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Rajasthan High Court · body

1996 DIGILAW 934 (RAJ)

Chandra Shekhar Sharma v. State of Rajasthan

1996-08-16

B.R.ARORA

body1996
Honble ARORA, J. – These eight writ petitions raise common questions of law and facts and they are, therefore, being disposed of by this common judgment. (2) The petitioners, except petitioner Shambhu Singh (in S.B. Civil Writ Petition No. 2655 of 1993 ) are working as Nakedars on the Octroi Check Post of Gram Panchayat, Dudu. Petitioners Chandra Shekhar Sharma (petitioner in S. B. Civil Writ Petition No. 2450 of 1993), Mahesh Kumar Sharma (petitioner in S.B. Civil Writ Petition No.2658 of 1993 and kailash chandra Shrma Petitioner in S.B. Civil Writ Petition No2660 of 1993 were initially appointed as Class IV employees on the Octroi Check Post but later-on they were promoted to the post of Nakedar. All these seven petitioners are, now working as Nakedars on the Octroi Check Post of Gram Panchayat, Dudu. (3) The petitioners were given appointments u/s 23(1)(b) of the Rajasthan Panchayat Act, 1963(for short, `the Act) with the approval of the Panchayat Samiti to establish a check Post and to appoint some persons on the Check post as it was considered necessary for collection of the Octroi on various articles prescribed by the Gram Panchayat which may enter in the area of the Gram Panchayat, Dudu for sale, use, or consumption. The appointments were given to theses petitioners between 5.10.1979 to 1.10.1983 on the consolidated salary ranging from Rs. 120/- to Rs. 255/ - per month. They are continuing on these posts since their initial appointments. On various re- presentations being made, the pay of all the petitioners have been increased and fixed at Rs. 1,500/-per month. Petitioner Chandra Shekhar is, also, getting the allowance of Rs. 250/- per months as he is having the additional charge of the post of Assistant Secretary. (4) Petitioner Shambhu Singh (petitioner in S.B. Civil Writ Petition No. 2655 of 1993) was appointed as a Supervisor on 5.10.1979 u/s 23(1)(b) of the Act on a consolidated salary of Rs.150/- per month. He was removed from the Post of Supervisor on 17.3.1983, but as per the case of the respondents he himself left the service. He was re-appointed as a Supervisor on 5.5.1988. During the pendency of the writ petition, Shambhu Singh died and his legal representatives Smt. Draupa- Kanwar and son Hanuman Singh were taken on record vide order dated 31.7.1996. At the time of his death, Shambhu Singh was getting Rs. He was re-appointed as a Supervisor on 5.5.1988. During the pendency of the writ petition, Shambhu Singh died and his legal representatives Smt. Draupa- Kanwar and son Hanuman Singh were taken on record vide order dated 31.7.1996. At the time of his death, Shambhu Singh was getting Rs. 1,525/- per month as the salary. (5) The Gram Panchayat, Dadu, in its meeting held on 16.3.1992, introduced the Scheme of Provident Fund from March, 1993 for the benefit of its permanent employees. The benefit of this Scheme was, also, given to the petitioners. The contention of the petitioners, therefore, is that by giving the benefit of the Provident Fund Scheme to the petitioners, they have been deemed to be made permanent on the posts which they were holding. The petitioners, time and again, approached the respondents to regularise their services and make them permanent on the posts in question and they may be given the salary in the regular pay scale but these requestes of the petitioners were not acceeded to and rather they were threatened that their services will be dispensed with as such demands are being raised by them time and again. The petitioners, therefore, approached this court for the reliefs of regularisation of their services and treating them as the permanent emp- loyees from the day they have been holding the posts and, also, for the grant of salary in the regular pay scale of the posts which they were holding. They also, prayed that the respondents may be directed not to terminated their services. (6) The case of the respondents, in reply,was that the appointments of the petitioners were made u/s 23(1)(b) of the Act to carry-out the urgent temporary work and the consolidated salary is to be paid to them looking to the income sources of the Gram Panchayat and as there is no regular posts of Nakedars with the Gram Panchayat, therefore, the services of the petitioners cannot be regularised. It was further stated in the reply that the apprehension of intended removal of the petitioners, as alleged by them, is baseless and the services of the petitioners will not be terminated without following the due process of law. It was further stated in the reply that the apprehension of intended removal of the petitioners, as alleged by them, is baseless and the services of the petitioners will not be terminated without following the due process of law. It is further the case of the respondents that the appointments of the petitioners were purely temporary in nature for collecting the octroi and not against any permanent or substantive post (7) It is contended by the learned counsel for the petitioners that (i) though the appointments of the petitioners were made u/s 23(1)(b) of the Act but they continued on the posts in question for more than 13 years and the continuation of the petitioners on the posts in question for more than last thirteen years clearly shows that the work is of regular and permanent nature and the device of appointing them temporarily on a consolidated pay has been resorted to by the respondents to deny them the legitimate benefit of permanent employees;(ii) by applying the Provident Fund Scheme to the petitioners, they shall be deemed to be the permanent employees of the Establishment of Gram Panchayat, Dudu and their services cannot be terminated without following the procedure provided under the Rules; and (iii) the petitioners have been serving the respondents for last more than thirteen years but their services are likely to be terminated by the respondents at