Rajasthan High Court - Jodhpur
Smt.Bharti Telang vs State & Ors on 9 April, 2010
Bench: A.M. Sapre, Dinesh Maheshwari
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
:: J U D G M E N T ::
(1) Smt. Pushpa Lodha Vs. State & Ors.
D.B. CIVIL SPECIAL APPEAL (W) NO. 1220/2000.
..
(2) Smt. Rajshree Acharya Vs. State & Ors.
D.B. CIVIL SPECIAL APPEAL (W) NO. 1216/2000.
...
(3) Smt. Bharti Telang Vs. State & Ors.
D.B. CIVIL SPECIAL APPEAL (W) NO. 1225/2000.
...
(4) Smt. Shakuntala Sharma Vs. State & Ors.
D.B. CIVIL SPECIAL APPEAL (W) NO. 82/2001.
...
Date of Judgment :: 9th April 2010.
PRESENT
HON'BLE MR. JUSTICE A.M. SAPRE
HON'BLE MR. JUSTICE DINESH MAHESHWARI
Mr. S.N. Trivedi, for the appellants.
Mr. Durga Ram Kawadia, Govt. Counsel, for the respondents.
<><><>
BY THE COURT:
These intra-court appeals involving similar facts and identical issues have been placed for re-consideration pursuant to the common remand order dated 16.01.2008 as passed by the Hon'ble Supreme Court in the respective appeals; and are taken up for disposal by this common judgment.
The writ petitions wherefrom these intra-court appeals arise were filed by the respective writ petitioners (appellants herein) essentially seeking directions for regularisation of their 2 services with the District Woman Development Agency on the post of Pracheta and for quashing of the orders passed by the respondents in relieving them from service.
The relevant facts and background aspects are that the appellants had been serving in their respective departments/institutions when they applied pursuant to the advertisement issued by the respondents for appointment to the post of Pracheta; and, by different orders issued by the District Woman Development Agency, Rajasamand, the appellants were appointed to the post of Pracheta initially for a period of 6 months on contractual basis. The appellant in SAW No. 1220/2000 came to be appointed so by the order dated 05.02.1994; the appellants in SAW Nos. 1216/2000 and 82/2001 came to be appointed by a similar nature order dated 17.08.1993; and the appellant in SAW No. 1225/2000 was appointed by an order issued on or about 01.02.1993. The engagement of the appellant as Pracheta was continued with extension of their services by different orders issued from time to time; initially upto 31.03.1995, then upto February 1999, and further upto 30.03.2000.
The petitioners-appellants stated the cause of grievance in the writ petitions that the respondents in Woman and Child Development department proceeded to issue the impugned order dated 02.02.1999 to the effect that the employees like themselves, appointed after the year 1992, may not be allowed to continue for more than 6 years; and if 6 years had been completed, their services may be terminated; but the 3 order would not be applicable in relation to the persons appointed prior to the year 1992. The said impugned order dated 02.02.1999 as issued by the Director, Woman and Child Development Department, Government of Rajasthan whereby and wherefor the services of the appellants were sought to be terminated while reverting them to the their parent departments/institutions reads as under:-
"एतद द र आपक न रश त ककय ज त ह कक आपक अश करण म पचत ओ क पर पर वर# 1992 म एव उसक पश त पनतन य'क), सववर अथव स,ध, त. ककस, , पक र स क/ गई न य'क) क यदर छ: वर# प4ण# ह गय ह त ऐस, पचत ओ क त'रनत क य#म') कर । जज पचत ओ क/ छ: वर# प4ण# ह9 ह'ए ककनत' ह ज रह ह ऐस, पचत ओ क/ छ: वर# पण 4 # ह स पव 4 # अथव 6 वर# क/ न ध #ररत नतथथ स प4व# क य#म') कर स'न जशत कर तथ ऐस, पचत ऐ जज क श<य ह9 ह= उनह , क य#म) ' कर क/ गई क य# व ह9 स वव ग क अवव<म? अवगत कर व । उ) आर @ क अवम कर पर समसत जजममर र9 आपक/ ह ग, । जज पचत ओ क/ न य'क) वर# 1992 स प4व# ह उ पचत ओ क श<ए पररय ज न र क अप सतर पर क र# व ई ह9 कर, उ क पकरण न र <य ज ।"
Assailing the order aforesaid, the appellants contended that they were appointed against the substantive vacant post after selection; that they could not be treated to be the ad hoc employees nor could be placed as temporary for a long period; that there was no reason for not extending the services beyond 6 years when the junior persons were allowed to continue; that it was a clear case of discrimination where similarly situated employees appointed prior to 1992 were allowed to continue; and that the impugned order was passed without opportunity of hearing. The appellants pointed out that one Miss Madhubala Lodha was allowed to continue as Pracheta since the year 1985; and that one Smt.Chandra Agarwal, who was appointed in the year 1993 and whose 4 services were terminated after completion of 6 years, was later on reinstated in service on the ground that her appointment was treated to be prior to the year 1992.
