JUDGMENT 1. - Petitioner has prayed for quashing of order dated 30th December, 1993 issued by the Deputy Conservator of Forest, Jaipur (West) by which the service of the petitioner has been terminated as a measure of retrenchment. He has also prayed that the respondents be directed to treat him as a semi-permanent Cattle Guard in the Department. 2. Facts of the case lie in a very narrow compass. According to the petitioner, he had joined service as Cattle Guard on being appointed as such in Jaipur Range of the Forest Department with effect from 16th May, 1989 under the Deputy Conservator of Forest, Combined Plantation Project, Jaipur West, Jaipur. From the date of his appointment, the petitioner continuously served the Department till the issue the order dated 30th December, 1993 (Annexure- II) retrenching the petitioner from service by paying him pay in lieu of one month's notice and retrenchment compensation for the service rendered by him. 3. The petitioner has pleaded that after having rendered more than 2 years service he became entitled to be declared as semi-permanent. His name had been included in the seniority list of daily wage employees which was circulated by the Deputy Conservator of Forest, Jaipur West vide his letter dated 1st October, 1992. He was placed at Sr. No. 83 in the said seniority list. According to the petitioner, in terms of the directions given by the Supreme Court in its order dated 29th October, 1991, passed in Contempt Petition No. 158/1990, the petitioner has a legitimate claim to be treated as semi-permanent. But without granting him the status of semi-permanency, respondent No. 3 has terminated his services on the assumption that the petitioner continues to be a daily wage employee. The petitioner has pleaded that one Shri Mahaveer Jat, who has been placed below him in the seniority list has been given the benefit of semi-permanency and by not giving similar benefit to the petitioner, the respondents have discriminated him and have violated his right of equality before law. The petitioner has also pleaded that while bringing about retrenchment of his service, respondent No. 3 has not complied with the mandatory requirements of Section 25-F of the Industrial Disputes Act, 1947. 4. The petitioner has also pleaded that while bringing about retrenchment of his service, respondent No. 3 has not complied with the mandatory requirements of Section 25-F of the Industrial Disputes Act, 1947. 4. In their reply, the respondents have, in the first place, raised preliminary objection to the entertainability of the writ petition on the ground that the petitioner has failed to avail a more effective alternative remedy available to him under the Industrial Disputes Act, 1947. 5. On merits, the respondents have admitted the statement made by the petitioner regarding the date of his employment and the fact that his name has been included in the seniority list dated 1st October, 1992. However, they have pleaded that the petitioner is not entitled to the benefit of the order passed by the Hon'ble Supreme Court on 29th October, 1991 because that order is confined to the employees who were in the employment upto 18th January, 1989 and the petitioner was, for the first time, appointment on 16th May, 1989. They have further pleaded that the benefit of semi-permanency is given to daily-rated/casual employee only if he fulfils the condition of two years continuous service, his service being satisfactory and availability of vacant post. According to the respondents, in the absence of sanctioned post, the benefit of semi-permanency cannot be claimed by the petitioner. Regarding retrenchment, the respondents have pleaded that full compliance of Section 25-F of the Industrial Disputes Act, 1947 has been made before issue of notice dated 30th December, 1993. 6. In the first place, I shall deal with the preliminary objection raised by the learned counsel for the respondents. Shri Mittal has urged that the claim of the petitioner about denial of semi-permanent status falls in the realm of condition of service and, in view of the provisions contained in Schedules II and III of the Industrial Disputes Act, 1947 read with the provisions contained in Section 2(k), Sections 7, 7-A and Section 10, the petitioner is free to raise a dispute before an appropriate adjudicatory forum constituted under the Industrial Disputes Act, 1947 and when the petitioner has an alternative remedy available to him under the Act of 1947, the High Court must not exercise its jurisdiction under Article 226 of the Constitution of India. 7. After having given my thoughtful consideration to the submissions made by Shri Mittal, I find no merit in it. 7. After having given my thoughtful consideration to the submissions made by Shri Mittal, I find no merit in it. 