Alka Mathur v. State of Rajasthan, Through, Principal Secretary
2019-08-30
PUSHPENDRA SINGH BHATI
body2019
DigiLaw.ai
JUDGMENT Pushpendra Singh Bhati, J. - Instant writ petition has been preferred by the petitioner seeking following reliefs:- "(i) Call for the entire record of the case and examine the same; (ii) By an appropriate writ, order or direction in the nature thereof, thereby direct the respondents to consider the past services of petitioner for the purpose of pension and reimbursement of the medical bills, and consider the entire service of the petitioner for this purpose from 07.03.1991, the order dated 09/03/2017 be quashed; (iv) By an appropriate writ, order or direction in the nature thereof, thereby direct the respondents to reimburse the pending medical bills of the petitioner; (v) Any other order which this Hon'ble Court may deems fit and proper in the facts and circumstances of the case may also be passed in favour of the petitioner. Costs be awarded." 2. Brief facts of the case as noticed by this Court are that the petitioner was appointed as a Junior Engineer against substantive post on temporary basis w.e.f. 07/03/1991. Upon claiming regular pay-scale and allowances, the services of the petitioner were dispensed with vide order dated 16/02/1994. The petitioner raised an industrial dispute whereupon an award was passed by the Labour Court on 29/11/2001 and the Labour Court granted relief of reinstatement with continuity of service. The award was challenged by the respondent-employer by filing SB Civil Writ Petition No.426/2002 before the Principal Seat of this Court at Jodhpur which was dismissed vide order dated 03/08/2002 by laying down that the petitioner was entitled to the relief as claimed. The petitioner was reinstated on 28/11/2002 and was granted Rs.125/- per day without giving her benefits of continuity of service from 1991. The petitioner filed a contempt petition but the same was dismissed. The petitioner again filed a writ petition, bearing SB Civil Writ Petition No.2593/2003, for regular pay-scale and to be treated as regularly appointed Junior Engineer which was allowed on 25/08/2005 whereby the respondents were directed to consider case of the petitioner for regularization on the post of Junior Engineer while giving her age relaxation if it comes in the way. The respondents screened the petitioner and passed an order on 07/12/2005 treating her as a fresh appointee.
The respondents screened the petitioner and passed an order on 07/12/2005 treating her as a fresh appointee. The petitioner again challenged the said order by filing SB Civil Writ Petition No.8106/2006 which was disposed of on 11/10/2011 whereby the respondents were directed that they ought not to have passed order of fresh appointment but should have regularized services of the petitioner, may be not from the retrospective date. The petitioner's fresh appointment was modified to the extent that the order of fresh appointment was to be treated as regularization and the petitioner's services on the post of of Junior Engineer were regularized from the date of issuance of the order dated 07/12/2005 in-stead of treating it to be a case of fresh appointment. The petitioner gave representation seeking all other benefits such as; seeking pension and reimbursement of medical bills etc. which was rejected by the respondents. 3. Learned counsel for the petitioner submits has drawn attention of this Court to the order dated 11/10/2011 passed in SB Civil Writ Petition No.8106/2006 which reads as under:- "I have considered rival submissions of learned counsel for parties and scanned the matter carefully. It is not disputed by both the parties that initial appointment of the petitioner was on daily rate basis. The services of the petitioner were terminated which then became subject matter of dispute and reference before the labour court. The labour court, vide its award, not only declared termination to be illegal but has granted benefit of continuity of service to the petitioner. Obvious consequence of the award is to treat petitioner in service without break but then his status would not change by virtue of aforesaid direction. In the second round of litigation, petitioner prayed for regularisation of his services based on the averment that similarly placed candidates have already been screened and regularised. Considering those arguments, this court decided the writ petition bearing No.2593/2003 vide its order dated 25.8.2005 with the following directions - "Therefore, the writ petition of the petitioner is allowed. The respondents are directed to consider the case of the petitioner for regularisation on the post of Junior Engineer and in case the age of the petitioner, as on the present time, comes in the way, then the age relaxation may be ordered.
