Research › Browse › Judgment

Rajasthan High Court · body

1997 DIGILAW 1305 (RAJ)

Nand Lal v. State of Rajasthan

1997-11-05

BHAGABATI PRASAD BANERJEE

body1997
Honble PRASAD, J.–These two writ petitions are decided by this common order because they involve common questions of law and facts. (2). The petitioners were employed by the respondent District Rural Development Agency (called hereinafter ``D.R.D.A.) as Junior Accountants vide order Annexure 1 dated 26.11.1987 under Gramin Landless Rozgar Guarantee Programme on a consolidated salary of Rs. 25/- per day on purely temporary basis. The petitioner continued to serve in terms of the order Annexure 1 and then came the order Annexure 3 dated 27.2.1989, by virtue of which the services of the petitioners were terminated. (3). This termination, according to the respondents, was because of the reason that the posts which were available for appointment had come to an end as the project itself was abolished. (4). The petitioners have alleged that in passing the order Annex. 3 the respondents have not followed the mandate of Section 25F (a) and (b) of the Industrial Disputes Act, 1947 (referred to hereinafter as, ``the Act of 1947) and, thus, the case of the petitioners is of retrentchment within the meaning of Section 2(oo) as they had completed 240 days. The further case of the petitioner is that the order Annex. 3 is an arbitrary order. The further case of the petitioner is that he was not being placed in regular pay scale of Rs. 1140-2250 and, therefore, he should be paid the regular pay scale. Alongwith the petition, the petitioner has produced certain documents showing that the posts had continued until February, 1997. Therefore, there is no justification in passing the order Annex. 3. (5). The respondents have joined the issue and have stated that in order Annex. 1, the order of appointment, it was clearly mentioned that the appointment is purely temporary on daily wages and has been made under the Rural Landless Employment Guarantee Programme and under this scheme effort is made to give temporary employment to the villagers for short duration. It has also been submitted by the respondents that the Special Secretary of the Gramin Vikas Department Rajas- than, Jaipur vide order dated 8.4.1988 had sanctioned the post in the respondent Panchayat Samiti upto 28.2.1989. The services of the petitioners were terminated with effect from 28.2.1989. It has also been submitted by the respondents that the Special Secretary of the Gramin Vikas Department Rajas- than, Jaipur vide order dated 8.4.1988 had sanctioned the post in the respondent Panchayat Samiti upto 28.2.1989. The services of the petitioners were terminated with effect from 28.2.1989. It was under these circumstances that no notice was given to the petitioner and the same was not necessary because he was a temporary appointee on daily wages and the post against which he was employed had come to an end. Therefore, his services cannot be continued because no such post is continuing. It has further been averred by the respondents that the posts of Junior Accountant are the posts which are within the purview of the Rajasthan Public Service Commission and eligibility has been prescribed for these posts. The petitioner is not entitled to be appointed on the regular post of Junior Accountant. There- fore, he is not entitled to regular pay scale. More so, he was appointed on temporary basis under the scheme and the casual employees are only to be paid wages on daily rate basis. The pay scales have only been given for the first time in the year 1990. Even according to the documents produced by the petitioner there was no pay scale prescribed for the post for which the petitioner is seeking employment. The case of the petitioner that the provisions Section 25F of the Act of 1947 were not followed is baseless as the respondent D.R.D.A. under which the petitioner is serving is not an industry. Therefore, the petitioner was not required to be given any notice and in terms of the order Annex. R. 1 the post of Junior Accountant was available with the respondent Panchayat Samiti only upto 28.2.1989 and, therefore, the services of the petitioner were rightly terminated with effect from that date. (6). The petitioners to support their argument that they are entitled to get salary in the regular pay scale, have placed reliance on a judgment of this Court rendered in Pawan Kumar & Anr. vs. The State of Raj. & Ors. (1) and have prayed that atleast for the period the petitioners were in service, they should be paid salary in the regular pay scale. (7). vs. The State of Raj. & Ors. (1) and have prayed that atleast for the period the petitioners were in service, they should be paid salary in the regular pay scale. (7). I have carefully gone through the judgment and it only says that the persons employed under the specified schemes like Jawahar Rozgar Yojna meant for specified