The appellants referred to the relevant rules regulating the services in question i.e., the Rajasthan Civil Service (Special Selection and Special Conditions of Service of Project Directors, Project Officers and other Officers in the Women's Development Project) Rules, 1984 ['the Rules of 1984'] and submitted that they were appointed against the substantive post of Pracheta in the regular pay scale and had rendered satisfactory service; and that there was no bar in extending the services beyond the period of 6 years.
The similar writ petitions so filed by the appellants came to be dismissed by the learned Single Judge with identical orders dated 21.09.2000 that the controversy stood covered by the judgment rendered by this Court at its Jaipur Bench in the case of Smt. Vimla Kumari Bhargava etc. Vs. State of Rajasthan and others: CWP No.5606/1992, decided on 22.10.1996. However, the intra-court appeals (the present appeals) preferred by the writ petitioners came to be allowed by a Division Bench of this Court on 24.01.2001 on the considerations that the order supposedly passed in Smt. Vimla Kumari Bhargava's case (supra) was not available on record nor was shown before the Court; that the averments made in the petitions regarding continuation of other incumbents were casually replied and the respondents were not right in their suggestion that they had the discretion to terminate the service 5 or reinstate any incumbent in the service; that if the services were to be discontinued on the ground of completion of 6 years, then the rule ought to have been applied to one and all but the authority could not act arbitrarily in picking and choosing and terminating the services of some of the persons while retaining others. The Division Bench proceeded to quash the impugned orders terminating services of the appellants and directed that they shall be treated continuous in service as if no order of termination was passed and shall be given all the benefits of service including back wages.
On the matters having been taken in appeal against the aforesaid order dated 24.01.2001, the Hon'ble Supreme Court noticed the fact that the point in issue was earlier decided by a Division Bench of this Court in the case of Asha Acharya Vs. State of Rajasthan: SAW No.18/1996, decided on 28.05.1996 but the effect of the said judgment was not considered in the impugned orders while disposing of the appeals and hence, it was a fit case for fresh consideration. The Hon'ble Supreme Court, thus, remanded these matters with the following common order dated 16.01.2008:-
''Heard learned counsel for the parties.
It appears that learned Single Judge of the Rajasthan High Court, by different orders, dismissed the writ petitions on the ground that the point raised therein was concluded by the judgment of the said court in the case of Vimla Kumari Bhargava vs. State of Rajasthan in Writ Petition No.5606 of 1992 decided on 22nd October, 1996. Against the said judgment when the matters were taken to the Division Bench in appeal, the same have been allowed, impugned orders passed by the learned Single Judge set aside and the writ petitions allowed. It has been pointed out to us that the point in issue was earlier decided by a Division Bench of the Rajasthan High Court in Civil Special Appeal No.18 of 1996 (Asha Acharya vs. State of Rajasthan) and analogous cases by judgment delivered on 6 28th May, 1996, but, in the impugned orders, effect of the said judgment has not been considered while disposing of the appeals. In our view, it is a fit case where the matters should be remitted to the High Court for a fresh consideration by the Division Bench.
