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2002 DIGILAW 1902 (RAJ)

Sri Kishan Asopa v. State of Rajasthan

2002-12-02

SUNIL KUMAR GARG

body2002
JUDGMENT 1. 1. This writ petition under Article 226 of the Constitution of India has been filed by the petitioner against the respondents on 12.10.92 with a prayer that by an appropriate writ, order or direction, the respondents be directed to make payment of salary to the petitioner of the post of Lower Division Clerk (Hindi English Typist) in the regular pay scale revised from time to time with effect from the date of initial appointment i.e. 10.9.84 on the basis of principle of equal pay for equal work and further the respondents be directed to regularise the services of the petitioner on the post of Lower Division Clerk (Hindi English typist) with effect from the date of initial appointment i.e. 10.9.84 with all consequential benefits and the declaration by the respondents in favour of the petitioner as semi permanent on the post of Class LV employee (Helper Grade II) may be declared arbitrary. 2. The facts as put forward by the petitioner are as under:- i) That the petitioner has to his credit the certificate of Higher Secondary from the Board of Secondary Education, Ajmer and he has also typing knowledge. in Hindi and English. The petitioner had also cleared the typing examination taken by the Rajasthan Pub 1c Service Commission in the year 1984 as well as in the year 1996. Mark-sheet issued by the RPSC on 23.8.85 is marked as Annex. P/1. ii) That the petitioner was provided appointment by verbal order of the respondents dated 10.9.84 on daily wage basis @ Rs. 16/- against the substantive and vacant post in Hindi and English typist. Since then the petitioner was continuously working on the post of Typist in the employment of the respondents. iii) That the respondents had called the names from the employment Exchange and thereafter the petitioner was provided appointment on daily wage basis @11/- per day after interview vide order dated 18.6.86 (Annex.P/2) issued by the Executive Engineer, PHED, District Division IInd, Jodhpur (respondent No.2). iv) That the further case of the petitioner is that since his initial appointment he had been doing the job of Hindi and English typing i.e. with effect from 10.9.84, but he had not been paid the salary in the regular pay scale of LDC. iv) That the further case of the petitioner is that since his initial appointment he had been doing the job of Hindi and English typing i.e. with effect from 10.9.84, but he had not been paid the salary in the regular pay scale of LDC. v) That further case of the petitioner is that in perusuance of order of Additional Chief Engineer dated 168.90, a list (Annex.P/10) of all daily wages employees was sent to the Additional Chief Engineer showing qualification, date of initial appointment and nature of duties which were being discharged by them and in that list, the name of the petitioner was found at serial No. 29 and against the name of the petitioner it was also mentioned that he was working on the post of LDC. vi) That the further case of the petitioner is that despite the fact that he was initially appointed on 10.9.84 and since then he was discharging the duties of LDC, but vide order dated 25.1.92 (Annex.P/11) issued by the Executive Engineer, PHED, Dist. Division II, jodhpur (respondent No.2), the petitioner was declared semi-permanent with effect from 1.4.87 on the post of Class IV employee (Helper II). Hence, this writ petition with the above mentioned prayer. 3. That the main contentions raised by the learned counsel for the petitioner in this writ petition are as under: i) That since the petitioner is working on the post of LDC with effect from 10.9.84 and since he was not aid regular salary on the post of LDC, thus on the principle of Equal Pay for equal Work, he is entitled to receive salary of the post of LDC in the regular pay scale and non-payment of salary to the petitioner in the regular pay scale of LDC is denial of equality before law and equal protection of law and is in utter disregard of the mandatory provisions of Article 14 of the Constitution of India. ii) That since the petitioner had been serving on the post of LDC (Hindi and English Typist) for about 8 years, but his services were not regularised on the post of LDC, therefore, this action amounts to hospite discrimination and arbitrary exercise of power on the part of the respondents. ii) That since the petitioner had been