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2005 DIGILAW 613 (RAJ)

Kana Ram v. State of Rajasthan

2005-02-23

RAJESH BALIA

body2005
Judgment Rajesh Balia, J.-Heard learned Counsel for the parties. 2. The petitioner was first appointed as Daily Rated Worker by the Director, Projects Agriculture Department, Bikaner, on 11.1976 for a period of 3 months or until regularly selected candidate is available, whichever is earlier. His application was forwarded by the Employment Exchange and he was posted at the Agriculture Research Centre, Hanumangarh. 3. Thereafter on availability of the vacancy for the post of Driver-cum-Tractor operator, the application of eligible candidates were invited from the employment exchange as well as from the Class IV employees of the department who were eligible and all candidates, who applied in pursuance thereof , were interviewed by the Selection Committee. On 212.1981 the petitioner along with Ugam Singh, was selected and duly appointed as a Tractor Driver against the available vacant post in the Pay Scale of Rs. 355-570. The appointment was made by the office of Regional Director, Development, IGNP Bikaner. 4. It appears that thereafter, after some time posts were abolished and the case of the petitioner along with Ugam Singh, who was appointed with him, was referred to Director, Project and he has addressed a letter to Additional Director stating that as both the drivers were promoted at his level, therefore, they may be absorbed at his level. In pursuance of that letter/communication dated 18.01.1983, the petitioner along with Ugam Singh were directed to present themselves in the office of Director Project (Research) who will take further proceedings. 5. The project Director vide order dated 24.01.1983 declared Ugam Singh and Kana Ram as surplus, consequent upon abolition of some posts of drivers and they were sent to Collector, Bikaner, for their final absorption. Thereafter vide order dated 10.02.1983 the Project Director reverted petitioner alongwith Ugam Singh to Class IV employees in the pay scale of Rs. 245-310 and declared two junior employees of Class IV as surplus and they were directed to appear before the Collector, Bikaner. 6. According to Annex. 7, the petitioner, since employment, is discharging duties as Tractor Driver and some time as driver on jeep. Thereafter by notice dated 212.1991 merely created 5 posts of drivers were sought to be filled up through direct recruitment. 7. 6. According to Annex. 7, the petitioner, since employment, is discharging duties as Tractor Driver and some time as driver on jeep. Thereafter by notice dated 212.1991 merely created 5 posts of drivers were sought to be filled up through direct recruitment. 7. The petitioner has claimed, firstly, that he could not have been reverted to the class IV from the post of Tractor Driver because he was directly recruited by regular process and having already suffered illegal acts on the part of the respondents in not absorbing him on equivalent post to that of driver, notwithstanding he has been regularly selected and appointed but they were reverted, now that new recruitment are taking place, the petitioner be restored to its original position by putting him back on the post of driver which is now available. 8. The respondents have denied the claim of the petitioner by alleging that the post of drivers were advertised vide Annex. 8 are newly created posts and available for direct recruitment only for which the petitioner is not eligible as he is not middle pass. 9. Having considered the contentions raised by the petitioner as well as respondents I am of the view that the contention of the respondents is suffering from basic fallacies. If reliance is placed on initial appointment, it purported to be direct recruitment. After selection was made by the Selection Committee from amongst applicants whose applications were invited from employment exchange as well as from the eligible Class IV employees, in that event when the posts were abolished and the petitioner was declared surplus, he was eligible to be absorbed under the absorption of Surplus Employees Rules and could not have been reverted to the post which he already held prior to his recruitment. 10. 10. If it is assumed that he has been promoted as tractor driver and post having been abolished, the petitioner was reverted to the original post because his promotion was itself temporary and junior amongst Class IV employee were declared surplus then claim of the respondent of filling newly created posts by direct recruitment only cannot be sustained because as per the Rajasthan Agriculture Subordinate Service Rules, 1978, which clearly postulate that post of Tractor Driver/Jeep Driver/Truck driver which are of the same category, 10% of the posts are to be filled by promotion from amongst IV class employees and 90% of the vacancies only are to be filled up by direct recruitment. The petitioner claims that he has also passed Class VIII . More over Annex. 8 clearly says that all 5 posts which were required to be filled up, were to be filled from amongst class IV employees. Hence, there can be impediment in considering case of the petitioner for promotion. 11. Apart from the above, it may be noticed here that writ petition was also filed by Ugam Singh i.e. S.B.C. Writ Petition No. 1390/1991, who was appointed alongwith the petitioner and has followed the same course. 12. After noticing of the facts mentioned above, the Court observed as:-"The petitioner was selected by the duly constituted Selection Committee on the post of tractor-driver on 212.1981 and was given appointment/promotion on the post of tractor driver. He worked on the post of driver till 10.02.1983 when two posts of the drivers were abolished. A duly selected person on the post of driver could have been declared surplus and should have been absorbed in some other department on the same post and the reversion of the petitioner to the post of Class IV/Chowkidar was, therefore, not justified. Merely because the petitioner did not make any grievance at that time, will not dis-entitled him for his legal claim for which he is entitled, particularly in the circumstances when new posts have been created in the department and the appointments on those posts are to be made by the respondents. Merely because the petitioner did not make any grievance at that time, will not dis-entitled him for his legal claim for which he is entitled, particularly in the circumstances when new posts have been created in the department and the appointments on those posts are to be made by the respondents. Even the work of the driver is still being taken from the petitioner by the respondents and, therefore, the petitioner should have been given promotion on the post of driver, but the fact and circumstances of the case, I do not think it proper to pass any order in this regard because the matter relating to the promotion of the petitioner on the post of driver is under consideration before the respondents. Though the representation is pending consideration with the respondents for last about three years, but no order has been passed giving promotion to the petitioner though the work of the driver is being taken from him. I, therefore, think it proper to direct the respondents to consider within three months the case of the petitioner for his promotion to the post of tractor driver in the department and till the representation of the petitioner for according him promotion on the post of driver, is disposed-of , the respondents are directed not to make appointment at least on one post of tractor-driver, which are lying vacant." 13. The position of the petitioner is not different. 14. The petition is, accordingly, disposed of with the direction to the respondents to consider the case of the petitioner for restoring promotion to the post of Driver/Tractor Driver/Jeep Driver/Truck Driver, as the case may be, against the available posts and consider the case at par with case of Ugam Singh and if the petitioner is promoted, it may be given with effect from the date when Ugam Singh was promoted. However, he shall not be given arrears of remuneration but his fixation shall be made notionally up to the date of actual promotion. 15. No order as to costs.