Rajasthan High Court - Jaipur
Ram Singh And Ors. vs State Of Rajasthan And Ors. on 26 November, 2002
Equivalent citations: 2003(2)WLN444
JUDGMENT Sunil Kumar Garg, J.
1. The above four writ petitions are being decided by this common order as in all of them, common questions of law and facts are involved.
FACTS OF WRIT PETITION No. 2281/2002
2. This writ petition under Article 226 of the Constitution of India has been filed by the petitioner against the respondents on 10.7.2002 with a prayer that by an appropriate writ, order or direction, the order dated 29.6.2002 (Annex. 6) passed by Secretary, Rajasthan State Agriculture Marketing Board (hereinafter, referred to as the Board) (respondent No. 2) by which services of the petitioner were terminated after making compliance of Section 25-F of the Industrial Diputes Act, 1947 (hereinafter referred to as the Act of 1947) be quashed and set aside and further more, if the petitioner is treated as surplus, he may be dealt with under the provisions of Rajasthan Civil Services (Absorption of Surplus Personnel) Rules, 1969 (hereinafter referred to as the Rules of 1969).
3. The facts of the case as put forward by the petitioner are as under:
(i) That the petitioner was initially appointed as Driver vide order dated 11.7.1977 (Annex. 1) by Assistant Engineer, Rajasthan State Agricultural Marketing Board and thereafter his services were confirmed and was put in the regular pay scale vide order dated 1.10.1988 (Annex. 1) passed by the Manager (P & A), Rajasthan State Agricultural, Marketing Board and since then the petitioner was discharging the duties as Road Roller Driver.
(ii) That further case of the petitioner is that services of the petitioner were terminated by the respondents with effect from 30.12.1997 and being aggrieved against that order, the petitioner preferred a writ petition before Jaipur Bench of this Hon'ble Court being S.B. Civil Writ Petition No. 698/98 and that writ petition was finally allowed on 11.5.2001. It may be stated here that writ petition No. 698/98 was decided along with several other writ petitions by common order. Jaipur Bench of this Court while allowing the earlier writ petition filed by the petitioner observed that since provisions of Section 25-F of the Act of 1947 were not complied with, therefore, termination of the services of the petitioner was found illegal and it was further observed that the respondents were free to take appropriate steps in regard to services of the petitioner in accordance with law.
(iii) That the respondents challenged the order dated 11.5.2001 before Division Bench by filing special appeal, which was dismissed through judgment dated 13.7.2001.
(iv) That the further case of the petitioner is that through order dated 7.8.2001 (Annex. 2) passed by the General Manager (Admn.), Rajasthan State Agriculture Marketing Baord, the petitioner and other persons were reinstated in service with all consequential benefits.
(v) That further case of the petitioner is that through order dated 25.8.2001 (Annex. 3) passed by the General Manager (Admn.), the petitioner was given posting at Ajmer.
(vi) That the Board in its meeting dated 26.11.2001 passed resolution No. 11 and in pursuance of that resolution, the petitioner was declared surplus through order dated 21.12.2001 (Annex. 4) passed by the General Manager (Admn.) of the Board. In the order dated 21.12.2001 (Annex. 4), it was clearly mentioned that till absorption in other Department, the petitioner would continue to get his salary from the Board.
(vii) That the further case of the petitioner is that through order dated 29.6.2002 (Annex. 6) passed by the Secretary of the Board (respondent No. 2), his services were again terminated with effect from 30.6.2002.
(viii) Further case of the petitioner is that the petitioner is regular employee of the Board and his services are governed by the provisions of the Rajasthan State Agriculture Marketing Board (Service) Bye-laws, 1977 (hereinafter referred to as the Bye-laws of 1977) which were framed while exercising the powers conferred by Class (G) of Section 22-L of the Rajasthan Agricultural Produce Markets Act, 1961 (hereinafter referred to as the Act of 1961). The petitioner is working since 1977 and he is a confirmed employee and, therefore, the provisions of Act of 1947 are not applicable in the case of petitioner and petitioner cannot be treated to be workman and if the petitioner was declared surplus, he is required to be absorbed in any Department because Rajasthan Service Rules, 1951 (hereinafter referred to as the Rules of 1951) are applicable to the employees of the Board as per the Byelaws of 1977 and therefore, services of the petitioner are required to be absorbed if he was declared surplus and there is no question of terminating the services of the petitioner under the provisions of Section 25-F of the Act of 1947 and therefore, the impugned order dated 29.6.2002 (Annex. 6) passed by the respondent No. 2 (Secretary of the Board) is bad in law and is liable to be set aside.