serving on the post of LDC (Hindi and English Typist) for about 8 years, but his services were not regularised on the post of LDC, therefore, this action amounts to hospite discrimination and arbitrary exercise of power on the part of the respondents. iii) That declaration of the petitioner as semi-permanent on Class IV post (Helper II) with effect from 1.4.87 by order dated 25.1.92 (Annex.P/11) in place of new appointment as LDC is nothing but arbitrary exercise of power on the part of the respondents and the petitioner is entitled for regularisation of his services on the post of LDC with effect from 10.9.84. iv) That it was further submitted by the learned counsel for the petitioner that the petitioner had appeared in the efficiency test and the result of the efficiency test was declared through order dated 3.12.96 (Annex.P/13) passed by the Additional Chief Engineer, PHED, Jodhpur and since the petitioner was declared successful, therefore, atleast with effect from 3.12.96 he should have been given appointment on the post of LDC, but for the reasons best known to the respondent that test was cancelled. 4. Reply to the writ petition was filed by the respondents on 4.5.95 and their main case is that the petitioner was engaged purely on adhoc basis on daily wages and he was paid accordingly. He was never appointed as LDC and since he was not appointed on the post of LDC, therefore, no question of making payment of the post of LDC and regularisation of services of the petitioner as LDC arises. Further case of the respondents is that regularisation of services of the petitioner as LDC is governed by the Rajasthan Engineering Subordinate Service (Public Health Branch) Rules, 1967 (hereinafter referred to as the Rules of 1967) and recruitment is made through RPSC and after the names are sponsored by the RPSC, the appointments are made on the basis of merits and since the petitioner's name was never recommended by RPSC for appointment on the post of LDC, therefore, the petitioner had got no right to claim appointment as LDC and to get salary of LDC. Further reply of the respondents is that since through order dated 25.1.92 (Annex.P/11) passed by the Executive Engineer, PHED, Dist. Division II, Jodhpur,. Further reply of the respondents is that since through order dated 25.1.92 (Annex.P/11) passed by the Executive Engineer, PHED, Dist. Division II, Jodhpur,. the petitioner was declared semi permanent on the post of Class IV employee (helper II) with effect from 1.4.87 and the same post was accepted by the petitioner without any protest, therefore, now he is estopped from claiming regularisation on the post of LDC. Hence, the writ petition be dismissed.Additional reply was also filed by the respondents on 17.9.97 and in that reply, it has been averred by the respondents that the Chief Engineer (Rural) had issued the instructions/order on 24.7.96 for holding efficiency test for the post of LDC for those employees who were appointed w.e.f. 1.1.85 to 31.3.90 as daily rated LDC/Time Keeper/Telephone Attendant. Those employees could be regularised by holding the efficiency test. The petitioner appeared in the efficiency test in compliance of order dated 24.7.96 and was declared passed in that efficiency test, but the result of the same was cancelled by the Chief Engineer, PHED, vide order dated 28.3.97 placing reliance on decision of Hon'ble Supreme Court in the case of State of Haryana V/s Surinder Kumar reported in AIR 1997 Supreme Court 2129. It was further submitted that since the petitioner was never appointed as LDC, therefore he was not entitled to claim regularisation on the post of LDC. 5. During pendency of writ petition, an additional affidavit was filed on behalf of the petitioner on 12.10.2000 stating that through order dated 21.7.2000 (Annex.P/19) issued by the Chief Engineer, PHED, the petitioner was appointed as LDC on regular basis. It may be stated here that during the course of arguments, none of the counsel has drawn the attention of this Court to this fact and from this fact, it is evident that the petitioner has now been appointed as LDC by the respondents. 6. I have heard the learned counsel for the parties and perused the record. 