Rajasthan High Court - Jaipur
Rajeev Mehnot vs R P S C And Ors on 1 November, 2019
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition NO. 3817/1999
1. Rajeev Mehnot, aged about 33 years, Son of Shri K.S.
Mehnot, resident of A-52, Bajaj Nagar, Jaipur.
2. Rajneesh Jain, aged about 34 years, Son Shri N.K. Jain,
resident of 2-Ja-5, Jawahar Nagar, Jaipur.
3. Bhuvnesh Mathur, aged about 31 years, Son of Shri B. N.
Mathur, resident of E-65, Chitranjan Marg, 'C' Scheme, Jaipur.
....Petitioners
Versus
1. The Rajasthan State Pollution Control Board, Jhalana
Doongri, Jaipur, through its Chairman.
2. Shri Ram Bahadur Morya, Son of Shri B.D. Morya, presently
working as Assistant Engineer, 4, Institutional Area, Jhalana
Doongri, Jaipur.
3. Shri Ram Karan Mandawat, presently working as Assistant
Engineer on Deputatation at D.I.C., Chittorgarh.
4. Shri Pradeep Bhardwaj, presently working as Assistant
Engineer on Deputatation at D.I.C., Dholpur.
5. Shri mahavir Mehta, son of Shri Sajjan Singh, presently
working as Junior Engineer Regional Office, R.P.C.B., Bhilwara.
6. Shri Rakesh Gupta, Son of Shri Prem Chand Gupta, presently
working as Junior Engineer Regional Office, R.P.C.B., Jodhpur.
7. Shri Veer Singh Brijvashi, Son of Shri Suraj Mal Ji, Assistant
Engineer on Deputed at D.I.C., Nagaur.
8. Shri Khem Chand gupta, Son of Shri Mohan Lal Gupta, Junior
Engineer Regional Office, R.P.C.B., Udaipur.
9. Shri Om Prakash gupta, Son of Shri Rewar Mal Gupta, Junior
Engineer, Regional Office, R.P.C.B., Alwar.
10. Shri Hans Ram Kasana, Son of Shri Jaimal Ram, Junior
Engineer, 4, Institutional Area, Jhalana Doongri, Jaipur.
....Respondents
For Petitioner(s) : Mr. Mahendra Shah, Adv.
For Respondent(s) : Mr. Dinesh Yadav, Adv.
Mr. Akhil Simlote, Adv.
(Downloaded on 07/06/2021 at 01:21:32 AM)
(2 of 12) [CW-3817/1999]
HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA
Judgment / Order
Reserved on 19/09/2019
Pronounced on 01/11/2019
1. Instant writ petition has been preferred by the petitioners seeking following reliefs:-
"(i) the Hon'ble Court may kindly be pleased to call the entire record of the case and after examining the same be pleased to quash and set aside the seniority list dated 3.2.1998 and consequently the petitioners may be allowed to be placed above the respondents No.2 to 10 with all consequential benefits.
(ii) by further appropriate writ, order or direction the orders dated 29.8.1992 and 29.5.1993 may kindly be quashed and set aside to the extent of their retrospective operation. In other words the orders are required to be modified to the extent of not providing benefit of retrospective regularisation to the respondents No.5 to 10.
(iii) Any prejudicial order to the interest of the petitioners, if passed during the pendency of the writ petition, the same may kindly be taken on record and be quashed and set aside.
(iv) Any other appropriate order or direction which may be considered just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioners."
2. With regard to the second prayer as above, it is to be noted at the outset that the present writ petition has been filed by the petitioners assailing the orders dated 29/08/1992 and 29/05/1993 in the year 1999.
(Downloaded on 07/06/2021 at 01:21:32 AM)
(3 of 12) [CW-3817/1999]
3. The submission of the petitioners is that they were appointed as direct recruitees vide order dated 29/02/1992 after undergoing selection process through an advertisement issued by the Rajasthan State Pollution Control Board. On 29/02/1992, the respondents no.2 to 10 were working on adhoc basis and their services were regularized vide order dated 29/08/1992 with retrospective effect from 15/06/1990 which could not have been done and further, it is stated that the respondents no. 2 to 10 could not have been placed over and above the petitioners in the seniority list which has been published by the department dated 03/02/1998 as the petitioners were regularly selected and appointed through a procedure laid down under the Rajasthan Engineering Subordinate Service (Public Health Branch) Rules, 1967 which had been adopted for the puropse of recruitment in the Rajasthan State Pollution Control Board vide approval dated 19/01/1978. It is further submitted that the post of Junior Environmental Engineer, Subordinate Environmental Engineer Grade I and II came to be encadered under the Rajasthan State Pollution Control Board Employees Service Rules and Regulations, 1993 which were framed under the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981. The petitioners were degree holders and were therefore appointed as Junior Environmental Engineers (hereinafter referred as 'JEE') and were confirmed on 28/09/1992 as JEE.
