Research › Search › Judgment

Rajasthan High Court · body

2022 DIGILAW 2028 (RAJ)

Hanwant Singh Bhati v. State Of Rajasthan

2022-07-14

REKHA BORANA

body2022
JUDGMENT Rekha Borana, J. - It has been submitted in the writ petition as under: The petitioner was appointed with the Municipal Board Raipur, District Pali on 01.06.1980. Subsequently, a decision was taken by the State Government to abolish the octroi and therefore, as a consequence, all the persons working on the post of Naka Guard, Sub Nakedar, Nakedar, Revenue Inspector etc. were decided to be declared surplus and vide notification dated 22.03.2000 it was directed that such surplus declared persons be absorbed on equivalent posts in other services. 2. Meanwhile in the year 2001, petitioner acquired the qualification of Sanitary Inspector Diploma. The case of the petitioner is that since the year 2002 he is discharging the duties of a Sanitary Inspector but despite the same, he is being paid the salary of Sub Nakedar and he has not been absorbed against the post of Sanitary Inspector Grade I which he ought to have been in terms of the notification dated 22.03.2000. 3. Learned counsel for the petitioner relied upon three judgments passed by this Court all of which were assailed uptill Hon'ble Apex Court and were affirmed by the Hon'ble Apex Court. The basic judgment which was the basis of all the subsequent judgments is the case of Kundan Kandara v. State of Rajasthan & Ors. (S.B.C.W.P. No. 6213/2007) decided on 13.10.2009. In Kundan Kandara's case (supra), the learned Single Judge held as under: "The petitioner is having the qualification of the post graduation and is also having Sanitary Inspector Diploma granted by the Rajasthan Institute of Local Self Government, as such he possess eligibility to be recruited on all the three posts. However, the Government of Rajasthan under its notification dated 22.3.2003 prescribed different posts for the proposed absorption and as per that a Nakedar can be absorbed as Assistant Sanitary Inspector, whereas an Assistant Revenue Inspector could have been absorbed on the post of Sanitary Inspector Gr. II. The petitioner was admittedly holding the post of Nakedar and as such the proposed post for absorption available to him is of Assistant Sanitary Inspector. The respondents, therefore, are required to absorb the petitioner as Assistant Sanitary Inspector and not as Sanitary Inspector Gr. II. The claim of the petitioner for absorption as Sanitary Inspector Gr. II in view of the legal position mentioned above is not sustainable. The respondents, therefore, are required to absorb the petitioner as Assistant Sanitary Inspector and not as Sanitary Inspector Gr. II. The claim of the petitioner for absorption as Sanitary Inspector Gr. II in view of the legal position mentioned above is not sustainable. Accordingly, this petition for writ is disposed of with a direction to the respondents to absorb the petitioner as Assistant Sanitary Inspector with Municipal Corporation, Jodhpur as per Government of Rajasthan notification dated 22.3.2000 (Anx. 7) from the date he was declared surplus. The petitioner shall be entitled for all consequential benefits." 4. While relying upon Kundan Kandara's case (supra) and the judgments passed in the case of Laxman Singh, Madan Singh Parihar, Virendra Singh it has been submitted at Bar that in all those matters, the SLPs' were preferred by the respondent Department which were dismissed. 5. Learned counsel submitted that the present petitioner being on the same footing and equivalent to those persons from all aspects also deserves to be absorbed on the post of Sanitary Inspector Grade I. 6. Per contra, learned counsel for the respondents submitted that the finding as given in Kundan Kandara's case (supra) and relied upon in all subsequent judgments has totally been misinterpreted and it is only because of the misinterpretation by the respondent authorities, the same was wrongly complied with. In Kundan Kandara's case (supra), it had been specifically held that a person working as Naka Guard could be absorbed only against the post equivalent and that was the post of Assistant Sanitary Inspector. Learned counsel submitted that Kundan Kandara had wrongly been absorbed as Sanitary Inspector Grade II by the respondent authorities totally in defiance of the judgments passed by this Court. He submitted that the judgment passed in Kundan Kandara's case (supra) was further challenged by the respondent Department and ultimately an SLP against the Division Bench judgment was also preferred. Although the SLP in Kundan Kandara's case (supra) was dismissed, but the Hon'ble Apex Court while dismissing the SLP specifically observed that the order would not be treated as a precedent. Learned counsel submitted that this observation of the Hon'ble Apex Court was never brought to the knowledge of the Division Bench in the subsequent