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2004 DIGILAW 1695 (RAJ)

Hari Ram Dindor v. State of Rajasthan

2004-11-29

SUNIL KUMAR GARG

body2004
JUDGMENT 1. - This writ petition under Article 226 of the Constitution of India has been filed by the petitioner against the respondents on 21.10.1999 with the prayer that by an appropriate writ, order or direction, the respondents be directed to regularise the services of the petitioner on the post of Junior Engineer (Diploma) Civil with effect from 1.3.1997. 2. The case of the petitioner as put forward by him in this writ petition is as follows : The petitioner passed Diploma in Civil Engineering from Vidhya Bhawan Rural Institute, Udaipur in the year 1986 and a copy of the certificate is marked as Annexure 1 and he has also got man-power registration in the year 1987, which was as such renewed upto June 2000 as is evident from certificate Annexure 2. The case of the petitioner is that he was appointed on the post of Junior Engineer-cum-Supervisor on 1.3.1997 at Devli Talab under Panchayat Samiti, Salumbar and, thereafter, he was working continuously on the said post and he was paid wages according to the rate prescribed under B.S.R. 1996 or at the rate of Rs. 120/- per day. The further case of the petitioner is that for the period from 1.3.1997 to February, 1998 he was being paid wages according to muster roll as he had worked in different programmes conducted by the Panchayat Raj Department.The further case of the petitioner is that thereafter, the Development Officer, Panchayat Samiti, Salumber (respondent No. 5) vide order dated 2.3.1988 (Annexure 3) granted sanction in favour of the petitioner for the post of Supervisor on the basis of job cards and the petitioner was directed to work under the guidance of Junior Engineer on Enikato Construction Work. According to the petitioner, thereafter, he was continuously working on the post of Supervisor-cum-Junior Engineer on the basis of job cards and copies of some of the job cards are marked as Annexure 4 and 5 respectively and as per job cards, wages were given to him according to BSR 1996 or at the rate of Rs. According to the petitioner, thereafter, he was continuously working on the post of Supervisor-cum-Junior Engineer on the basis of job cards and copies of some of the job cards are marked as Annexure 4 and 5 respectively and as per job cards, wages were given to him according to BSR 1996 or at the rate of Rs. 120/- per day.The further case of the petitioner is that he had worked under the respondent-Department on the basis of job cards upto 31.12.1998 and thereafter, he was again appointed on the basis of muster roll from 1.1.1999 and thereafter, he was continuously working on the post of Supervisor-cum Junior Engineer at different places at different works conducted by the respondent No. 5 Panchayat Samiti, Salumber under the Junior Engineer of the Panchayat Samiti, Salumber. The details of work done by the petitioner from 1.1.1999 are marked as Annexure 6.The further case of the petitioner is that though he was continuously working on the post of Supervisor-cum Junior Engineer since 1.3.1997 satisfactorily, but despite that, he was not given the regular pay scale of Junior Engineer and he was only paid Rs. 120/- per day according to BSR 1996.The further case of the petitioner is that one post of Junior Engineer was lying vacant in the respondent-Department and since he has been continuously working with the respondent Department satisfactorily, therefore, he has a preferential right to that post of Junior Engineer and thus, he made a request to the respondent-Department for regularising his services on the said post of Junior Engineer (Civil). However, the same was not accepted by the respondents and according to the petitioner, by not accepting his request regularization, the respondents had acted arbitrarily and their action is wholly illegal and that has infringed his legal right, which had accrued in his favour stated above.During the pendency of this writ petition, the petitioner has filed second stay application on 19.5.2004 stating that services of the petitioner on the post of Junior Engineer were not regularised by the respondents on the pretext that no vacancy was available, but on the contrary, through advertisement Annexure 11 dated 21.2.2004, the respondents are going to fill in up 170 posts of Junior Engineer (Civil) and therefore, a further prayer was made by the petitioner that operation of the advertisement Annexure 11 dated 21.2.2004 bye stayed.Thus, in this writ petition, it can be said that the petitioner has made two prayers : (i) That the