JUDGMENT 1. - The petitioner has laid the instant petition seeking direction against the respondents to grant him semi-permanent status on the post of Store Munshi on completion of two years' satisfactory services with all consequential benefits, or in the alternative from the date same has been allowed to the other persons junior to him. Besides this, the petitioner has also prayed for a direction against the respondents to confer permanent status to the petitioner on the post of Store Munshi on completion of ten years' satisfactory services with all consequential benefits. The other ancillary reliefs are also prayed for by the petitioner including besetting of impugned orders Annex.12 & 13 respectively. 2. With a view to claim the aforementioned reliefs, the petitioner has inter-alia averred in the writ petition that at the threshold he was appointed on daily wages basis as Ledger Keeper i.e. in ministerial cadre with the Public Health & Engineering Department, Suratgarh, District Sri Ganganagar. Although he was appointed on workcharge basis but the respondents utilised his services in the ministerial cadre right from the inception of his service career. While referring to Rule 3 of the Rajasthan Public Works Department (B&R) including Gardens, Irrigation, Water Works & Ayurvedic Departments Work charged Employees Service Rules, 1964 (hereinafter referred to as 'Rules of 1964'), the petitioner has pleaded that he is entitled for the status of semi-permanent Store Munshi on completion of two years' satisfactory services and permanent status on completion of ten years' services. Asserting these facts, the petitioner has pleaded that the requisite status was not conferred on him but to his dismay the respondent department has granted him semipermanent status vide order dated 3rd of August 1992 in the cadre of Belder w.e.f. 1.4.1990. The services of the petitioner was subsequently regularised as Beldar w.e.f. 1.4.1995 vide order dated 28th of February 2000. The said order was further followed by an order dated 29th of May 2007, whereby the petitioner was declared permanent w.e.f. 12th of July 1997. 3. Buttressing his afflictions, the petitioner has stated in the writ petition that besides the petitioner, some other employees who were discharging the duties of Store Munshi/LDC but were designated as Helper/Beldar, were disgruntled with this sort of action of the respondents, and therefore, they ventilated their grievances before the authorities. 4. 3. Buttressing his afflictions, the petitioner has stated in the writ petition that besides the petitioner, some other employees who were discharging the duties of Store Munshi/LDC but were designated as Helper/Beldar, were disgruntled with this sort of action of the respondents, and therefore, they ventilated their grievances before the authorities. 4. The grievances of the petitioner and other similarly circumstanced employees were appreciated by the Government and a decision was taken to grant semipermanent status to those work-charge employees, who were though not appointed as Store Munshi but were discharging the duties of Store Munshi/LDC. The Government conveyed the said decision through the respective Executive Engineers of various divisions of the department vide its communication dated 20th of November 2006. In the order, it was clarified that semi-permanent status is to be granted to the incumbent on notional basis on completion of two years' service and the actual benefit is to be allowed and actual benefit were to accrue from the date of order granting such benefits. In adherence of the said communication, the sixth respondent divulged information to the Executive Engineer vide its communication dated 2nd of February 2007 alongwith statement/lists containing particulars of the work-charged employees who were discharging the duties of ministerial cadre. In turn, the Executive Engineer forwarded the same to the Superintending Engineer, Circle Sri Ganganagar and ultimately the Superintending Engineer transmitted the requisite information in the prescribed format to the second respondent by its communication dated 2nd of June 2007. By placing the said communication on record, the petitioner has pointed out that his name figures at Serial No.36 in the list. 5. The facts as depicted in the pleadings further reveal that by order dated 24th of January 2007 the second respondent conferred the status of semi-permanent Store Munshi on 10 persons working on work-charged basis though designated as Helper, keeping in view the fact that they were discharging the duties of ministerial cadre. Referring to the said order, the petitioner has averred that his name in the said list was omitted and was not considered for conferring the status of semi-permanent Store Munshi. Referring to the said order, the petitioner has averred that his name in the said list was omitted and was not considered for conferring the status of semi-permanent Store Munshi. Subsequently, meetings of screening committee were convened on 10th of April 2007 and 11th of April 2007 and on recommendation of the said committee an office order dated 15th of April 2007 was issued whereby 249 persons were declared semi-permanent on the post and pay scale of Store Munshi. Yet again, according to the petitioner, in the said list though several persons junior to him were included but his name was missing. 