4. So far as the respondents no.2 to 10 are concerned, it has been submitted as under:-
4.1 The respondents no.2 to 4 were appointed on temporary/adhoc basis on 24/08/1979, 24/10/1979 and (Downloaded on 07/06/2021 at 01:21:32 AM) (4 of 12) [CW-3817/1999] 30/10/1979 respectively and were confirmed on 03/04/1987 w.e.f.
20/10/1983. All three of them were diploma holders. Thus, when the post of JEE was encadered on promulgation of the Rules of 1993, there were required to be placed below the petitioners who were degree holders and appointed and confirmed on the post of JEE. It is submitted that on promulgation of the Rules of 1993, the respondents were required to be designated as Sub Environmental Engineers as they were diploma holders and not as JEE. 4.2 As regards respondents no.5 to 7, it is submitted that they were appointed in the year 1989 and they applied under an advertisement issued in the year 1990 and were provided temporary appointment as Junior Engineer vide order dated 15/06/1990. It is submitted that the respondent-Board did not approve the appointments made on 15/06/1990 in its meeting held on 31/08/1990 and therefore, they were allowed to continue on adhoc basis. A writ petition was preferred by the said respondents bearing SB Civil Writ Petition No.5068/1990, however, the respondent-Board in its decision dated 10/07/1992 resolved to regularize services of the respondents no.5 to 7 w.e.f. 15/06/1990 and thus they were placed over and above the petitioners in the seniority list wrongfully. 4.3 As regards the respondents no.8 and 9, it is submitted that although they could not be placed in the merit list under the advertisement issued in the year 1990, the respondent-Board, however, provided them temporary appointment vide order dated 15/06/1990 and later on regularized them w.e.f. 15/06/1990 vide order dated 29/08/1992 and thus they were wrongfully placed over and above the petitioners in the seniority list. (Downloaded on 07/06/2021 at 01:21:32 AM)
(5 of 12) [CW-3817/1999] 4.4. As regards respondent no.10, it is stated that he was working on adhoc basis and preferred a writ petition bearing SB Civil Writ Petition No.4793/1991 wherein the Court allowed his petition and directed the Board to regularize his services from 15/06/1990 and thus, he has been wrongfully placed over and above the petitioners.
5. It is further submitted that in the earlier seniority list issued on 26/05/1994, the respondents no.5 to 10 were placed over and above the petitioners but the respondents no.2 to 4 did not find place in the said seniority list. After the representations were made, final seniority list was published on 01/11/1994 wherein the respondents were all placed above the petitioners. Against the said seniority list, another representation was submitted on 16/01/1997 and tentative seniority list was published on 26/08/1997. Representation was against submitted and another final seniority list was published on 03/02/1998 whereafter, the present writ petition has been filed assailing the seniority list dated 03/02/1998 and the orders of regularization dated 29/08/1992 and 29/05/1993 by which the respondents no.5 to 10 were regularized w.e.f. 15/06/1990. Learned counsel for the petitioners has submitted written submissions and has cited the law laid down in State of Orissa & Ors. Vs. Shri Arun Kumar Patnaik & Ors.: (1976) 3 SCC 579 and Direct Recruit Class II Engineering Officers' Association Vs. State of Maharashtra & Ors.: (1990)2 SCC 715.
6. Reply has been filed and the respondent-Board has taken two objections. Firstly, with regard to the joint writ petition having been preferred and secondly with regard to the writ petition having been filed belatedly.
(Downloaded on 07/06/2021 at 01:21:32 AM)
(6 of 12) [CW-3817/1999]
7. Apart from above, it has also been submitted by the respondent-Board that prior to appointment of the petitioners, other degree and diploma holder Junior Engineers were also working in the office of the respondent-Board who were confirmed in accordance with the prevailing Rules; the orders passed by the High Court in SB Civil Writ Petition No.4793/1991, dt.30/11/1992; SB Civil Writ Petition No.6478/1991, dt.29/11/1992 and the procedures in absence of the Rules and Regulations, 1993 and, therefore, the respondents no.2 to 10 are senior to the petitioners. It has been further submitted that after commencement of the Service Rules and Regulations, 1993, the respondent-Board has not recruited any Diploma Holder Junior Engineer in its office. The Rules of 1993 are being followed by the respondent-Board in accordance with their provisions from prospective effect.