respondents be directed to regularise the services of the petitioner on the post of Junior Engineer (Civil); and (ii) That operation of the advertisement Annexure 11 dated 21.2.2004 by which 170 posts of junior Engineer (Civil) were advertised for direct recruitment, by stayed. A reply to the writ petition was filed by the respondents and their case is that the petitioner was never appointed on the posts of Junior Engineer and therefore, to say that he was working on the post of Junior Engineer continuously is absolutely wrong. It has been further submitted by the respondents that each Gram Panchayat is a separate unit and the petitioner cannot be permitted to take benefit of the Job Cards given to him by the respective Gram Panchayat so as to claim regularization. Furthermore, the payment, which was made to the petitioner, was made as per rate mentioned in BSR and he was engaged on the basis of Job Card and he was working under the supervision of Junior Engineer. Since the petitioner was never appointed as Junior Engineer (Civil), therefore, he was not entitled to claim regularisation on the said post of Junior Engineer (Civil) and his request for regularisation was rightly rejected by the respondents. Since the petitioner was never appointed as Junior Engineer (Civil), therefore, he was not entitled to claim regularisation on the said post of Junior Engineer (Civil) and his request for regularisation was rightly rejected by the respondents. Hence, no interference is called for and this writ petition deserves to be dismissed.On second stay application, it has been submitted by the respondents that through advertisement Annexure 11 dated 21.2.2004, 170 posts of Junior Engineer (Civil) were advertised under the provisions of the Rajasthan Rural Development and Panchayati Raj State and Subordinate Service Rules, 1998 (hereinafter referred to as "the Rules of 1998"). It has been further submitted by the respondents that in case the petitioner feels that he was eligible and fulfils the requisite eligibility criteria/conditions as mentioned in the advertisement Annexure 11, he could have applied for appointment to the posts of Junior Engineer (Civil). If the petitioner does not fulfil the requisite eligibility conditions as mentioned in the advertisement Annexure 11, for that the respondents cannot be held responsible. Hence, the second stay application also deserves to be dismissed.A rejoinder to the reply filed by the respondents was also filed by the petitioner and it has been submitted by the petitioner that since he was continuously working with the respondents on the post of Junior Engineer, therefore, his claim for regularisation should have been accepted by the respondents and so far as the eligibility conditions as mentioned in the advertisement Annexure 11 are concerned, it has been submitted by the petitioner that he had crossed the age and therefore, he was not eligible to apply for the post of Junior Engineer (Civil) in pursuance of advertisement Annexure 11 and since one post of Junior Engineer (Civil) was laying vacant in the respondent-Department, therefore, case of the petitioner for regularisation on that post should have been accepted by the respondents and by not doing so, legal right of the petitioner has been infringed. 3. I have heard the learned counsel for the petitioner and the learned counsel for the respondents and gone through the record of the case. 4. First the case of the petitioner for regularisation has to be taken into consideration.Case of regularisation 5. 3. I have heard the learned counsel for the petitioner and the learned counsel for the respondents and gone through the record of the case. 4. First the case of the petitioner for regularisation has to be taken into consideration.Case of regularisation 5. As per the averments made in the writ petition itself, the petitioner was appointed on the post of Supervisor on the basis of Job Cards and after 31.12.1998, he was appointed on the basis of muster roll from 1.1.1999. 6. Thus, the case of the respondents that the petitioner was never appointed on the post of Junior Engineer appears to be correct one and it appears that the petitioner has been working in the respondent-Department on the basis of Job Cards and he was being paid wages as per the rate mentioned in the BSR 1996 since 1.3.1997. 7. It may be stated here that regularisation in service law connotes official formalization of an appointment which was made on a temporary or ad hoc or stop-gap or casual basis or the like in deviation from the normal rules or applicable norms of appointment. Such formalization makes the appointment regular. Regularisation does not necessarily conote conferring a permanent status. 