Accordingly, the civil appeals are allowed, impugned orders passed by the Division Bench of the High Court are set aside and the appeals are remanded for hearing the matters afresh by the Division Bench in accordance with law, after giving opportunity of hearing to the parties.
No costs.'' It is in this backdrop of the proceedings that we have re-
considered these appeals particularly with reference to the order dated 28.05.1996 in Asha Acharya's case (supra). We may point out at this juncture that the case relating to Asha Acharya, being SAW No.18/1996, has also been placed on board alongwith these appeals in the circumstances that the office treated the said matter too having been remanded by the Hon'ble Supreme Court; and then, notices were ordered to be issued to the parties in the said appeal too. However, such had not been the correct proceedings inasmuch in Asha Acharya's case, the writ petition (CWP No. 5051/1991) was dismissed by the learned Single Judge of this Court on 27.11.1995 and the appeal preferred by the employee (SAW No.18/1996) was considered and dismissed by a Division Bench of this Court alongwith another appeal (SAW No.920/1995: Meena Pathak Vs. State of Rajasthan & Anr.) on 28.05.1996. It nowhere appears if the judgment dated 28.05.1996 in Asha Acharya's case (SAW No. 18/1996) was ever taken in appeal and if the Hon'ble Supreme Court passed any other order in relation thereof. The fact of the matter has been that the aforesaid judgment dated 28.05.1996 in Asha 7 Acharya's case had attained finality; and want of consideration of such concluded decision has been the only reason for remand of the appeals at hand for re-consideration. Asha Acharya's case is not to be re-opened; on the contrary, the effect of the concluded judgment therein is required to be seen in relation to the instant appeals.
The learned counsel appearing for the appellants has strenuously argued that the decision in Asha Acharya's case has no application to the facts of the present case and does not operate against the claim of the appellants. The facts relating to the appellants and the nature of their claim have already been noticed hereinbefore. Appropriate it shall now be to take note of the facts in and ratio from Asha Acharya's case.
The said writ petition was filed by the employee Asha Acharya in the year 1991 against the advertisement issued by the respondents for filling up the posts of Pracheta; and seeking regularisation of her services as Pracheta. It had been the case of the petitioner that she was selected and appointed temporarily on the post of Research Assistant on the monthly wages of Rs.750/-; and, by the order dated 01.09.1987, her monthly wages were revised to Rs.1000/-; and then, by an order dated 28.10.1987, she was posted as Pracheta until further orders. The said petitioner asserted that by the orders dated 17.02.1988 and 22.02.1988, she was directed to appear in the interview for selection on the vacant post of Pracheta; that she was selected and was given appointment on the post of Pracheta in the pay scale of 8 Rs.1140-2050 for a period of 6 months on temporary basis and she joined the duties as such; that by the order dated 25.03.1991, her services on the post of Pracheta were extended upto 28.02.1991 and the pay scale was fixed at Rs.1400-40-1800-50-2300 and by the order dated 04.05.1991, her services were further extended upto 29.02.1992. However, in the meanwhile, an advertisement came to be issued on 10.07.1991 inviting applications for temporary appointment to the post of Pracheta from the services mentioned therein. The petitioner questioned such an action of the respondents and made a claim for regularisation. The learned Single Judge of this Court took note of the scheme of the Rules of 1984 and, inter alia, pointed out that the petitioner was appointed to the tenure post and as such, never acquired the permanent right to remain on the post. The learned Single Judge said,-
''The petitioner was appointed to the "tenure post".