purpose must strictly be covered by the provisions of the scheme keeping in view the main aim and object of the scheme and the petitioners appoin- ted in the scheme are entitled only to what much of benefit which has been envisaged as part of the whole scheme keeping in view the resources available with the institution/agency implementing the scheme. (8). Counsel for the respondents has urged that on the date when the petitioners were appointed there was no pay scale prescribed for the post of Junior Accoun- tant and nothing of this sort has even been averred by the petitioners in the writ petitions that upto 28.2.1989 what was the pay scale available to the Junior Accountants under these schemes. In the absence of any factual foundation, no order can be made in favour of the petitioners. The respondents have relied upon a decision of this Court in the State of Rajasthan & Ors. vs. Shanker Lal Meena & Ors. (2). In this case, this Court in relation to the controversy has held that D.R.D.A. is not an industry relying upon a judgment of the Honble Supreme Court in Delhi Development Horticulture Employees Union vs. Delhi Administration, Delhi & Ors. (3) wherein it was observed as under :- ``......in the context of Art. 21 which seeks to protect persons against the deprivation of their life except according to procedure established by law, this country has so far not found it feasible to incorporate the right to livelihood as a fundamental right in the Constitution. This is because the country has so far not attained the capacity to gua- rantee it, and not because it considers it any the less fundamental to life. Advisedly, therefore, it has been placed in the Chapter on Directive Principles in Art. 41 which enjoins upon the State to make effective provision for securing the same ``within the limits of its economic capacity and development. Advisedly, therefore, it has been placed in the Chapter on Directive Principles in Art. 41 which enjoins upon the State to make effective provision for securing the same ``within the limits of its economic capacity and development. Thus even while giving the di- rection to the State to ensure the right to work the Constitution-makers thought it prudent not to do so without qualifying it. Viewed in the context of the facts of the present case it is apparent that the schemes under which the petitioners were given employment have been involved to provide income for those who are below he poverty line and particularly during the periods when they are without any source of livelihood and, therefore, without any income whatsoever. The Schemes were meant for the rural poor, for the object of the schemes was to start tackling the problem of poverty from that end. The object was not to provide the right to work as such even to the rural poor much less to the unemployed in general....... It was further held as follows : ``......Those employed under the scheme, therefore, could not ask for more than what the scheme intended to give them. To get an employment under such scheme and to claim on the basis of the said employ- ment, a right to regularisation, is to frustrate the scheme itself. No court can be a party to such exercise. It is wrong to approach the problems of those employed under such schemes with a view to providing them with full employment and guaranteeing equal pay for equal work. These concepts, in the context of such schemes are both unwarranted and misplaced. They will do more harm than good by depriving the many of the little income that they may get to keep them from starvation. They would benefit a few at the cost of the many starving poor for whom the schemes are meant. That would also force the State to wind up the existing schemes and forbid them from introducing new ones, for want of resources....... (9). In view of the above the petitioners case is, therefore, not maintainable. (10). They would benefit a few at the cost of the many starving poor for whom the schemes are meant. That would also force the State to wind up the existing schemes and forbid them from introducing new ones, for want of resources....... (9). In view of the above the petitioners case is, therefore, not maintainable. (10). If the case of the petitioners is adjudged as has been set up by the petitioners then as regards the application of Section 25F of the Act of 1947 is concerned, the same is ruled out as the Honble Supreme Court and this Court had authoritatively held that D.R.D.A. is not an industry vide Supreme Court judgment in State of U.P. & Ors. vs. Arun Kumar Singh (4) followed by this Court in Jagdish Chandra & Anr. vs. State of Rajasthan & Ors. (5). Therefore, there is no question of the mandate of Section 25F of the Act of 1947 being followed in relation to the termination of the petitioners. (11). Now come to the question regarding the validity of Annex. 