Rajasthan High Court - Jodhpur
Vijay Mehta & Ors vs State Of Raj. & Ors on 20 January, 2011
Bench: Arun Mishra, Prakash Tatia
1.
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR.
JUDGMENT
1. DB Civil Special Appeal (Writ) No.935/2000 Ramesh Chandra. vs. State of Raj. & Ors.
2. DB Civil Special Appeal (Writ) No.936/2000 Vijay Mehta & Ors. vs. State of Rajasthan & Ors.
Date of Judgment ::: 20.1.2011 PRESENT HON'BLE THE CHIEF JUSTICE SHRI ARUN MISHRA HON'BLE JUSTICE SHRI PRAKASH TATIA Mr.MR Singhvi, for the appellants.
Mr.GR Punia, AAG, for the respondents.
....
PER HON'BLE TATIA, J. :
These intra court appeals have been preferred by the appellants/writ petitioners being aggrieved against the order dated 18.9.2000 passed by the Single Bench by which the writ petitions of the appellants have been dismissed.
As per the facts pleaded by the appellants, in the Government Department known as Rajasthan Tribal Area Development Department, there is a project known as Sanitation, Water and Community Health (SWACH) which is mainly concerned with the 2. work of sanitation, supply of water and community health. In the said project, the appellants were initially appointed on ad hoc basis vide order dated 18.10.1988 (Annex.1) on daily wage basis and thereafter, their services were extended from time to time. Then the appellants were appointed in regular pay scale of Junior Engineer vide order dated 1.4.1989 (Annex.2). According to the appellants, thereafter, SWACH authorities deemed it fit to regularise their services in the regular pay scale of Rs.1400-2600 vide order dated 30.3.1995 (Annex.3). Then, the SWACH project came to an end and, therefore, the Director of SWACH wrote a letter dated 3.1.1996 (Annex.4) to the Divisional Commissioner that the appellants and similarly appointed other persons on other jobs are surplus, therefore, they may be absorbed in some other Government Departments. The Divisional Commissioner in turn vide letter dated 3.12.1995 (Annex.5) sought information regarding vacancies of Junior Engineers from all Government Engineering Departments like Public Health Engineering Department (PHED), Irrigation and Public Works Department. In response to the letter dated 3.12.1995, PHED vide letter dated 2.1.1996 (Annex.6) informed that 17 posts of Junior Engineers are lying vacant in PHED. Then, the appellants and others were declared surplus and their services were transferred to PHED vide order dated 5.1.1996 (Annex.7). The appellants and other similarly situated persons were relieved from SWACH project vide order dated 9.1.1996 (Annex.8). Appropriate orders were passed by PHED for absorption of the appellants and and posted the appellants on various posts vide 3. order dated 9.1.1996 (Annex.9). Following the said order dated 9.1.1996, the appellants and others joined duties in PHED and since then, they are working as Junior Engineer in PHED. According to the appellants, they were thereafter granted regular increments and they also got fixation benefits under Rajasthan Civil Services (Revised Pay Scales) Rules, 1998. The appellants have placed on record the order of their pay fixation as Annexure-10.
However, subsequent to that, the Chief Engineer of PHED (Rural), Government of Rajasthan was of the opinion that the appellants and like persons are required to be repatriated to their project SWACH and in proof of that, the appellants have placed on record one of the letter dated 9.6.1998 on record as Annex.11 and the appellants were apprehending that they may be repatriated to the project which is no more in existence. Therefore, the appellants preferred writ petitions seeking direction that the respondents may be restrained from relieving them from the post of Junior Engineer in PHED, Department of Government, and in the alternative, they may be declared surplus and be sent to the Department of General Administration for absorbing them against the permanent post.
Both the writ petitions were dismissed vide order dated 18.9.2000 by the Single Bench of this Court after holding that the appellants had not been the Government servants while working on the project SWACH nor they have been appointed with the respondent department under the 1967 Rules nor absorbed under the 1969 Rules and thus, they cannot be held to have lien with the respondent PHED.
4.