"Tenure post" is defined in rule 7(36) of the Rajasthan Service Rules, 1951. Tenure post means a permanent post which an individual Govt. servant may not hold for more than a limited period. Therefore, 'tenure post' shall be a permanent post but the period of appointment to that post shall be governed by the relevant service rules. The person once appointed to the tenure post, which is a permanent post does not acquire permanent right to remain on the post. The appointment on the tenure post would be for a fixed term. It is only for the said reason that rule 7 (ii) of the Rules of 1984 keeps alive right of Govt. servant to go back to his parent department, service or cadre or institution and lien on the post in the parent department is maintained. The petitioner was appointed temporarily to the tenure post. The petitioner's temporary appointment was extended from time to time. There is no right on the tenure post beyond the period the appointment was made by the Appointing Authority.'' The learned Single Judge further found that as the appointment under the rules was permissible for a fixed period, no direction could be issued for regularising the services of the petitioner.9
In appeal, the Division Bench of this Court again referred to the fact situation and the rules applicable and found the petitioner-appellant disentitled to any relief for the very basic reason that she was appointed to a tenure post for a limited term. The Division Bench said,-
''It must be borne in mind that as regards the writ- petitioners-appellants in both the cases, they were not selected for a permanent post and they were merely selected in the interview for a tenure post only for a limited term and that being so, unless there was a re-appointment in consonance with the Rules, they could not demand any perpetuity as regards continuance in office, which would be contrary to the Rules.'' In our considered opinion, the position aforesaid directly and squarely applies to the present appellants.
It is at once apparent from the appointment and extension orders as placed on record that the appellants, who had been serving in their respective departments/institutions, came to be appointed to the post of Pracheta on contractual basis. Even if such appointment had been extended from time to time and the appellants continued to serve as Pracheta, it is clear that no right was created in them to continue on the post.
The advertisement (Annex.2) relied upon by the appellants itself makes it clear that it was to be purely a temporary appointment either on deputation or on contractual basis; and only the persons serving in the named government departments or recognised educational institutions were declared eligible to apply. The very opening paragraph of the advertisement stated,-10
"मदह< ववक स क य#कम क अतग#त वत शख< 1400-40- 1800-50-2300 म रर) असथ ई पर क प < तय र कर हत' न म ककत र जक/य वव ग@ एव म नयत प प न ज, श कण ससथ ओ म ऐस, क य#रत मदह< ओ क आवर पत आमततत ककए ज त ह= ।"
The advertisement further made the terms and stipulations explicit while stating, inter alia, that,-
"न य'क) क/ तI:-
1. चयन त आ थ. प रश क तJर पर 6 म ह क श<ए ह9
न य') ककए ज वग सरक र द र ककस, , अ '?ध
अथव पनतन यक' ) क न रसत कर क पण 4 अथधक र
#
ह ग । ऐस, जसथनत म यह त# < ग4 ह9 ह ग, ।
2. चयन त आ थ. क पनतन य'क) य अ '?ध क आध र
पर न यक' ) र9 ज सकग, ।"
Looking to the nature of appointment and the terms applicable thereto, there had never been any ambiguity that the appellants, who had been serving in their respective departments/institutions, came to be appointed to the post of Pracheta on contractual basis; and it had essentially been a tenure post and the appointment was going to last for a limited term. There could arise no question of any right being created in the appellants to claim continuance or regularisation even if such appointment had been extended from time to time and the appellants continued to serve as Pracheta For the very nature of appointment, the respondents were entitled to revert the appellants to their parent departments/institutions after completion of tenure. We have not an iota of doubt that the ratio in Asha Acharya's case (supra) directly applies to the appellants and they were not entitled to any relief from the writ Court.
11
The ground of discrimination as suggested on behalf of the appellants with reference to the fact that the persons serving prior to the year 1992 were being retained in service as Pracheta is also baseless and untenable. In the given scheme of the Rules of 1984, if the respondents chose not to continue with the services of the persons appointed after 1992 beyond 6 years but in relation to the persons serving before the year 1992 to consider their cases separately, the exercise remains unexceptionable. We are unable to find a direct and clear case of discrimination made out on behalf of the appellants in the manner that if any person covered under the order dated 02.02.1992 i.e., the person appointed after 1992 and having completed 6 years, was at all continued in service. A feeble suggestion made regarding one employee Smt. Chandra Agarwal has been too vague and uncertain and rather the petitioners themselves suggested that she was continued treating her to be the person appointed before 1992. We may observe that looking to the nature of appointment no person, whether appointed before the year 1992 or after, had any right as such to claim continuation or regularisation, as held in the case of Asha Acharya (supra) but then, the respondents cannot be held disentitled to treat the persons appointed before the year 1992 to be a separate class and to consider their cases separately.