6. Alleging hostile discrimination against the respondents, the petitioner has submitted in the writ petition that he has been deprived of the status of semipermanent Store Munshi in an absolutely arbitrary manner. Substantiating his case, the petitioner has also averred in the petition that the second respondent by its communication dated 16th of April 2007 sought information for grant of semi-permanent status on the post and pay scale of Store Munshi in respect of those work-charged employees who were working in the ministerial cadre and in whose case complete information was not divulged earlier. Said communication was addressed to the department's Executive Engineers of concerned circles. With the said letter, a list was also enclosed which was incomplete with respect to certain employees. In that list, the name of the petitioner was included at Serial No.148. Responding to the said communication of second respondent, the fifth respondent again forwarded the requisite information to the fourth respondent, who in turn forwarded the same to the second respondent vide letter dated 20th of April 2007. Yet again, in response to communication of the second respondent dated 28th of May 2007 and communication dated 5th of July 2007, requisite information was solicited from the concerned authorities. Responding to the said communication of second respondent, the Superintending Engineer, PHED Circle, Sri Ganganagar verified that the petitioner was discharging his duties in ministerial cadre but status of semi-permanent Store Munshi had not been conferred on him on completion of two years' satisfactory services. Responding to the said communication of second respondent, the Superintending Engineer, PHED Circle, Sri Ganganagar verified that the petitioner was discharging his duties in ministerial cadre but status of semi-permanent Store Munshi had not been conferred on him on completion of two years' satisfactory services. It was in this circumstances, according to the petitioner, the respondents ought to have conferred semi-permanent status of Store Munshi to the petitioner but to his dismay by order dated 6th of October 2008 he was upgraded to the post of Helper from the post of Beldar and notional benefits were granted to him on the post of Helper w.e.f. 1.1.1995. The petitioner has made a clear and unambiguous averment in the writ petition that despite availability of the requisite information about him, his controlling officers viz., respondent No.2 & 3 have not conferred the status of semi-permanent Store Munishi qua him on completion of two years' satisfactory services. 7. For redressal of his grievances, as per the version of the petitioner, he has also served a notice for demand of justice through his counsel on 30th of April 2009 but that too was not paid any heed by the respondents. Emphasising all these facts with full vehemence, the petitioner has pleaded in the writ petition that denial of semi-permanent status as Store Munshi on completion of two years' satisfactory services and permanent status on completion of ten years' services, is per-se a fanciful decision of the respondents. Reiterating his stand that other incumbents, who were junior to the petitioner, have been declared semi-permanent and permanent as Store Munshi, it is submitted that denial of the said benefits to the petitioner is wholly unjust. The petitioner has very candidly submitted in his writ petition that earlier a writ petition was filed by him bearing S.B. Civil Writ Petition No.1601/1995 claiming the relief of regularisation of his services as Lower Division Clerk but the said writ petition was dismissed by this Court vide its order dated 27th of May 1998. 8. On behalf of respondents, a reply to the writ petition has been submitted. In the return, the respondents have averred that the petitioner was never appointed on the post of Ledger Keeper and there is nothing on record to substantiate this positive assertion of the petitioner. 8. On behalf of respondents, a reply to the writ petition has been submitted. In the return, the respondents have averred that the petitioner was never appointed on the post of Ledger Keeper and there is nothing on record to substantiate this positive assertion of the petitioner. In the reply, the stand of the respondents is that he was appointed on daily wages basis and he was designated as Beldar, the requisite status of semi-permanent and permanent have already been conferred on him on completion of two years' and ten years' satisfactory services. The issuance of communication dated 20th of November 2006 (Annex.4) is admitted by the respondents in their return. The other documents annexed with the writ petition i.e. Annex.7 to 11 are also admitted by the respondents in their reply. In additional plea, the respondents have prayed for dismissal of the writ petition on the ground that the instant writ petition is barred by principles of res judicata. As per the version of the respondents, earlier a writ petition was filed by the petitioner bearing S.B. Civil Writ Petition No.1601 of 1995 for regularising his services as LDC and the same has been dismissed by this Court by order dated 27th of May 1998, and therefore, no relief can be granted to the petitioner in the instant petition. The objection about availability of alternative efficacious remedy before the Rajasthan Civil Services Appellate Tribunal was also incorporated in the reply. 