judgments and therefore, the subsequent judgments were passed by the Division Bench. Learned counsel submitted that this observation of the Hon'ble Apex Court was never brought to the knowledge of the Division Bench in the subsequent judgments and therefore, the subsequent judgments were passed by the Division Bench. Learned counsel submitted that in terms of the notification dated 22.03.2000, the petitioner being Sub Nakedar could be absorbed on the post of Daroga/Mohrir/Helper Grade I/Fireman/Lineman, workmen or fitter/Mason/Chowdry/Assistant Chowdry/Fitter. Learned counsel further submitted that it is the case wherein the earlier judgments had been misinterpreted by the respondent authorities and wrongly the compliance had been made. He further submitted that two of the earlier judgments were passed only because of the concession given by the learned counsel appearing for the Department. He submitted that even that a concession, if contrary to the statute, cannot be implemented and the same would not be binding on the Department. He further submitted that there cannot be an estoppel against the law and therefore, even if the petitioner stands at equal footing, he cannot be granted the same relief in contravention to the notification dated 22.03.2000. In support of his submissions, learned counsel relied upon Director of Elementary Education, Odisha & Ors. v. Pramod Kumar Sahoo reported in 2019 (10) SCC 674 . 7. Heard learned counsel for the parties and perused the material available on record. 8. A perusal of the judgment passed in Kundan Kandara's case (supra) makes it clear that it was the specific finding by the Court that a Naka Guard cannot be absorbed against the post of a Sanitary Inspector Grade II. It was the specific finding that he could be absorbed only as Assistant Sanitary Inspector. The intent of the judgment was in clear terms that a person can be absorbed only against an equivalent post. However, Kundan Kandara had been absorbed against the post of Sanitary Inspector Grade II by the respondent Department. 9. The special appeal against the judgment dated 13.10.2009 passed in Kundan Kandara's case (supra) was also preferred by the Department which was dismissed and the SLP against the same was also rejected. However, Kundan Kandara had been absorbed against the post of Sanitary Inspector Grade II by the respondent Department. 9. The special appeal against the judgment dated 13.10.2009 passed in Kundan Kandara's case (supra) was also preferred by the Department which was dismissed and the SLP against the same was also rejected. True it is that the Hon'ble Apex Court observed that the same would not be considered to be a precedent but it is also true that SLP in the matters of Virendra Singh Solanki and Laxman Singh Parihar were also preferred by the respondent Department and the same were also dismissed by the Hon'ble Apex Court. SLP in the case of Kundan Kandara was dismissed on 03.01.2014 whereas the SLPs' in the matters of Virendra Singh and Laxman Singh Parihar were dismissed on 27.11.2015. Meaning thereby, the order dated 03.01.2014 rejecting the SLP in Kundan Kadara's case (supra) and observing that the same would not be treated as a precedent was very much available with the Department on the date when the SLP's in the cases of Virendra Singh and Laxman Singh were decided. Therefore, the only conclusion which can be drawn is that the SLPs' were rejected on 27.11.2015 by the Hon'ble Apex Court after consideration of the order dated 03.01.2014. In the circumstances, the argument of the counsel for the respondents that the Division Bench judgments passed in the matters of Virendra Singh and Laxman Singh were per incuriam falls flat. The Division Bench judgment in Virendra Singh and Laxman Singh having also been affirmed by the Hon'ble Apex Court, is binding on this Court. Therefore, in the opinion of this Court no different opinion than as taken in Kundan Kandara's case (supra) and the further judgments in Virendra Singh's and Laxman Singh's case can be taken by this Court. 10. Admittedly, Kundan Kandara and all the other employees have been absorbed as Sanitary Inspector Grade II by the respondent Department and the present petitioner being on the same footing and his case being totally identical to those persons also deserve to be absorbed against the post of Sanitary Inspector Grade II in parity. 11. In view of the above observations, this writ petition is disposed of with the direction to the respondents to absorb the petitioner as Sanitary Inspector Grade II from the date he acquired the essential qualification for the same. 12. 11. In view of the above observations, this writ petition is disposed of with the direction to the respondents to absorb the petitioner as Sanitary Inspector Grade II from the date he acquired the essential qualification for the same. 12. All the pending applications also stand disposed of.