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2011 DIGILAW 1723 (RAJ)

Vijay Kumar Sharma v. M. D. , RSRTC

2011-08-16

AJAY RASTOGI

body2011
JUDGMENT 1. - Instant petition has been filed by the petitioner with the grievance that his initial appointment vide order dated 16.03.1992 (Annx.1) being on compassionate basis that may be considered to be his regular appointment and he may also get same parity as has been granted to one of the incumbent Girdhari Lal who too was appointed on compassionate grounds along with him by common order dated 16.03.1992 and lateron given regular appointment from the date of his initial appointment i.e.16.03.1992 vide order dated 25.01.2010 (Annx.A6) and action of the respondent in not maintaining parity amongst the persons appointed by common order under compassionate grounds is violative of Article 14 & 16 of the Constitution. 2. The petitioner was initially appointed on compassionate ground on daily wage basis as LDC vide order dated 16.03.1992 however given regular appointment vide order dated 24.04.1995 in the regular pay-scale and placed on probation. The petitioner raised grievance that Girdhari Lal who was appointed along him on compassionate ground vide order dated 16.03.1992 (Annx.1), after intervention of the learned trial court and on the basis of the decree passed in his favour was granted regular appointment from the date of his first appointment i.e. 16.03.1992 by the respondent vide order dated 25.01.2010 (Annx.A6) and seniority was accordingly assigned to him, the petitioner may also be treated to be regular appointee from the date of his initial appointment i.e.16.03.1992. 3. Counsel for petitioner submits that while examining the similar controversy the Division Bench of this Court in State of Raj. & Anr. v. Ajay Sharma, RLW (Raj) 2 (2003) 1070 held that the appointees on compassionate grounds are regular appointees and taking note thereof the coordinate Bench of this Court in CWP-5242/2001 (Smt. Sita Devi v. District & Sessions Judge & Anr ) held that appointees on compassionate grounds are regular appointees and taking assistance thereof counsel submits that petitioner may be treated to be regular appointee from the date of his initial appointment w.e.f.16.03.1992 and is also entitled to claim parity with that of Girdhari Lal who was considered to be regular appointee from the date of his initial appointment (16.03.1992) vide order dated 25.01.2010, may be by the intervention of the Court, denial thereof is in violation of Article 14 & 16 of the Constitution. 4. 4. Counsel for respondent submits that petitioner was appointed on daily wages vide order dated 16.03.1992 and as regards Girdhari Lal, he was given regular appointment because of intervention of the Court and not at the behest of the respondent as such no parity could be claimed by the petitioner. 5. It will be relevant to record that earlier the writ petition came to be decided vide order dated 26.02.2009 after recording the statement made by the respondent's counsel that since the petitioner was given regular appointment w.e.f. 23.04.1995 and the petition has become infructuous but later on it revealed on an application filed by the petitioner that the writ petition was filed after he was given regular appointment and his grievance was that he should be treated to be regular appointee from the date of his initial appointment i.e. w.e.f.16.03.1992, taking note thereof the order was recalled vide order dated 14.07.2010 and the matter has now come up for consideration on merits. 6. This Court has heard counsel for the parties and perused the material on record. 7. The Division Bench of this Court in the judgment ( State of Raj. v. Ajay Sharma ) while holding that appointees on compassionate grounds are regular appointees observed as under:- "In our opinion it was not necessary to subject him to screening proviso (ii) under rule 6(1-A) of 1992 rules, he was recruited to the post under the rules of 1975 and the rules of 1975 have an overriding effect and as such he has to be treated as a member of service u/R.5(b) of 1992 rules. It has already been held by a Division Bench (in which one of us M.R. Calls, J. was a member) of this Court in D.B. Civil Special Appeal (Writ) No.130/93 decided on 5.11.1993 that appointees on compassionate grounds are regular appointees. It has already been held by a Division Bench (in which one of us M.R. Calls, J. was a member) of this Court in D.B. Civil Special Appeal (Writ) No.130/93 decided on 5.11.1993 that appointees on compassionate grounds are regular appointees. The learned Single Judge has rightly held that the respondent held a regular appointment under the rules of 1975 and therefore he could become a member of service under rules of 1992 under rule 5(b) but the directions as have been given by him in the matter of assigning seniority to the respondent may render number of existing employees to be junior to him merely because the respondent got a regular appointment on compassionate grounds under the rules of 1975 and therefore the question of seniority has engaged our attention in this appeal." What has been held by the Division Bench (supra) has been followed by the Coordinate Bench of this Court in CWP-5242/2001 and held as under:- "The Co-ordinate Bench of this Court in Manoj Kumar Goyal supra, considering the judgment of the Division Bench in State of Rajasthan and another v. Ajay Sharma : RLR 2002(2) 5 observed that persons appointed on compassionate ground have to be treated as regularly recruited on the post. It was further held that recruitment on compassionate ground is regular recruitment and once appointed, such recruitee becomes member of service and, therefore, such compassionate appointments could not be dispensed with in a summary manner. It was held that once appointment was given, initially though on probation, even if services of the petitioner are not found satisfactory, his services cannot be abruptly terminated without following the principles of natural justice and the prescribed procedure." 8. It was held that once appointment was given, initially though on probation, even if services of the petitioner are not found satisfactory, his services cannot be abruptly terminated without following the principles of natural justice and the prescribed procedure." 8. Taking note thereof, this question remains res integra that those who are appointed on compassionate grounds are regular appointees and in view thereof the decision taken by the respondent in giving compassionate appointment to the petitioner on daily wages vide order dated 16.03.1992 does not hold good more so when one of the incumbent Girdhari Lal who too was appointed along with the petitioner vide order dated 16.03.1992 has been given regular appointment from the date of his initial appointment in the regular pay-scale as is evident from order dated 25.01.2010 (Annx.A6) and seniority has been assigned to him in pursuance thereof from initial appointment, as such there appears to be no justification to deny the relief claimed by the petitioner in the instant petition more so denial thereof in the opinion of this Court is certainly in violation of Article 14 & 16 of the Constitution. 9. Consequently, the writ petition succeeds and is hereby allowed. The respondents are directed to treat the petitioner as regular appointee in the cadre of LDC in regular pay-scale from his initial date of appointment i.e.16.03.1992 and grant all consequential benefits flowing thereof including seniority etc. and the arrears, after its due computation, may also be paid and shall ensure compliance of the judgment within three months. No costs.Petition allowed. *******