaining the order of appointment for a period of more than one year. As a matter of fact, on the date of selection, petitioner was already working with the respondents as Lower Division Clerk and therefore, his joining on the post concerned should have been treated on regular basis on that day itself i.e. 24th October, 1980. Issuance of order of appointment after selection of petitioner was only a ministerial act and for any delay in completing ministerial act, the petitioner could have not been deprived of seniority for the period he was working with respondents in regular capacity. In view of whatever stated above, petitioner is certainly entitled to get his seniority reckoned with effect from 24th October, 1980, the day on which he was selected as Lower Division Clerk while working on the same post. Accordingly, the petition for writ is allowed. The order dated 15th May, 1995 denying seniority to the petitioner with effect from 24th October, 1980 is declared illegal. Seniority list dated 19th June, 1984 is also declared illegal to the extent it reckons seniority of the petitioner with effect from 01st December, 1981. Respondents are directed to reckon seniority of the petitioner as Lower Division Clerk SBCWP No.1782/96 – Kanti Lal Ojha v. State & ors Date of Order: 16.02.2009 6 of 6 with effect from 24th October, 1980 and he be placed in the seniority list concerned accordingly. No order as to costs. [GOVIND MATHUR],J. mma