9. Mr. M.S. Singhvi, learned Senior Counsel, assisted by Mr. Vinit Dave, has argued that the objection of the respondents regarding maintainability of the instant writ petition on the anvil of principles of res judicata is not at all tenable. Mr. Singhvi would urge that the subject matter of the present petition was not directly and substantially in issue in the earlier petition, inasmuch as in the earlier petition the petitioner has prayed for regularisation of his services on the post of LDC and he has not prayed for relief of grant of semi-permanent and permanent status on completion of two years and ten years' satisfactory services respectively as envisaged under Rule 3 of the Rules of 1964. While substantiating his arguments that the present writ petition is not barred by res judicata, Mr. While substantiating his arguments that the present writ petition is not barred by res judicata, Mr. Singhvi submits that for the present writ petition fresh cause of action has accrued to the petitioner for the reason that other similarly circumstanced employees and even juniors to the petitioner have been allowed the desired reliefs of semi-permanent and permanent status as Store Munshi by invoking Rule 3 of the Rules of 1964. In support of his contention, Mr. Singhvi has placed reliance on a decision of Apex Court in case of Richpal Singh & Ors. v. Dalip, [ (1987) 4 SCC 410 ]. The Apex Court in the said judgment has observed that it is well settled that ouster of jurisdiction of civil courts should not be inferred easily, it must be clearly provided for and established. While examining the lis involved in the matter, the Apex Court has made following observations in Para 15 of the said verdict: 15. A salutary and simple test to apply in determining whether the previous decision operates as res judicata or on principles analogous thereto is to find out whether the first court, here the Revenue Court could go into the question whether the respondent was a tenant in possession or mortgagee in possession. It is clear in view of language mentioned before that it could not. If that be so there was no res judicata. The subsequent civil suit was not barred by res judicata. 10. To substantiate his arguments on this issue, learned counsel for the petitioner has also placed reliance on yet another decision of Apex Court in case of Nand Kishore v. State of Punjab, [JT 1995 (7) SC 69]. While examining the issue of res judicata, the Apex Court has made following observations in Para 17 of the verdict: 17. On another facet of res judicata, this Court in Mathura Prasad Bajoo Jaiswal & Ors. v. Dossibai N.B. Jeejeebhoy, [ 1970(3) SCR 830 ] had the occasion to observe as under: "A pure question of law unrelated to facts which give rise to a right, cannot be deemed to be a matter in issue....... On another facet of res judicata, this Court in Mathura Prasad Bajoo Jaiswal & Ors. v. Dossibai N.B. Jeejeebhoy, [ 1970(3) SCR 830 ] had the occasion to observe as under: "A pure question of law unrelated to facts which give rise to a right, cannot be deemed to be a matter in issue....... A decision on an issue of law will be res judicata in a subsequent proceeding between the same parties, if the cause of action of the subsequent proceeding be the same as in the previous proceedings, but not when the cause of action is different, nor when the law has since the earlier decision been altered by a competent authority, nor when the decision relates to the jurisdiction of the Court to try the earlier proceeding, nor when the earlier decision declares valid a transaction which is prohibited by law." (emphasis supplied) When this Court strikes down a statutory provision holding it to be unconstitutional, it derives its authority to do so under the Constitution. Under Article 141, the law declared by it is of a binding character and as commandful as the law made by a legislative body or an authorised delegee of such body. The Court is thus a "competent authority" within the scope of the words above emphasised. On the other hand the majority view expressed in the Full Bench decision that "the Courts of record including the Supreme Court only interpret the law as it stands but do not purport to amend the same. Their Lordship's decisions declare the existing law but do not enact any fresh law", is not in keeping with the plenary function of the Supreme Court under Article 141 of the Constitution, for the Court is not merely the interpreter of the law as existing but much beyond that. The Court as a wing of the State is by itself a source of law. The law is what the Court