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2023 DIGILAW 427 (RAJ)

Ganga Ram Mali v. State

2023-02-06

PUSHPENDRA SINGH BHATI

body2023
ORDER : 1. By way of present writ petition under Article 226 of the Constitution of India, the petitioner has sought following reliefs: “(i). The respondents may kindly be directed to regularize the service of the petitioner on the post of Nakedar w.e.f. the date of his initial appointment i.e. 1.06.1984, with all consequential benefits and accordingly, the order dated 27.3.2015 (Anx.16) may kindly be suitably modified to the extent of appointment of the petitioner. (ii) That after making regularization in aforesaid manner, the respondents may kindly be directed to allow the benefits of selection grades to the petitioner on completion of 9, 18 & 27 years of service, while counting his service w.e.f. the date of his initial appointment i.e. 1.6.1984. (iii) That the respondents may kindly be directed make necessary pay fixation in favour of the petitioner and arrear arising out from pay fixations, may also be granted to the petitioner alongwith 18% interest per annum. (iv) Any other relief to which the petitioner is entitled, may be granted in his favour. (v) The writ petition may be allowed with costs.” 2. Learned counsel for the petitioner fairly submits that earlier writ petition bearing No.3233/2018 was preferred by the petitioner and writ petition bearing No.3599/1998 was preferred by the Municipal Baord Sujangarh and both the writ petitions were disposed of by a common order dated 15.07.2014, which is as under:- “On 08.05.2014 when the matter was listed before this Court, it was brought to the notice of the Court by counsel for the petitioner that the Municipal Council, Sujangarh itself sent a communication dated 10.09.2013 to the Government for regularization and the matter is pending consideration. Upon aforesaid submission, two months time was granted to the State Government to take whatever decision as per the recommendations made by Municipal Council, Sujangarh vide communication dated 10.09.2013. In view of above, the writ petitions are disposed of with expectations from the State Government to take final decision from the State Government to take final decision for regularization of the petitioner’s services and while doing so the award passed by the Judge, Labour Court will be considered for the purpose of regularization.” 3. In pursuance of the order dated 15.07.2014, regularization of the petitioner’s service was recommended by the Municipality vide proceedings dated 28.07.2014 (Annex.16) and thereafter the services of the petitioner was regularized w.e.f. 26.03.2015. In pursuance of the order dated 15.07.2014, regularization of the petitioner’s service was recommended by the Municipality vide proceedings dated 28.07.2014 (Annex.16) and thereafter the services of the petitioner was regularized w.e.f. 26.03.2015. Learned counsel for the petitioner further submits that the respondents have committed grave illegality in not regularizing his services w.e.f. 28.07.2014, when the recommendations for regularization was made. He has relied upon the judgment dated 11.04.2022 passed by this Court in S.B. Civil Writ Petition No.13023/2011 (Om Prakash Vs. State of Rajasthan & Anr.). Relevant part of the judgment reads as under:- “Heard both the counsels and perused the material available on record. It is clear on record that when the services of petitioner were terminated for the first time in the year 1988 and the award in his favour was passed by the Labour Court in the year 1996, his services were specifically directed to be termed to be continuous. Secondly, vide communication dated 15.07.1999, the Local Self Department itself directed for regularization of services of the petitioner. In pursuance to the said directions only, the case of the petitioner was put up before the Committee and the Committee, in unequivocal terms recommended the petitioner’s case for regularization. It was just mala fide on the part of the Department that it did not choose to execute the recommendations of the Committee but chose to terminate the services of the petitioner at that point of time. However, writ petition of the petitioner being allowed and he being directed to be reinstated and for being regularized, the said directions would definitely relate back to the date when he was stood entitled for regularization. It is not the case of the respondents that the petitioner was otherwise ineligible for regularization in terms of any law or statute. When once the Labour Court as well as this Court decided in favour of the petitioner and there was a specific direction for his services to be termed to be continuous, regularization of the services of the petitioner in the year 2010 by the Department on the premise that the sanction by the State Government was received in the year 2010 only, cannot be held to be valid. After the recommendation made by the Committee on 23.10.2000,there was no occasion for the State Government to keep the case of the petitioner pending with it for sanction. After the recommendation made by the Committee on 23.10.2000,there was no occasion for the State Government to keep the case of the petitioner pending with it for sanction. When once the petitioner has been ordered to be reinstated, the intervening period from his second termination and reinstatement thereof would be of no relevance for the present purpose of regularization of his services. In the present circumstances, the petitioner was entitled to be regularized after the recommendation being made by the Committee. In view of the above observations, the present writ petition of the petitioner is allowed, the respondents are directed to regularize the services of the petitioner w.e.f. 23.10.2000, i.e. the date of the recommendation by the Committee. All the consequential benefits would follow. The respondent-authorities are directed to complete the said exercise within a period of two months from the date of receipt of this order. All the pending applications stand disposed of.” 4. Learned counsel for the petitioner also submits that although there is no prayer for the purpose of computing his pension from the date of his initial appointment but, in the given circumstances, the petitioner was superannuated during the pendency of the writ petition i.e. in 2021, therefore, the Court may direct to the