- 1 - IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B.CIVIL WRIT PETITION NO.4798/2004 (Suresh Kumar vs. State of Rajasthan & Ors.) DATE OF ORDER : 9/4/2008 HON'BLE JUSTICE GOPAL KRISHAN VAYS Mr.M.S.Singhvi, for the petitioner. Mr.Rameshwar Dave, Deputy Government Counsel. In this writ petition petitioner has prayed for direction to the respondents to screen the petitioner's service record for the purpose of regularisation and to regularise his service from the date of his initial appointment on the post of Junior Engineer with all consequential benefits namely assignment of seniority and grant of selection grade etc. Further it is prayed that respondents may be directed to post the petitioner as Assistant Engineer (Civil) on working arrangement basis and to consider his case for regular promotion to the post of Assistant Engineer (Civil) from the date persons junior to him were granted promotion. As per petitioner, he was initially appointed on the post of Junior Engineer (Civil) in Irrigation Department of Government of Rajasthan vide order dated 26/10/1978. The said order of - 2 - appointment was made purely on temporary basis till reguarly selected candidates are made available after calling names from the Man Power Department of Government of Rajasthan. The term of appointment has been extended from time to time. It is contended by learned counsel for the petitioner that service conditions for the post of Junior Engineer are governed under the Rajasthan Engineering Subordinate Services (Irrigation Branch) Rules, 1967. The grievance of the petitioner is that he was appointed in 1978 on the post of Junior Engineer on temporary basis and still after completing more than 29 years of service he has neither been screened for regularisation nor his name has been included in the seniority list of junior engineers. The contention of learned counsel for the petitioner is that so many persons were recruited as Junior Engineers (Civil) on ad hoc basis subsequent to the appointment of petitioner and they were given benefit of regularisation on the post of Junior Engineer after screening in accordance with Rules of 1967. According to the petitioner vide order dated 3/1/1997 so many persons were appointed as Assistant Engineer on working arrangement basis, who were appointed as Junior Engineer (Civil) Diploma holder subsequent to the appointment of petitioner and they are junior than petitioner but working on - 3 - higher posts. Names of those persons have been shown at serial no. 203 onward in the order dated 3/1/1997. The main grievance of the petitioner is that he is working on the post of Junior Engineer since 26/10/1978 but still respondents are treating his appointment on urgent temporary basis though he had completed more than 29 years of service. Therefore, he is seeking direction to the respondents that his services may be regularized and he may be made permanent on the post of Junior Engineer so also his name may be included in the seniority list of Junior Engineer Diploma Holder and proper seniority may be assigned to him above the persons who were appointed on urgent temporary basis after appointment of the petitioner and subsequently regularised. In support of his contention, learned counsel for the petitioner has invited the attention of the Court towards the judgment rendered by Hon'ble Apex Court in case of Secretary, State of Karnataka and others vs. Uma Devi and others reported in (2006) 4 SCC page 1. Further, learned counsel has also relied upon the judgment rendered by learned Single Judge of Jaipur Bench reported in 2007 (2) WLC (Raj.) page 718, Mohan Lal vs. State of Rajasthan and others, wherein, the person appointed as driver was ordered to be regularized on the basis of Uma Devi's case (supra). - 4 - In the present case by filing reply respondents it is stated that case of petitioner was not considered earlier due to pendenc of criminal case for offence under Section 420, 120B, 467, 471 read with Section 13(d)(12) of Prevention of Corruption Act so also departmental inquiry was also initiated against him. It is also stated in para no.7 of the reply that after investigation Anti Corruption Bureau filed challan and case was committed to Court of Special Judge, Anti Corruption Cases, Bikaner. It is further stated that in departmental inquiry initiated against the petitioner in respect of same charges he was exonerated by the Chief Engineer vide order dated 6/3/2003. It is also stated that another departmental inquiry was initiated against the petitioner under Rule 16 of the Rajasthan Civil Service (Classification, Control and Appeal ) Rules, 1958 and in that inquiry also he was exonerated vide order dated 27/2/2003. In para no.8 of the reply, it is specifically stated by the respondents that case of petitioner was not forwarded for screening for the reasons that departmental inquiries were pending against the petitioner and now after exoneration the service record of petitioner has been sent to Member-Secretary, Screening Committee for regularisation on 1/9/2003 and the matter of petitioner for regularisation is pending consideration before the Committee. - 5 - As per respondents after regularisation of services of the petitioner on the post of Junior Engineer by the Screening Committee, he will be entitled for all consequential benefits. In rejoinder to para no.7 of the reply, it is stated by the petitioner that contention with regard to filing challan against the petitioner for offences under Section 420, 120B, 467 and 471 read with 13(d) (12) of Prevention of Corruption Act is not correct because till today petitioner has not been informed either by the police agency or by any court with regard to initiation of said criminal case against him and that being so, by no stretch of imagination it can be said that alleged criminal case was ever been filed against the petitioner. It is also submitted in rejoinder that patent false case has been made out by the respondents with regard to criminal case and so far as departmental inquiries are concerned, petitioner has been exonerated in the same. In these circumstances, it is submitted by learned counsel for the petitioner that contention of respondents that petitioner's case was not considered for regularisation due to pendency of criminal case and departmental inquiry against him is totally wrong. I have considered the rival submissions and pleadings of - 6 - the case. In this case, from reply filed by the respondents it is clear that petitioner's case for regularisation is pending consideration before the Screening Committee, therefore, if respondents themselves are considering the case of petitioner for regularisation under the Rules of 1967 then in my opinion no positive direction is required to be issued in this regard but non consideration of the petitioner's case for years together is illegal and unconstitutional action of the respondents, therefore, petitioner is entitled for direction to the respondents for granting the service benefits at par with his junior persons. Further, as per the verdict of Hon'ble Apex Court in Uma Devi's case (supra), wherein, question of regularisation of services of such employees who have completed more than ten yeas of services has been considered and the Hon'ble Apex Court held that services of such employees are required to be regularized, therefore, as per law laid down by the Apex Court the respondents are under obligation to regularise the services of petitioner. Para 53 of the said judgment reads as under: “One aspect needs to be clarified. There may be cases of irregular appointments (not illegal appointments) as explained in S.V.Narayanappa, R.N.Nanjundappa and B.N.Nagarajan and referred to in para 15 above, of duly - 7 - qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within a six months from this date. We also clarify that regularization, if any already made, but no sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.” - 8 - In view of above discussion, this writ petition is allowed in the following terms: (i)The case of petitioner for regularisation and for grant of other benefits which is pending before the Screening Committee as per para no.7, 8 and 9 of the reply submitted by the respondents, shall be finalised while considering the ratio laid down by Hon'ble Supreme Court in case of Uma Devi (supra) and respondents are directed to consider the case of petitioner for regularisation at par with similarly situated persons and if petitioner is found fit for regularisation the petitioner shall be granted all consequential benefits including seniority from the date person junior to him has been granted. (ii)Respondents are further directed to consider the case of petitioner for the post of Assistant Engineer both on officiating basis and for regular appointment and if any junior engineer has been granted the benefit of promotion then petitioner may also be extended the same benefit from the date person junior to him was given promotion. (iii)Since petitioner's case could not be considered due to inaction on the part of respondents even after exoneration - 9 - from the departmental inquiry, and petitioner was compelled to approach this court, the respondents are saddled with the cost which is quantified at Rs.5000/-. (GOPAL KRISHAN VYAS),J. Pankaj Baweja