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2015 DIGILAW 1425 (RAJ)

Duli Chand Gupta v. Rajasthan Housing Board

2015-07-30

ANUPINDER SINGH GREWAL

body2015
JUDGMENT : BY THE COURT:- The instant writ petition is directed against the order dated 31/12/1991 (Ann.4) whereby, the services of the petitioner were regularized but he has not been given any benefit of his previous service. Petitioner has sought mandamus to regularise his services w.e.f. 25/11/1980 whereon, he was first appointed to the service. 2) The facts of the case, briefly stated, are that the petitioner was appointed as Junior Assistant on 25/11/1980 on daily wage basis against a vacant post. Petitioner is stated to have sent several representations to the respondents for regularizing his services and granting him the benefit of regular pay scale, which did not evoke any response. Thereafter, the petitioner filed writ petition bearing DBCWP No.3209/1987 before this Court claiming pay scale of Junior Assistant on the principle of equal pay for equal work. This Court while disposing of the said writ petition vide order dated 16/01/1989 directed that the petitioner be paid the salary of Junior Assistant as he had been performing the work of that post. It was further directed that respondents shall give an opportunity to the petitioner to appear in the typing test and other tests, if any, in order to regularize his services. Although petitioner was granted pay scale of Junior Assistant in terms of the order of the Court but his services could be regularized only in the year 1991 after he had qualified the typing test. 3) Learned counsel appearing for the petitioner has contended that the services of the petitioner should have been regularized with effect from 25/11/1980 whereon he had been appointed against the vacant post of Junior Assistant. It is further contended that the services of the similarly situated employees viz. Shri B.S.Dixit and Ms.Kerolian Robert had been regularized from 24/12/1982. He has also cited the case of one Shri Moti Singh, who was given the benefit of seniority with effect from 24/12/1982, although he had passed the written examination along with the petitioner. 4) Per contra, the learned counsel appearing for the respondents has submitted that the initial appointment of the petitioner was on daily wages and was not through proper selection as neither there was any advertisement nor names were invited from the Employment Exchange. 4) Per contra, the learned counsel appearing for the respondents has submitted that the initial appointment of the petitioner was on daily wages and was not through proper selection as neither there was any advertisement nor names were invited from the Employment Exchange. It is further contended that the cases of the persons named by the petitioner were distinguishable from the case of the petitioner and services of the petitioner could not be regularized before he had actually passed the typing test. 5) I have heard learned counsel for the parties and perused the record. 6) There is no dispute that petitioner had initially been appointed on daily wage basis on the post of Junior Assistant. Although the regular pay scale applicable to the post was paid to the petitioner in terms of the court orders but for his services to be regularized, it was incumbent upon him to have passed the typing test. The Rajasthan Housing Board Employees Service Regulations, 1976 (hereinafter referred to as “Regulations, 1976”), which have been referred to in the additional affidavit filed by the respondents, prescribe the qualification of a Junior Assistant as Higher Secondary with knowledge of Hindi & English typing with a minimum speed of 30/20 words per minute. It is only in the case of physically handicapped candidates that the requirement of passing Hindi or English typing is relaxable and instead examination in General English, General Knowledge & General Studies has to be passed. 7) It is, thus, patent that without passing the typing test, the services of the petitioner could not have been regularized. 8) It is also borne out from the reply filed by the respondents that the petitioner earlier had also been appearing in the typing test but he could pass only in the last chance in the year 1991. 9) Insofar as cases of Shri B.S. Dixit and Ms.Kerolian Robert are concerned, it is stated that they were regularized on the post of regular Junior Assistant against the vacant post under the direct recruitment quota for the year 1982 and allowed to qualify the typing test within one year as per decision of the Board taken on 15/05/1982. The Board had decided that those appointments, which were upto September, 1980 and which had been recommended for regularization by the Junior Selection Committee, be granted the benefit of regularization. The Board had decided that those appointments, which were upto September, 1980 and which had been recommended for regularization by the Junior Selection Committee, be granted the benefit of regularization. Since the petitioner had joined the service on 25/11/1980, he was not entitled to the benefit, which was applicable to those who had been appointed till September, 1980 on the recommendation of the Selection Committee. There also does not seem to be any discrimination as far as fixing the cut-off date of September, 1980 is concerned. It is permissible for an employer to fix a cut-off date provided the decision is taken bonafide. There is no material on record to enable this Court to arrive at a conclusion that this cut-off date is arbitrary, discriminatory or illegal. It is also stated in the reply that case of Shri Moti Singh was altogether different from the petitioner as he was handicapped, and thus was entitled to relaxation in qualifying the typing test in terms of the Regulations, 1976, referred to above. It is further stated in the reply that services of Smt.Shashi and Vinita Vyas were regularized in terms of the order of this Court dated 03/01/1991 and they were directed to qualify the typing test as per court orders which they had cleared. 