At this juncture, it will be relevant to mention here that before deciding the writ petitions of the appellants vide judgment dated 18.9.2000, the learned Single Judge ordered to issue notice on 25.7.2000 to the appellants to show cause as to why their services be not terminated being dehors the Rules. The said order passed by the learned Single Judge was challenged by preferring DB Civil Special Appeal Nos. 743-744/2000 and the Division Bench of this Court stayed the operation of the said show cause notice and during pendency of the special appeals before the Division Bench against the said notice, the present writ petitions were decided by the Single Bench.
Shri M.R. Singhvi, learned counsel appearing on behalf of the appellants vehemently submitted that number of persons were appointed in the project SWACH and they were declared surplus and according to their qualification, they were absorbed in different departments of the Government because of the reason that SWACH was also a project of the Government department and appointment was initially given by the Government department to the appellants and like persons. Some of the persons in the same manner were absorbed in different departments including in the Education Department of the Government of Rajasthan and those persons also approached this Court by filing writ petitions, one of which was D.B. Civil Writ Petition No.1573/2002 (Bhanwar Singh Bhati vs. State of Rajasthan & Ors.) wherein all the objections raised by the respondents have been considered by the Division Bench of this 5. Court and it was held that such employees were permanent employees of the Government and have been transferred to other departments and the matter was considered even in the meeting held under the chairmanship of Chief Secretary, Government of Rajasthan in July, 1995 and the Divisional Commissioner, Udaipur passed the appropriate orders referred above and demanded the details of the vacancies in various departments and sent the employees by way of transfer to various departments which were accepted by the department of Government and appointments of these persons were regular as well as against the permanent vacancies. Therefore, the appellants cannot be transferred or repatriated to SWACH, which was a project of the Government through UNICEF.
Learned counsel for the appellants then submitted that subsequent to the impugned judgment, following the Division Bench judgment referred above, the same learned Single Judge has allowed the writ petition of other employees, therefore, these appeals and writ petitions of the appellants deserve to be allowed and the impugned order deserve to be set aside and the respondents may be restrained from repatriating the appellants to SWACH project and the appellants be declared regularly appointed employees in PHED, Department of Government of Rajasthan as has been declared by the Division Bench of this Court in the case of Bhanwar Singh Bhati (supra).
Learned Additional Advocate General Shri G.R. Punia 6. vehemently submitted that the division bench judgment delivered by this Court in Bhanwar Singh Bhati (supra) was in relation to the persons holding different posts than the posts which were held by the present appellants. It is also submitted that the appellants were employees in a project and after completion of work of the project, they cannot claim their continuation in service. It is also submitted that the appellants were never absorbed in PHED nor the Divisional Commissioner could have passed the order of transferring the services of the appellants in the PHED.
We have considered the submissions of learned counsel for the parties and perused the facts of the case as well as the Division Bench judgment in Bhanwar Singh Bhati's case (supra).
After going through the facts of the case of Bhanwar Singh Bhati (supra) as well as the reasons given in the said judgment, we are of the considered opinion that the appellants were given appointment on the post of Junior Engineer and their services were transferred to PHED after finding out number of vacancies available with the PHED. When their services were transferred to PHED, then only the appellants could join the services in PHED where they were given posting as well as regular pay scale of Junior Engineer by application of mind by the State authorities and the issue was considered at the highest level of executive in the meeting held under the Chairmanship of Chief Secretary of the Government of Rajasthan as back as in July, 1995 which was attended by representatives of various departments of the Government as well 7. as Tribal Development Secretary under whom the project of SWACH was running. In these circumstances, at this belated stage i.e. even at the time when the writ petitions were filed, the respondents had no right to treat the appellants as not duly appointed employees on the post of Junior Engineer.
It is also not in dispute that the benefit of judgment delivered in the case of Bhanwar Singh Bhati (supra) has already been given to the other persons and there is no reason to take a different view by this Court than the view taken by the Division Bench in Bhanwar Singh Bhati's case (supra).
Consequently, these intra court appeals are allowed, the judgment dated 18.9.2000 of the Single Bench is set aside, the writ petitions filed by the appellants are allowed and the respondents are restrained from repatriated the appellants from Public Health & Engineering Department. The PHED is directed to continue the appellants in service with them.
[PRAKASH TATIA], J. [ARUN MISHRA], CJ. S.Phophaliya/-