Rajasthan High Court - Jaipur
Ishaq Mohmmad vs State Of Raj And Ors on 16 October, 2019
Bench: Mohammad Rafiq, Prakash Gupta
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Special Appeal Writ No. 1202/2016
In
S.B. Civil Writ Petition No.9511/2007
Ishaq Mohmmad S/o Shri Zafar Ali, Aged 56 years, R/o
Bathegarh Via Sarwad, District, Ajmer.
----Appellant
Versus
1. State of Rajasthan through Principal Secretary to the
Government of Rajasthan Rural Development and Panchayati Raj
Department.
2. Secretary to the Govt. General Administration Department,
Rajasthan, Jaipur.
3. Director Rural Development & Panchayati Raj Department,
Secretariat, Jaipur.
----Non-appellants/Respondents
Connected With D.B. Special Appeal Writ No. 1203/2016 In S.B. Civil Writ Petition No.7989/2007
1. Rajesh Kumar Sharma S/o Shri Arun Kumar Sharma, 1687, Baba Harish Chandra Marg, Gundi Ka Chowk, Jaipur
2. Kailash Chandra Sharma S/o Shri Ramniwas Sharma, Village Niwaru Via Jhotwara, District Jaipur
3. Koja Ram S/o Shri Goparam, D.r.d.a. Pali, Raj.
4. Hariom Jangid S/o Shri Gordhan Lal, C/o Archana Beauty Parlor, Kothyari Sadan, Jail Road, Jhalawar
5. Mahesh Chand S/o Shri Ramkumar, Ward No. -32 Dabla Road, Churu, Raj.
6. Chandra Prakash Sharma S/o Shri Arun Kumar Sharma, 1687, Baba Harish Chandra Marg, Gundi Ka Chowk, Jaipur
7. Abdullah S/o Shri Mohammad, Tehsil Manoharthana, District Jhalawar
8. Kanheya Lal S/o Shri Ganesh Ram, Village Ajeetpura, Post Gunshi, Tehsil Niwai, District Tonk
9. Nathu Lal S/o Shri Rajuji, Village Gudli Post Veer, Via (Downloaded on 06/06/2021 at 11:42:28 PM) (2 of 12) [SAW-1202/2016] Srinagar, District Alwar
----Appellants Versus
1. The State Of Rajasthan, Through Principal Secretary To The Government, Gramin Vikas And Panchayati
2. Secretary General Administration Department, Government Of Rajasthan, Jaipur
----Respondents For Appellant(s) : Shri Shobhit Tiwari in SAW No.1202/16, Shri V.L. Mathur in SAW No.1203/2016 For Respondent(s) : Shri Shantanu Kumawat on behalf of Dr. Ganesh Parihar, AAG for State HON'BLE MR. JUSTICE MOHAMMAD RAFIQ HON'BLE MR. JUSTICE PRAKASH GUPTA Judgment 16/10/2019 (PER HON'BLE MOHAMMAD RAFIQ, J.) These two appeals seek to challenge the common judgement of learned Single Judge dated 5.4.2016, by which the writ petition filed by the appellants have been dismissed. The appellants in the writ petitions prayed for a writ of mandamus seeking direction to the respondents to pay them regular pay scale from the date of retrenchment with all consequential benefits and further direction to them to comply with the judgement of this Court dated 15.12.1998 in S.B. Civil Writ Petition No.2363/1997 and take cognizance against the respondents under Article 215 of the Constitution of India for willful disobedience of the aforesaid judgement.
