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1996 DIGILAW 967 (RAJ)

State of Rajasthan v. Mahendra Kumar Thanvi

1996-08-26

B.R.ARORA, J.C.VERMA

body1996
Honble ARORA, J. – This appeal is directed against the judgment dated 18-7-95 passed by the learned Single Judge, by which the learned Single Judge allowed the writ petition filed by the petitioner-respondent relying upon the judgment of the Single Bench of this Court given in S.B.Civil Writ Petition No. 3453 of 1994 (Anshkalin Samaj Kalyan Sangh, Banswara vs. State of Rajasthan and others) and directed the respondent-appellants to pay the petitioner the minimum pay of the pay scale applicable to the post of Lower Division Clerk, if it has not already been paid to him, from the date of filing the writ petition and consider his case for regularisation of the service alongwith other similarly situated persons. (2) The contention of the learned Additional Advocate General appearing in behalf of the appellants are that (1) as per the Rules,a candidate for appointment on the post of Lower Division Clerk is required to pas the examination held by the Rajasthan Public Service Commission and only after being successful in the examination held by the R.P.S.P.C. he can be appointed as a Lower Division Clerk and as such the learned Single Judge was not justified in directing the appellants (respon dents in the writ petition) to consider the case of Mahendra Kumar for regularisation in the post of Lower Division Clerk: ans (ii) the learned Single Judge, also committed an error in directing the appellants to make payment of salary to respondent-petitioner on the minimum of the pay Scale applicable to the post of power Division Clerk with effect from the date of filing the writ petition while he was not qualified to be appointed on that post and his appointment was on temporary/ad hoc basis and he was entitled for the pay which was being paid to him. Learned counsel for the respondent-petitioner, on the other hand,has suppoted the judgment passed by the learned Single Judge. (3) We have considered the submissions made by the learned counsel for the parties. (4) Writ petitioner Mahendra Kumar was initially appointed as a Casual Labour on 1-2-88 and continued on this post upto 30-7-88. He was re-appointed on 18-11-88 on daily wages basis. Initially he was paid Rs.14/- per day and thereafter with effect from December, 1989 he was paid Rs. 17/- per day and since 1991 to he is getting Rs. 748.52 p.per month, i.e., the pay permissible to the skilled labourers. He was re-appointed on 18-11-88 on daily wages basis. Initially he was paid Rs.14/- per day and thereafter with effect from December, 1989 he was paid Rs. 17/- per day and since 1991 to he is getting Rs. 748.52 p.per month, i.e., the pay permissible to the skilled labourers. Though he was appointed as a casual labour but the respondents were taking the work of Lower Division Clerk from the writ petitioner. (5) In para 3 of the reply to the writ petition, the respondent- appellants have admitted that petitioner Mahendra Kumar was occasionally doing the typing work as a casual labour. In para 6 of the reply it has further been averred that occacional entrustment of the work of typing to the petitioner does not mean that he acquired the right on the post of a Typist. (6) The petitioner, during the pendency of the writ petition, vide order dated 13-1-94 has been absorbed as a Lower Division Clerk. It is, therefore, wrong not taken from the petitioner and it was the work of Beldar which was being taken from him. The appellants themselves have treated the petitioner as a Lower Division Clerk and posted him on the post of Lower Division Clerk with effect from 13-1-94 and earlier to that also, he was performing the work of Lower Division Clerk/Typist and he is,therefore, entitled for the salary of the post of Lowerr Division Clerk. The learned Single Judge has, therefore, not committed any illegality in directing the appellants to pay to the writ petitioner the minimum pay in the pay scale of the post of Lower Division Clerk if it has not already been paid to him. (7) The next question which requires consideration is whether the learned single Judge was right in directing the respondent- appellants consider the case of the petitioner, for regularisation in the cadre of Lower Division Clerk alongwith other similarly situated persons. This direction issued by the learned Single Judge, also, does not require any interference. The petitioner has been working with the appellants since 1988. He has speciflcally averred in para 7 of the writ petition that he has passed the Examination conducted by the Rajasthan Public Service Commission,Ajmer for recruitment on the post of Lower Division Clerks.He has, also, placed on record Annexure 5 -the marks sheet of L.D.C. (Combined) examination, 1986. The petitioner has been working with the appellants since 1988. He has speciflcally averred in para 7 of the writ petition that he has passed the Examination conducted by the Rajasthan Public Service Commission,Ajmer for recruitment on the post of Lower Division Clerks.He has, also, placed on record Annexure 5 -the marks sheet of L.D.C. (Combined) examination, 1986. This para 7 of the writ petition has not been denied by the respondents in the reply. In reply to para 7 of the writ petition, the appellants have only stated that the petitioner was not selected by the Rajasthan Public Service Commission as his name did not appear in the Merit/ Select List. The petitioner has been working since 1988 with the respondents as his work was found satisfactory and, therefore, he was absorbed by the appellants on the post of Lower Division Clerk.In this view of the matter,the order passed by the learned Single Judge directing the appellants to consider the case of the petitioner for regularisation along with the other similarly situated persons, does not require any interference (8). In the result, we do not find any merit in this appeal and the same is hereby dismissed .