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2005 DIGILAW 1993 (RAJ)

Mahendra Kumar v. State of Rajasthan

2005-08-01

GOPAL KRISHAN VYAS

body2005
Judgment Gopal Krishan Vyas, J.-The instant writ petition is second innings of the petitioners. It is stated by the petitioners that they were appointed with effect from 01.01.1986 on the posts of Beldar on daily-wage basis by respondent No. 4 to discharge duties on water-works scheme. Thereafter, the petitioners were declared semi-permanent/temporary on the posts of Class IV employees vide order dated 30.12.1991. It is further stated that the State Government has issued order dated 08.08.1991 whereby sanction was accorded under Section 80 of the Rajasthan Municipalities Act, 1989 for transfer of the entire water schemes for Ganganagar, Hanumangarh and Abu Road which were being operated by the respective Municipal Council/Board. In that order, certain terms and conditions were also given for absorption of the employees and functioning of the schemes. Under the said scheme, respondent No. 4 issued an order of transfer of the scheme to P.H.E.D. vide communication dated 01.01.1992 (Annexure-P/2). By order dated 20.02.1992, the Jr. Engineer, P.H.E.D., Abu Road sent back the petitioners to the Municipal Board who were said to be working under the scheme and transferred from the Municipal Board, Abu Road. It is submitted that the petitioners were working on the posts of Helper since 1986 on daily-wage basis and they were declared semi-permanent, therefore, they were to be absorbed by the P.H.E.D. in accordance with the terms and conditions mentioned in order Annexure P/1 passed by the Government of Rajasthan. 2. In the earlier writ petition filed by petitioners Mahendra Kumar, Narpat Singh and Sooma Ram, being S.B. Civil Writ Petition No.1285/1992 and another writ petition Kishan Lal & Ors. vs. State. This Court disposed of the matters vide order dated 26.08.1997. One of the orders passed in the above writ petitions has been appended to the writ petition as Schedule-A. Perusal of the order at Schedule-A passed in S.B. Civil Writ Petition No. 2428/1992 reveals that the petition was disposed of with direction to respondents No. 2 and 3 to consider the case of the petitioners in terms of Government order dated 210.1997 (Annexure - P/6) and the petitioners were directed to make a representation to respondent No. 2 within a period of four weeks from the date of passing of the order and respondent No. 2 was directed to consider the claim of the petitioners within a period of four months strictly in accordance with law. In pursuance of that order, the impugned orders dated 212.1997 Annexure-P/7 and Annexure-P/8 have been passed which have been challenged by the petitioners in this writ petition whereby as per orders of this Court, considering the representation under the Government notification dated 210.1997. The petitioners submit that during the pendency of the earlier writ petition. The petitioners were allowed regular grade increments vide order Annexure-P/5 by the Asstt. Engineer, P.H.E.D., Sub-Division Mt. Abu vide order dated 06.07.1994. 3. It is contended by learned Counsel for the petitioners that the impugned order Annexure-P/7 dated 210.1997 is nothing but an outcome of mechanical exercise of power and non-application of mind by the P.H.E.D. authority. The petitioners while working as Helper/Beldar were sent back to respondent No. 4 Municipal Board only on the reason that under the water-works scheme, Abu Road the posts of Class IV employees are not available. It is also contended that their case was to be considered as per the direction of this Court in accordance with notification dated 210.1997 in right perspective: but, in fact, with a view to over-riding the Judgment and with mala fide intention to victimise the petitioners their case has not been considered in right and proper perspective. The posts of Beldar/Helper are in the cadre of Class IV employees and many posts are available in the department. It is further contended that there are so many other posts available in the water-works scheme at Abu Road and without these posts it is not possible to run the scheme, therefore, the decision given by the Executive Engineer, Sirohi (Annexure-P/7) is illegal because under the notification dated 210.1997 the screening committee as contemplated under Rule 5 of the said notification was to be constituted and their cases were to be considered. Therefore, the orders impugned Annexure-P/7 and relieving order Annexure-P/8 deserve to be set aside because the petitioners were appointed in 1986 and they were earlier allowed to continue and finally this Court had ordered that their cases be considered under the notification dated 210.1997 but their claim has not been decided by respondent No. 2. 4. Therefore, the orders impugned Annexure-P/7 and relieving order Annexure-P/8 deserve to be set aside because the petitioners were appointed in 1986 and they were earlier allowed to continue and finally this Court had ordered that their cases be considered under the notification dated 210.1997 but their claim has not been decided by respondent No. 2. 4. In the present writ petition, while issuing notice to the respondents this Court passed ad interim order on 02.02.1998 and it was ordered that meanwhile operation of impugned order dated 210.1997 Annexure-P/7 as well as of consequential order dated 212.1997 Annexure-P/8 to the writ petition shall be kept in abeyance with a direction to the respondents not to interfere with the working of the petitioner as Beldar in Public Health and Engineering Department, Abu Road District Sirohi. Under this order the petitioners are still continuing with the P.H.E.D. and obviously, by now, they have completed more than 19 years of service. 