says it is. Patently the High Court fell into an error in its appreciation of the role of this Court. Examining the purport of doctrine of res judicata and the impact of constructive res judicata in writ proceedings, the Apex Court has made following observations in para 18 & 19: 18. The law is what the Court says it is. Patently the High Court fell into an error in its appreciation of the role of this Court. Examining the purport of doctrine of res judicata and the impact of constructive res judicata in writ proceedings, the Apex Court has made following observations in para 18 & 19: 18. Bearing the above principles in mind what at best was said by the State of Punjab was that failure to raise the constitutionality of Rule 5.32 in the writ petition preferred by the appellant would imply, on the principle of "might and ought", that the opportunity of controverting the matter had been lost and that it should on the principles of constructive res judicata be taken that the matter had been actually raised and adversely decided. But in Forward Construction Co. and Others. v. Prabhat Mandal and Others [1986(1) SCC 100] , this Court has taken the view that where a matter has been constructive in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided. 19. It would then have to be seen the twin play of the notion of deemed constitutionality and bar of constructive res judicata. Raising the constitutionality of a provision of law, as it appears to us, stands on a different footing than raising a matter on a bare question of law, or mixed question of law and fact, or on fact. There is a presumption always in favour of constitutionality of the law. The onus is heavy on the person challenging it. It is by the discharge of onus that the presumption of constitutionality can be crossed over. When a person enters a Court for relief and does not challenge the constitutionality of the law governing the matters directly and substantially in issue, it only means and implies that he goes by the presumption of constitutionality. He cannot on this stance be deemed to have raised the question of constitutionality and the question of constitutionality to have been decided against him and such matter to have been directly and substantially in issue. The constitutionality of the Rule relating to compulsory retirement cannot be deemed to have been questioned and decided against the appellant on the principles of "might and ought" or it being "directly and substantially in issue". The constitutionality of the Rule relating to compulsory retirement cannot be deemed to have been questioned and decided against the appellant on the principles of "might and ought" or it being "directly and substantially in issue". It cannot be taken as a rule that one of the pleas, either by the plaintiff or the defendant, in every suit or proceeding, must of necessity relate to the constitutionality of the law on which the cause is founded or defended in order to obviate the plea of constructive res judicata being raised in an eventuality. It cannot also be taken as a rule that constitutionality of the law involved is a matter directly and substantially in issue, and if not raised renders a mute decision in favour of its constitutionality barring the plea being raised in a subsequent suit. If there be read such a rule in all civil litigation, it would, to our mind, be against public policy vexing and burdening the courts to go into the constitutionality of provisions of law in every case. When under the impugned rule, the Government assumed to itself the power to compulsorily retire a permanent Government servant after ten years of qualifying service, the court's act of striking that Rule as unconstitutional is the law which appeared on the scene, not only to break the presumption of constitutionality but to declare it void. In a sense the offending provision was never there and in the other it was henceforth not there. In either event, it would be within the ambit of the emphasised words in Mathura Prasad's case. 11. For strengthening his contentions on the issue, Mr. Singhvi, the learned Senior Counsel, has also placed reliance on a decision of Apex Court in case of S. Jamaldeen & Ors. v. High Court of Madras & Ors. [(1997) 4 SC 30]. In the said decision, while dispelling objection of res judicata, the Apex Court made following observations in Para 24 of the verdict: 24. Moreover, the earlier writ petition was by a few persons and all the affected persons were not parties to that writ petition. That apart these writ petitions were filed before fixation of the Seniority List by the Administrative Committee or the Full Court. What is now under challenge is this Seniority List. The question of validity of this Seniority List could not have been an issue in the earlier writ petitions. That apart these writ petitions were filed before fixation of the Seniority List by the Administrative Committee or the Full Court. What is now under challenge is this Seniority List. The question of validity of this Seniority List could not have been an issue in the earlier writ petitions. The High Court was not right in