Facts as averred in the writ petitions are that the appellants- writ petitioners were appointed on the post of Bio Gas Mistri Gr.II (Downloaded on 06/06/2021 at 11:42:28 PM) (3 of 12) [SAW-1202/2016] on 2.8.1983 on the basis of recommendation of a Committee constituted by the respondents. The pay scale of Bio Gas Mistri Gr.II, which was earlier prescribed as Rs.1025-1680, was by order dated 31.5.1994 issued by Department of Special Schemes and Integrated Rural Development, revised to Rs.1025-1800. The respondents however by order dated 2.5.1995 abolished 48 posts of Bio Bas Mistri Gr.I. The respondents by order dated 11.9.1996 changed the nomenclature of post of Bio Gas Mistri to Bio Gas Extension Worker. The respondents further by order dated 15.4.1997 abolished 47 posts of Bio Gas Extension Worker w.e.f. 1.4.1997. The appellants filed writ petition no.2363/1997 before this Court. The said writ petition was allowed vide judgement dated 15.12.1998 with direction to the respondents to absorb the petitioners on equivalent posts as per their qualifications and technical knowledge, keeping in mind their length of service and safeguarding their pay scale. According to appellants, the aforesaid judgement of learned Single Judge was assailed by the respondents-here in appeal before the division bench, which was dismissed vide judgement dated 21.01.2004. Thus the judgement attained finality. When the judgement was not complied with, the appellants filed contempt petition. The order was passed in contempt petition on 10.7.2006 calling upon the Chief Secretary of the State as to why the compliance of the judgement dated 15.12.1998 has not been made so far. Thereafter another order was passed on 26.7.2006 granting time of 15 days to the respondent-State to make compliance, failing which the Chief Secretary of the State was directed to appear in person on the next date. The respondent-State filed appeal against the aforesaid order before the Supreme Court. It was argued on behalf of the (Downloaded on 06/06/2021 at 11:42:28 PM) (4 of 12) [SAW-1202/2016] State before the Supreme Court that the learned Single Judge of the High Court has failed to notice the averments made in the additional affidavit filed by the Chief Secretary of the State that another Single Bench of this Court in S.B. Civil Contempt Petition No.260/2004 refused to initiate any contempt proceedings against the respondents on the premise that sufficient compliance of the order has been made. The Supreme Court by order dated 15.9.2006 while setting aside the orders dated 26.7.2006 and 14.8.2006 passed in contempt petition, disposed of the appeal, requesting the learned Single Judge to consider the matter afresh after giving an opportunity of hearing to the parties keeping in view the observations made in the aforesaid judgement. Later on, the contempt petition was dismissed by order dated 29.8.2007 with the observations that in view of additional affidavit filed and observations made by the division bench, no further interference is called for by this Court. However, it was further observed that if the petitioners still have any grievance, they may seek proper remedy before the appropriate forum in accordance with law. It is pursuant to such liberty granted in the contempt petition that the petitioners had filed the fresh writ petitions.
Shri V. L. Mathur, learned counsel for the appellants-Rajesh Kumar Sharma and others (SAW No.1203/2016) and Shri Shobhit Tiwari, learned counsel for the appellant-Ishaq Mohammad (SAW No.1202/2016) contended that the respondent-State has issued an order on 4.8.1998 for appointment of 5 such Bio Gas Extension Workers on the post of Gram Sevak cum Secretary, in different Gram Panchayats, who were graduate, by exempting them from the written examination. Subsequently, the respondent issued an order on 28.1.1999 addressed to all the Additional Collector, (Downloaded on 06/06/2021 at 11:42:28 PM) (5 of 12) [SAW-1202/2016] District Rural Development Authority to get the form enclosed therewith filled with by all Bio Gas Workers for absorption in the service. The Director and Special Secretary by letter dated 9.5.2000 informed all the Block Development Officers of different Panchayat Samitis to furnish details of vacant posts in which surplus employees could be absorbed. The Government by another order dated 28.4.2003 addressed to all the Project Directors, DRDA, directed them to absorb the retrenched Bio Gas Extension Workers, who are matriculate on payment of consolidated salary of Rs.3,000 per month. It is contended that when Kanheya Lal, Nathu Lal and Chandra Prakash, three of the petitioners filed contempt petition before this Court, the respondents submitted a false affidavit that they have been absorbed and on that basis, the contempt petition was dismissed.
