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2019 DIGILAW 1938 (RAJ)

Sunita Tak v. State of Rajasthan

2019-07-11

SANJEEV PRAKASH SHARMA

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JUDGMENT : Sanjeev Prakash Sharma, J. 1. This writ petition, which has been remanded by Division Bench vide order dated 24.8.2017, relates to the year 1997 and it was listed in weekly list under the category of hearing. Since the matter pertains to the year 1997, it is taken up for hearing today. The writ petition was dismissed by the Single Bench on the ground that it is not maintainable relying upon the judgment dated 11.02.1993 in S.B. Civil Writ Petition No. 631/1993 - Ajmer Zila Parishad Vs. State. The Division Bench has noted that the said judgment of the year 1993 stood overruled by the Division Bench but the same was not brought to the notice of the Coordinate Bench. Hence the matter has been remanded to this court again. The petitioner by way of this writ petition assails the orders dated 06.05.1997 passed by the respondent whereby services of the petitioners from the post of women instructor were dispensed with. The case of the petitioners is that they had applied against the advertisement for appointment on the post of women instructor and appeared in interview on 4.7.1991 and whereafter they were selected and appointed vide order dated 29th July, 1991. They also filled bond with the respondent to work with them continuously. The petitioners have further stated that on the basis of the recommendations of Selection Committee made after assessing their work performance, they were placed in the regular pay scale of the post of Women Instructor Grade. II vide order dated 11.11.91, which was in the grade of Rs. 950-1680 and their annual grade increments were also released vide order dated 18.11.92. Vide order dated 14.9.1994 they were granted the higher grade. It is stated that the service record of the petitioners was unblemished, except that once they were charge-sheeted and after regular enquiry they were punished with stoppage of two grade increments without cumulative effect. It is stated that the Ajmer Dugdh Producers Cooperative Union Employees (Appointment, Pay & Allowances) Regulations, 1992 governed the service conditions of the petitioners. Regulation 18 lays down the procedure for termination of the services of confirmed employee. Regulation 18(2) provides the appointing authority may terminate the services of the employee for reasons to be recorded on giving him three months pay in lieu of notice, for termination of the services of confirmed employee. Regulation 18 lays down the procedure for termination of the services of confirmed employee. Regulation 18(2) provides the appointing authority may terminate the services of the employee for reasons to be recorded on giving him three months pay in lieu of notice, for termination of the services of confirmed employee. Since both the petitioners were confirmed and placed in the regular pay scale and were also granted of increments regularly, it is their submission that the said Regulation 18 governed their conditions of service and without following the said Regulation their services were wrongly dispensed with by the impugned order dated 6.5.1997 and thus the same was illegal and unjustified and not sustainable in the eyes of law. Thus, their prayer is that they should be reinstated with all consequential benefits and be also granted benefit of seniority and further promotion if any. The petitioners have also placed on record the advertisement whereby the petitioners were appointed. 2. Reply was filed on behalf of the respondent No. 2 stating that the writ petition was not maintainable in view of the judgment passed of this Court in S.B. Civil Writ Petition No. 631/1993-Ajmer Zila Dairy Employees Union Vs. Registrar, Rajasthan Cooperative Societies. That apart, on merits also it was stated that initial selection of the petitioners was made on contract basis and when their services were not found to be satisfactory, the same were dispensed with by the impugned order. It is denied that the petitioners were granted regular pay scale of the post of Women Instructor Grade-II on the recommendation of Selection Committee. Instead it is stated that the petitioners have been given the salary in view of the order passed earlier on 4.9.1991, which was modified and in the meeting of the Rajasthan Rajya Mudra Committee Rajasthan Mahila Dairy Project held on 30.09.1991, a resolution No. 3(4) was passed and in pursuance thereof the petitioner were granted the regular pay scale in the grade of Rs. 950-1680. It is submitted that the appointments of the petitioners were made on contract basis under the Women Development Programme which was time bound project and in view of Section 2(oo)(bb) of the Industrial Disputes Act, their services were dispensed with as the aforesaid programme came to an end. 3. 