10) Reliance of the learned counsel for the petitioner on the judgment of Supreme Court in U.P. State Electricity Board Vs. Pooran Chandra Pandey and others [ (2007) 11 SCC 92 ] is misplaced as the facts of that case are clearly distinguishable from the instant case. In that case, the Electricity Board had taken a decision to regularize services of its employees working on daily wage basis in the Cooperative Electric Supply Society before 04/05/1990. The respondents therein had been working in the Cooperative Electric Supply Society, which was taken over by the Electricity Board on 03.04.1997 and hence they were held to be entitled for regularization from the date employees of the Electricity Board were regularized. However, in the instant case, the services of only those employees were regularized, who had joined service at least three months before the petitioner. No person junior to the petitioner had regularized at that time. 11) It is apposite to state that an employee is entitled to regularization only from the date when he was duly qualified and selected for the post. No person junior to the petitioner had regularized at that time. 11) It is apposite to state that an employee is entitled to regularization only from the date when he was duly qualified and selected for the post. Any service before regularization, which is to be counted for seniority, selection grade etc. must have been after the employee has been initially appointed in terms of the service rules and provisions of Articles 14 & 16 of the Constitution of India including advertisement to the general public or inviting names from the Employment Exchange. When the petitioner had been initially appointed in 1980, he had been appointed only on daily wage basis and he did not have requisite qualification of having passed the typing test. As he had passed the typing test only in 1991, he is not entitled to be considered for regularization prior thereto. 12) I draw support from the judgment of Hon’ble Supreme Court of India in the case of Vireshwar Singh and others Vs. Municipal Corporation of Delhi and others [ (2014) 10 SCC 360 ], wherein it was held as under:- “12. An elaborate recital of the facts had been considered necessary to trace out the core issue in the case. Both sets of GDMOs i.e. in Phase-I and Phase-II were not appointed on the basis of a selection held by the UPSC as mandated by the Regulations in force. Their appointments were recommended by a Specially Constituted Selection Committee. Their appointments were ad hoc; initially for a period of six months which was subsequently extended from time to time. Being similarly circumstanced, undoubtedly, both sets of GDMOs will have to be treated equally and evenly for the purpose of regularization. In Dr. Anuradha Bodi (supra) after noticing the precise terms of appointment of the Phase-I GDMOs, the entitlement of the said GDMOs (Phase-I) to regularization with effect from the date of their initial appointments was considered by this Court in the light of the decision of the Constitution Bench in Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra [ (1990) 2 SCC 715 ], particularly, in the backdrop of the two propositions (A) and (B) set out in paragraph 47 of the Report. A subsequent judgment of a three Judges Bench in State of West Bengal and Ors. v. Aghore Nath Dey and Ors. A subsequent judgment of a three Judges Bench in State of West Bengal and Ors. v. Aghore Nath Dey and Ors. [ (1993) 3 SCC 371 ] throwing further light and clarity on the contents of propositions (A) and (B) laid down in Direct Recruit Class II (supra) had also been considered to come to the conclusion that the cases of doctors appointed on ad hoc basis in Phase-I fall within the corollary to conclusion (A) of Direct Recruit (supra) and therefore they are not entitled to the benefit of service rendered on ad hoc basis. Paragraph 12 of the report in Anuradha Bodi (supra) may be conveniently noticed at this stage. “12. If the facts of these two cases are analysed in the light of the aforesaid decisions, there can be no doubt whatever that the Petitioners fall within the corollary in Conclusion (A). The orders of appointment issued to the Petitioners are very specific in their terms. Though the recruitment rules came into force on 6-8-1982, the appointments were not made in accordance therewith. They were ad hoc and made as a stopgap arrangement. The orders themselves indicated that for the purpose of regular appointment the Petitioners were bound to pass the UPSC examination in the normal course in the direct competition. Hence the Petitioners will not fall under the main part of Conclusion (A) or Conclusion (B) as contended by the learned Counsel for the Petitioners.” 13) In the case of Nand Kumar Vs. State of Bihar & Others [ (2014) 5 SCC 300 ], it has been held by the Hon’ble Supreme Court, as under:- “20. Therefore, considering the facts of the present case, it appears to us that the appellants were never appointed through a proper procedure. It is not in dispute that they all served as daily wagers. Therefore, it was within their knowledge all the consequences of appointment being temporary, they cannot have even a right to invoke the theory of legitimate expectation for being confirmed in the post. Accordingly, we cannot accept the contention of the appellants in the matter. 21.......... 22.......... 23.......... 24.......... 25. We have consciously noted the aforesaid decisions of this Court. The principle as has been laid down in Umadevi (supra) has also been applied in relation to the persons who were working on daily wages. Accordingly, we cannot accept the contention of the appellants in the matter. 21.......... 22.......... 23.......... 24.......... 25. We have consciously noted the aforesaid decisions of this Court. The principle as has been laid down in Umadevi (supra) has also been applied in relation to the persons who were working on daily wages. According to us, the daily wagers are not appointees in the strict sense of the term ‘appointment’. They do not hold a post. The scheme of alternative appointment framed for regular employees of abolished organisation cannot, therefore, confer a similar entitlement on the daily wagers of abolished organisation to such alternative employment. [See Avas Vikas Sansthan v. Avas Vikas Sansthan Engineers Association ( 2006 (4) SCC 132 )]. Their relevance in the context of appointment arose by reason of the concept of regularisation as a source of appointment. After Umadevi (supra), their position continued to be that of daily wagers. Appointment on daily wage basis is not an appointment to a post according to the rules. Usually, the projects in which the daily wagers were engaged, having come to an end, their appointment is necessarily terminated for want of work. Therefore, the status and rights of daily wagers of a Government concern are not equivalent to that of a Government servant and his claim to permanency has to be adjudged differently. 26. In these circumstances, in our considered opinion, the regularisation/ absorption is not a matter of course. It would depend upon the facts of the case following the rules and regulations and cannot be de hors the rules for such regularisation/absorption.” 14) In view of above, the action of the respondents in regularizing the services of the petitioner with effect from 1991 whereon, he had passed the typing test, in no manner can be said to be arbitrary or discriminatory warranting interference in writ jurisdiction. Consequently, the instant petition is dismissed being devoid of any merit.