'Industrial Dispute' is defined in Section 2(k) of the Industrial Disputes Act, 1947 and it became a subject- matter of adjudication by different Courts. Some High Courts and Tribunals took the view that a dispute between an employer and a single workman cannot be treated as an industrial dispute; others took the view that it can be treated as industrial dispute. The third line of reasoning adopted by some High Courts was that an individual dispute cannot be treated as an industrial dispute unless it is espoused by the Union of employees or substantial number of workmen. In Central Provinces Transport Service Ltd. v. Raghunath Gopal Patwardhan, [1957(1) LLJ 27] ; Workmen v. Dharampal Prem Chand, [ 1965(1) LLJ 668 ] and in number of other cases, the Supreme Court adopted the third view. Their Lordships of the Supreme Court held that the individual dispute cannot ordinarily be treated as industrial dispute. However, if such dispute is espoused by Union or a substantial number of workmen employed in the establishment, it can be treated as an industrial dispute. Precisely, in order to overcome the difficulty created by various judicial pronouncements and much hardship suffered by the workmen, Parliament inserted Section 2-A in the Industrial Disputes Act, 1947, whereby a legal fiction has been provided for treating an individual dispute as an industrial dispute. However, a look at Section 2-A clearly shows that this is limited to the cases of dismissal, discharge, retrenchment of termination of service of workmen. It is, thus, clear that except in the cases of discharge, dismissal of termination of service of a workman a dispute can acquire the character of an industrial dispute if it is espoused by a substantial number of workmen employed in the establishment, or is supported by Union of employees. No dispute relating to the conditions of service enumerated in IInd and IIIrd Schedules of the Industrial Disputes Act, 1947 can acquire the character of an industrial disputes unless it is espoused by a larger number of employees engaged in the establishment or by a Union of the employees. This view has been expressed by this Court in Jagdish Narain Sharma and another v. Rajasthan Patrika Ltd. and another, [1993(1) RLR 295]. This view has been expressed by this Court in Jagdish Narain Sharma and another v. Rajasthan Patrika Ltd. and another, [1993(1) RLR 295]. Thus, the claim of the petitioner to be declared as semi-permanent on completion of two years service cannot be treated as industrial dispute unless it is supported/espoused by the Union of employees, or by substantial number of workmen employed in the establishment of the Forest Department and it is not the case of the respondents that the grievance of the petitioner has been espoused by a Union of employees of the Forest Department, or by a substantial number of employees of the Forest Department. 8. Another reason for not accepting the submission of Shri Mittal is that even in cases where a dispute can be treated as an industrial dispute under the Industrial Disputes Act, 1947, it is not necessary to non-suit every petitioner coming to this Court on the ground that an alternative remedy is available to him under the Industrial Disputes Act, 1947. In cases where point of law is required to be determined and no serious controversy on the question of fact requires adjudication, it is in fact in the larger interest of employees that the matter is adjudicated expeditiously. In Rajasthan Pul Nigam Workers Union and another v. Rajasthan State Bridge Construction Corporation Ltd. and another, [1991(2) RLR 188] , a Division Bench of this Court has taken judicial notice of the delays which are occasioned in the process of making reference as also in the adjudication of industrial disputes by the Industrial Tribunals and the Labour Courts. The Division Bench after making reference to the Full Bench decision of this Court in Smt. Indu v. Municipal Council, Jodhpur and others, [ 1991(1) RLR 68 ] held that mere availability of alternative remedy under the Act cannot be a ground for dismissal of a writ petition under Section 226 of the Constitution filed with an allegation involving violation of the provisions of the Industrial Disputes Act, 1947. I would add that it will depend on the facts of each and every case as to whether the writ petition filed under Article 226 of the Constitution should be entertained or should be rejected on the ground that the petitioner has failed to avail alternative remedy available to him. For these reasons, the preliminary objection raised by Shri Mittal is over-ruled. 9. For these reasons, the preliminary objection raised by Shri Mittal is over-ruled. 9. Coming to the merits of the case, while Shri Amin Khan, learned counsel for the petitioner, has argued that with the satisfactory completion of 240 days of service counted from 16th May, 1989, the petitioner has become entitled to be declared semi-permanent, Shri Mittal has vehemently argued that in the absence of availability of the post of Cattle Guard, the petitioner cannot be given the benefit of semi-permanency. Shri Amin Khan's deriving support from the order of the Supreme Court dated 29th October, 1991 cannot be appreciated because the said order of the Supreme Court is only confined to the employees who were in the service of the Department as work-charged employees till 18th January, 1989. However, this Court cannot overlook the fact that by Notification dated 18th January, 1989, the provisions contained in the Rajasthan Public Works Department (B&R), Including Gardens, Irrigation, Water Works and Ayurvedic Department Work-charged Employees Service Rules, 1964 have been amended. The amended rules are : Rajasthan Public Works Department (B&R) Including Gardens, Irrigation, Water Works, Ayurvedic and Forest Department (Except Departmental Operational Circle) Work-charged Employees Service Rules, 1964. The consequential amendments have been made in other rules by which the provisions of 1964 Rules have been made applicable to the employees engaged as work-charged employees in the Forest Department. The petitioner had admittedly been appointed in the service of the Forest Department on 16th May, 1989 and, as on that date the provisions of 1964 Rules were applicable for the purpose of regularisation of service of the petitioner and other similarly situated persons. 