There being no legal right in the petitioners-appellants to claim continuation in service as Pracheta, we are clearly of opinion that these appeals deserve to be dismissed 12 irrespective whether the case of Smt. Vimla Kumari Bhargava as referred to and relied upon by the learned Single Judge was applicable or not. The order as issued by the respondents on 02.02.1999 not to continue with the persons appointed after the year 1992 beyond a tenure of 6 years does not appear vitiated nor could be said to be of infringement of any legal right of the appellants.
We may, however, notice the fact situation that the writ petitions leading to these appeals were filed in the years 1999 and 2000 and earlier, these appeals came to be allowed in the year 2001. It has been pointed out before us that the petitioners-appellants have otherwise continued with the respondents and that the matter of regularisation is under active consideration of the State Government.
Having regard to the facts and circumstances, even when the petitioners-appellants are held disentitled for any relief from the writ Court for the claim as made, we consider it just and proper to observe that if the matter of regularisation is otherwise under consideration, the respondents will be free to proceed in accordance with law irrespective of dismissal of these appeals and the writ petitions.
With the observations aforesaid, these appeals fail and are dismissed with no order as to costs.
(DINESH MAHESHWARI), J. (A.M. SAPRE), J.
MK 13 D.B. CIVIL SPECIAL APPEAL (W) NO. 1216/2000.
Smt. Rajshree Acharya Vs. State & Ors.
...
DATED: 9th April 2010.
HON'BLE MR. JUSTICE A.M. SAPRE HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. S.N. Trivedi, for the appellants.
Mr. Durga Ram Kawadia, Govt. Counsel, for the respondents.
<><><> The appeal is dismissed vide common order made in D.B.Civil Special Appeal (W) No.1220/2000: Smt.Pushpa Lodha Vs. State & Ors.
B.O. B.O.
COURT MASTER COURT MASTER
14
D.B. CIVIL SPECIAL APPEAL (W) NO. 1225/2000.
Smt. Bharti Telang Vs. State & Ors.
...
DATED: 9th April 2010.
HON'BLE MR. JUSTICE A.M. SAPRE HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. S.N. Trivedi, for the appellants.
Mr. Durga Ram Kawadia, Govt. Counsel, for the respondents.
<><><> The appeal is dismissed vide common order made in D.B.Civil Special Appeal (W) No.1220/2000: Smt.Pushpa Lodha Vs. State & Ors.
B.O. B.O.
COURT MASTER COURT MASTER
15
D.B. CIVIL SPECIAL APPEAL (W) NO. 82/2001.
Smt. Shakuntala Sharma Vs. State & Ors.
...
DATED: 9th April 2010.
HON'BLE MR. JUSTICE A.M. SAPRE HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. S.N. Trivedi, for the appellants.
Mr. Durga Ram Kawadia, Govt. Counsel, for the respondents.
<><><> The appeal is dismissed vide common order made in D.B.Civil Special Appeal (W) No.1220/2000: Smt.Pushpa Lodha Vs. State & Ors.
B.O. B.O.
COURT MASTER COURT MASTER
16
D.B. CIVIL SPECIAL APPEAL (W) NO. 18/1996 Asha Acharya Vs. State & Ors.
...
DATED: 9th April 2010.
HON'BLE MR. JUSTICE A.M. SAPRE HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. S.N. Trivedi, for the appellants.
Mr. Durga Ram Kawadia, Govt. Counsel, for the respondents.
<><><> The appeal has wrongly been listed vide observations made in the order in D.B.Civil Special Appeal (W) No.1220/2000: Smt.Pushpa Lodha Vs. State & Ors.
B.O. B.O. COURT MASTER COURT MASTER