SBCWP1054/1997 // 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.1054/1997 Municipal Council, Beawar through Commissioner Vs. Judge, Labour Court & Industrial Tribunal, Ajmer & Others Date of Order ::: 30.03.2010 Present Hon'ble Mr. Justice Mohammad Rafiq Shri Rajneesh Gupta for Shri Satyendra Kumar Gupta, Counsel for petitioner Shri Kunal Rawat with Ms. Kavita Bhati, Counsel for respondents #### By the Court:- Heard learned counsel for parties. This writ petition has been filed by petitioner Municipal Council, Beawar, against Award dated 01.10.1996 by which the Industrial Tribunal, Ajmer, held the action of petitioner in not paying to respondent-workman salary of the post of Driver when he worked on said post, as illegal and directed that he be treated as Driver since 21.05.1980. Shri Rajneesh Gupta, brief holder of Shri Satyendra Kumar Gupta, learned counsel for petitioner, has submitted that specific case set up by petitioner before Industrial Tribunal was that respondent-workman was substantively SBCWP1054/1997 // 2 // appointed on the post of Safaikarmchari on 29.09.1976 and that he, for sometime in between 1978 and 1991, was asked to work on the post of Driver. No work was given to him on the post of Driver after 14.12.1991. The Industrial Tribunal has failed to appreciate this aspect of the matter and merely passed the Award on the basis of fact that for period of 13 years between 1978 and 1991 respondent-workman was required to work as Driver. It is contended that Industrial Tribunal could at the maximum grant salary to respondent-workman for that period when he was required to discharge duties on the post of Driver. There was no reason to straightway make a declaration that he would be treated as regular Driver with effect from 21.05.1980. Learned counsel submitted that respondent -workman was merely called for interview but this does not mean that he was appointed. Appointment on the post of Driver was required to be made under the Rajasthan Municipal Subordinate & Ministerial Services Rules, 1963 (for short, 'the Rules of 1963') and thereunder post of Driver was required to be filled in by way of direct recruitment. Four persons, whose examples have been cited by respondent-workman, were appointed by direct recruitment. As and when post of driver is advertised to be filled SBCWP1054/1997 // 3 // in by direct recruitment, respondent-workman may also apply. Shri Kunal Rawat, learned counsel for respondent-workman, opposed writ petition and submitted that respondent-workman on the basis of evidence on record, proved that he actually worked for a period of 13 years from 1978 to 1991 and that other Safaikarmchari were also promoted to the post of driver, as referred to in Para 10 of Award. Learned counsel submitted that subsequent to the Award also, respondent- workman for some time was required to discharge duties of driver and that learned Industrial Tribunal has rightly held that petitioner Municipal Council, Beawar, was autonomous body and that it could, at its own, decide to make recruitment of respondent-workman on the post of Driver. The award is therefore perfectly justified. Upon hearing learned counsel for parties and perusing material on record, I find that in so far as direction of Industrial Tribunal to pay him difference of salary of the post of Safaikarmchari and driver whenever he was required to discharge the duties of latter post, cannot be faulted more particularly when that part of the Award has not been seriously assailed by petitioner itself. Petitioner SBCWP1054/1997 // 4 // however is aggrieved of latter part of Award in which it is held that respondent be treated as a driver with effect from 21.05.1980. It is not clear from the award as to what is the basis for treating respondent-workman straightway as driver from 21.05.1980 whereas appointment on the post of driver is governed by the Rules of 1963 wherein source of appointment to this post is hundred percent by direct recruitment. The respondent-workman was appointed as Safaikarmchari and next promotional post is Jamadar. Four persons, whose reference has been made by respondent-workman, were although initially appointed as Safaikarmchari but they were then appointed by way of direct recruitment as driver. Even if post of driver was vacant with petitioner, Industrial Tribunal could not direct regularization of respondent-workman thereon only because he was having driving license and discharged duties on the post of Driver. However, keeping in view the fact that respondent worked with petitioner on the post of Driver for the period from 1978 to 1991 and thereafter at-least till operation of Award was stayed by this Court on 08.05.2002, the age of respondent-workman should not be taken as a bar whenever petitioner decides to make recruitment to the post of driver. SBCWP1054/1997 // 5 // The present writ petition is therefore allowed in part with following directions:- (1) Award of Industrial Tribunal containing direction thereby holding respondent- workman entitled to difference of salary of the post of Safaikarmchari and driver for the period he worked as driver is upheld and it is further directed that whenever petitioner decides to take the work of driver from respondent, petitioner would be liable to pay him salary of the post of driver. (2) the direction of the Industrial Tribunal to treat the respondent-workman as driver with effect from 21.05.1980 is set-aside. (3) respondent-workman shall be entitled to apply for appointment on the post of driver; whenever such post is advertised by petitioner to be filled-in by way of direct recruitment, in that case upper age limit would not be a impediment for considering respondent's case for appointment. The writ petition accordingly stands disposed of. (Mohammad Rafiq) J. //Jaiman//