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2013 DIGILAW 2114 (RAJ)

Sriram Jat v. RSRTC

2013-11-27

ALOK SHARMA

body2013
JUDGMENT 1. - Heard the counsel for the parties and perused the impugned order dated 3.7.2007 whereby the regularisation of the petitioners on the post of Drivers under the RSRTC order dated 23.6.2007 has been kept in abeyance and the order dated 30.4.2010 whereby the petitioners are sought to be regularised effective the said date as against their earlier regularisation under order dated 23.6.2007 on the post of drivers with the RSRTC. 2. Counsel for the petitioner at the outset submits that the issue in the writ petition is fully covered by the Judgment of the Division Bench of this Court in the case of RSRTC & anr. v. Chena Ram & Ors., reported in 2012 (4) WLC (Raj.) 724 . 3. Counsel for the respondents after having perused the judgment of this Court in the case of RSRTC & anr. v. Chena Ram & Ors (supra) is not in a position to contest the submission of the counsel for the petitioners. He is, however, very valiantly sought to empathetically argue that the writ petition is however, liable to be dismissed inter-alia on the ground of laches as the order dated 3.7.2007 has been challenged in this writ petition belatedly by the petitioners on 21.12.2010 - a delay of over three years. 4. In view of the reluctance of the counsel for the respondents RSRTC to admit that the judgment rendered by the Division Bench in the case of RSRTC & anr. v. Chena Ram & Ors. (supra) fully covers the issue in the present writ petition, it has become necessary to address the writ petition on merits. 5. The facts of the case are that in pursuance to the advertisement bearing No. 70/2000-01 issued by the Member Secretary, Service Selection Board, Jaipur, RSRTC, Jaipur, calling applications for appointment on the post of Drivers for RSRTC buses from the open market, the petitioners applied. They were thereupon selected by the Committee constituted for the purpose. The appointment order was admittedly issued in favour of petitioner No. 1 Sita Ram on 5.4.2002 and on 17.5.2001 in favour of petitioner No. 2-Ram Kishore. The petitioners thereupon joined service. Thereafter, the services of the 30 petitioners were extended from time to time. Subsequently vide order dated 23.6.2007 issued by the competent authority, the petitioners were regularised and given the benefit of pay-scale of Rs. 3050-4590/- with the basic pay being fixed at Rs. The petitioners thereupon joined service. Thereafter, the services of the 30 petitioners were extended from time to time. Subsequently vide order dated 23.6.2007 issued by the competent authority, the petitioners were regularised and given the benefit of pay-scale of Rs. 3050-4590/- with the basic pay being fixed at Rs. 3050/-. The petitioners were to undergo probation for a period of one year. The said orders were issued in Compliance of the recommendations made by the Committee after its meeting held on 23.6.2007 to regularise the services of the petitioners in terms of the specific condition to that effect in the advertisement No. 70/2000-01. 6. However, in-spite of the regularisation of the petitioners in-terms of the advertisement No. 70/2000-01 vide order dated 3.7.2007 the Chief Manager, Jhalana Doongri Depot, directed that the orders of the petitioners' regularisation on 23.6.2007 be kept in abeyance. Subsequently vide order dated 30.4.2010 the petitioners were sought to be again purportedly regularised and fixed or consolidated pay of Rs. 6100/- p.m. as drive as with the RSRTC and were required to work as probationers for two years commencing the date of order dated 30.4.2010. 7. Aggrieved of the order dated 30.4.2010 the petitioners approached this Court by way of this writ petition under Article 226 of the Constitution of India submitting that similarly situate persons who were also appointed in pursuance of the advertisement No. 70/2000-01 had been given the benefit of regular pay scale on completion of three years service from the date of their initial appointment. By way of illustration reference was made to the cases of Satish Kumar Sharma, Mohan Lal Jangid and Ramji Lal Rana. It was submitted that even otherwise under the conditions of recruitment through the open selection process pursuant to the advertisement in issue the petitioners had a legal right to regularisation three years following their selection. It was submitted that the order dated 3.7.2007 keeping in abeyance the order of regularisation of the petitioners passed on 23.6.2007 was illegal and arbitrary. The subsequent order dated 30.4.2010 seeking to fix the petitioners on a consolidated salary of Rs. 6100/- p.m. was contrary to their regularisation under order dated 23.6.2007 under the specific terms of the petitioners employment under the advertisement No. 70/2000-01 whereby the petitioners were entitled to regularisation at the end of three years period effective the date of their selection to the post in issue. 6100/- p.m. was contrary to their regularisation under order dated 23.6.2007 under the specific terms of the petitioners employment under the advertisement No. 70/2000-01 whereby the petitioners were entitled to regularisation at the end of three years period effective the date of their selection to the post in issue. The order dated 23.6.2007 was never withdrawn after notice to the petitioners. It was submitted that in the circumstances the petitioners served a notice for demand of justice on or about 15.9.2010 ventilating their grievance with regard to the deferment of their regularisation from 23.6.2007. The Chief Manager, RSRTC, Vidhyadhar Nagar, Jaipur however vide his reply dated 18.10.2010 with regard to their earlier regularisation on 23.6.2007 under the terms and conditions of the advertisement No. 70/2000-01 and instead stated that the regularisation of the petitioners under the order dated 30.4.2010 on consolidated salary of Rs. 6100/- p.m. and probation for a period of two years, was in accordance with the extant 2010 Regulations of the Corporation. Hence this writ petition. 