10. In this regard, it is necessary to note that the question of giving benefit of the Rules to the employees of Forest Department appointed as work- charged employees at par, the Public Works Department, Irrigation Department and Public Health and Engineering Department, had become a subject-matter of decision of this Court in Mohan Singh v. State and others, [ 1987(1) RLR 702 ]. In that case, this Court took notice of the scheme of the Rules of 1964 and held that these Rules constitute a comprehensive code containing the provision for grant of status of semi-permanency and permanency to the work-charged employees of the Public Works Department, Irrigation Department, Water Works Department and Ayurvedic Department. Their seniority, promotion, retirement etc. are also governed by these Rules. Their seniority, promotion, retirement etc. are also governed by these Rules. The Court also took notice of the fact that the standing orders framed by the Forest Department had been approved by the Government because the concerned authorities came to the conclusion that the employees of the Forest Department could not be denied the benefits which are being given to the other departments of the Government of Rajasthan. The Court then adversely commented upon the failure of the Government to implement its own decision to govern the service conditions of work-charged employees and said that there appears to be no justification as to why the petitioner and other similarly situated employees of the Forest Department should be denied the benefits of the relevant rules, more so when the standing orders were approved by the State Government as back as in 1973. This decision in Mohan Singh's case (supra) became subject-matter of appeal before the Division Bench of this Court and then Special Leave to Appeal before the Supreme Court. On 14th August, 1989, the Supreme Court dismissed the Special Leave to Appeal No. 3539/1989 filed by the State of Rajasthan and observed that the order passed by the Division Bench should be implemented with effect from 8.5.1973. The State Government was given four months' time to give benefits to the employees. Number of applications were filed thereafter, by the State Government seeking extension of time for implementation of the order of the High Court and affirmed by the Supreme Court. The employees also filed contempt petition against the State of Rajasthan and its functionaries. While deciding the contempt petition the Supreme Court gave number of directions vide order dated 29th October, 1991. Although, that order is not available on the record of the writ petition, Shri Mittal has produced a copy of it before me during the course of hearing. 11. A look at the order passed by the Supreme Court on 29.10.1991 clearly shows that a specific direction was given by the Supreme Court for giving benefit of semi-permanent and permanent status to all those work-charged employees of the Forest Department who had completed two years and ten years service respectively. 11. A look at the order passed by the Supreme Court on 29.10.1991 clearly shows that a specific direction was given by the Supreme Court for giving benefit of semi-permanent and permanent status to all those work-charged employees of the Forest Department who had completed two years and ten years service respectively. Thus, insofar as the employees who were in the employment of the Forest Department in the work-charged establishment till 18.1.1989 are concerned, the respondents are duty bound to give effect to the order passed by the Supreme Court and to confer status of semi-permanency and permanency on the work-charged employees who had completed two years and ten years service respectively. Shri Mittal, learned Counsel for the respondents, has very fairly conceded before the Court that in pursuance of the direction of the Supreme Court, the employees on work-charged establishment of the Forest Department, who were in employment upto 18.1.89, have been given the benefit of semi-permanent and permanent status. 12. This Court has considered the ambit and scope of Rule 3 of the Rules of 1964 in the following cases : (a) Vinod Kumar v. State of Rajasthan, [1991(1) WLR 192]; (b) Om Prakash Meghgwal v. State of Raj. and others, [1991(1) WLR 299]; (c) Nagar Vikas Pradhikaram Kamgar Sangh v. JDA, [1992(1) WLC 21]; (d) Chambal Vikash Yantrik Sinchai Karamchari Sangh v. State of Rajasthan and others, [1992(1) WLC (Raj.) 26]. 