any point of time on one pretext or the other. (8) Learned counsel of the respondents, on the other hand, have submitted that the appointments of the petitioners were made u/s 23(1)(b) of the Act the in administrative exigency looking to the limited source of income of the Gram Pan- chayat. (8) Learned counsel of the respondents, on the other hand, have submitted that the appointments of the petitioners were made u/s 23(1)(b) of the Act the in administrative exigency looking to the limited source of income of the Gram Pan- chayat. The Gram Panchayat is not in a position to pay more salary and the petitioners cannot claim more salary than the salary which they agreed at the time of their appointments; (ii) there are only two posts of Secretary and the Assistant Secretary in the Gram Panchayat and there is no cadre of Nakedar, Supervisor or any other post in the Service of the Gram Panchayat and, therefore, in the absence of permanent post with the Gram Panchayat, the services of the petitioners cannot be regularised and they cannot be made permanent; (iii) the appointments to the petitioners were given looking to the temporary urgent need of the Gram Panchayat to collect octroi; and (iv) the respondents are not gong to dispense with the services of the petitioners without following the procedure provided under the law. (9) I have considered the submissions made by the learned counsel for the parties. (10) It is true that the petitioners were given temporary appointments u/s 23(1) (b) of the Act as it was felt necessary on account of exigency of the administration as the Gram Panchayat, Dudu decided to impose octroi on various articles brought in the territory of the Gram Panchayat for sale,consumption or use and the Octroi Check Post was established. For collecting the octroi it was thought ne- cessary to give employment to the persons and the petitioners were given appointments. They were given the appointments between the years 1979 to 1983. They are in the service of the respondents for last more than thirteen years. The work of collection of the octroi taken from the petitioner is of a regular and perineal in nature. No regular and permanent posts of Nakedars or Supervisor have been crea- ted by the respondent Gram Panchayat and the petitioners have been appointed on temporary basis. The temporary appointments given to the petitioners continued for last more than thirteen years. In these circumstances, the presumption which can arise, is that there is no need and warrant for the regular post for the work to be done. The temporary appointments given to the petitioners continued for last more than thirteen years. In these circumstances, the presumption which can arise, is that there is no need and warrant for the regular post for the work to be done. The State and its functionaries, being the model employer, are not expected to exploit its employees and take undue advantage of the helplessness and misery of the unemployed persons and give them employment on a meagre salary of Rs. 1,500/- per month on consolidated basis and allow them to continue in service on temporary basis for a long span of thirteen years and refused to regularise them on the pretext that the regular and permanent posts are not available in the Establishment of the Gram Panchayat. (11) Thought it is a hard case in which the petitioners are continuing in the service of the respondents for last more than thirteen years on temporary basis and are being paid the consolidated salary of Rs. 1,500/- per month, but no direction can be given to the respondents, in the facts and circumstance of the case, for re- gularisation of the petitioners because there is non regular or permanent post available in the establishment of the Gram Panchayat. Creation of the post is prerogative of the executive. It is, also, for the Executive to lay down the Conditions of Service including the pay scales, subject to the Rules and the law made by the competent authority. Therefore, creation of the posts providing the cadres and the pay scales are the functions of the State and its functionaries. The Court can only come in the picture to ensure the observation of the Rules, instructions and the governing conditions of the service laid down by the State or its functionaries. The Court can only look-into the fact that the Executive should act fairly give fair deal to its employees; but the Court cannot order for regularisation of the services of the petitioners in the absence of any regular or permanent post available with the Gram Panchayat. The Court, also, cannot direct the respondents to enhance the salary when there is no grade fixed by the Executive for the grant of salary. (12) Though no direction can be issued by the Court for regularisation etc. The Court, also, cannot direct the respondents to enhance the salary when there is no grade fixed by the Executive for the grant of salary. (12) Though no direction can be issued by the Court for regularisation etc. but it is expected that the efforts will be made by the respondents to regularise the pe- titioners as early as possible subject to their fulfilling the requisite qualification etc., by sanctioning the regular/ permanent posts in the cadre in the establishment of the Gram Panchayat. It is an obligation of the respondents to examine the feasibility of the regularisation of the petitioners because they have been serving the respondents for considerably a long span of more than thirteen years. How- ever, the service of the petitioners may not be terminated without following the procedure provided under the law for terminating the services of the regular/ permanent employees of the Gram Panchayat. (13) With these observations, all the writ petitions filed by the petitioners (except deceased petitioner Shambhu Singh) are disposed of. Howerver, S. B. Civil Writ Petition No. 2655 of 1993 filed by petitioner Shambhu Singh is dismissed as he died during the pendency of the writ petition and no relief can be granted to his legal representatives Smt. Drupad Kanwar and Hanuman Singh.