Shri Shobhit Tiwari, learned counsel for the appellant-Ishaq Mohammad has contended that his client was appointed on the post of Bio Gas Mistri Grade-II in Panchayat Samiti Arai and Kekri initially on payment of Rs.20 per day and thereafter on payment of Rs.35 per month with effect from 2.6.1990. He approached this Court by filing S.B. Civil Writ Petition No.3688/1990, which was allowed by judgement dated 28.5.1991 with direction to the respondents to pay to him regular pay scale of Mistri Gr.II in the pay scale of Rs.925-1800 as the minimum of the regular pay scale with effect from 9.8.1990 when the writ petition was filed on the principle of equal pay for equal work. Subsequently, his services were terminated. He filed writ petition no.3759/1992 in which operation of the order of his termination was stayed by this Court vide order dated 20.5.1992. By common order dated 1.9.1993, total three writ petitions filed by Rajesh Kumar Sharma, Ishaq (Downloaded on 06/06/2021 at 11:42:28 PM) (6 of 12) [SAW-1202/2016] Mohammad and Nathu Lal were finally decided and the orders of their termination dated 26.5.1992 and 8.5.1992 were set aside and they were directed to be reinstated in service with either DRDA, Ajmer or in nearby DRDA, where the posts of Mistri Gr.II is available. The respondents passed an order dated 23.11.1994 directing the Additional Collector (Development), DRDA to make compliance of the aforesaid judgement with all the benefits payable. The Project Director, DRDA, Ajmer passed the order dated 11.7.1996 extending such benefits to the petitioners fixing them in the pay scale of Rs.1025-1800. They were granted annual increments. However services of Ishaq Mohammad and Bhanwar Lal Sudhar were abruptly terminated by Collector cum Chairman DRDA, Doongarpur vide order dated 31.5.1997. They again challenged the aforesaid order of termination by filing writ petition no.2363/1997 along with several other persons. The learned Single Judge of this Court by order dated 15.12.1998 allowed the writ petition and directed the respondents to absorb them on the post equivalent to that of Bio Gas Mistri Gr.II as per their qualifications and technical know how keeping in mind their length of service and safeguarding their pay scale. Compliance of the judgement was ordered to be made within two months. The respondent-State filed appeal against the aforesaid judgement, but while the appeal was pending, an order was passed on 2.1.2002 for re-engagement of Bio Gas Extension Worker on consolidated wages of Rs.3,000 per month. Ishaq Mohammad was however appointed by Zila Parishad, Rajsamand as Driver on consolidated pay of Rs.2,500 by order dated 5.1.2004. The appellants thus filed contempt petition no.445/05. (Downloaded on 06/06/2021 at 11:42:28 PM)
(7 of 12) [SAW-1202/2016] Shri Shobhit Tiwari, learned counsel for the appellants has argued that the judgement of this Court dated 15.12.1998 has attained finality. The respondents are under obligation to follow that judgement. It is contended that even if the contempt petition filed by the appellants was dismissed by learned Single Judge of this Court with observations that sufficient compliance of the order dated 15.12.1998, the right of the appellants, which got crystalised in the aforesaid judgement, cannot be stultified for the lapse of the respondents. In the impugned order, the learned Single Judge has erred in law in not appreciating the judgement of the Supreme Court cited before him in Commissioner, Karnataka Housing Board vs. C.Muddaiah-(2007) 7 SCC 689, wherein it was held that once a direction is issued by a competent court, it has to be obyed and implemented without any reservation, if an order passed by a court of law is not complied within or is ignored there will be an end of the rule of law. Reliance placed by learned Single Judge on the observation made by division bench of this Court in D.B. Special Appeal No.128/1999 decided on 21.1.2004 is wholly misplaced. It is argued that the learned Single Judge in the impugned order failed to consider the judgement of learned Single Judge of this Court dated 15.12.1998 wherein in last para, respondents were directed to absorb the petitioners on equivalent posts as per their qualifications and technical know how, keeping in mind their length of service and safeguarding their pay scales. In para 6 of the order, it was clearly observed that the intention of respondents as evident from the minutes of the meeting held on 26.8.1997 to absorb the petitioners and other similarly situated persons on contract basis does not appear to be reasonable. When Bio Gas Mistris Gr.I were absorbed as per their qualifications and (Downloaded on 06/06/2021 at 11:42:28 PM) (8 of 12) [SAW-1202/2016] technical know how, why step motherly treatment is given to Bio Gas Mistries Gr.II. The learned Single Judge has wrongly relied on the judgement of Supreme Court in Rajendra & Ors. vs. State of Rajasthan & Ors.1992 (2) SCC 317.