5. No reply has been filed by respondent No. 4 Municipal Board and reply has only been filed by the P.H.E.D. The whole case of the respondents can be summarised thus that as per absorption rules vide notification dated 210.1977 only those persons are required to be absorbed who were working in substantive capacity and there were only 9 sanctioned posts for the water supply scheme against which only 7 persons were working in substantive capacity. Against the remaining 2 posts, one Mangal and another Rakesh Kumar were working as Helper. As such there were no sanctioned posts with the scheme which were transferred from the Municipal Board, Abu Road to the P.H.E.D. and, therefore, the impugned order was rightly passed. It has been contended by the respondents that though the scheme was transferred but the petitioners cannot be absorbed in view of the fact that there were no sanctioned posts available for the scheme. 6. Rejoining the submissions, the petitioners have filed affidavit with certain documents. It has been contended by the respondents that though the scheme was transferred but the petitioners cannot be absorbed in view of the fact that there were no sanctioned posts available for the scheme. 6. Rejoining the submissions, the petitioners have filed affidavit with certain documents. The Chief Engineer has issued office order dated 10.03.1995 in which it has categorically been ordered that those employees who have completed 2 years of service as on 31.03.1994 may be made semi-permanent and according to work-charge rules also there is mandatory provision under Rule 3(3) that if the employee completes 2 years of service then he will be entitled to the semi-permanent status and after completion of 10 years of service he will be entitled to be declared permanent. In the present case, admittedly the petitioners were working with the scheme since 1986. Though the Municipal Board has not filed any reply but it is not denied by the respondent State; and, more so the P.H.E.D. has issued order in the month of July, 1994 granting regular grade increments to the petitioners. Thus, it can be said that work-charge employees of the department are entitled for financial benefits. It is also obvious that in the order Annexure-P/5 dated 06.07.1994 the petitioners have been shown as Beldar, meaning thereby the respondents treated them Beldar in accordance with work-charge rules. 7. I have also perused the notification dated 210.1997. These rules have been framed in exercise of power conferred by the proviso to Article 309 of the Constitution by the Governor regulating the appointment and other service conditions of the employees of private institutions and other establishments taken over by the Government. This notification was made applicable at the time of transfer of the scheme from the Municipal Board to the P.H.E.D. vide Annexure- P/1. Admittedly the petitioners were working with the scheme as semi-permanent employees prior to transfer of the scheme. Thus, it is clear that they were work-charge employees working in the Municipal Board prior to their transfer in the P.H.E.D. Hence, there cannot be any question of sanctioned posts being available or not being available. Further the department itself granted them the benefit of regular grade increments vide Annexure-P/5 dated 6th July, 1994. Therefore, while deciding the representation as per the order of this Court the Executive Engineer was under obligation to look into this aspect of the matter. Further the department itself granted them the benefit of regular grade increments vide Annexure-P/5 dated 6th July, 1994. Therefore, while deciding the representation as per the order of this Court the Executive Engineer was under obligation to look into this aspect of the matter. However, the submission of the petitioners was rejected by the authority on the ground that there was no sanctioned post of Class IV employee under the scheme. In this view of the matter, order Annexure-P/7 dated 212.1997 does not survive. 8. To secure the ends of justice it is necessary for this Court not to leave the matter of absorption with the respondents again, therefore, in the totality of things, looking to the long period of service the petitioners have put in, it is necessary to consider whether the petitioners are entitled for absorption in the P.H.E.D. or not. Obviously the petitioners are continuing as employees of the P.H.E.D. though before their transfer with the scheme they were employees of the Municipal Board. The said scheme was transferred as a whole to the P.H.E.D. meaning thereby that even after 19 years of service put in by the petitioners neither of the departments is taking care of finalising their matters. The petitioners have been granted regular grade increments by the P.H.E.D. and, therefore, they are required to be treated as work-charge employees on the establishment of the P.H.E.D. and accordingly they are entitled for absorption as work-charge employees of the P.H.E.D. 9. The writ petition, therefore, deserves to be allowed. The same is accordingly allowed. The impugned orders Annexure-P/7 dated 212.1997 and Annexure-P/8 dated 212.1997 are hereby quashed and set aside. 10. There shall, however, be no order as to costs.