IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR 1.S.B. CIVIL WRIT PETITION NO.274/1997 Jamna Lal Meena & Ors. vs. The Rajasthan State Ganganagar Sugar Mill Ltd. 2.S.B. CIVIL WRIT PETITION NO.273/1997 Brij Mohan Singh & Ors. vs. The Rajasthan State Ganganagar Sugar Mill Ltd. Date of order : 4/5/2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Rajendra Prasad Sharma for the petitioners. Shri Virendra Lodha for the respondent. ******
REPORTABLE
These two writ petitions are filed by the employees of the Rajasthan State Ganganagar Sugar Mill Ltd. The writ petition no.273/97 has been filed by 25 petitioners inter alia with the prayer that the respondent be directed to count their entire service from the date of their initial appointment for grant of selection scale pursuant to the order of respondent dated 7/23.11.1992 with all consequential benefits and that the condition imposed by the respondent in their order dated 21/22.10.1992 for qualifying departmental typing test within two years be declared bad in law and be quashed and set aside.
Petitioners in this writ petition were appointed during the year 1983 as Salesmen in various liquor shops run by Rajasthan State Ganganagar Sugar Mill Ltd. in tribal areas.
The writ petition no.274/1997 has been filed by seven petitioners who too like them were appointed as Salesmen during the year 1993 inter alia with the prayer that the respondents be directed to consider their case for regularisation. However, during the pendency of the writ petition, some of the petitioners were regularised in service and therefore, the writ petition was sought to be amended with the prayer that the respondent be directed to consider their entire period of service rendered by them for the purpose of grant of selection grade and the condition of qualifying departmental test within two years be declared illegal.
Shri Rajendra Prasad Sharma, learned counsel for the petitioners has argued that even though initially the appointment of the petitioners was made on daily wage basis and subsequently on payment of consolidated salary, but they have been continuously serving the respondent in the shops run by the respondent. It is contended that as per Rule 8 of the Rajasthan State Ganganagar Sugar Mills Service Rules, the period of probation of two years can be taken to have begun from the date of their initial appointment in terms of second proviso thereto, which inter alia provides that any temporary service rendered by employee before his placement on probation in a post may be counted towards the probationary period. It is contended that the argument of the respondent that their appointment was not made against any sanctioned encader post, cannot be accepted, because subsequently the respondents themselves placed the petitioners on probation, which clearly show that the posts were available with them and, therefore, the petitioners were appointed and placed on probation. The additional requirement of passing the departmental type test within two years was absolutely unreasonable and illegal. Learned counsel argued that action of the respondent in not regularising the petitioners in service was discriminatory because the respondent-management had entered into a settlement with union of employees of their factory and agreed to regularise such unskilled workmen, who has rendered one and a half years satisfactory service. The same criteria should have been applied to the case of the petitioners also. The action of the respondent is thus wholly discriminatory and violative of Article 14 and 16 of the Constitution of India.
Shri Virendra Lodha, learned counsel for the respondent opposed the writ petition and submitted that petitioners in both the writ petitions, except petitioners Devi Lal and Mohan Lal in writ petition no.274/1997, have been regularised in service. They were initially appointed on temporary basis and not by way of any regular and acceptable mode of recruitment. Learned counsel in this connection referred to the initial appointment order dated 10.12.81, which is placed on record at Annexure-1 in writ petition no.273/1997. It is contended that appointment of the petitioners was not made against any encadered or sanctioned post. They were only engaged on payment of daily wages and subsequently on consolidated salary, but since they had continued for quite some time, the respondent by an act of benevolence decided to grant them regular pay scale, subject to their qualifying the type test within two years. The condition of qualifying test, cannot be said to be unreasonable, particularly when the appointment of the petitioners was on ad hoc/ temporary basis and not as per any method prescribed under the Rules. Learned counsel submitted that so far as two persons namely Devi Lal and Mohan Lal are concerned, they shall also be granted same status and regularised in service by grant of regular pay scale immediately on availability of next vacancy as and when any of the petitioners retires or any other of the person in their status retires and a vacancy thereby becomes available. The respondent has adopted the government circular dated 25.1.1992 which provides for grant of selection scale on completion of 9, 18 and 27 years of service. According to which, such period for grant of selection scale could be granted only from the date of regular appointment. The learned counsel submitted that the issue with regard to the grant of selection scale from the date of regular appointment has been set at rest by recent judgement of State of Rajasthan & Ors. vs. Jagdish Narain Chaturvedi-(2009) 12 SCC 49. It is contended that the reliance placed by petitioner on second proviso to Rule 8 is wholly misconceived because that proviso gives a discretion to the respondent-management that it may in appropriate cases count the period of temporary service towards probationary period but in this case this was not invoked and the petitioners were otherwise required to complete the period of probation of two years as per order dated 21/22.10.1992. However, the respondents have regularised as LDC, even such of the petitioners who could not even passed the type test immediately on completion of period of probation. Some of them even have been promoted to the post of UDC namely Ganesh Lal Regar, Laxmi Chand Meena, Mangi Lal Khatik, Bharta Ram Meghwal, Poonam Chand Bunkar and Devi Lal Khatik.