invoking the principle of res judicata in the facts of this case. The High Court also overlooked the scope and effect of Rules 2(b) (i), 2(10) and 2(9) of the Tamil Nadu State Judicial Service Rules:- "Rule 2 (b)(i). Appointed to the service, - A person is to be appointed to the service when in accordance with these rules, he discharges for the first time the duties of the post borne on the cadre of the service or commences the probation prescribed for members thereof. Rule 2(10). Member of the Service. - Member of the service means a person who has been appointed to the service and who has not retired, or resigned, had been removed or dismissed, been substantively transferred to another service or being discharged other than for want of a vacancy. He may be a probationer and approved probationer or a full member of the service. Rule 2(9). Full member. - Full member of the service means a member of the service who has been appointed substantively to a permanent post borne on the cadre thereof." 12. The Apex Court further proceeded to make undermentioned observations on the issue of res judicata in Para 29 of the verdict: 29. We are of the view that the contentions of the appellants must be upheld. The Division Bench took the view that the third proviso to Rule 20 has to be taken into consideration for the purpose of determination of seniority, but in doing so overlooked Rule 2 (b) and Rule 2(10). The question of res judicata cannot arise in this case because under the earlier writ petition, validity of proviso (3) to Rule 20 was under challenge but after that challenge was repelled by the earlier Division Bench, the Madras High Court took up the question of determination of seniority of the judicial officers in accordance with the rules. What was under challenge in the second batch of writ petitions was the determination of seniority by the Full Court. The language of Rules 2 (b) and 2 (10) is clear. What was under challenge in the second batch of writ petitions was the determination of seniority by the Full Court. The language of Rules 2 (b) and 2 (10) is clear. The direct recruits were "appointed to service" only on 3.11.1988. It is only from this date that the direct recruits started discharging the duties for the first time. These direct recruits cannot be placed above the persons who were already discharging functions as District Munsifs on regular basis on and from 8.10.1988 when the Tamil Nadu Judicial Service Rules were amended to bring about integration of the Services. 34 persons were already acting as District Munsifs even before 6.10.1988. There is nothing in Rule 20 or the third proviso thereto which takes away the seniority of the persons who were "appointed to the service" before 3.11.1988. Placing heavy reliance on these verdicts, the learned counsel for the petitioner submits that in view of changed scenario, accrual of fresh cause of action to the petitioner, and the fact that lis involved in the present petition was not directly and substantially in issue in earlier petition, the objection regarding maintainability of this petition on the ground of res judicata deserves to be overruled. 13. Adverting to merits of the case, learned Senior Counsel submits that the controversy involved in the present petition is squarely covered by a decision rendered by this Court in S.B. Civil Writ Petition No.6423 of 2008 (Hem Singh & Ors. v. State of Rajasthan & Ors., decided on 21st October 2010). Mr. Singhvi has urged that fate of the instant case is required to be governed by the ratio decidendi of the verdict in Hem Singh's case (supra) which is affirmed by the Division Bench. 14. Per contra, Mr. Vimal Kishore Mathur, learned Addl. Government Counsel, submits that the present writ petition is barred by res judicata and therefore no indulgence can be granted to the petitioner. Mr. Mathur has urged that in the earlier writ petition, the petitioner has prayed for regularising his services as LDC and the same has been decided on merits, therefore, on the strength of principles of constructive res judicata also no relief can be granted to the petitioner. 15. I have given my anxious consideration to the arguments advanced at Bar and perused the materials on record. 16. 15. I have given my anxious consideration to the arguments advanced at Bar and perused the materials on record. 16. At the outset, a bare perusal of order dated 27th of May 1998, which was passed in S.B. Civil Writ Petition No. 1601/1995 filed by the petitioner earlier, makes it crystal clear that in the said writ petition the petitioner has prayed for relief of regularising his services as LDC and for claiming the said relief, the petitioner has relied on sub-rule (10) of Rule 25 of the Rajasthan Subordinate Offices Ministerial Staff Rules, 1957 (for brevity, hereinafter referred to as 'Rules of 1957'). This Court while considering rigor of sub-rule (10) of Rule 25 of the Rules of 1957 has declined reliefs to the petitioner by observing that said sub-rule is not applicable vis-a-vis work-charged employees. While rejecting the writ petition, the Court has also made following observations in Para 