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2007 DIGILAW 273 (RAJ)

Mohan Lal v. The State of Rajasthan

2007-02-07

PREM SHANKER ASOPA

body2007
JUDGMENT 1. - By this writ petition, the petitioner has prayed for directions to the respondents to give him salary in the regular pay scale and also to give him benefits of leave, bonus, HRA, medical facilities and other allowances and to regularise his service on the post of Driver. 2. Facts, in brief, of the case are that the petitioner who belongs to Scheduled Caste and holds a driving licence effective from 03.05.1978 was orally appointed as Driver in the year 1980 on the daily wages of Rs. 11/- and his wages were thereafter enhanced. It is further stated in the writ petition that the petitioner has successfully undergone training of Fire Brigade under the Fire Brigade Officer, Municipal Board, Kota. At the time of filing the writ petition, the petitioner had completed fourteen years of service and was being paid wages at the rate of Rs. 650/- p.m. whereas according to the Minimum Wages Act the petitioner being a skilled worker, were Rs. 724.50. It is also stated in the writ petition that the petitioner has rendered more than fourteen years of service with the respondents but still he has not been made regular and been provided benefit of the pay scale. He is being paid wages less than the minimum wages which is nothing but Begar under Article 23 of the Constitution of India and is also exploitation. 3. Respondent No. 3 Municipal Board was filed reply to the writ petition and has not controverted the aforesaid fact except that at present there is no vacant sanctioned post of Driver with the respondent No. 3 against which the petitioner could be regularised. 4. On 7.11.2006, two weeks time was granted to the counsel for respondent No. 3 to apprise this Court whether there are more than one vehicles in the Municipal Board, Bundi and further whether the petitioner is continuously working as driver. On the next date, no one appeared on behalf of the Municipal Board, Bundi. Then on 23.1.2007, again a detailed order was passed and last opportunity was granted to respondent No. 3 to file additional affidavit of the above effect, failing which adverse inference shall be drawn. 5. On the next date, no one appeared on behalf of the Municipal Board, Bundi. Then on 23.1.2007, again a detailed order was passed and last opportunity was granted to respondent No. 3 to file additional affidavit of the above effect, failing which adverse inference shall be drawn. 5. Submission of the counsel for the petitioner is that the very fact of continuation of the petitioner as Driver and payment of wages of the post of Driver clearly reveals that there are more than one posts of Driver and against the second post, case of the petitioner can be regularised. To verify the aforesaid submission, directions were issued on 7.11.2006, 5.1.2007 and 23.1.2007 but no additional affidavit was filed. Therefore, the Court is left with no other alternative except to draw adverse inference as already ordered on January 23, 2007 that there are more than one vehicles and more than one posts of Driver exists against which claim of the petitioner could be considered. Counsel further submits that person junior to the petitioner have been regularised. 6. Counsel for the petitioner has placed reliance on para 53 of the Constitutional bench judgment in Secretary, State of Karnataka and others v. Umadevi (3) and others 2006 (4) SCC 1 according to which where appointment is not irregular and duly qualified persons in duly sanctioned vacant posts have been appointed and further employees are continuing to work for ten years or more, without intervention of the orders of the Court or the Tribunal, the question of regularisation of services of such employees may have to be considered on merit in the light of principles settled by the Court in the case as also the above mentioned case. 7. Counsel for the respondent No. 3 has not disputed the fact of continuation of the petitioner as Driver since 1980 but again repeated the same thing that there is no vacant sanctioned post of Driver and, therefore, the petitioner is not entitled to regularisation even as per Para 53 of the decision in Umadevi (3) supra. 8. On raising the query that when an employee is continuing in service since last 27 years and salary is being paid to him regularly, is it possible even without vacant sanctioned post, no satisfactory reply was given by the counsel. 8. On raising the query that when an employee is continuing in service since last 27 years and salary is being paid to him regularly, is it possible even without vacant sanctioned post, no satisfactory reply was given by the counsel. Thereafter, when he was confronted with the order sheets dated 7.11.2006, 5.1.2007 and 23.1.2007 of filing affidavit of no vacant sanctioned post wherein the fact of drawing adverse inference was also mentioned, then again, no satisfactory reply was given by the counsel. 9. Heard learned counsel for the parties and considered record of the writ petition and further considered the rival submissions of the parties. 10. I am of the view that the very fact of continuation of the petitioner in service since last more than 27 years from the date of initial appointment which was made in the year 1980 and payment of wages, either daily or monthly, clearly pre-supposes sanction of the post of Driver and, therefore, the petitioner is entitled to the benefit of para 53 of the aforesaid constitutional bench decision in Umadevi (3) (supra). Para 53 of the judgment is reproduced below : "53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagaraian and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the Courts or of Tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the Courts or of Tribunals and should further ensure that regular sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme." 11. In para 53 of the aforesaid judgment, the Supreme Court has laid emphasis to take steps for regularisation of the nature of employment referred to therein, by the Government and its instrumentalities as one time measure but still no such steps have been taken. 12. Apart from regularisation, I am also of the view that making payment of wages even less than the minimum wages or not minimum of the pay scale of the post of Driver to a person who has continuously worked since last 27 years is violative of Article 23 of the Constitution of India and further amounts to exploitation. In such circumstances, the petitioner is also entitled even to minimum of the pay scale of the post of Driver. In view of the principle enshrined under Article 39 (d) read with Article 14 of the Constitution of India. Although no particulars have been mentioned in the writ petition about regularisation of person junior to the petitioner and granting him regular pay scale but in case any person junior has been regularised and given regular pay scale, the petitioner is also entitled to the same treatment. 13. In view of the above, the writ petition is allowed and the respondent No. 3 is directed to consider case of the petitioner for regularisation of his services on the post of Driver with effect from the date when person junior to him, if any, has been regularised, with all consequential benefits.Petition allowed. *******