8. It is further stated by the respondent-Board that so far as the respondents No.2 to 4 are concerned, all of them were appointed after undergoing selection procedure laid down under the norms adopted by the Board by issuing an advertisement. Both i.e. the Degree Holders and Diploma Holders were entitled to apply. Accordingly, they were appointed as Junior Engineers and were confirmed on the post w.e.f. 20/10/1983. Thus, they were entitled to get their senior from that date. Similarly, the other respondents, who were although earlier working on adhoc basis, had applied under the advertisement issued by the department and were selected. Initially, the adhoc appointment was made calling names from the Planning (Manpower Department) which was a procedure followed in all the departments. The post were later on advertised on 14/01/1990 and after conducting (Downloaded on 07/06/2021 at 01:21:32 AM) (7 of 12) [CW-3817/1999] interviews, the respondents were appointed vide order dated 15/06/1990. The appointment was made on temporary basis to respondents no.5 to 7 and respondents no.8 and 9 were in reserve list and as they were working already on contract basis, a decision was taken by the Board in its meeting holding the respondents to be entitled to be treated as confirmed and regularly appointed w.e.f. 15/06/1990. It has also been stated that in an earlier meeting held by the Board, a decision was taken not to confirm them from 15/06/1990. However, a Writ Petition, bearing SB Civil Writ Petition No.5068/1990 was filed by the respondents wherein the High Court was pleased to stay operation of the decision dated 21/09/1990 whereafter the Board re-examined the issue and decided to withdraw its earlier decision dated 21/09/1990 and decided to treat the respondents no.5 to 9 as regularly appointed from 15/06/1990. The respondent no.10 preferred another writ petition, bearing SB Civil Writ Petition No.4793/1991 and the High Court passed an order directing regular salary to be paid to him and in another Writ Petition No.6478/1991 (Rajasthan Pollution Control Board Officers Association and others Vs. The Rajasthan Board for Prevention & Control of Pollution and anr.), decided on 29/11/1992, the High Court directed to regularize his services w.e.f. 15/06/1992 and thus, it is argued that the High Court has already examined the issue relating to regularization of the respondents from 15/06/1990 earlier and the issue could not have been again re-agitated by the petitioners.
9. Learned counsel for the respondents has pointed out that so far as the petitioners are concerned, they were also appointed by an advertisement issued in a similar fashion before promulgation of the Rules of 1993 and were selected & appointed in similar (Downloaded on 07/06/2021 at 01:21:32 AM) (8 of 12) [CW-3817/1999] manner and thus, they cannot agitate the procedure followed for appointment of the respondents. It is submitted that after 1994 Rules having come into force from 01/03/1993, the posts are being filled strictly in accordance with the Rules of 1993. However, those employees, who were appointed prior to promulgation of the Rules of 1993, have been treated as encadered in service on regular basis and their appointments could not be disturbed. Further, it is submitted that the persons, who were appointed prior to the petitioners, would be entitled to seniority over and above the petitioners. Learned counsel appearing for the respondent- Board, thus submits that no illegality can be said to have been committed by the respondent-Board.
10. Learned counsel, appearing for the private respondents has raised preliminary objections submitting that the writ petition is highly belated. It is submitted that once final seniority list was published in the year 1994, the petitioners would be treated to have accepted their inter-se seniority vis-a-vis the respondents and could not have waited for another seniority list published in the year 1998. The Writ Petition is highly belated. It is further submitted that delay in challenging the seniority list is fatal as rights get vested in an individual as per his seniority. Further, so far as the respondents' appointment is concerned, while adopting arguments of learned counsel for the respondent-Board, it is submitted that the petitioners could not be said to be appointed under the Rules of 1993 and were also appointed in similar fashion as the respondents under subsequent advertisement. At the time when the respondents no.2 to 4 were appointed and confirmed or at the time when the other respondents were appointed, the petitioners had not even born in service. The appointment was not (Downloaded on 07/06/2021 at 01:21:32 AM) (9 of 12) [CW-3817/1999] on adhoc basis as it was through an advertisement against substantive post and was merely temporary which has later on been confirmed by the Board, it is not a case of regularization from retrospective effect. Learned counsel has also relied on judgment of the Supreme Court in K.R. Mudgal & Ors. Vs. R.P. Singh & Ors.: (1986)4 SCC 531 and Dinesh Chandra Mathur & Ors. Vs. Ramesh Chand Jain & Ors. (Civil Appeal No.6516 of 2014), decided on 15/07/2014 in support of his submission. Learned counsel further submitted that the petitioners by this writ petition are virtually assailing the issue which stands already decided by the judgment passed in SB Civil Writ Petition No.6478/1991, decided on 29/11/1992 wherein the Court directed as approved the appointment of the respondents w.e.f. 15/06/1990.