The respondents are directed to consider the case of the petitioner for regularisation on the post of Junior Engineer and in case the age of the petitioner, as on the present time, comes in the way, then the age relaxation may be ordered. No order as to costs." Perusal of the above quoted para reveals that a direction was given to the respondents to consider case of the petitioner for regularisation of her services on the post of Junior Engineer and, for that purpose, to grant age relaxation, if need be. If the direction given above is considered in totality, then it does not reflect that regularisation of the petitioner is to be from the initial date of appointment otherwise, a direction for grant of age relaxation was not required to be given or such a direction would have been given in specific terms. In any case, respondents while undertaking exercise in compliance of the order referred to above, passed the impugned order dated 7.12.2005 giving fresh appointment to the petitioner, whereas, the direction was for consideration of the case of the petitioner for regularisation. It was expected of the respondents to pass an order in consonance to the direction quoted above, thereby, to regularise services of the petitioner, may be not from a retrospective date but it should not have been taken as a case of fresh appointment with an intention to forfeit past services for all purposes, more specifically, for pension purpose though it may be denied for the purpose of selection scale in view of the judgment of the Apex Court holding that period of service for the purpose of selection scale would be from the date of regular appointment. Petitioner was not otherwise appointed in the regular pay scale thus question of grant of fixation in the regular pay scale from retrospective date does not arise, however, impact of the order at Annexure-5 should not be to nullify period of past service of the petitioner for all purposes as it can be counted for pensionary purposes.
Petitioner was not otherwise appointed in the regular pay scale thus question of grant of fixation in the regular pay scale from retrospective date does not arise, however, impact of the order at Annexure-5 should not be to nullify period of past service of the petitioner for all purposes as it can be counted for pensionary purposes. ' Accordingly, petitioner is not entitled to a direction to treat her service on regular basis from the initial date, however, order at Annexure-5 needs to be modified to the extent that it should be treated to be regularisation of petitioner's services on the post of Junior Engineer (Civil) from the date of issuance of the order dated 7.12.2005 instead of treating it to be case of fresh appointment thus order at Annexure-5 is modified accordingly. It goes without saying that consequence of the modification would follow in regard to the entitlement of petitioner for treating her services to be continuous, however, it is made clear that same would not be for getting the benefit of fixation from the initial date of appointment. The fixation in the pay scale would be from the date Annexure-5 has been passed i.e. 7.12.2005. Same is the position for the claim of benefit of selection scale which otherwise cannot be granted by counting past services as it was not an regular basis, however, if any other benefit is admissible to the petitioner, past services rendered by her would be taken into consideration as per the provisions of law. With the aforesaid, writ petition so as the stay application and application for early hearing are disposed of." 4. Learned counsel for the petitioner has further drawn attention of this Court to the order passed by this Court in SB Civil Review Petition No.361/2011 in the same writ petition on 09/11/2011 which reads as under:- "Perusal of the prayers quoted above shows a prayer to seek implementation of the earlier judgment passed by this court with consequential benefits. While considering the submissions and passing the judgmen under review, I had taken into consideration that this court cannot review the earlier judgment, therefor, taking note of the direction given therein, required clarification and direction were passed asking respondents to treat it to be a case of regularisation instead of taking it to be a case of regularisation instead of taking it to be a case of fresh appointment.
