1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B. CIVIL WRIT PETITION NO.770/2006 (Kushala Ram Vs. State of Raj.) Date of order : 21.7.2008 P R E S E N T HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS Mr. K.K. Vyas, for the petitioner. Mr. Arjun Singh, Dy. Govt. Counsel. Heard learned counsel for the parties. 2 In this case, the petitioner is challenging the order dated 4.1.2006 (Annexure-4) and the order dated 14.6.2002 (Annexure-5). Further, it is prayed by petitioner that respondents may be directed to comply with the order of appointment dated 21.6.2000 and fix his pay in the pay scale as admissible to Gram Sewak. It is also prayed that the respondents may be directed to regularized the services of the petitioner and petitioner may be declared permanent employee and the respondents may be directed to grant benefit of post of Gram Sewak upon which he was absorbed earlier. The contention of learned counsel for the petitioner is that the petitioner was initially appointed on 12.10.1987 on the post of Chowkidar/beldar at the rate of Rs.364/- per month and he worked upto 20.12.1988 in the Irrigation Department. Thereafter, the services of the petitioner were terminated by Irrigation Department in violation of provisions of Section 25-F (a) and (b) of the Act of 1947 . Against the said retrenchment, an industrial dispute was raised by the petitioner and after failure of the conciliation proceedings, the appropriate government referred the matter to the Judge, Labour Court, Jodhpur. In pursuance of the reference made by appropriate Government, the Judge, Labour Court, Jodhpur passed an award in favour of the petitioner in 3 which the Judge, Labour Court has passed an order for quashing the termination of the petitioner w.e.f. 20.12.1988 and it has been specifically ordered that the petitioner is entitled for reinstatement with 30% back wages. The said award was passed on 6.2.1996. The Irrigation Department challenged the award dated 6.2.1996 passed by Judge, Labour Court, Jodhpur by way of filing writ petition being SB Civil Writ Petition No.2833/97 before this Court. During the pendency of the said writ petition, when an application under Section 17-B of the Act of 1947 was filed by the petitioner, he was reinstated in service vide Annexure-R/2 and he was allowed to work till disposal of the writ petition as chowkidar/beldar on temporary basis. Although there was no right created in favour of the petitioner with regard to his regularization of his services because writ petition filed by the Department against the award passed by Judge, Labour Court was pending and petitioner was reinstated in service to comply with the order passed under Section 17-B of the Industrial Disputes Act in the writ petition filed by the Irrigation Department against the award passed by Judge, Labour Court, Jodhpur dated 6.2.1996. As per learned counsel for the petitioner, the name of petitioner was recommended for absorption on the post of Gram Sewak due to abolition of post in Irrigation Department to the Panchayati Raj Department 4 on the post of Gram Sewak against the vacant post in pursuance of Annexure-1 dated 21.6.2000. Upon recommendation, the petitioner was absorbed vide order dated 2.9.2002 Annexure-3 on the post of Gram Sewak. Meaning thereby, as surplus employee, the petitioner was absorbed on the post of Gram Sewak under the order passed by Government and the petitioner was sent for training and after acquiring training he was relieved vide order dated 2.9.2002 and petitioner was given posting at Revdar District Sironi. After absorption on the post of Gram Sewak, the petitioner was given posting on the post of Gram Sewak at Panchayat Samiti Revdar District Sirohi but all of sudden after four years of his absorption, an order was issued by Vikas Adhikari, Panchayat Samiti, Revdar dated 4.1.2006 whereby petitioner was relieved from the post of Gram Sewak and a direction was issued to the petitioner to join at parent Department in the Office of Assistant Engineer, Irrigation, Division Barmer in pursuance of order passed by Director, Panchayati Raj Department on 14.6.2002 (Annexure-5). The petitioner is raising voice against the order Annexure-4 dated 4.1.2006 and Annexure-5 dated 14.6.2002 on the ground that the petitioner was employee of the Irrigation Department and he was reinstated in service in pursuance of the award passed by Judge, Labour Court, Jodhpur, which is further challenged by Irrigation Department by way of 5 filing writ petition in which a direction was issued upon the application under Section 17-B of the Act of 1947. Meaning thereby, the petitioner was employee of the Irrigation Department and during pendency of the writ petition filed against the award of Judge, Labour Court, Jodhpur by the Irrigation Department, he was declared surplus. Thereafter, his case was recommended to the Panchayati Raj Department for absorption on the post of Gram Sewak. The petitioner was