respondents to count his services from the date of his initial appointment for the purpose of grant of pension as a consequential relief. In order to buttress his submission, learned counsel for the petitioner has relied upon judgment dated 13.04.2018 passed by this Court in S.B. Civil Writ Petition No.11839/2016 (Shree Gopal Gour Vs. State of Rajasthan & Ors.). The relevant part of this judgment is as follows : “I have considered the submissions made by learned counsel for the parties and have perused the material available on record. Provisions of Rule 12(b) of the Rules of 1996 read as under:- “Rule 12. Commencement of qualifying service (a) Except for compensation gratuity, a Government servant’s service does not qualify till he has completed eighteen years of age. Provisions of Rule 12(b) of the Rules of 1996 read as under:- “Rule 12. Commencement of qualifying service (a) Except for compensation gratuity, a Government servant’s service does not qualify till he has completed eighteen years of age. (b) Subject to the provisions of these Rules, the qualifying service of a Government servant shall commence from the date he takes over charge of the post to which he is first appointed, either substantively or in an officiating or temporary capacity.” A bare perusal of Clause (b) of Rule 12 indicates that qualifying service of a Government servant shall commence from the date he takes charge on the post, for which, he is first appointed, either substantively or in an officiating or temporary capacity. The term temporary post has been defined in Rule 7(35) of the Rajasthan Service Rules, 1951 (‘Rules of 1951’), which reads as under:- “Temporary post – means a post carrying a definite rate of pay sanctioned for a limited time.” The order of appointment of the petitioner dated 09.05.1985 reads as under:- ^^dk;kZy; vkns'k fu;kstu dk;kZy; ds lwph esa ls fuEufyf[kr vk'kkfFkZ;ksa dh izfrfnu vf/kdre 234@& izfrekg dk;Zxzg.k djus dh frfFk ls muds uke ds lEeq[k vafdr fo|ky; esa fu;qDr fd;k tkrk gS ;s fu;qfDr;ka iw.kZr;k vLFkk;h gSA fcuk uksfVl budh lsok;s lekIr dh tk ldrh gSA nSfud HkRrs ij dh xbZ lsok;s fu;fer jkT; deZpkjh in izkIr djus dk v/kkj ugha ekuk tk;sxkA bUgsa inLFkkiu LFkku ij fnukad 16-5-85 rd dk;Zxzg.k djuk gksxkA vU;Fkk fu;qfDr vkns'k Lor gh fujLr le>s tk;sxsA laLFkk iz/kku buds dk;Z ,oa O;ogkj ls lacaf/kr fVIi.kh izfrekg dh mifLFkfr ds lkFk lacaf/kr vf/kdkjh dks izsf"kr djsaxsA** A perusal of the terms above would clearly indicate that the petitioner was granted appointment on temporary post and once the appointment has been made on temporary post, in terms of Rule 12(b) of the Rules of 1996, the petitioner is entitled to get the said period counted towards his qualifying service. In the case of Keshrimal Soni (supra), this Court after noticing the provisions of Rule 12(b) of the Rules of 1996 came to the following conclusion/ordered as under:- “On perusal of above provision, it is abundantly clear that respondents cannot deny the benefit of pension on account of service tendered on urgent temporary basis. In the case of Keshrimal Soni (supra), this Court after noticing the provisions of Rule 12(b) of the Rules of 1996 came to the following conclusion/ordered as under:- “On perusal of above provision, it is abundantly clear that respondents cannot deny the benefit of pension on account of service tendered on urgent temporary basis. The respondents are under an obligation to take into account the service period of the petitioner in which he rendered service on temporary basis for the purpose of calculating qualifying service for pension. Therefore, this writ petition is disposed of with direction to the respondents to consider the case of petitioner in the light of rule 12(b) of the Rules of 1996 and pass appropriate orders for the purpose of pension, within a period of three months from today and grant all benefits in accordance with law.” In view of the above discussion, the writ petition filed by the petitioner is allowed. The respondents are directed to take into consideration the period from 09.05.1985 when the petitioner was appointed on temporary post for the purpose of calculating his qualifying service and grant him consequential benefits in accordance with law. Needful be done by the respondents within a period of two months.” 5. It is also submitted by learned counsel for the petitioner that the judgment passed in the case of Shree Gopal Gour (supra) was considered and affirmed by this Court in another appeal i.e. D.B. Special Appeal (W) Nos.580/2021 (State of Rajasthan & Mohammed Yasin) and connected matters preferred by the State of Rajasthan), decided on 22.02.2022. 6. Thus purview of adjudication of the present writ petition is only on two issues, i.e., (i) regularization should be done w.e.f. 28.07.2014 and (ii) pensionary benefits be given from the date of his initial appointment. 7. Learned counsel for the respondents although have opposed the submissions made by learned counsel for the petitioner but they are unable to refute the applicability of the judgments relied upon by learned counsel for the petitioner in the case of Om Prakash (supra) and Shree Gopal Gour (supra). 8. 7. Learned counsel for the respondents although have opposed the submissions made by learned counsel for the petitioner but they are unable to refute the applicability of the judgments relied upon by learned counsel for the petitioner in the case of Om Prakash (supra) and Shree Gopal Gour (supra). 8. Since there is no rebuttal to the aforesaid two judgments, Om Prakash (supra) and Shree Gopal Gour (supra), the present writ petition is allowed and the date of regularization of the petitioner shall be treated from the date when the recommendation for regularization has been made i.e. 28.07.2014 which was in consequence of the order passed by this Court on 15.07.2014. 9. The respondents are also directed to grant the pension to the petitioner while notionally treating the period in which the petitioner was under temporary appointment in accordance with the judgment rendered in Shree Gopal Gour (supra). Thus this period shall be counted from 01.06.1884 only for the purpose of computing pension and not other benefits shall be applicable to the petitioner. 10. Since the order has been passed at the request of learned counsel for the petitioner, the petitioner shall be bound by the constructive res-judicata for claiming any other relief.