7. The admitted position of the case may be summarised in the following manner: i) That the petitioner was first appointed by verbal order of the respondents on daily wage basis on 10.9.84. ii) That through order dated 18.6.86 (Annex.P/2) issued by the Executive Engineer, PHED, Dist. Division II, Jodhpur (respondent No.2), the petitioner was appointed on daily wage basis . Rs. 11/- per day. ii) That through order dated 18.6.86 (Annex.P/2) issued by the Executive Engineer, PHED, Dist. Division II, Jodhpur (respondent No.2), the petitioner was appointed on daily wage basis . Rs. 11/- per day. iii) That from mark-sheet dated 23.8.85 (Annex.P/1) issued by the RPSC, Ajmer, it is also clear that the petitioner cleared the type-test in Hindi and English. iv) That in the list (Annex.P/10), it was mentioned against the name of the petitioner that he was discharging the duties of LDC. v) That through order dated 25.1.92 (Annex.P/11), passed by the Executive Engineer, PHED, Dist. Division II, Jodhpur (respondent No.2) it is also clear that the petitioner was declared semi-permanent on the post of Class IV employee (Helper II) with effect from 1.4.87. vi) That the petitioner appeared in the efficiency test and he was declared successful through order dated 3.12.96 (Annex.P/13), but order dated 3.12.96 (Annex. P/13) was cancelled by the Chief Engineer, PHED, through order dated 28.3.97. vii) From the additional affidavit filed by the petitioner, it is also clear that through order dated 21.7.2000 (Annex.P/19) passed by the Chief Engineer (Rural), PHED, the petitioner has now been appointed on the post of LDC during pendency of the writ petition. 8. The question which arises for consideration is whether in the facts and circumstances of the present case, the petitioner is entitled to the relief sought for or not. 9. Before proceeding further it may be stated here that the Hon'ble Supreme Court in the case of State of Haryana V/s Surinder Kumar reported in AIR 1997 Supreme Court 2129 has observed as under: "Constitution of India, Arts.16, 39(d) - Equal pay for equal work - Applicability - Appointment as daily wagers to posts of clerk - Not entitled to same pay scale as regular clerk, since their recruitment was not made in accordance with rules. Some persons were appointed as daily wagers on contract basis to the post of Clerk and, therefore, they cannot have any right to a post as such until they are duly selected and appointed. Merely because they were able to manage to have the posts interchanged, they cannot become entitled to the same pay-scale which the regular clerks are holding by claiming that they are discharging their duties as regular employees. Merely because they were able to manage to have the posts interchanged, they cannot become entitled to the same pay-scale which the regular clerks are holding by claiming that they are discharging their duties as regular employees. The very object of selection is to test the eligibility and then to make selection in accordance with rules prescribed for recruitment. Their recruitment was not made in accordance with the rules. Thus, they could not invoke the principle of equal pay for equal work." 10. Since in this case, the petitioner was appointed on daily wage basis by verbal order dated 10,9.84 and thereafter by order dated 18.6.86 (Annex.P/2) passed by the Executive Engineer, PHED, Dist. Division II, jodhpur and but in the order dated 18.6.86 (Annex.P/2), it was nowhere mentioned as to what type of work he was to perform, though he was performing the duties of typist. It is submitted that the daily wage employees can discharge varieties of duties assigned to them by their employer from time to time and, therefore, simply because the petitioner discharged the duties of typist in the capacity of daily wage employee, he had no right to say that he was discharging the duties of LDC he has not been appointed as such. Therefore, the case of the petitioner that on the principle of Equal Pay for Equal Work, he is entitled to the salary of LDC cannot be accepted as he was not appointed as LDC by the respondents. 11. Since the petitioner was never appointed as LDC before 21.7.2000 and initially he was appointed on daily wage basis and later on as soon as vacancies were available with the respondents, the petitioner was declared semi-permanent on the post of Class IV employee (Helper-II) under the provisions of Rules of 1967 with effect from 1.4.87 through order dated 25.1.92 (Annex. P/11), therefore, he is not entitled to claim appointment on the post of LDC retrospectively nor he is entitled for regularisation on the post of LDC as he was never appointed as such. 12. The learned counsel for the petitioner has invited attention of this Court to the list (Annex.P/10), in which it was mentioned that