11. After hearing learned counsel for the parties and perusing the material available on record, this Court finds that in the aforesaid factual aspects the claim of the petitioners is not made out. It is apparent that the petitioners have been appointed through an advertisement issued for appointing Junior Engineers under the procedure as adopted by the respondent-Board. Similarly, the advertisement, which was issued for appointment of private respondents, was also in consonance with the procedure adopted by the respondent-Board for appointment as Junior Engineer. The appointment of respondents no.2 to 4 was made way back in the year 1979 and they have been already confirmed w.e.f. 20/10/1983 vide order dated 03/04/1987. The order dated 03/04/1987 has not been challenged. Thus, their appointment cannot be a subject matter of issue before this Court. Similarly, this Court notices that the appointment orders of the other (Downloaded on 07/06/2021 at 01:21:33 AM) (10 of 12) [CW-3817/1999] respondents made vide order dated 15/06/1990 is also not under challenge. The appointment vide order dated 15/06/1990 was made after undergoing a regular process of selection through an advertisement and interview which is a procedure similar to the procedure followed for appointment of the petitioners. The petitioners, therefore, could not be allowed to assail the said procedure claiming it illegal or contrary to the Rules. It is to be noted that the Rules of 1993 promulgated under the powers contained under the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981, have come into force from 01/03/1993 and all the appointments made including that of the petitioners are prior to 01/03/1993 and as has been pointed out by the respondent-Board, the appointments after 1993 have been made according to the Rules of 1993 and prior to 1993, the appointments were made as per the procedure adopted by the respondent-Board. Thus, it is not a case of discrimination or arbitrariness on the part of the respondent-Board while making appointments. Hence, the claim of the petitioners does not made out.
12. The law as cited by petitioners relates to cases where direct recruitees appointed under the Rules have claimed seniority over and above the adhoc appointees who have subsequently been regularized.
13. In the case of Dinesh Chandra Mathur & Ors. Vs. Ramesh Chand Jain & Ors. (supra), a similar situation like was also examined wherein the person who were appointed on adhoc basis had been regularized prior to direct recruit appointments. In such matters also, the Court refused to interfere and upheld the (Downloaded on 07/06/2021 at 01:21:33 AM) (11 of 12) [CW-3817/1999] seniority and set apart that part of the order passed by the Division Bench in following terms:-
"Respondent nos.1-4 admittedly came to be appointed as Project Engineer (Senior) by order dated 27.03.1989 based on an advertisement made by the Board in the year 1988. To our repeated query to the learned counsel for respondent nos.1-4, learned counsel was not able to state as to at any point of time, either the appointment of the appellants on 19.5.1987 in the post of Project Engineer (Junior) after the screening test or their subsequent promotion to the post of Project Engineer (Senior) by order dated 21.11.1987 was challenged before any Forum or even in the present writ petition filed by respondent nos.1-4 or in the subsequent appeal preferred before the Division Bench. In the above stated background, we fail to see as to how respondent nos.1-4 had any locus at all to claim any seniority over and above the appellants whose entry into service as Project Engineer (Senior) was long before the entry of respondent nos.1-4 in the said post. In other words, the appellants' entry into the post of Project Engineer (Senior) was two years before the entry into service of respondent Nos.1-4. Unfortunately, the Division Bench did not address itself to the above said aspect as regards the rights of respondent Nos.1-4 to question the seniority of the appellants based on their respective dates of en try into service in the post of Project Engineer (Senior). Therefore, on that sole ground the appellants are entitled to succeed and, accordingly, that part of the judgment rendered as against the appellants in the present impugned order passed in Civil Special Appeal (Writ) No.689/1996 dated 25.05.2007 is set aside and the appeal is allowed to that extent."
14. It is also to be noted that so far as the respondent no.10 is concerned, his appointment has been made w.e.f. 15/06/1990 as per the judgment passed by the High Court in writ petition filed by the Rajasthan Pollution Control Board Officers Association and others (supra) and in view thereof, there was no occasion for the petitioners to assail his appointment. Taking into consideration (Downloaded on 07/06/2021 at 01:21:33 AM) (12 of 12) [CW-3817/1999] that all the other respondents are senior to respondent no.10, their appointment also could not have been assailed.
15. In view of above position of law as laid down by the Apex Court, this Court does not find any reason to interfere with the seniority list issued by the respondent-Board or the decision taken by the respondent-Board.
16. Consequently, the writ petition is dismissed. No costs.
(SANJEEV PRAKASH SHARMA),J Raghu/ (Downloaded on 07/06/2021 at 01:21:33 AM) Powered by TCPDF (www.tcpdf.org)