13. In Vinod Kumar's case (supra) and Om Prakash Meghwal's case (supra) an argument similar to the one which has been advanced by Shri Mittal in the present case, namely that declaration of semi-permanency and permanency cannot be given in the absence of a sanctioned post has been considered and in both the cases it has been rejected. In Vinod Kumar's case (supra), the Court observed that Rule 3(3) contains no provisions indicating that conferment of semi-permanent status on a work-charged employee after completion of two years' service is dependent on availability of vacant post. Same view has been expressed on Om Prakash Meghwal's case (supra). The learned Judge who had decided Om Prakash Meghwal's case (supra) had taken note of an unreported decision of the Division Bench and held that every employee who completes two years' satisfactory service as work-charged employee has a right to be declared as semi-permanent work-charged employee. Same view has been expressed on Om Prakash Meghwal's case (supra). The learned Judge who had decided Om Prakash Meghwal's case (supra) had taken note of an unreported decision of the Division Bench and held that every employee who completes two years' satisfactory service as work-charged employee has a right to be declared as semi-permanent work-charged employee. The following observations made in Vinod Kumar's case as well as Om Prakash's case (supra) are quite instructive and, therefore, they are reproduced below : "Having gone through the rival submissions made in this regard, it appears from the scheme of the Rules that the categorisation of permanent and semi-permanent status and the casual workers has been made in the scheme of the Rules and it has been provided in the scheme of the Rules itself that those who have continuous service for two years or more and whose record of service in the opinion of the competent authority is satisfactory are to be conferred semi-permanent status, the employees who have been in service for 10 years or more are eligible for the status of permanent work charged employees provided their record of service in the opinion of the competent authority is satisfactory. Thus it is very much in the scheme of the rule itself that in the work-charged services all employees enter as casual workers and once an employee completes two years period he is eligible for the status of semi-permanent and on completion of 10 years' service he is entitled for permanent status as work-charged employee. The only embargo provided under sub-rules 2 and 3 is that the record of service in the opinion of the competent authority must be satisfactory, all those persons appointed as work-charged employees on completion of two years are entitled for semi-permanent status subject to only condition that their record of service in the opinion of the competent authority is satisfactory and similarly all those employees who have completed 10 years' service are entitled for the permanent status in case their record of service in the opinion of the authority is satisfactory. The conferment of semi-permanent and/or permanent status as a work-charge employee has, therefore, no concern whatsoever with the number of sanctioned posts because posts are already sanctioned against which the persons are continuing. The conferment of semi-permanent and/or permanent status as a work-charge employee has, therefore, no concern whatsoever with the number of sanctioned posts because posts are already sanctioned against which the persons are continuing. It is absolutely erroneous and wholly irrelevant consideration to say that merely because a person is working as a casual worker, in case semi-permanent status/permanent status is to be conferred upon them there must be further sanction of that very post against which he is to be continued with semi-permanent/permanent status." "It is true that the Apex Court was conscious of the human agony of these daily rate/wages bread earners who have continued in service for considerably long time and they are still on the paltry sum without any security of the job. The Hon'ble Supreme Court was also conscious of the financial constrains of State Government, therefore, they gave a phased direction. But after the issuance of this Circular dated 1.11.1985 the State Government remained silent and no further orders in this regard have been issued redressing the agony of these daily rated employees. If the Government was conscious enough then perhaps it would have issued the order in line issued 1.11.1985. I am also conscious of the financial constraints of the State Government, but at the same time I cannot ignore the impact of Chapter IV of the Constitution and the decision delivered by their Lordships of the Supreme Court referred to above. The provision of Rule 3(2) has already been interpreted by the Division Bench at the Jaipur Bench of this Court but this clarification which has been given below, the Rule was not brought to the notice of the Hon'ble Judge constituting the Division Bench. Even if this clarification had been brought to the notice of Division Bench, the interpretation would not have been different as the clarification which has been issued by the authorities in exercise of their administrative power would not over-ride statutory rules. According to the view taken by the Division it is clear that the incumbents after having completing 10 years of service and their work being found satisfactory are entitled to be treated as permanent and likewise those incumbents who have completed two years service with satisfactory record of service are entitled to be treated as semi-permanent. According to the view taken by the Division it is clear that the incumbents after having completing 10 years of service and their work being found satisfactory are entitled to be treated as permanent and likewise those incumbents who have completed two years service with satisfactory record of service are entitled to be treated as semi-permanent. It is true that under sub-rule (4) of Rule 3 a positive order had to be passed by the competent authority and if the competent authority had been conscious enough and had realised the aspirations of these lowly paid employees then perhaps they would have issued the further circular in line with Circular issued on 1.11.1985. But no such realisation has dawned upon the Government and this anguish has been ventilated before this Court." 