Rajasthan High Court - Jodhpur
Ramji Lal Joshi vs State Of Rajasthan & Ors on 25 February, 2013
Author: P.K. Lohra
Bench: P.K. Lohra
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
S.B. CIVIL WRIT PETITION No.3629/2008
Raman Lal Joshi V/s. The State of Rajasthan & Ors.
Date of Order :: 25.02.2013
HON'BLE MR. JUSTICE P.K. LOHRA
Mr. Niranjan Swaroop Mathur for the petitioner. Mr. P.R. Mehta for the respondents.
An application is preferred by the petitioner for expediting hearing of the matter.
For the reasons mentioned in the application, the application is allowed. With the consent of the parties, the matter is heard and decided finally.
The petitioner has laid this writ petition under Articles 226 of the Constitution of India with the prayer for besetting the order dated 29h June, 2007 (Ann.4), whereby the pay scale of Vehicle Driver which was allowed to him earlier as a consequence of resolution of Municipal Board, Banswara dated 02.09.2004 is recalled. The petitioner has also prayed for revival of resolution of the Municipal Board dated 02.09.2004.
For claiming the aforementioned reliefs, it is, inter 2 alia, alleged by the petitioner in the writ petition that he is possessing the requisite qualification for the post of Vehicle Driver as per Rajasthan Municipal (Subordinate and Ministerial Services) Rules, 1963 (for brevity hereinafter referred to as 'the Rules of 1963'). According to the averments contained in the writ petition, at the threshold, the petitioner was offered appointment on the post of Vehicle Driver with the respondent Municipal Board w.e.f. 1st March, 1995 on daily wages basis and the said engagement of the petitioner continued for more than nine years uninterruptedly. While in employment as per the version of the petitioner, the respondent Municipal Board convened a meeting on 2nd September, 2004 and adopted many resolutions including the resolution to the advantage of the petitioner inasmuch as, as per resolution, the daily rated Vehicle Driver were also allowed regular pay scale of the post. The resolution passed by the respondent Municipal Board was acted upon and vide order dated 6th September, 2004 (Ann.3), the petitioner allowed the pay scale of the post. Subsequently, by the impugned order dated 29th June 2007 (Ann.4) the resolution as well as the order dated 6th September, 2004 (Ann.3) were set at naught by the Deputy Secretary, Local Self Department, Government of Rajasthan. Precisely, the petitioner has assailed the impugned order on the ground that it has visited him with evil and civil consequences and before passing the said order no opportunity of being heard was afforded to him by the respondents. The petitioner has also 3 called in question the order impugned on the ground that the power exercised by the State Government under Section 300 of the Rajasthan Municipal Act, 1959 (for brevity hereinafter referred to as 'the Act of 1959') while passing the said order is highly improper and not in consonance and in conformity with the legislative intent. As per the version of the petitioner, the revisional powers conferred under Section 300 of the Act of 1959 is to be resorted in rarest of rare cases when the resolution of the Municipal Board suffers from material illegality or impropriety and not in a routine manner. The substance of the contention of the petitioner is that the revisional powers are to be exercised by the State Government with great care and circumspection. At the threshold, the Hon'ble Court was pleased to issue show cause notice to the respondents and on 30th July, 2008, the Hon'ble Court was pleased to stay the impugned order.
On behalf of the respondents, reply to the writ petition was submitted denying the allegations contained in the writ petition. As per the version of the respondents, the petitioner was engaged as a daily rated Vehicle Driver to carry out urgent and temporary work without following prescribed procedure for recruitment. As per respondent for making direct recruitment procedure prescribed under the rules of 1963 is required to be followed. The resolution adopted by the Municipal Board was, therefore, rightly rescinded by the State 4 Government in exercise of powers of revision conferred under Section 300 of the Act of 1959.
Heard the learned counsel for the parties.
In support of his case, the learned counsel for the petitioner has argued that the petitioner is working since 1995 without any interruption and his continuance in the employment, may be on daily rated basis, is not on account of intervention by any sort of interim protection by court's orders, and therefore the petitioner is entitled for the pay scale of the post and so also regularization of his services as Vehicle Driver as per mandate of Hon'ble Apex Court in case of Secretary, State of Karnataka & Ors. V/s. Uma Devi (3) & ors. [2006 (4) SCC 1]. The learned counsel for the petitioner has drawn my attention towards para 53 of the said verdict which reads as infra:
One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa (supra), R.N. Nanjundappa (supra), and B.N. Nagarajan (supra), and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, 5 the State Governments and the instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.
Repelling the contentions put forward by the learned counsel for the petitioner, the learned counsel appearing on behalf of the respondents, Mr. P.R. Mehta has urged that the ratio decidendi of Uma Devi's case is not applicable vis-a-vis the petitioner and therefore, the petitioner is not entitled for any relief.
I have considered the rival submissions and examined the matter in the light of the verdict of Uma Devi's case.
On close scrutiny of the factual matrix, in my considered opinion, the contention raised on behalf of the petitioner deserves credence. There is no quarrel in the factual position that right from the inception of his service career, the 6 petitioner was engaged as daily rated Vehicle Driver in the year 1995 and since then he is continuing. It is also not in dispute that the petitioner is possessing requisite qualification for the post of Vehicle Driver as prescribed under the Rules governing the province of appointments on the said post i.e., the Rules of 1963, therefore, in my opinion, the claim of the petitioner for regularization of his services is genuine and his claim is fully endorsed by the ratio decidendi of Uma Devi's case in the given circumstances. While adverting to the impugned order, in my opinion, the said order is ex-facie illegal as the same has been passed in clear negation of the principles of natural justice. Moreover, the order impugned is absolutely vague, cryptic and non-speaking order and the authority while passing the said order has not assigned any reason worth the name for upsetting the resolution passed by the Municipal Board. That part, the competent authority on behalf of the State Government has also not recorded any finding worth the name for its satisfaction as to correctness, legality or propriety of the resolution of the Municipal Board while rescinding the said resolution adopted by the concerned Municipal Board. A glance at the impugned order makes it crystal clear that it is not founded on any reason whatsoever and competent authority has simply recorded its conclusions. Be that as it may, the fact remains that the order impugned has been kept in abeyance by this Court while passing the interim order dated 30.07.2008 in this case. Therefore, at this stage there are umpteen reasons to 7 quash and set aside the same in the given circumstances.
The factum of petitioner's continuous employment since 1995 also deserves full credence for consideration of regularisation of his services on the post as per Uma Devi's case (supra).
The upshot of the above discussion is that the impugned order 29.06.2007 (Ann.4) is quashed and set aside and the resolution adopted by the Municipal Board on 2nd September, 2004 is revived vis-a-vis the petitioner and the respondents are directed to consider the case of the petitioner for regularization of his services as Vehicle Driver within a period of three months from the date of passing of this order.
Accordingly, this petition is allowed as indicated above.
There is no order as to costs.
(P.K. LOHRA) J.
A.Asopa/-