3. If Section 25F of the Act of 1947 cannot be pressed into service, the counsel for the petitioner has impugned this order on the additional ground of being arbitrary and passed without application of mind, when there were posts available. These grounds though they sound very attractive but for an employee who was given casual employ- ment on daily wages on purely temporary basis on a post which is within the purview of the Rajasthan Public Service Commission and can only be filled in by competitive examination held by the Rajasthan Public Service Commission, cannot be considered relevant simply because he has been offered casual employment for a particular period. With the order of employment itself the petitioner knew that he is purely temporary and when the services are purely temporary and were terminated on abolition of the post, the person occupying the post has to go. (12). In the instant case, the services were terminated because the posts wee abolished at a particular time. If such posts have been further extended by some orders then that does not mean that at the time when the petitioner was offered this employment such extension was kept in mind. (12). In the instant case, the services were terminated because the posts wee abolished at a particular time. If such posts have been further extended by some orders then that does not mean that at the time when the petitioner was offered this employment such extension was kept in mind. It is only a fortuitous circumstance that the post has been extended otherwise the petitioner could not have contended that he has a right to continue on the post vide Supreme Court judgment in Executive Engineer (State of Karnataka) vs. K. Somasetty & Ors. (6). In any case the person who has not faced any selection cannot be kept on a post which is within the purview of the Rajasthan Public Service Commission. Thus, there is no semblance of right to the petitioner to hold this post and also there is nothing wrong with the order Annex. 3. (13). The next argument of the counsel for the petitioner that the respondents are required to pay salary in regular pay scale is also not sustainable. The petitioners were given to understand that they were to work on daily wages basis. In the writ petition the petitioners have not averred as to what actually was the pay scale for the post. The petitioners were offered if any pay scale which is not asked for by the petitioner in the writ petition as being given by the scheme then it cannot be said that the petitioners have based their claim on the basis of the pay scale offered by the scheme. The petitioners have not styled their writ petition in that regard. They have only asked for a particular pay scale the basis of which is not delineated and in the absence of such facts being not pleaded, the plea for equal pay for equal work cannot be adjudicated an he can get at best what the scheme has offered and what the scheme has offered has not been contended by the petitioners and, therefore, the relief regarding salary being paid to the petitioners in the regular pay scale also cannot be considered. In any case as per the law laid down by this Court, the regular pay scales are allowed from the date of filing of the writ petition. The writ petition has been filed after passing of the order Annex. 3. The order Annex. In any case as per the law laid down by this Court, the regular pay scales are allowed from the date of filing of the writ petition. The writ petition has been filed after passing of the order Annex. 3. The order Annex. 3 was the order terminating the services of the petitioners. Once the employer has terminated the services and the petitioners have been continued in service under the orders of this Court it cannot be said that the petitioners have worked under the orders of the employer. Therefore, also no regular pay scale can be awarded to the petitioners. (14). The petitioners were appointed on purely causal basis and, therefore, neither the petitioners have a right to hold the post on which they were serving nor they can be said to have any claim for salary because they entered into the service bereft of the rules or process of selection. (15). Counsel for the petitioners has urged that the scheme has merged in ano- ther scheme and the posts are available with the respondents upto 29.2.1997 and, therefore, their case is required to be considered for those posts. The posts of Junior Accountant are within the purview of the Rajasthan Public Service Commission. The appointments on such posts which are within the purview of the Rajasthan Public Service Commission have to be filled up in accordance with law and not on ad hoc and arbitrarily basis and, therefore, for a temporary employee no such direction can be given by this court that they should be kept in employment though their initial appointment was not in accordance with law and was only ad hoc and temporary. (16). In this back-ground, there is no force in these writ petitions and the same are dismissed.