absorbed after undergoing training for the post of Gram Sewak vide order dated 2.9.2002 but after four years in the garb of order dated 14.6.2002, petitioner was illegally relieved by Vikas Adhikari, Panchayat Samiti Revdar and sent back to the parent department vide impugned order dated 4.1.2006 (Annexure-4). Learned counsel for the petitioner vehemently argued that there was no question of reliving the petitioner in pursuance of the order dated 14.6.2002 after four years of absorption as Gram Sewak, treating the petitioner as illegal appointee on the post of Gram Sewak. More so, the petitioner's case was examined by the Panchayati Raj Department and thereafter, he was sent for training for the post of Gram Sewak where he was allowed to acquire the training. Thereafter, he was given posting as Gram Sewak in the Panchayat Samiti, Revdar where he was allowed to work till impugned order dated 4.1.2006 was passed by the Vikas Adhikari, Panchayat Samiti, Revdar, District Sirohi. 6 Learned counsel for the petitioner vehemently argued that in the year 2002 due to abolition of posts in Irrigation Department, employees working in the Irrigation Department were declared surplus and absorbed on the post of Gram Sewak in accordance with the Surplus Rules, therefore, the respondents cannot discriminate the case of the petitioner while treating him as temporary employee of the Irrigation Department. Learned counsel for the petitioner has invited my attention towards the fact that today writ petition being SB Civil Writ Petition No.2833/97 filed by State has been dismissed by this Court, which is said to be filed against the award passed by Judge, Labour Court in favour of petitioner. Meaning thereby, now when the award is finally upheld by this Court then obviously the petitioner is to be treated in service right from 12.10.1987 on the post of Chowkidar, so also, the respondents are required to treat the petitioner as surplus employee because initially the petitioner was appointed on work charge basis and in pursuance of the award he has been held entitled for continuance in service. Therefore, as per work charge rules, which were in existence till adjudication of industrial dispute, the petitioner was very much entitled to be acquired as semi permanent and permanent on the post of chowkidar/beldar but it has not been done because the matter was sub judice before this Court. The contention of learned counsel for the petitioner is that now there is no hurdle in 7 treating the petitioner as permanent employee because his entire service period is required to be considered for the purpose of granting him semi permanent and permanent status in accordance with Work charge Rules, 1964 which were in existence on the date of award passed by Judge, Labour Court, Jodhpur. As per learned counsel for the petitioner, the respondents have illegally treated the petitioner as daily rate employee and although the petitioner acquired the training for the post of Gram Sewak and worked for more than four years as Gram Sewak in the Panchayati Samiti, Revdar sent back to the Irrigation Department without any reasons. Therefore, the action of respondent – Panchayati Raj Department is contrary to the basic principles of law because petitioner was absorbed as Gram Sewak after due process of law with open eyes, therefore, both the orders impugned may be quashed. On the other hand, learned Dy. Govt. Counsel vehemently argued that there is no right created in favour of the petitioner because admittedly the petitioner was initially appointed as daily rate employee and he was allowed to work as chowkidar and was paid Rs.364 per month. Later on his services were dispensed with and against termination order, an industrial dispute was raised by the workman although he was reinstated in service with 30% back wages but 8 the said award was further challenged by way of filing writ petition. Learned Dy. Govt. Counsel while inviting attention of this Court towards the fact that the day on which the petitioner was declared surplus, he was not regular employee of the Irrigation Department and his matter was under adjudication, therefore, erroneously by mistake he was declared surplus and his name was recommended for absorption on the post of Gram Sewak in pursuance of Annexure-1 passed by Panchayati Raj Department but in fact the petitioner was not entitled to be absorbed on the post of Gram Sewak because the day on which his name was recommended he was not regular employee of the Irrigation Department and by mistake he was declared surplus and recommended for absorption but in fact he was not entitled to be absorbed on the post of Gram Sewak because he was not regular employee of the Irrigation Department, therefore, patent mistake was committed by the Irrigation Department while recommending his name for absorption on the post of Gram Sewak. On the basis of such recommendation, the petitioner was absorbed on the post of Gram Sewak but