I have given my anxious consideration to the rival arguments and perused the material on record.
Contention that since regularisation of the petitioners in service of the respondent was followed by their temporary appointment and therefore the requirement of placing them on probation in their case may be dispensed with by virtue of second proviso to Rule 8, supra, cannot be accepted because the main rule provides that every person appointed to a permanent post whether on promotion or otherwise, shall be placed on probation for a period of two years from the date of appointment. The respondents have asserted before this Court that there was no sanctioned/permanent post available with them when the petitioners were initially engaged and were continued in various liquor shops in tribal areas. It is only after procuring sanction of the Government in its Finance Department that the petitioners’ services were regularised. There is no material placed by the petitioners to the contrary to show otherwise that their did exist a sanctioned or permanent post, or encadered post. When the main proviso of Rule 8 is so read with its second proviso, it would be evident that any temporary service rendered by employee before his placement on probation in a post may be counted towards the probationary period only if such temporary service is rendered against a permanent post, whether on promotion or otherwise. In other words, provisions contained in the proviso shall have to be conjointly read with the main provision contained in Rule 8. Even otherwise, grant of selection scale and whether for that purpose, the period of ad hoc/temporary service should be counted while calculating 9, 18 and 27 years of service as the case may be, would depend upon interpretation of the provisions contained in the scheme which in the present case was regulated by executive instructions of the State of Rajasthan in its Circular dated 25.1.1992. The respondents merely adopted that Circular by their orders dated 7/23.11.1992, which is exactly similarly worded as the Government Circular dated 25.1.1992. This issue was decided against the government by Larger Bench decision of this Court in State of Rajasthan & Ors. vs. Farooq Ahmed & 59 Ors.-2005 (1) WLC (Raj.) 1. However, when the Government filed appeal against that judgement before the Supreme Court, the judgement of Larger Bench was reversed by the Supreme Court in Jagdish Narain, supra. The Supreme Court in that case held that even if appointment of certain employees on ad hoc, daily wage or work charged basis, may have been made against a post but appointment being on ad hoc or daily wage cannot be taken to have been made on encadered post and, therefore, service prior to regularisation could not be counted for eligibility of stagnation benefits. The provisions of Rule 8 specially second proviso to Rule 8, cannot be therefore interpreted in the manner in which petitioner want this Court to do because that would amount to doing offfence to the language of the executive instructions on the basis of which the petitioners are claiming the benefit of selection scale and rightly so because one can complain of stagnation only if he is eligible for promotion and one does not become eligible for promotion unless he is encadered in service. This is so because the very object of providing benefit of selection scale to remove stagnation by granting one selection scale at the completion of every span of nine years. If one is not regular in service, he cannot claim promotion and therefore obviously he cannot complain of stagnation.
With regard to regularisation of two of the petitioners namely Devi Lal and Mohan Lal, learned counsel for the respondent has submitted that their services would be regularised in the first available vacancies on retirement of any of the petitioners or any of the employees in their status. Taking note of that fact, no order need be passed with regard to them.
The writ petitions are dismissed, however, with the aforesaid observations.
(MOHAMMAD RAFIQ), J.
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