1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.3845/02 Bheem Singh & Anr. vs. State & Ors. Date of order : 15/1/2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Anil Upman for the petitioners. Shri Hemant Gupta, Addl. Govt. Counsel for the respondents. ****** Heard learned counsel for the parties. This writ petition has been filed by the petitioners challenging the order dated 21.6.2002 whereby they were relieved from the Panchayati Raj Department and repatriated to their parent department i.e. the Forest Department. Shri Anil Upman, learned counsel for the petitioners has argued that the petitioners were declared surplus from the Forest Department and were absorbed in the Panchayati Raj Department on the post of Gram Sevak cum Secretary where only they worked for six months. Their repatriation by the impugned order could not be made suddenly without providing opportunity of hearing to them. It was argued that many of the employees working in the Panchayati Raj 2 Department on consolidated payment of Rs.1200 were continued on the post of Gram Sevak and yet the petitioners were relieved. This was a case of discrimination. Learned counsel submitted that in any case the impugned order has remained stayed pursuant to the order passed by this Court, therefore, the same should be quashed and set aside and the petitioners should be allowed to continue in the Panchyati Raj Department. The respondents in reply to the writ petition have submitted that the name of the petitioners were wrongly included in the list of those who were declared surplus in the Forest Department. They were working purely on daily wages and yet their names were included in the list forwarded to the Panchayati Raj Department and they were relieved by the Forest Department for their placement in the Panchayati Raj Department. This anomaly came to light when the last pay certificate was produced by such employees. The Government thereupon passed the order dated 14.6.2002 that the inclusion of name of such employees in the list of surplus 3 employees was erroneous as they were not getting the regular pay scale and therefore they could not be treated as surplus in any case and therefore they were directed to be repatriated to their parent department. Learned counsel argued that the petitioners have been declared semi permanent and in this connection also he filed two writ petitions separately. It was argued that no allegation in the pleading with regard to any employee who according to the petitioners was continued in Panchayati Raj Department in spite of being employed on consolidated salary of Rs.1200 has been made by the petitioners and therefore it was not possible for the respondents to contest any such oral assertion. Upon hearing learned counsel for the parties and perused the impugned order as also other material forming part of the record, I find that the petitioners although were initially sent by the Forest Department to the Panchayat Raj Department where they were allowed to join as Gram Sevak cum Secretary but the respondents have relieved them pursuant to the government order which 4 is based on the fact that the employee who are working as daily wage basis could not be declared surplus and such employees could not be adjusted or absorbed on the post of Gram Sevak. There are no pleadings that in spite of being appointed on consolidated salary and not in regular pay scale, any one was retained in preference to the petitioners. Obviously, therefore, the order which is impugned before the Court, cannot be questioned on a ground which is not pleaded and when on such no opportunity was afforded to the respondents to rebut. The reason assigned by the respondents cannot be said to be either erroneous or otherwise illegal in maintaining that the employees who were merely working on daily wage basis, could not be treated as surplus employees and therefore they could not be absorbed in services of another department. I therefore do not find any illegality in the impugned order. The writ petition is accordingly dismissed. (MOHAMMAD RAFIQ), J. RS/