the petitioner was discharging the duties of Typist. However, it is submitted that this fact would not alone be sufficient for regularisation of services on the post of LDC and further more getting the pay of LDC. 12. The learned counsel for the petitioner has invited attention of this Court to the list (Annex.P/10), in which it was mentioned that the petitioner was discharging the duties of Typist. However, it is submitted that this fact would not alone be sufficient for regularisation of services on the post of LDC and further more getting the pay of LDC. In my opinion, keeping the observations made by the Hon'ble Supreme Court in the case of State of Haryana V/s Surinder Kumar (supra) in mind, the petitioner is not entitled to the relief sought for. 13. Through order dated 25.1.92 (Annex.P/11), the petitioner was declared semi-permanent on the post of Class IV employee (Helper-II) with effect from 1.4.87 and he was working on the post of Class IV employee (Helper II), however, the petitioner has not challenged the order dated 25.1.92 (Annex.P/11) in this writ petition, but simply it has been argued on behalf of the petitioner that the order dated 25.1.92 (Annex.P/11) is arbitrary exercise of power. Further more, there is one more aspect that through order dated 25.1.92 (Annex.P/11), the petitioner was declared semi-permanent on the post of Class IV employee with effect from 1.4.87 and this fact itself shows that the respondents themselves were very conscious about the duties which were being performed by the petitioner and from this point of view also, the petitioner is not entitled to the relief sought for. 14. Since the petitioner was declared semi-permanent through order dated 25.1.92 (Annex.P/11) passed by the Executive Engineer, PHED Distt. Division II, Jodhpur (respondent No.2) and that declaration was specifically made under the Rules of 1967 on the post of Class IV employee (Helper II), therefore, no question arises that he should be given pay of LDC as salary is governed by order of appointment and not by work. Therefore, no question arises that the petitioner is entitled to the salary of LDC nor any question arises that the petitioner should be regularised on the post of LDC retrospectively. 15. Therefore, no question arises that the petitioner is entitled to the salary of LDC nor any question arises that the petitioner should be regularised on the post of LDC retrospectively. 15. It may be further be stated that merely because the petitioner appeared in the efficiency test and was declared successful through order dated 3.12.96 (Annex.P/13), the petitioner is not entitled to be appointed as LDC, It should be stated here that merely passing of efficiency test does not confer any right on a person that he should be given appointment just after passing of the test, Therefore, if the petitioner had passed the efficiency test for the post of LDC as is evident from order dated 3.12.96 (Annex.P/13) passed by the Additional Chief Engineer, PHED, Jodhpur, this order would not confer any legal right on the petitioner to be appointed on the post of LDC. Therefore also, the petitioner is not entitled to be appointed as LDC with effect from 3.12.96. 16. In my opinion, the petitioner was declared semi-permanent through order dated 25.1.92 (Annex.P/11) passed by the respondent No.2 (Executive Engineer), therefore, the claim of the petitioner that he should have been regularised on the post of LDC cannot be accepted for the simple reason that his initial appointment was only on daily wage basis and it is another factor that work of typist was taken from him. The appointment on the post of LDC is governed by the Rules of 1967 and a person can only be appointed as LDC whose name is recommended by-RPSC and it is not the position in this case, and, therefore, the claim of the petitioner that he should be treated at par with regularly appointed LDC cannot be accepted. 17. Since the petitioner has now been appointed as LDC through order dated 21.7.2000 (Annex.P/19) passed by the Chief Engineer (Rural), PHED, therefore, the main prayer of the petitioner has now been accepted and in view of this order, the petitioner is not entitled to regularisation of his services on the post of LDC retrospectively and similarly he is not entitled to pay of LDC retrospectively as stated hereinabove and this writ petition deserves to be dismissed.For the reasons mentioned above, the present writ petition is dismissed. Cost made easy.Petition dismissed. *******