8. It is settled law that such persons appointed on ad hoc or casual or temporary or stop-gap basis do not have any right to hold any post. It follows that generally they do not have any absolute or unconditional right (constitutional or otherwise) to be regularised in service i.e. by absorption in regular or permanent service. 9. All employee has got no vested right to be regularised in service, but if a person has been continuously working for a fairly long period, then his case for regularisation can be considered sympathetically. 10. In the present case, the petitioner was appointed as Supervisor in the year 1997 and, therefore, it cannot be said that he has got any vested right to claim regularisation on the post of Junior Engineer (Civil) for the simple reason that he was never appointed on the post of Junior Engineer (Civil) in the department of the respondents. Hence, action of the respondents denying regularisation of services of the petitioner on the post of Junior Engineer (Civil) cannot be said to be illegal or arbitrary. 11. Hence, action of the respondents denying regularisation of services of the petitioner on the post of Junior Engineer (Civil) cannot be said to be illegal or arbitrary. 11. Hence, the case of the petitioner that he was entitled to regularisation on the post of Junior Engineer (Civil) stands rejected. 12. The second question for consideration is whether the petitioner is entitled to seek stay of the operation of the advertisement Annexure 11 dated 21.2.2004 by which 170 posts of Junior Engineer (Civil) were advertised for direct recruitment or not. 13. In this respect, it may be stated here that the learned counsel for the petitioner has placed reliance on Rule 6 of the Rules of 1998 which speaks that posts mentioned in columns 3 and 4 of Schedules I and II appended to the Rules of 1998 can be filled-in up by direct recruitment as well as by promotion. 14. The present post for which the advertisement Annexure 11 dated 21.2.2004 was issued is Junior Engineer (Civil), which is found in Schedule-II appended to the Rules of 1998. In Schedule-II, there is a bifurcation as to which post has to be filled in up by direct recruitment and which post has to be filled in up by promotion. The post of Junior Engineer (Civil) (Degree holder) and the post of Junior Engineer (Civil) (Diploma holder) are mentioned in Group B and the source of recruitment of these posts is quoted here:- S. No. Name of Post Source of Recruitment with percentage Direct Promotion 1. Junior Engineer (Civil) (Degree holder) 100% 2. Junior Engineer (Civil) (Degree holder) 100% 15. Thus, the posts of Junior Engineer (Civil), which are going to be filled up by the respondents through advertisement Annexure 11 dated 21.2.2004 are mentioned in Group B of Schedule II appended to the Rules of 1998 and as per Group B of Schedule II, these posts are to be filled up only by direct recruitment and not by way of promotion. 16. When this being the position, the petitioner has got no right to get stay of the operation of the advertisement Annexure 11 dated 21.2.2004 as these posts of Junior Engineer (Civil), according to Group B of Schedule II appended to Rules of 1998, have to be filled up by direct recruitment and not by way of promotion. 17. 16. When this being the position, the petitioner has got no right to get stay of the operation of the advertisement Annexure 11 dated 21.2.2004 as these posts of Junior Engineer (Civil), according to Group B of Schedule II appended to Rules of 1998, have to be filled up by direct recruitment and not by way of promotion. 17. It may be stated here that if the petitioner does not fulfill the requisite eligibility conditions as mentioned in the advertisement Annexure 11 dated 21.2.2004, for that, it cannot be said that the respondents were at fault because these posts of Junior Engineer (Civil) have to be filled up by direct recruitment and if on the date of issuance of the advertisement Annexure 11, the petitioner had crossed the age, for that, the respondents cannot be blamed and they cannot be put at fault. 18. For the reasons stated above, both the contentions raised by the petitioner stand rejected and it cannot be said that any legal right of the petitioner has been infringed and when no legal right of the petitioner had been infringed, the petitioner is not entitled to relief under Article 226 of the Constitution of India and this writ petition deserves to be dismissed.Accordingly, this writ petition filed by the petitioner is dismissed. No order as to costs.Petition dismissed. *******