(ix) That the further case of the petitioner is that on 30.3.2002, the Board issued an order that if the employees working on the post of Road Roller Driver were ready to be absorbed on the post of class IV employee, then they might give their consent and accordingly, the petitioner had already submitted his consent to be absorbed on class IV post. A copy of order dated 30.3.2002 is market as Annex. 7. From this point of view also, the services of the petitioner cannot be terminated and atleast he is to be absorbed in the service on the post of Class IV employee. Hence, this writ petition with the abovementioned prayer.
4. Reply to the writ petition was filed by the respondents and the main contention of the respondents is that since in the earlier writ petition filed by the petitioner being S.B. Civil Writ Petition No. 678/98, termination order of the petitioner and some other persons were declared illegal because compliance of Section 25-F of the Act of 1947 were not made and since in passing the impugned order dated 29.6.2001 (Annex. 6), compliance of Section 25-F of the Act of 1947 has been made, therefore, now the petitioner cannot say that the impugned order dated 29.6.2002 passed by respondent No. 2 (Secretary of the Board) is bad in law as the order dated 29.6.2002 (Annex. 6) has been passed keeping in mind the observation made by Jaipur Bench of this Court through order dated 11.5.2001. Apart from this as per Rule 2 of the Rules of 1969, absorption in the service can be made only if posts are vacant and, therefore, since posts are not vacant, from this point of view also, the petitioner is not entitled to the relief sought for and this writ petition be dismissed.
5. I have heard both and perused the record.
6. Before proceeding further, the admitted postion of the case may be summarized in the following manner:
(i) That the petitioner was initially appointed as Driver by the Board through order dated 11.7.1977 (Anenx. 1) and his service were confirmed vide order dated 1.10.1988 (Annex. 1). Since then the petitioner was performing the duties as Road Roller driver.
(ii) That the petitioner's service were terminated with effect from 30.12.1997 and against his termination, the petitioner filed a writ petition before Jaipur Bench of this Court and that termination order dated 30.12.1997 was set aside by Jaipur Bench of this Court through order dated 11.5.2001 on the ground that compliance of Section 25-F was not made.
(iii) That through order dated 21.12.2001 (Annex. 4) passed by the General Manager (Admn.), in pursuance of resolution No. 11 of the Board dated 26.11.2001, the petitioner was declared surplus.
(iv) That through order dated 30.3.2002 (Annex. 7) passed by the General Manager (Admn.), the respondents gave an option to the petitioner and some other Road Roller Drivers that if they were ready to be absorbed on the post of Class IV employee, they might give their consent and in pursuance of that, the petitioner gave consent to be absorbed on the post of Class IV employee in place of Road Roller Driver.
(v) That in the order dated 21.12.2001 (Annex. 4) passed by the General Manager (Admn.) by which the petitioner was declared surplus, it was further mentioned that till the petitioner would be absorbed in other department, he would work in the services of the Board and get salary from the Board.
(vi) That through order dated 29.6.2002 (Annex. 6) passed by the Secretary of the Board (respondent No. 2) the services of the petitioner were terminated by the Board after making compliance of Section 25-F of the Act of 1947.
7. The question which arises for consideration in the present writ petition is whether in the facts and circumstances of the present case, the impugned order dated 29.6.2002 (Annex. 6) passed by the Secretary of the Board (respondent No. 2) can be sustained or not.
8. Before answering the above question, the question whether provisions of Section 25-F of the Act of 1947 are applicable or not has to be answered first.
9. The simple case of the petitioner is that provisions of Act of 1947 are not applicable in his case as he is the regular employee of the Board and he was initially appointed in the year 1977 and he was confirmed in the year 1988, therefore, in his case as per provisions of the Bye-Laws of 1977 his services would be governed by Rajasthan Service Rules, 1951 (hereinafter referred to as the Rules of 1951).
10. There is no dispute on the point that Bye-laws of 1977 were framed in exercise of the powers conferred by Class (G) of Section 22(L) of the Act of 1961. Part VII of the Bye-laws of 1977 deals with service conditions of the employees. Rules 31 & 32 of the Bye-laws of 1977 read as under:
31. Discipline, Penalties, Appeals and Conduct Rules.--In matter relating to discipline, punishments and appeals, the members of the Service shall be governed by the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 as amended from time to time. Regarding the conduct rules, the members of the Service shall be governed by Rajasthan Civil Services (Conduct) Rules, 1971 as amended from time to time.
32. Existing Persons appointed to the Service.--All the existing persons who have been appointed to the service of the Board before the commencement of these byelaws shall be screened by the Selection Committee subject of their age, qualification, method of recruitment etc. and shall be approved to the service on the suitable equivalent cadre.
