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2014 DIGILAW 1877 (RAJ)

Mohani Bai v. State of Rajasthan

2014-11-21

VEERENDR SINGH SIRADHANA

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JUDGMENT 1. - The petitioner, in the instant writ application, has prayed for the following relief(s): "(i) By issuing an appropriate writ, order or direction the respondent be directed to call for the record pertaining to the case of the petitioner. (ii) By issue an appropriate writ, order or direction the respondent be directed to consider the case of the petitioner for regularisation and her services be regularised w.e.f 1.4.1998. (iii) By issuing an appropriate writ, order or direction the salary from 1.5.1995 to 6.5.1995 be paid to the petitioner for which she is actually worked. (iv) Any other appropriate writ, order or direction which the Hon'ble Court deem fit and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner. (v) Cost of the Writ Petition may kindly be granted in favour of the petitioner because the respondent has unnecessarily compelled the petitioner to file this writ petition. She should have been regularised by the respondent at their own end." 2. Shorn off unnecessary details, the indispensable skeletal material facts, necessary for appreciation of the controversy raised needs to be first noticed. It is pleaded case of the petitioner that she was appointed as Cook on 11th January, 1994 on a monthly salary of Rs. 600/-. The State-respondents framed a scheme for regularisation of part time Chowkidars/Cooks and submitted the same before the Hon'ble Supreme Court. The Hon'ble Supreme Court taking note of the Scheme appended as Annexure- A to the list of dates, which were taken on record, observed that the Scheme was just and reasonable and disposed of the petitions substituting the High Court orders by an order directing regularisation as per Scheme. The Scheme submitted by the State-respondents contemplated for a District-wise Screening Committee for the purpose of phase-wise regularisation. The Constitution of the Committee reads thus: "(1) Joint Director of concerned Division Chairman (2) Assistant Director/Distt. Officer, Member Secretary, (3) Representative of Director, Social Welfare, Member." 3. Jobs and duties of the Screening Committee have specifically been spelled out in the Draft Action Plan/Scheme for regularisation. Since the case of the petitioner was not considered for regularisation she has instituted the present writ proceedings. 4. Officer, Member Secretary, (3) Representative of Director, Social Welfare, Member." 3. Jobs and duties of the Screening Committee have specifically been spelled out in the Draft Action Plan/Scheme for regularisation. Since the case of the petitioner was not considered for regularisation she has instituted the present writ proceedings. 4. In response to the notice of the writ application, the State-respondents, in order to justify their action for declining the case of the petitioner for regularisation under the Scheme aforesaid, relied upon the verdict of the Hon'ble Supreme Court in case of State of Haryana & Ors. v. Tilak Raj & Ors.; (2003) 6 SCC 123 . Under paragraph 3 of the counter affidavit the State-respondents have specifically pleaded that the case of the petitioner was sent to the Directorate and the Departmental Screening Committee considered her case in accordance with the Rules and found her in-eligible for regularisation referring and relying upon the case of Tilak Raj & Ors. (supra). It is further contended that the opinion of the Hon'ble Supreme Court has also been followed by the Coordinate Bench of this Court at Principle Seat, Jodhpur, in SBCWP No.2310/2003 (Rajaram v. State of Raj. & Ors.) decided on 12th February, 2004 . 5. Learned counsel appearing on behalf of the petitioner reiterating the pleaded facts and grounds of the writ application strenuously argued that the Scheme framed by non-else but the State-respondents was considered and approved by the Hon'ble Supreme Court as would be evident from the judgment and order dated 29th March, 1996. Further, number of employees have been accorded benefit of regularisation by the Department, but the petitioner has been deprived of the benefit for no reason or rhym. According to the learned counsel for the petitioner, the case of the petitioner was covered under Clause 3, as observed by the Hon'ble Supreme Court, taking note of the phase-wise regularisation of the draft Scheme for regularisation. According to the learned counsel for the petitioner, the case of the petitioner was covered under Clause 3, as observed by the Hon'ble Supreme Court, taking note of the phase-wise regularisation of the draft Scheme for regularisation. The learned counsel would further submit that declining the claim of the petitioner for regularisation on the pretext of opinion of the Hon'ble Supreme Court in the case of Tilak Raj & Ors.(supra), is absolutely a false pretext since the principal enunciated by the Hon'ble Supreme Court in the case dealt with the issue of parity of employment on the principle of "equal pay for equal work" as would be reflected from the documents Annexure R/1 enclosed with the counter affidavit by the State-respondents. 6. I have heard the learned counsel for the parties and with their assistance perused the material available on record. 7. Prima facie, taking note of the contents of the counter affidavit filed on behalf of the State-respondents, it appears that the statement made on oath while declining the claim of the petitioner, for regularisation, on the text of opinion of the Hon'ble Supreme Court, in the case of Tilak Raj (supra), cannot be sustained in view of the specific directions issued by the Hon'ble Supreme Court in the case of State of Rajasthan v. Mod Singh: (SLP (C) No.21173/1994 , wherein the Hon'ble Supreme Court, taking note of the Scheme drawn by the State of Rajasthan, for regularisation of part time employees, observed that the Scheme proposed of dividing the part time employees in three groups i.e. the first group comprising of those who had completed five years of service on May, 1995, the second group comprising of those who completed two years of service in May, 1995 and third group comprising of those who have been working on 1st May, 1995 and have continued to work thereafter. The employees of three groups were intended to be regularised from August, 15, 1996, April 1, 1997 and April, 1998, respectively. 