1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.4582/1995. : : Raja Babu Vs. State of Rajasthan & Anr. : : Date of Order 9.4.2009 HON'BLE MR.JUSTI CE MOHAMMAD RAFI Q Mr. Sajid Ali for Mr. Prahlad Singh for the petitioner. Mr. Pradeep Kalwania, Addl.Govt.Counsel for the State. Heard learned counsel for the parties. 2. This writ petition has been filed by petitioner Raja Babu aggrieved by his non-appointment on the post of Ward Boy and with the prayer that respondents be directed to consider his case for appointment on regular basis and grant him consequential benefits from the date of his initial appointment. 3. Shri Sajid Ali, learned counsel for the petitioner has argued that petitioner was initially appointed as Ward Boy on part time basis vide order dated 13.6.1990 and posted at Community Health Center, Phagi. He was being 2 paid @ Rs.200/- per month. Although in order of appointment he has been described as part time employee butin fact, petitioner was discharging duties for full time. He was transferred by order dated 17.7.1991 to Government Dispensary, Durgapura, Jaipur. Medical Officer Incharge, Government Dispensary, Durgapura, Jaipur issued certificate on 7.9.1993 certifying the fact that petitioner worked from 17.7.1991 to 31.8.1993. Single Bench of this Court in Ram Pratap Vs. State of Rajasthan & Ors : 1992 (3) WLC, 533 while dealing with number of writ petitions concerning such part time/daily wages employee working on various Class-IV employees with respondent-department, some of whom were removed from service, directed the respondents to determine vacancies of Class-IV in Medical & Health Department within a period of three months and make appointment there against under the Rajasthan Class-IV Service (Recruitment and other Service Conditions) Rules, 1963. The respondents were also directed to take into account those vacancies against which casual and daily wages employees were working at present and directed to give preference to such persons in making regular appointment. It was argued that said judgment of learned Single Judge was challenged by the Government in Division Bench in DB Civil Special Appeal 3 (Writ) No.1851/1993. The Division Bench rejected the appeal and the directions passed by learned Single Judge were reiterated. Learned counsel argued that petitioner has throughout worked with respondents so much so that even though he continued to work with the respondents from 1995 onwards, payment of his salary was stopped, therefore, petitioner had to approach this Court by filing application. Though at this time petitioner continued to discharge duties. Ultimately application moved by the petitioner was allowed by order dated 22.5.2000 with direction to respondents to make payment of his outstanding salary within one month. When payment was not made, petitioner filed contempt petition even than that order was not complied. Learned counsel submitted that even for the subsequent period, petitioner in his additional affidavit filed on 17.12.1999 stated that though he was being asked to work but payment of his salary was not made. This fact was again reiterated by petitioner in his early hearing application on 15.7.2002 and till date petitioner was not being paid salary whereas he continued to work with the respondents. Learned counsel produced before the Court number of certificates issued by Medical Incharge of Government Dispensary, Durgapura, 4 Jaipur that petitioner has been continuously working with said dispensary. 4. Shri Pradeep Kalwania, learned Additional Government Counsel has opposed the writ petition and submitted that petitioner was not appointed on temporary basis as alleged by him, but he was simply engaged on part time basis for two hours and paid wages @ Rs.200/-. The direction of this court was to give preference to daily wages employees and not to part time employees. Since petitioner was not appointed on daily wages, he could not be given preference and as such he was not eligible for appointment. His application was rightly rejected. Even than he was called for interview and his case was considered but he was not found eligible and his candidature was rejected. A part time worker has no right to claim appointment. 5. Having heard learned counsel for the parties and perused the material on record. I have given my anxious consideration to rival submissions. 6. A perusal of judgment passed by this Court in Ram Pratap (supra) clearly show that Court was concerned 5 about method adopted by respondents in engaging daily wages employees and part time employees and continuing them for years together. The Court although did not interfere with termination order of such candidates, but then directed respondents to determine vacancies of Class-IV in Medical & Health Department within a period of three months. The respondents were also directed to take into account those vacancies against which casual and daily wages employees, who were working at present were directed to be given preference, who were appointed as daily wages and who were appointed on part time basis. Those candidates who were appointed on daily wages or on part time basis, were to be treated within age limit for the purpose of appointment afresh on the basis of vacancies as determined by the Court's direction. It appears even from the advertisement dated 19.8.1993 (Annex.3) that Division Bench reiterated the same direction, which is why the respondents in Clause 3 of advertisement clearly stated that preference in the appointment shall be given to the candidates, who were working with them either on daily wages or on part time basis as on 9.10.1991 and had completed service of at least 90 days. In the case of daily wages employee, such preference could be given even to such candidates, who 6 completed three months as on 9.10.1991 in Clause 3 (c). However, it was stated that first priority shall be given to daily wages employee. 