8. On notice served of the petition, the RSRTC has filed its reply. The first objection taken is that the writ petition be dismissed on the face of it having been filed after a delay of more than three years of the impugned order dated 3.7.2007 whereby the petitioners regularisation in the service of the RSRTC vide order dated 23.6.2007 was kept in abeyance. It was also been submitted that subsequent to the order dated 3.7.2007 the petitioners accepted the extension of their service from time to time, acquiesced in the order dated 3.7.2007 and therefore have waived their right to challenge the order dated 3.7.2007 by way of the writ petition or otherwise. It has been further submitted that the petitioners have not challenged the RSRTC Regulations of 2010 and the order of Board of Directors based thereon to regularise them effective 30.4.2010. Therefore, the writ petition filed by the petitioners would also liable to be dismissed on this count. RSRTC's further objection is that the petitioners are workmen and if they had any dispute with regard to their conditions of service including date of their regularisation it ought to have been regressed under the Industrial Disputes Act, 1947 and consequently in view of the alternative remedy available the writ petition should be dismissed. RSRTC's further objection is that the petitioners are workmen and if they had any dispute with regard to their conditions of service including date of their regularisation it ought to have been regressed under the Industrial Disputes Act, 1947 and consequently in view of the alternative remedy available the writ petition should be dismissed. On the merits of the case it has been submitted that the RSRTC has framed regulations of 2010 for the purposes of regularisation of contractual/temporary employees. In pursuance of the aforesaid regulations of 2010 the case of the petitioners who were then at the relevant time temporary/ad-hoc employees of the Corporation was considered, and their services were regularised vide order dated 30.4.2010. Thereupon the petitioners were re-fixed on a consolidated salary of Rs. 6100/- p.m. for a period of two years during which they were to be on probation. It has been submitted that the regularisation of the petitioners under the order dated 23.6.2007 was kept in abeyance under the order dated 3.7.2007 as the matter was pending consideration before the State Government. The allegations of discrimination have been denied vacuously without reference to the specific examples of persons similarly situate and regularised as per the terms of the advertisement No. 70/2000/01 as set out in para 9 of the writ petition.Heard the counsel for the parties. 9. The Division Bench of this Court in the case of RSRTC & anr. v. Chena Ram & Ors. (supra) had the occasion to consider the very same advertisement No. 70/2000-1 issued by the RSRTC as in issue is this petition. In the said case 8 persons had been appointed as Drivers on various dates between 3.1.2006 to 1.3.2007 in the pay scale of Rs. 3050-75-3950-80-4590/-. Each of the aforesaid eight persons were thereafter regularised by different orders issued b the RSRTC during 2006-2007 and given the benefit of regular pay scale (as in the case of the petitioners herein). Thereafter the Chief Manager of the Corporation at its Nagaur Depot vide order dated 4.8.2007 sought to keep the order of regularisation in abeyance and simultaneously withdraw the pay-scales already granted. In-stead those earlier regularised were sought to be appointed on a fixed salary of Rs. 3,000/- p.m. with the stipulation that after satisfactory completion of two years of probation they would be then given the regular pay-scale. In-stead those earlier regularised were sought to be appointed on a fixed salary of Rs. 3,000/- p.m. with the stipulation that after satisfactory completion of two years of probation they would be then given the regular pay-scale. The Honorable Division Bench upheld the order of the Single Judge who had allowed the writ petition filed by the drivers aggrieved of their earlier regularisation being jettisoned and the drivers being continued on a consolidated salary with a condition of two years probation before regularization. The Single Judge had directed that the benefit of regular pay-scale granted by the corporation between the years 2006-07 could not be kept in abeyance/impliedly withdrawn and not could those earlier regularised be required to revert to a consolidated pay with two years probation before regularization. The Hon'ble Division upholding the judgment of the learned Singe Judge held that the rights which had crystallized in favour of the selected drivers after three years of regular service pursuant to their selection under the recruitment process following the advertisement No. 70/2000-01 by way of grant of regular pay-scales could not have been taken away in the manner attempted by the RSRTC. RSRTC's DB special appeal was thus dismissed. 10. In my considered opinion the issue in the present case is thus covered on all terms both on fact and law by the Judgment Division Bench in the case of RSRTC & anr. v. Chena Ram & Ors. (supra). 