11. A bare perusal of Rules. 31 & 32 of the Byelaws of 1977 reveals that persons appointed to the service of the Board before commencement of these byelaws shall be screened by the Selection Committee and since in this case order dated 1.10.1988 (Annex. 1) by which the services of the petitioner were confirmed on the post of Raod Roller Driver was passed after commencement of Byelaws 1977, therefore, there can be no dispute on the point that in the case of service conditions of the petitioner Byelaws of 1977 are applicable.
12. In Rule 31 of the Byelaws of 1977, there is clear mention of the fact that the services of the petitioner regarding discipline, punishment and appeals shall be governed by the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as the Rules of 1958). When this being the position, the case of the respondents that provisions of Section 25-F would be applicable in the case of the petitioner cannot be accepted and the contention of the learned counsel for the petitioner that service of the petitioner would be governed by the Rules of 1951 and disciplinary proceedings can be initiated against him under the Rules of 1958 has to be accepted. It may be stated here that Service Rules framed either under Article 309 of the Constitution of India or under the powers conferred on the body, as in the present case, powers to frame byelaws have been conferred on the Board by Class (G) of Section 22(L) of the Act of 1961, may expressly or impliedly exclude applicability of provisions of Act of 1947. Since in this case Byelaws of 1977 were framed by the Board in exercise of powers conferred by Class (G) of Section 22(L) of the Act of 1961, therefore by Rule 31 of the Byelaws of 1977, applicability of provisions of Act of 1947 to the permanent employees of the Board was impliedly excluded and thus, it is held that service condition of the petitioner being permanent employee of the Board would be governed by the provisions of Byelaws of 1977 and not by the provisions of Act of 1947.
13. No doubt that in the earlier writ petition, the order of the respondents by which services of the petitioner were terminated was quashed and set aside on-the ground that compliance of Section 25-F was not made before passing that order, but because of that order to say that service conditions of the petitioner shall be governed by the provisions of Act of 1947 cannot be accepted in view of the discussions just made hereinabove and that order would be not helpful to the learned Counsel for the respondents. Simple because a wrong plea was taken by the learned Counsel for the petitioner in the earlier writ petition filed by the petitioner before Jaipur Bench of this Court, it would not debar him from taking correct stand now.
14. Since the impugned order was passed under the provisions of Act of 1947 and since the provisions of Act of 1947 are not applicable in the case of the petitioner, therefore, the impugned order dated 29.6.2002 (Annex. 6) cannot be sustained and deserves to be set aside and this writ petition deserves to be allowed.
15. It may be stated here that this Court by order dated 12.7.2002 stayed the operation of the order dated 29.6.2002 (Annex. 6).
For the reasons mentioned above, this writ petition is allowed and the impugned order dated 29.6.2002 (Annex. 6) passed by the Secretary of the Board (respondent No. 2) is quashed and set aside and the petitioner would be deemed to continue in service of the Board. However, it is made clear under the provisions of Rajasthan Civil Services (Absorption of Surplus Personnel) Rules, 1969, since the petitioner has been declared surplus and consent has been taken from the petitioner for being posted him as Class IV employee, therefore, atmost he can be posted as Class IV employee by the respondents in place of Road Roller Driver, but his services cannot be terminated in any manner, however, he can be posted in any other Department of Government of Rajasthan.
No order as to costs.
WRIT PETITION No. 2824/02, 2249/02 & 2243/02 These writ petitions raise the same controversy as involved in the above S.B. Civil Writ Petition No. 2281/2002 therefore, these writ petition deserve to be allowd in light of the observations made in writ petition No. 2281/2002 and the impugned orders dated 29.6.2002 (Annex. 6) in all the writ petitions deserve to be quashed and set aside.
Accordingly the writ petitions No. 2824/02, 2249/02 & 2243/02 are also allowed in light of the observations made in S.B. Civil Writ Petition No. 2281/2002 and the impugned orders dated 29.6.2002 (Annex. 6) in all the writ petitions are quashed and set aside and the petitioners would be deemed to continue in service of the Board. However, it is made clear under the provisions of Rajasthan Civil Services (Absorption of Surplus Personnel) Rules, 1969, since the petitioners have been declared surplus and consent has been taken from the petitioners for being posted them as Class IV employee, therefore, atmost they can be posted as Class IV employee by the respondents in place of Road Roller Driver, but their services cannot be terminated in any manner, however, they can be posted in any other Department of Government of Rajasthan.
No order as to costs.