IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.5388/1997 Om Prakash Badesara vs. State & Ors. Date of order : 18/3/2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri N.K. Bhatt for the petitioner. Shri Chetan Bairwa, Addl. Govt. Counsel for the respondents. ******
This writ petition has been filed by the petitioner way back in the year 1997 with the prayer that the respondents be directed to promote / absorb him on the post of Pump Driver II from the date his juniors were given such benefits with all the consequential benefits.
Shri N.K. Bhatt, learned counsel for the petitioner has argued that the date of initial appointment of the petitioner was 16.5.1977 and that the respondents had by order dated 11.4.1990 regularised some Pump Drivers Gr.-II, whose date of appointment was as late as on 26.10.1983. Learned counsel submitted that since the petitioner was liable to be treated senior to the persons named at S.N.25 to 28 in the order dated 11.4.1990, therefore, he should have been promoted on the post of Pump Driver Gr.II. It is contended that the stand of the respondents that separate seniority is maintained for Rural Water Supply Scheme and Urban Water Supply Scheme is wholly unjustified because they all of them work under the same Assistant Engineer and that the work-charged employees have to be governed by the same set of Rules as their status being equal. In so far as the date of initial appointment is concerned, learned counsel submitted that this issue has been decided against the respondents in his writ petition being S.B. Civil Writ Petition No.4955/1990, Om Prakash Badesara vs. State & Ors. vide judgement dated 2.4.1991. Learned counsel submitted that petitioner in para 9 of the writ petition has categorically asserted that petitioner has been working as Pump Driver Helper since 1977 and that since petitioner was not timely absorbed in service, he could not be promoted. Learned counsel invited attention towards the letter dated 7.1.1989 wherein they admitted the fact that complete record was not available and therefore his case for promotion could not be considered. Learned counsel submitted that if record would be available, his case for promotion could be considered.
The respondents in reply to the writ petition have denied the submissions of the petitioner for promotion to the post of Pump Driver II. It has been contended that petitioner cannot compare himself with those mentioned in the order dated 11.4.1990 because they all have been working as Pump Driver Gr.II in work-charged establishment right from the date of their initial appointment, whereas petitioner’s appointment was made on the post of Pump Driver Helper. It is stated that petitioner is twisting the facts and that he could not be promoted because vide order 11.4.1990, the persons promoted therein were rather regularised on the post of Pump Driver II. Secondly, petitioner could not be promoted in Urban Water Scheme because he was working in Rural Water Scheme and his services were regularised vide order dated 24.2.1996 against the post available under Urban Water Scheme at the post of Pump Driver-II, Kota buy actually he was regularised as Pump Driver Helper and not as Pump Driver Gr.II.
Having heard the learned counsel for the parties and perused the material on record, I find that the order dated 11.4.1990 on which the petitioner is placing reliance was very much considered by judgement of this Court in an earlier writ petition. Bone of contention between the parties in that writ petition was also whether the petitioner was appointed as Pump Driver Helper or Pump Driver. This Court after adjudication of the dispute directed the respondents that petitioner shall be treated to have been appointed as Pump Driver Helper from 16.5.1977 and the order regularising his services with effect from 1st April, 1985, as was done with regard to the other similarly situated employees vide order dated 11.4.1990 and accordingly petitioner’s pay fixation etc. be done. The respondents have when they regularised the services of the petitioner by order dated 24.2.1996 although against the sanctioned post of Pump Driver Gr.II available in Urban Water Scheme for the purpose of administrative fitness because against this post, he was regularised. His regularisation was made on the post of Pump Driver Helper which was what directed by this Court in this writ petition. Those with whom the petitioner is claiming parity and whose names are mentioned in order dated 11.4.90 were regularised as Pump Driver II, he cannot possibly have parity or comparison with those who right from the date of initial appointment were working on higher post. In so far as reference to Annexure-4 dated 7.1.1989 is concerned, the contents of that letter shows that therein the question was with regard to claim of the petitioner for promotion on the post of feeder and there the respondents state that in the seniority list that was issued in the year 1982, his name was mentioned as Helper in the Pump Trade at S.No.56 and beyond that his service record was not available and, therefore, his case for promotion could not be considered against the post of Pump Driver Gr.II. Although, the petitioner has not given any particulars or details of anyone, but according to him he was junior Pump Driver Helper and was yet promoted on the post of Pump Driver II, but it appears from the letter of the respondents dated 7.1.1989 that the respondents later did not consider his case for promotion to that post on account of non availability of record.
The present writ petition is therefore disposed of with direction to the respondents to examine the case of the petitioner and find out if any person appointed earlier than 16.5.1977 as Pump Driver Helper, was promoted to the post of Pump Driver II, case of the petitioner shall also be to considered from such date and if that was not done, he will be conveyed about the same within three months from the date copy of this judgement is produced before the respondents.
(MOHAMMAD RAFIQ), J.
RS/