Shri Shantanu Kumawat on behalf of Dr. Ganesh Parihar, learned Additional Advocate General for State opposed the appeal and submitted that the orders dated 26.7.2006 and 14.8.2006 passed by this Court in contempt petition were challenged before the Supreme Court in appeal. The Supreme Court vide its order dated 15.9.2006 set aside the aforesaid order and remanded the matter back for adjudication afresh after affording opportunity of hearing to the parties. It is thereafter that the learned Single Judge of this Court dismissed the contempt petition on the premise that sufficient compliance of the order has been made. It cannot be said that the judgement passed by this Court has not been implemented. Earlier to that another Single Bench of this Court in S.B. Civil Contempt Petition No.260/04 refused to initiate any contempt proceedings against the respondents holding that sufficient compliance has been made. Even the judgement of division bench dated 21.1.2014 dismissing the appeal preferred against the judgement of Single Bench dated 15.12.1998 noted that pursuant to the decision of Single Bench, some of the employees were appointed as Gram Sevak and certain others on other posts depending on their qualification and technical know how. However, such employees have neither filed any petition and initiated any legal proceeding in respect of fixation of their salaries, nor have they agitated against their absorption and therefore no grievance now survives.
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(9 of 12) [SAW-1202/2016] We have given our anxious consideration to the rival submissions and perused the material on record.
The appellants are mainly relying on the judgement of Single Bench dated 15.12.1998 by which the respondents were directed to absorb the appellants on equivalent posts as per their qualification and technical know how, after keeping in mind length of their service and safeguarding their pay scales. When the contempt petition was filed by appellants, alleging non-compliance of the aforesaid judgement, the Single Bench of this Court vide order dated 14.8.2006 granted opportunity to the respondents to comply the order. It was observed therein that by subsequent order dated 26.7.2006, this Court summoned Chief Secretary of the State to personally appear before the Court. It was this order, which was challenged before the Supreme Court by the respondents. The Supreme Court vide order dated 15.9.2006 though granted leave against the order dated 26.7.2006, but dismissed the appeal against the order dated 21.1.2004. The Supreme Court took note of the fact that another Single Judge of this Court in S.B. Civil Contempt Petition No.260/2004 refused to initiate any contempt proceedings against the alleged contemnors on the premise that sufficient compliance of the order of learned single Judge has already been made. The Supreme Court further observed that the learned Single Judge prior to passing of the order dated 26.7.2006 has failed to take into consideration the additional affidavit affirmed by the Chief Secretary, which was already on record and the effect and purport of different orders passed by the division bench of High Court as also the another Single Judge of the same Court. While therefore setting aside the order dated 26.7.2006 and 14.8.2006, the matter was remitted to (Downloaded on 06/06/2021 at 11:42:28 PM) (10 of 12) [SAW-1202/2016] the Court to decide afresh. When the matter came up before the learned Single Judge, the contempt petition was dismissed with however liberty to the petitioners that if still they have any grievance, they may seek proper remedy before the appropriate forum in accordance with law.