11. As far as the issue of delay filing of the writ petition is concerned, I am of the considered view that the contention of the counsel for the RSRTC has no force at all. For one; similarly situate persons have been held entitled by the Division Bench of this Court to the benefit of regularisation subsequent to three years of employment with RSRTC in terms of the advertisement No. 70/2000-01 and the approval of regularisation by a duly constituted Committee. Further, in any event the impugned order dated 3.7.2007 was only an order putting the regularisation of the petitioners vide order dated 23.6.2007 in abeyance and the order dated 23.6.2007 had never been recalled. The actual cause of action for the petitioners arose under the order dated 30.4.2010 where-under their regularisation under the order dated 23.6.2007 was sought to be deferred to 30.4.2007 with reduction of salary and two years of probation afresh. The actual cause of action for the petitioners arose under the order dated 30.4.2010 where-under their regularisation under the order dated 23.6.2007 was sought to be deferred to 30.4.2007 with reduction of salary and two years of probation afresh. Reckoned from the aforesaid date i.e. 30.4.2010 the writ petition filed before this Court on 21.12.2010 is wholly within time. I also find no force in the argument that RSRTC Regulation of 2010 would apply to the petitioners. The said Regulations are not and cannot be retrospective nor has it been so contended. Prior to the coming into force of the Regulations of 2010, the petitioners has been regularised by a duly constituted committee on 23.6.2007 as per terms of the petitioners recruitment under the advertisement No. 70/2000-01. The petitioners were thus not contractual employees when the Regulations of 2010 came into force. Further the vested right of the petitioners following their regularisation on 23.6.2007 could not have been taken away if at all without complying with the principles of natural justice. The petitioners were never issued any show cause notice nor given an opportunity of being heard on this count also the order of regularisation dated 23.6.2007 remained rock solid was never withdrawn. There could not been any going back on the regularisation of the petitioners. 12. I also find no force in the contention of the learned counsel for the respondent RSRTC that the petitioners having continued to accept fixed salary subsequent to the order dated 3.7.2007 keeping in abeyance the order of regularisation dated 23.6.2007 should be taken to have acquiesced to the deferment of the. regularization. Scarcity of employment in the country is universally known. Poverty of the applicants applying for the post of Driver with the RSRTC can also be taken to be a given. RSRTC the major employer of drivers in the State of Rajasthan thus had the dominant position vis-a-vis the petitioners who were obviously economically coerced into suffering the arbitrariness of RSRTC in keeping their regularisation dated 23.6.2007 in terms of the conditions of the advertisement No. 70/2000-01 in abeyance. The unarticulated reason was tear of lacs of employment. The argument of the learned counsel appearing for the RSRTC based on purported acquiescence of the petitioners in continuing and accepting their status as temporary employees is thus liable to be rejected. 13. The unarticulated reason was tear of lacs of employment. The argument of the learned counsel appearing for the RSRTC based on purported acquiescence of the petitioners in continuing and accepting their status as temporary employees is thus liable to be rejected. 13. Further the petitioners had set up a specific case in para 9 of the writ petition that three persons namely; Satish Kumar Sharma, Mohan Lal Jangid and Ramji Lal Rana who were recruited along-with the petitioners under the advertisement No. 70/2000-01 were regularised by the RSRTC in terms of the condition of advertisement after their three years of their appointment. The said allegations of discrimination by the petitioners have not been denied by the RSRTC. On the principles of pleadings enumerated in Order 8, Rule 5 CPC the non-traverse of specific pleading of fact is liable to be construed as an admission. On this count also I find that the petitioners have made out a good case for sustaining their regularisation under the order dated 23.6.2007. Consequently the order dated 30.4.2010 seeking to purportedly regularise the petitioners afresh treating them as contractual employees upto the said date is wholly illegal and improper and liable to be set aside by this Court. 14. Consequently, I would allow the writ petition and quash the order dated 30.4.2010 passed by the RSRTC qua the petitioners as also the order dated 3.7.2007 holding in abeyance the regularisation of the petitioners effective 23.6.2007. Consequently, the petitioners would be entitled to all benefits of regularisation effective 23.6.2007 which inter-alia includes arrears of salary as also seniority. 15. The respondents RSRTC is directed to pay cost of Rs. 5,000/- to be deposited with the Rajasthan Legal Services Authority, Jaipur in view of the fact that this case was contested by the RSRTC in-spite of the issue therein being covered on all force by the Judgment of the Division Bench in the case of RSRTC & Anr. v. Chena Ram & Ors. (supra). This Court notes with distress that proclivity of the statutory Corporations and the State itself to stall decision making in-spite of clear enunciation of law on fact and law of an issue before it by the High Court and their tendency of burdening this Court to pass orders restating the law well and fully established as if reinverting the wheel towards better governance in the 21st Century? Or is it to remain a mirage.Writ Petition allowed with costs of Rs. 5,000/-. *******