14. In view of the decisions, reference of which has been made hereinabove, I have no hesitation in holding that denial of status of semi-permanent employee to the petitioner is without any element of justification. The respondents have not come forward with the plea that between 16.5.1989 to 16.5.1991 the work of the petitioner has been found to be unsatisfactory. In the absence of such assertion, it has to be presumed that the petitioner has performed his duty satisfactory. Thus, there remains no impediment for conferment of semi-permanent status on the petitioner. 15. Even though Rule 3(3) of 1964 Rules does not contain any condition, like the one of availability of sanctioned post for the purpose of granting status of semi-permanency on a work-charged employee who has completed two years' satisfactory service, administrative instructions have been issued laying down the condition of availability of vacant post before semi-permanent status can be conferred on an employee. Though, the said administrative instructions have not been placed on the record of this writ petition, I am of the opinion that no such administrative instructions can be issued by the Government imposing additional condition for conferment of status of semi-permanency on a work-charged employee who has completed two years' satisfactory service. No such condition can be enforced against such employees when Rule 3(3) has been framed under the provisions of Article 309 of the Constitution of India and the condition for grant of semi-permanent status has been incorporated in the said Rules. It is not open to the Government to impose additional condition by issuing administrative order. 16. No such condition can be enforced against such employees when Rule 3(3) has been framed under the provisions of Article 309 of the Constitution of India and the condition for grant of semi-permanent status has been incorporated in the said Rules. It is not open to the Government to impose additional condition by issuing administrative order. 16. In view of the above, it must be held that the respondents have acted arbitrarily in not giving semi-permanent status to the petitioner even though he had completed two years' service on 16.5.1991. 17. Termination of the service of the petitioner by notice dated 30th December, 1993 has been brought about. The petitioner was holding the post as daily age employee/unsecured employee. Once the Court has held that the petitioner is entitled to be given the status of semi-permanent work-charged employee after completion of two years satisfactory service, it will have to be held that the order of retrenchment issued by the respondents is not sustainable. Once the petitioner is treated as semi-permanent work-charged employee, the respondents will have to consider his seniority amongst other semi-permanent employees and then take a decision whether it is imperative to dispense with his service as a measure of retrenchment. 18. In the result, the writ petition is allowed. It is declared that the petitioner has become entitled to be treated as semi-permanent work-charged employee with effect from 16.5.1991 when he had completed two years' satisfactory service. The respondents are directed to issue necessary order for treating the petitioner as semi-permanent work-charged employee with effect from that date. The petitioner shall be given all benefits with effect from 16.5.1991. Termination of service with effect from 30.12.1993 is also declared illegal and is hereby quashed. The petitioner shall be entitled to be reinstated in service. However, for the period between 30.12.1993 to the date of reinstatement he shall not be entitled to back wages. Even the benefit of wages as semi-permanent shall not be admissible to the petitioner between 30.12.1993 to the date of reinstatement. For such back wages, the petitioner shall be free to move an application under Section 33(C)(2) of the Industrial Disputes Act, 1947 and it shall be open to the respondents to plead that the petitioner was gainfully employed elsewhere and, therefore, the petitioner is not entitled to whole or part of the back-wages. For such back wages, the petitioner shall be free to move an application under Section 33(C)(2) of the Industrial Disputes Act, 1947 and it shall be open to the respondents to plead that the petitioner was gainfully employed elsewhere and, therefore, the petitioner is not entitled to whole or part of the back-wages. It is also made clear that if it becomes necessary to effect retrenchment from amongst the work-charged employees, it shall be open to the respondents to take appropriate measure for retrenching or dispensing with the service of the petitioner in accordance with the Industrial Disputes Act, 1947 and other relevant rules.Costs made easy.Petition allowed. *******