as and when mistake of declaring petitioner surplus came to the knowledge of the Panchayati Raj Department then it was felt necessary to pass an order dated 4.1.2006 by the by the Vikas Adhikari, Panchayat Samiti, Revdar because the Director, Panchayati Raj Department has passed an order on 14.6.2002 whereby it was specifically directed that if any person who was 9 working as daily rate employee in the Irrigation Department shall not be absorbed on the post of Gram Sewak and he shall be sent back to the parent department, therefore, the order impugned dated 4.1.2006 has rightly been passed by the Department on the strength of order dated 14.6.2002 (Annexure-5). Admittedly, the day on which the case of the petitioner was recommended for absorption while treating him as surplus employee, he was daily rate employee and was not entitled to be absorbed on the post of Gram Sewak. Learned Dy. Govt. Counsel vehemently argued that the status of the petitioner was in the cadre of daily rate employee and he was reinstated upon the order passed by High Court under Section 17-B of the ID Act in the writ petition filed by irrigation Department against the award then there was no question of absorption of the petitioner on the post of Gram Sewak but due to mistake he was absorbed while treating him as regular employee, therefore, there is no right created in favour of the petitioner for directions in view of the order dated 14.6.2002 Annexure-5. Hence, action of the respondents while sending petitioner back in parent department is perfectly in consonance with the order of Director, Panchayati Raj Department dated 14.6.2002. I have considered the rival submissions made 10 by the parties. First of all, it is required to be observed that S.B. Civil Writ Petition No.2833/1997 was filed against the award dated 6.2.1996 passed by Judge, Labour Court, Jodhpur by Irrigation Department has been dismissed today itself in which the award passed by Judge, Labour Court, Jodhpur has been held to be legal and in consonance with the provisions of law as such in this writ petition, this Court cannot enter into the facts and the findings arrived at by Judge, Labour Court, Jodhpur, therefore, the petitioner is to be treated in service right from initial appointment dated 12.10.1987. Further, it the writ petition filed by State against the award dated 6.2.1996 has been dismissed by this Court, then certainly as per award passed by Judge, Labour Court, Jodhpur, petitioner is entitled for continuity in service, therefore, the petitioner is to be treated in service right from 12.10.1987, so also, entitled to be declared regular/permanent employee of the Irrigation Department because as per Rule 3 (3) of the Work Charge Rules but it has not been done because the matter with regard to termination was sub judice before High Court and now the said writ petition has been dismissed, then, the petitioner is entitled for semi permanent and permanent status because number of persons were 11 declared semi permanent and permanent right from 1987 in the Irrigation Department, therefore, the petitioner is also entitled for semi permanent and permanent status as per Rule 3 (3) of the Work Charge Rules. In my opinion, petitioner has completed more than 20 years of service and as per Rule 3 (3) of the Work Charge Rules, a work charge employee is entitled for semi permanent and permanent status after two years and ten years of service respectively and in view of the judgment in case of Om Prakash Vs. State of Raj. & Ors., reported in 1991 (1) WLR 340, the petitioner is required to be treated as permanent employee and respondent – Irrigation Department shall pass order for granting semi-permanent and permanent status as per Rule 3 (3) of the Work Charge Rules. In these circumstances, in my opinion, the order impugned dated 4.1.2006, which is passed on the basis of order dated 14.2.2002 passed by Director, Panchayati Raj Department is not sustainable in the eye of law because by that order, the respondents treated the petitioner as daily rate employee and sent back the petitioner to parent department but not in this writ petition aforesaid order for treating petitioner in service right from 12.10.1987 and granting semi-permanent and permanent status, petitioner cannot be treated as daily rated employee, 12 therefore, when similarly situated work charge employees were absorbed as permanent Gram Sewak, then, petitioner is also entitled for absorption on the post of Gram Sewak, therefore, the order impugned dated 4.1.2006 is hereby quashed and set aside because the petitioner's case is not covered under the order dated 14.6.2002. The respondents are directed to absorb the petitioner on the post of Gram Sewak upon which he was appointed after acquiring training as per recommendations by the Panchayati Raj Department with all consequential benefits. The writ petition is allowed in above terms with no order as to cost. (GOPAL KRISHAN VYAS), J. arun