8. The statement made in the counter affidavit on behalf of the State-respondents, prima facie, reflects absolute non-application of mind and mis-representation by the State-respondents while considering the case of the petitioner for regularisation. This Court called upon the State-respondents to produce the relevant record and allowed several opportunities vide detailed orders on 14th November, 2014, 18th November, 2014 and 20th November, 2014. This Court called upon the State-respondents to produce the relevant record and allowed several opportunities vide detailed orders on 14th November, 2014, 18th November, 2014 and 20th November, 2014. The relevant record, including the proceedings of the Selection Committee, which considered the case of the petitioner while declining the claim of the petitioner, was not produced for perusal of the Court in spite of repeated directions. In view of the above, this Court was compelled to direct the Director, Social Welfare Department, to appear personally in order to explain the inefficiency of the concerned and for production of the relevant record as aforesaid and further to ensure the availability of the original records. 9. Neither the Director appeared before the Court nor the relevant record, including the proceedings of the Screening Committee reflecting consideration of the case of the petitioner for regularisation, was produced for perusal of the Court. The reasons given out by the learned counsel for non-availability of the original record is that the same is not traceable in the Department. 10. Non-availability of the record in the Department appears to be a pretext for the contrary specific stand pleaded in the counter affidavit, which may surface the actual facts and matrix demolishing the stand of the State-respondents. This fact is further fortified in view of the adjudication of identical controversy by a Coordinate Bench of this Court vide judgment and order dated 27th February, 2009, in SBCWP No.7324/2003 (Pushpa Bai v. State of Raj. & Ors. ), who was employed as Cook in the District Baran for a salary of Rs. 600/- per month. 11. The Coordinate Bench of this Court while allowing the writ application in case of Pusha Bai (supra), directed the State-respondents regularise her case extending all consequential benefits within a period of three months. The opinion of the learned Single Judge dated 27th February, 2009 was subjected to intra court appeal in DBSAW No.1426/2011 (State of Rajasthan & Ors. v. Pushpa Bai ), which was dismissed on 1st November, 2011. The regularisation of service, in case of Pushpa Bai (supra), has been effected in view of the directions issued by the Hon'ble Supreme Court in the case of Mod Singh (supra). 12. v. Pushpa Bai ), which was dismissed on 1st November, 2011. The regularisation of service, in case of Pushpa Bai (supra), has been effected in view of the directions issued by the Hon'ble Supreme Court in the case of Mod Singh (supra). 12. The State-respondents while producing the available record, with reference to the proceedings of the Screening Committee dated 3rd March, 2001, have not disputed the fact that the name of the petitioner finds place in the description of the candidates whose complete record was available with the then Deputy Director, Kota and details of the petitioner have been entered at serial No.2 reflecting her working with effect from 1994 to 1995 and further, she was indicated to be in employment until February, 2001. Her date of birth has been recorded as 11th February, 1971. The proceedings also reflect that her case was subjected to Screening earlier and her name finds place at serial No.775 in the list, but for the description of the candidates, how her case was considered by the Screening Committee and result thereof as well as conclusion of those proceedings is not known. The relevant record has not been produced for the perusal of the Court in spite of several opportunities granted to the State-respondents so much so that personal appearance of the Director, Department of Social Welfare, Jaipur, was ordered but he did not appear as he was stated to be on Casual Leave. 13. From the factual matrix and the specific directions issued by the Hon'ble Supreme Court in the case of Mod Singh (supra), accepting the draft scheme of the State-respondents for regularisation, it is evident that the petitioner has not been extending the benefit of regularisation. The relevant record of the Screening Committee reflecting consideration of the case of the petitioner for regularisation has not been produced. In view of the above, this Court is left with no option but to draw an adverse interference to the contrary. 14. It is surprising that the very same Department has considered and regularised the services of Smt. Pushpa Bai, an identically situated employee, in compliance of the directions issued by this Court in the writ proceedings instituted by her, which were affirmed in intra court appeal vide order dated 1st November, 2011. 14. It is surprising that the very same Department has considered and regularised the services of Smt. Pushpa Bai, an identically situated employee, in compliance of the directions issued by this Court in the writ proceedings instituted by her, which were affirmed in intra court appeal vide order dated 1st November, 2011. Therefore, the record being not available with the Department appears to be a false pretext for the reason best known to the concerned. The reasons detailed out in the counter affidavit, on behalf of the State-respondents, for declining regularisation of the services of the petitioner, on the pretext of opinion of the Hon'ble Supreme Court in the case of Tilak Raj (supra), is absolutely baseless without any factual foundation. 15. In the result, the writ application succeeds and is hereby allowed. 16. The respondents are directed to consider the case of the petitioner for regularisation in terms of draft Scheme, approved by the Hon'ble Supreme Court in the case of Mod Singh (supra), and extend the consequential benefits. 17. It is further directed that the exercise should be completed within a period of six weeks from the date of receipt of a certified copy of this order. The respondents shall pay a cost of Rs. 10,000/- ( Rs. Ten Thousand) to the petitioner.Writ petition allowed - Order to be compiled within six months. *******