950-1680. It is submitted that the appointments of the petitioners were made on contract basis under the Women Development Programme which was time bound project and in view of Section 2(oo)(bb) of the Industrial Disputes Act, their services were dispensed with as the aforesaid programme came to an end. 3. Rejoinder was submitted by the petitioners stating that the petitioners were initially appointed through regular mode of selection/recruitment which is clear from the order dated 04.07.1991, and then they were fixed in the regular pay scale and were given annual grade increment from time to time, that appointment. Their services were not being terminated because their appointment was made in a time bound project. It is also submitted that the provision of Section 2(00)(bb) of ID Act are not applicable on the facts of the case. 4. An additional affidavit was filed by the concerned Store Supervisor of the Ajmer Zila Dudgh Utpadak Sahkari Sang Ltd., Ajmer, wherein it was stated that R.C.D.F. wrote a letter dated 5/7th May, 1997 to Ajmer Zila Dudgh Utpadak Sahkari Sang Ltd., wherein it was clarified that the women dairy development programme has completed its tenure and if any employee is retained the same would be subject to approval of the R.C.D.F. and that no employee can be retained otherwise. 5. Counter affidavit was thereafter filed by petitioner Sunita Tak pointing out that she was kept on probation vide order dated 29.7.1991 in the regular pay scale and then was given regular appointment vide order dated 04.09.1991 and was therefore, substantive employee. It was further stated that after termination of service of the petitioner on 06.05.1997, one Smt. Leela Tripathi was adjusted in Women Dairy Development Programme against the post which the petitioner was holding and still she is working on the post of Assistant Manager after promotion. The petitioner has also placed on record the orders dated 16.05.1997 and 07.07.1997 in support of her case. Again counter affidavit has been filed by the Managing Director of Ajmer Zila Dugdh Utpadan Sahakari Samiti Limited, Ajmer, stating that Smt. Leela Tripathi was transferred for a short period and her salary was drawn from Cooperative Development Programme. Later on Smt. Leela Tripathi was further transferred vide order dated 14.5.1998. 6. Again counter affidavit has been filed by the Managing Director of Ajmer Zila Dugdh Utpadan Sahakari Samiti Limited, Ajmer, stating that Smt. Leela Tripathi was transferred for a short period and her salary was drawn from Cooperative Development Programme. Later on Smt. Leela Tripathi was further transferred vide order dated 14.5.1998. 6. Having noticed the facts of the case, I find that both the petitioners were selected against the advertisement issued by the respondent on the post of women instructor under the Cooperative Development Programme as it is apparent from the order of appointment dated 29th July, 1991. The petitioners were kept on probation for a period of one year and thereafter were also fixed in the regular pay scale. They worked and were given increments from 1991 to 1997, when their services were dispensed with by the respondents vide impugned order dated 6.5.1997. From the order dated 6.5.1997 it is apparent that their services were dispensed with treating the same on contract basis and it is stated that as under the Programme, contractual services were no more required, they are to be relieved. It has come on record that after termination of their services, the respondents appointed one Smt. Leela Tripathi and posted her under the Women Dairy Development Programme vide order dated 16.5.1997 and was thereafter further promoted. From the affidavit filed, it has also come on record that Smt. Leela Tripathi was appointed on 31.8.1993 in another project, whereafter she was shifted to the Women Development Programme and later on transferred to another department of the diary vide order dated 14.5.1998. Thus the respondents have not able to satisfy this court that the programme came to be ended on 6.5.1997 and services of the petitioners were dispensed with owing thereto. Apparently, the services of the petitioners have been dispensed with treating them on contract basis, whereas their appointments cannot be said to be contract basis as they were in regular pay scale against the post carrying regular pay scale. They were posted on probation basis but later on fixed in regular pay scale. Thus, their termination is found to be illegal and unjustified and factually wrong. In view thereof, the termination order dated 6.5.1997 cannot be allowed to stand and action of the respondent is found to be illegal and unjustified. They were posted on probation basis but later on fixed in regular pay scale. Thus, their termination is found to be illegal and unjustified and factually wrong. In view thereof, the termination order dated 6.5.1997 cannot be allowed to stand and action of the respondent is found to be illegal and unjustified. It is also noticed that in Regulation 18 procedure has been provided for terminating the services of regulatory appointed persons which has not been followed and therefore the action of the respondents is in violation of the Regulation and held to be arbitrary. 7. In view of the aforesaid findings, the writ petition is allowed. The order dated 6.5.1997 passed by the respondents against both the petitioners is quashed and set aside. The petitioners would be entitled to reinstatement with continuity of service and all consequential benefits which fall from reinstatement. However, so far as the back wages for the period is concerned, taking into consideration the long period during which the petitioners did not work, the petitioners are entitled to 50% of the wages which may be calculated for the intervening period. However, the petitioners would be entitled to other service benefits, viz., seniority, consequential promotions, if any, which might have been awarded to their juniors.