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2006 DIGILAW 1459 (RAJ)

Sanwar Mal v. Director, Agricultural Mktg.

2006-05-03

AJAY RASTOGI

body2006
Judgment Ajay Rastogi, J.-By instant petition, petitioner is seeking direction to treat him as Chowkidar in service of Krishi Upaj Mandi Samiti, Nawalgarh from the date of initial appointment. 2. As alleged in the petition, petitioner was appointed after due process of selection as Chowkidar in pay scale of Rs. 700-865 under Rule 64 of Rajasthan Agricultural Produce Markets (Market Committee Employees) Service Rules, 1975 ("Rules, 1975") vide order dated 27.02.1987 (Annexure-2) - in pursuance whereof he joined vide report dated 03.03.1987 (Annexure-3). However, without any justification, vide letter dated 28.07.1987 (Annexure-5) he was restrained from marking attendance and was not permitted to work despite his appointment (Annexure-2). 3. Shri Mukesh Meena, Counsel for petitioner contends that no reason has been assigned for not permitting petitioner to work and mark attendance despite the fact that he was selected in accordance with Rules, 1975 and appointed vide order (Annexure-2) while no order of termination has ever been passed by the Authority; as such letter impugned (Annexure 5) is wholly arbitrary and violative of principles of natural justice. 4. Counsel further contends that since petitioner was not paid salary, he filed application before the authority under Payment of Wages Act, which after adjudication directed respondents to pay an amount of Rs. 20,932/-vide order dated 26.09.1990 (Annexure-8) against which writ petition as well as special appeal were preferred by respondents but dismissed by this Court which clearly stipulates that in view of orders passed by the authority under Payment of Wages Act, he was treated in service even after passing of impugned order dated 28.07.1987 (Annexure-5); as such his termination made effective by such method was wholly arbitrary and violative of Article 14 of the Constitution. 5. Respondents have filed their reply. 5. Respondents have filed their reply. Respondent No. 3 in the reply inter alia averred that there was one post of Chowkidar, for which process was initiated vide order dated 11.09.1986 (Annexure-1); Administrator of Krishi Upaj Mandi Samiti Nawalgarh appointed Prabhu Dayal as Watchman (Class IV) vide order dated 22.01.1987 (Annexure-R3/1) in pursuance whereof , he joined service but was not allowed to mark attendance and perform duties vide order dated 13.02.1987 (Annexure-R3/2) which was issued in pursuance of order dated 07.02.1987 of the Director upon complaint about irregular selections - against which Prabhudayal filed civil suit alongwith application for temporary injunction which was granted vide Judgment dated 25.03.1987; and finally the matter went upto Apex Court where appeal preferred by respondent was dismissed vide order dated 19.08.1997 affirming TI in favour of Prabhu Dayal - in pursuance whereof he was allowed to join w.e.f. 211.1997 and continuing till date. 6. Counsel for Respondent No. 3 further brought to my notice that finally civil suit was also decreed in favour of Prabhu Dayal vide Judgment and decree dated 08.08.2000 against which first appeal was also dismissed vide order dated 04.03.2003 but second appeal against it is pending before this Court. 7. Counsel contends that since there was only one post against which Prabhudayal was later on given appointment after injunction had attained finality and civil suit finally decreed, he is holding the post and there is no other post against which petitioner could be considered. As regards merits, Counsel contends that appointment of petitioner was in violation of Scheme of Rules and the Secretary of Krishi Upaj Mandi Samiti was not competent in appointing petitioner as Chowkidar under Rule 64-I(5) of Rules 1975 as it is the Market Committee having competence to grant approval for an appointment and powers of the Secretary are regulated in accordance with Rule 43(B) of Rajasthan Agricultural Produce Market Rules, 1963 ("Rules, 1963") which does not give any competence to make appointment and on the contrary, he is responsible for proper execution of orders issued by the Committee; in such circumstances if any order is passed by this Court certainly it may perpetuate illegality to continue by virtue of order dated 27.02.1987 (Annexure 2). 8. I have considered contentions of Counsel for the parties and with their assistance, examined material on record. 8. I have considered contentions of Counsel for the parties and with their assistance, examined material on record. It is not in dispute that there was only one post of Chowkidar as is evident from order dated 11.09.1986 (Annexure 6) - in pursuance whereof process was initiated for making appointment and Prabhu Dayal was appointed prior to petitioner as Watchman (Class IV) vide order dated 22.01.1987 (Annexure-R3/1) in pursuance whereof , he joined service on 31.01.1987 but was not allowed to mark attendance and perform duties vide order dated 13.02.1987 (Annexure-R3/2) which was issued in pursuance of order dated 07.02.1987 of the Director, against which Prabhudayal filed civil suit alongwith application for temporary injunction which was granted vide order dated 25.03.1987; and finally the matter went upto Apex Court where appeal preferred by respondent was dismissed vide order dated 19.08.1997 affirming TI in favour of Prabhu Dayal - in pursuance whereof he was allowed to join w.e.f. 211.1997 and is continuing till date. 9. Submission made by Counsel for petitioner that appointment of petitioner was made after going through selection process, has seriously been disputed by respondents. I have gone through the record of selection process placed before me. I find that there was no recommendation ever made by the Committee and the Secretary issued orders of appointment to petitioner which was subject to approval by Mandi Samiti which was never granted in his favour; and even under Scheme of Rules, 1975 as contemplated in Rule 64-I(5), all appointments to inferior posts are made by Market Committee and Rule 64-II provides method of recruitment to inferior posts (Class IV) which shall be such as may be prescribed by Director provided that wherever necessary requisition will be sent to the employment exchange. So far as the Secretary is concerned, his powers and function are governed by Rule 43(B) of Rules, 1963 which does not give any competence to the Secretary to make appointment on inferior posts (Class IV) and is responsible only for proper execution of orders issued by the Committee and in absence of material on record which may at all justify that Market Committee has ever recommended or approve appointment of petitioner; in such circumstances, I find merit in submission made by Counsel for respondents that appointment of petitioner was not in accordance with Scheme of Rules, 1963/1975. 10. 10. Submission made by Counsel for petitioner with regard to payment of wages ordered in favour of petitioner by the authority under Payment of Wages Act, in my opinion, is barren of force for the reason that even if authority under Payment of Wages Act has passed an order that will not hold petitioners appointment to be in accordance with Scheme of Rules 1963 and 1975, more so when it was neither the scope for adjudication under the Act (Supra), nor his nature of appointment and competence of the Secretary who has appointed the petitioner as Chowkidar has been examined by the prescribed authority. 11. Consequently, this writ petition fails and is hereby dismissed. No costs.