7. Respondents are seeking to construct an argument that since the petitioner was working on part time basis, he could not be given preference, but reply to writ petition raises a very strange pleas that since the petitioner was working on part time basis he was not eligible for such appointment, therefore, his application was rejected. At the other place, the respondents have stated that petitioner was not found suitable as such his candidature was rejected after considering his candidature. What is stated at yet another place is that he was not considered as his candidature was rejected. Petitioner in para No.9 of writ petition has specifically asserted that in the selection in question, respondents appointed a large number of such persons, who were not even in the employment of respondents and they have appointed many of such candidates, who have worked only for 90 days on part time basis. Contention of learned counsel for the petitioner is that petitioner from the date of initial appointment on 13.6.1990 had continuously worked till 9.10.1991. Obviously, the respondent could not treat the 7 petitioner ineligible and on that basis reject his application because the person who were not at all working with the respondents could not be considered as eligible. In other words, even the candidates in open market would apply from the post in question, but then the candidates, who were already working with the respondents or had worked with them at one point of time were required to be given preference over the open market candidates as per the spirit of judgment of this Court in Ram Pratap (supra). The respondents cannot be allowed to state that since the petitioner was working merely on part time basis, preference was given to only daily wages because they have not replied the specific assertion to the contrary made by petitioners. Appointment was given to large number of candidates, who were not working or worked with respondents of daily wages or worked on part time basis merely for 90 days. As per the aforesaid judgment, the respondents were required to give first preference to daily wages employee and then, to part time employees and thereafter to the open market candidates. At one point of time, learned Additional Government Counsel sought to argue that present writ petition should be decided in terms of law now prevalent and not on the basis of aforesaid judgment of Ram Pratap 8 (supra), which was decided in 1991 because a long period has lapsed between. This argument however cannot be upheld because the writ petition was filed by the petitioner in the year 1995 itself and the petitioner has continuously worked with the respondents. He has produced ample material to show that till today he has been working with the respondents. Although the respondents have not paid to him salary after 22.5.20000, when the interim order passed by this Court for the payment of salary for earlier period of five years. The respondents have not clarified as to how and in what manner, the petitioner was not found eligible or suitable and why when they have adjudged even some of the other part time employees suitable and appointed them. Their action, on the face of record, appears to be motivated by method of pick and choose. Petitioner in this manner has been discriminated against in that he has been deemed similar treatment as given to other part time employees. In any case, he was entitled to preferential treatment over many of those, who were appointed from the open market. Petitioner is possessing qualification of VIII class and, therefore, he cannot be said to be ineligible. In the result, this writ petition is allowed. The respondents are directed to reconsider case of the petitioner 9 pursuant to direction of this Court in Ram Pratap (supra) for appointment on the post of Ward Boy (Class-IV) and with reference to selection held pursuant to notification dated 19.8.1993 and if adjudged suitable, appoint him on the post of Ward Boy with effect from the date last candidate in that situation on the aforesaid post was appointed. Since the petitioner is regularly working with the respondents, he shall also be entitled to consequential benefits for the intervening period only on part time basis and after his appointment in regular pay scale though his appointment shall relate back to the date of such appointment granted to other candidate pursuant to advertisement dated 19.8.1993 but he shall be only entitled to seniority from that date with notional benefits during the intervening period. Compliance of this judgment be made within three months from the date its copy is produced before the respondents. (MOHAMMAD RAFI Q)J. A.Arora/ -