The learned Single Judge in the impugned order has noted that grievance of the appellants-writ petitioners are founded on the non-compliance of the direction made in the judgement of the Single Bench dated 15.12.1998 for their absorption on the equivalent post by the State-respondents as per their qualifications and technical know how keeping in view length of their service and safeguarding their pay scales. The learned Single Judge took note of the observations made by the division bench in the judgement dated 21.1.2004 filed against the aforesaid Single Bench decision wherein it noted that the appellants did not complain of or initiate any legal proceedings against the order dated 2.1.2002, whereby they were appointed/engaged on fixed/consolidated salary. Subsequently, the contempt petition was dismissed by the Single Bench of this Court vide order dated 29.8.2007 observing that sufficient compliance was made and that if petitioners still have any grievance, it will be open for them to seek proper remedy before appropriate forum in accordance with law. It would be evident from the order of the Supreme Court that therein reference of not only the order passed by the Single Bench in contempt petition no.260/04, wherein the Single Bench of this Court refused to initiate any contempt proceedings by observing that sufficient compliance has been made, but also a reference was made of other division bench judgements of this Court. The learned Single Judge in the impugned order has made reference to (Downloaded on 06/06/2021 at 11:42:28 PM) (11 of 12) [SAW-1202/2016] one such judgement in D.B. Civil Special Appeal No.467/1995, State of Rajasthan & Ors. vs. Shankar Lal Meena & Ors. dated 1.4.1997, wherein it was held as under:
"Regard being had to the entire facts and circumstances of the present case, we would hold that even though, it is held that DRDA is an instrumentality of the State, still then in the facts and circumstances of the case, the writ petitioners are not entitled to any relief except that as and when any vacancy would arise under any other Scheme under the State Government, the case of the writ petitioners on the basis of their priority as regard the date of joining service, should be duly considered in accordance with law. The judgments of the learned Single Judge in all these writ applications cannot be sustained in the facts and circumstances of the present case and are hereby set-aside.
All the special appeals stand allowed accordingly and the judgments as passed by the learned Single Judge in each case stand set-aside and all the writ applications stand dismissed. There will be no order as to costs."
The learned Single Judge in view of above observations held that though DRDA was held to be an instrumentality of the State, but the writ petitioners therein were held not entitled to any relief except that as and when vacancy would arise under any other Scheme under the State Government, their cases, on the basis of their priority as regards the date of joining of service, should be duly considered in accordance with law.
Similar dispute also reached to the Supreme Court in Rajendra & Ors. vs. State of Rajasthan & Ors.-1992 (2) SCC 317 wherein it was held that when the posts are temporarily created (Downloaded on 06/06/2021 at 11:42:28 PM) (12 of 12) [SAW-1202/2016] for fulfilling the needs of a particular project or Scheme are limited in its duration and would come to an end on account of the need for the project itself having come to an end either because of fulfillment of the project or the same was abandoned wholly or partially for wants of funds, the writ of mandamus could not be issued. The learned Single Judge noted that appellant-writ petitioners were offered re-employment/absorption vide order dated 2.1.2002, specifically detailing out the terms and conditions therein including fixed/consolidated salary in view of the policy decision taken by the State-respondents, as would be evident from communication dated 21.12.2001. This happens because while certain others were granted regular pay scale of Gram Sevak because they were in possession of the qualification of graduation, petitioners, who were not graduate, were allowed employment on fixed/consolidated salary, which they accepted and did not immediately raise any grievance thereabout as observed by division bench in the judgement dated 21.1.2009 dismissing the appeal filed against the judgement dated 15.12.1998.
In view of the aforenoted facts and the observations made by the learned Single Judge in the impugned judgement, the view taken by the learned Single Judge cannot be faulted and the appellants cannot after such enormous period of time, be ordered to be reinstated in regular service, particularly when they were engaged on consolidated salary and they did not immediately avail the remedy thereagainst.
Both the appeals are therefore dismissed.
(PRAKASH GUPTA),J (MOHAMMAD RAFIQ),J
RAVI SHARMA /71-72
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