9 of the verdict: 9. The case of the petitioner comes under Rule 24F added vide Notification dated 28.12.96 which provides that the work charged employees of the P.H.E.D. and other departments would be given an opportunity to appear in the special recruitment test to be held by the Public Service Commission for their recruitment to the post of L.D.C., and if they succeed in that test they will be appointed on the post of L.D.C. on regular basis subject to the eligibility conditions. Thus, it is amply clear that while deciding the earlier writ petition, the afflictions of the petitioner ventilated in the instant writ petition were neither subject matter of judicial scrutiny nor any decision was rendered on these grievances. That apart, the claim of the petitioner in the earlier writ petition was founded on the anvil of Rules of 1957 and he has not prayed for any relief flowing from Rule 3 of the Rules of 1964. 17. One more redeeming fact is that for laying the present writ petition fresh cause of action has accrued to the petitioner as a consequence of issuance of communication dated 20th of November 2006 (Annex.4) and other subsequent events whereby some other similarly circumstanced employees who though were designated as Beldars have been allowed the status of semi-permanent and permanent on completion of two years and ten years of satisfactory services considering the fact that they are discharging duties of the ministerial cadre. Conferment of semi-permanent and permanent status to some of the junior incumbents who were designated as Beldar on the strength of the fact that they are discharging duties of ministerial cadre is also a very crucial fact which has furnished fresh cause of action to the petitioner for launching this litigation. Therefore, in my opinion, in the backdrop of the peculiar facts and circumstances of the instant case, the objection of the respondents that this petition is barred by res judicata, cannot be sustained. My this view is also fortified from the authoritative pronouncements of the Apex Court in Richpal's, Nand Kishore's, and S. Jamaldeen's cases (supra). Thus, the objection of the respondents regarding maintainability of this writ petition on the anvil of principle of res judicata is hereby overruled.Now, the matter requires examination on merits.As the coordinate Bench of this Court in similar circumstances has examined the matter threadbare in Hem Singh's case (supra) and while relying on its earlier verdict in case of Ashok Kumar & Ors. v. State of Rajasthan & Ors. (S.B. Civil Writ Petition No.2126/1992) granted relief to the similarly circumstanced employees, there appears to be no justification to deny the said relief to the petitioner. The coordinate Bench while deciding Hem Singh's case, has issued following directions: "The petitioners being discharging ministerial duties on the post of Store Munshi from the date of their initial appointment are also entitled for conferment of semi permanent status on the said post. Accordingly, this petition for writ is allowed. The petitioners are declared entitled to be conferred with semi permanent status as Store Munshi from the date they completed two years of service from the date of their initial appointment. The petitioners are also declared entitled for all consequential benefits. Necessary orders as a consequent to the entitlement declared, are required to be passed within a period of three months from today." 18. It is also brought to my notice that said decision of the learned Single Judge has been affirmed by the Division Bench by judgment dated 3rd of February 2012 in D.B. Civil Special Appeal (Writ) No.845/11 (State of Rajasthan & Ors. v. Hem Singh & Ors.). 19. The verdict in Hem Singh's case (supra) is clear and unequivocal paving the way for acceptance of this petition and as such the petition deserves acceptance. v. Hem Singh & Ors.). 19. The verdict in Hem Singh's case (supra) is clear and unequivocal paving the way for acceptance of this petition and as such the petition deserves acceptance. In the backdrop of the peculiar facts and circumstances of the instant case, there remains no doubt about sustainability of the orders Annex.12 & 13 respectively. Consequently, both these orders are hereby quashed. 20. As the lis involved in the present petition has already been set at rest right up to Division Bench of this Court, I am not persuaded to decline reliefs to the petitioner on the ground of availability of alternate remedy. 21. In view of above, the present writ petition is allowed, the impugned orders Annex.12 & 13 are annulled and the petitioner is declared entitled for conferment of semi-permanent status as Store Munshi from the date he has completed two years' satisfactory services from his initial date of appointment. The petitioner is further declared entitled for consequential benefits including conferment of permanent status in terms of Rule 3 of the Rules of 1964. The respondents are directed to pass requisite orders to this effect within a period of three months from today.No order as to costs.Writ Petition Allowed - Impugned Orders Annulled. *******