Thereby petitioner's past services were to be taken into consideration for extension of benefit of pension. It is material to state that in the earlier judgment, benefit of past period has not been given. For ready reference, the direction given in the writ petition No. 2593/2003 vide judgment dated 25.8.2005 is quoted herein :- "Therefore, the writ petition of the petitioner is allowed. The respondents are directed to consider the case of the petitioner for regularisation on the post of Junior Engineer and in case the age of the petitioner, as on the present time, comes in the way, then the age relaxation may be ordered. No order as to costs." Perusal of the aforesaid order does not reveal a direction to the respondents to regularise the services of the petitioner form the years 2001 or to treat the aforesaid period on notional basis for grant of benefit of regular pay scale. If the prayer made in the writ petition or in the review petition is accepted, it will literally amount to reviewing the judgment of the year 2005 in the successive writ petition which cannot be said to be within the domain of this court. The prayer as was admissible to the petitioner, it has been granted by this court, however, a direction to regularise her services from the year 2001 and grant benefit of pay scale on notional basis cannot be ordered. Accordingly, I find that this review petition is devoid of merit. Hence same is dismissed." 5. Learned counsel for the petitioner thus submitted that from a conjoint reading of the aforesaid two orders, it was clear that this Court had directed that the fresh appointment from 07/12/2005, converted into regularization from 07/12/2005, was meant to ensure that the respondents would not nullify the period of past services of the petitioner for the purpose of pensionery purposes etc. Learned counsel further submitted that this Court ended with the line that the petitioner was entitled for any other benefits which is admissible to her for the past services rendered by her and the same had to be taken into consideration as per the provisions of law. He further drew attention of this Court to the portion of the judgment that there was a direction to the respondents to take into account the past services of the petitioner before regularization for extension of benefit of pension etc.
He further drew attention of this Court to the portion of the judgment that there was a direction to the respondents to take into account the past services of the petitioner before regularization for extension of benefit of pension etc. In support of his submission, learned counsel for the petitioner relied upon the judgment rendered by the Apex Court in The State of Gujarat Vs. PWD and Forest Employees Union & Ors. (Civil Appeal Nos. 1684-1686 of 2019), decided on 15/02/2019, more particularly Para 14 which reads as under:- 14. Insofar as plea at paras (ii) and (iii) is concerned, the appellant intends to deny the benefit of GPF on the ground that w.e.f. April 01, 2005, CPF Scheme/NPS has been introduced. However, on that basis, all such employees cannot be denied the benefit of GPF. The earlier pension scheme continues to annued to the benefit of those who enter the service before April 01, 2005. Therefore, all those daily wagers who become entitled to get the status of regular/permanent employees before April 01, 2005 has to be given the benefit of GPF. To put it otherwise, April 01, 2005 would be treated as cut-off date. All those persons who would be entitled to regularisation/permanent status prior to April 01, 2005 shall be given the benefit of earlier scheme i.e. GPF. However, those who attain this status after April 01, 2005 shall be governed by CPF Scheme/NPS. 6. On the other hand, learned counsel for the respondents submitted that the petitioner is trying to take benefit of the order of regularization w.e.f. 07/12/2005 on account of the observations made by this Court and if any other benefit is admissible to the petitioner for the past services rendered by her, the same could be taken into consideration as per provisions of law. 7. After hearing learned counsel for the parties and perusing the material available on record, this Court is of the opinion that the controversy has been set at rest by the last order passed by this Court in the writ petition filed by the petitioner, bearing SB Civil Writ Petition No.8106/2006, decided on 11/10/2011 whereby the petitioner's order of reinstatement dated 07/12/2005, which was treating her to be a fresh appointee, was modified.
The the aforesaid order dated 11/10/2011 of this Court was very clear that the petitioner would be entitled for any benefit of the past services prior to regularization on 07/12/2005 only if it is admissible in law. Seeking of pension and past services to be counted for other purposes are not provided in law. The law is very clear that the pension, selection scale and other benefits shall accrue to the petitioner only from the date of regularization i.e. 07/12/2005. Whether it is the law laid down by the Supreme Court in State of Rajasthan Vs. Jagdish Narain Chaturvedi, (2009) 8 SLR 505 (SC) or any other precedent law, it is clear that the other benefits accrued to an individual would only be from the date of regularization and the petitioner in the instant case was regularized only on 07/12/2005. The review petition was dismissed on the same count and thus, the petitioner's writ petition from any kind of prevailing law does not entitle her to any benefit like Pension which co-relate with her temporary services. The benefits have to co-relate from the date of regularization i.e. 07/12/2005 as already stipulated in the previous judgment passed by this Court. Hence, no interference is made out. 8. The writ petition is accordingly dismissed. All pending applications also stand dismissed.