JUDGMENT
Sharma, J.
1. Facts of these matters remind me the speech of late NANI A. PALKHIWALA delivered at Privity College. Cambridge on November 7, 1990. In the lecture titled “FORTY THREE YEARS OF INDEPENDENCE,” PALKHIWALA said-
“Perceptive observers in foreign countries where Indians work and prosper are baffled by one question-how does India, with its great human potential and natural resources manage to remain poor ? The answer is that we are not poor by nature but poor by polity. You would not be far wrong if you called India the World’s leading expert in the art of perpetuating poverty.”
These matters may be cited as an example to show the skill of certain officials of the State of Rajasthan in perpetuating the poverty and rendering Diploma Holders in Civil Engineering, Jobless.
2. Since questions of law and fact involved in all these matters are identical, they were heard analogously and are being taken up together for disposal. Common prayer of the petitioners in all these matters is to set aside the order dated October 25, 2002 and regularise their services.
3. For the sake of convenience and in order to understand the controversy the facts of writ petition No. 8316/2002 may be looked into. The petitioner in this writ petition got appointment as Junior Engineer in Municipal Board Kaman District Bharatpur on March 13, 1991 as daily wager, on payment at the rate of Rs. 90/- per day out of the funds of Nehru Rojgar Yojna (NRY). The State of Rajasthan vide order dated January 22, 1998 took a decision to regularise the services of all Junior Engineers temporarily appointed before November 30, 1997 and having 2 years service and who were in service on that day by subjecting them to screening. Pursuant to which the names of all such candidates were forwarded by respective Municipal Boards including that of petitioner and pursuant to which he was interviewed on March 6, 1998. Notwithstanding the petitioner being subjected to screening without declaring result thereof an order dated October 31, 1998 came to be made terminating services of the petitioner purportedly by taking the position that appointment of the petitioner was in the NRY and the same has come to an end and, therefore, his services stand terminated ipso facto. The order was accompanied by a cheque in the sum of Rs. 4636/- and was also accompanied by another communication dated October 31, 1998 explaining as to why cheque in the sum of Rs. 4636/- was sent instead of Rs. 6536/-, which according to the communication, works out to be compensation and one month’s pay. The petitioner without encashing the cheque assailed the aforesaid order of termination by filing the writ petition No. 5683/1998 which was allowed vide order dated January 5, 1999, The State Government preferred an appeal, that was allowed by Division Bench and the case was remanded to Single Bench. The matter was heard afresh and writ petition was allowed vide judgment dated November 3, 1999 quashing the order of termination and ordering reinstatement of petitioner with all consequential benefits. The State Government again preferred the appeal which was accompanied by a stay application. The stay application was rejected by the Division Bench vide order dated May 16, 2000 by taking note that one Narendra Mishra had been reinstated in compliance of the very order impugned in the appeal.
4. During pendency of the appeal the order dated October 25, 2002 was issued declaring the result of screening. It has come to be said in the order that the screening Committee constituted by order dated January 22, 1998 met on March 6, 1998 and record of all the engineers (Civil) were placed before it and it found that Kailash Vyas and Anil Kumar Gupta belonging to General Category and Shankar Lal Regar belong to SC category suitable to have their services regularised. It has also been stated in this order that Junior Engineers in Bhinmal are getting pay in the pay scale from September 11, 1997 and that the Municipalities of Shahpura (Jaipur) and Devgarh (Rajsamand) are class IV municipalities and have no Junior Engineers, therefore, their services can not be regularised. The Screening Committee did not find the services of the rest of the Junior Engineers (including the petitioner) fit for regularisation. The order concludes with the statement that result of Screening Committee is declared pursuant to the direction in writ petition No. 5683/1998 of petitioner and in writ petition No. 3044/1999 of Narendra Mishra. The petitioner has also placed on record the proceedings of Screening Committee and pleaded that the Committee considered the cases of 80 Junior Engineers. Kailash Vyas who has been working in regular pay scale since September 11, 1997 was recommended to be appointed in the regular pay scale and two candidates who were working in Municipal Board Shahpura (Jaipur) and Devgarh (Rajsamaud) who too were recommended by the Man Power Department out of list maintained by them in order of their registration creating post of Junior Engineers in these Municipalities. Names of 11 candidates who were found to be once registered with the Man Power Department and were given regular pay scale though they were in a lower position as per list sent by the Man Power Department referred to State of Rajasthan for their decision. The names of remaining 66 Engineers, working in the Municipalities as on November 30, 1997, were not recommended by the Man Power Department and have been sent to the State of Rajasthan for necessary decision. It was also inter alia mentioned that some of the candidates have become over age as on November 30, 1997. The petitioner’s name finds place in this category. As per decision of the Screening Committee the petitioner’s case falls in the category of those whose names were not sponsored by what is known as “Man Power Department” and the decision of the Screening Committee was that the cases of those whose names were not sponsored by the Man Power Department are to be placed before the State of Rajasthan for its final decision.
5. It has also been averred that in the meanwhile the State of Rajasthan has regularised services of some of the Junior Engineers (Electrical), out of them one Ramesh Chand Sharma, Junior Engineer (Electrical) has been made permanent vide order dated September 5, 2002 on approval having been accorded by the State of Rajasthan. Similarly Rameshwar Lal Sharma and Babu Lal Kandola, who were also screened along with the petitioner on March 6, 1998, have been made permanent by regularising their services and posted in the Municipal Boards Pali and Balotra. Names of Ramesh Chand Sharma, Rameshwar Lal Sharma and Babulal Kandola were not sponsored by the Man Power Department and they were all appointed on the respective dates on their applications being made to the Municipal Boards directly. The petitioner also stated in the writ petition that he had already been registered with the Man Power Department on March 7, 1990 in the list of Diploma holders at Sr. No. 117 (OBC).
6. Respondents filed return to the writ petition stating therein that the services of the petitioners were terminated because the scheme of NRY came to an end in the Municipal Councils. The Screening Committee considered the academic qualifications and performance of the employees and thereafter declared the result vide order dated October 25, 2002. In the proceedings of Screening Committee it has been clearly stated that in the earlier meeting convened before March 6, 1998, the criteria for perusal of the record, marking and other procedure was considered and decided. Accordingly the Screening Committee scrutinised the names of the candidates and categorised them on the basis of their educational qualifications. There were 47 Municipal Councils, which did not forward the names of the candidates and also did not send any information, as such a proforma of all these Municipal Councils was prepared and considered by the Screening Committee. For all the three categories of Junior Engineers separate lists were prepared. In respect of Kailash Vyas it was stated that he was getting regular pay scale since September 11, 1997 and with regard to other candidates the recommendations were made to the State of Rajasthan to consider their cases for regularisation. The cases of Ramesh Chand Sharma, Babu Lal Kandola and Rameshwar Lal Sharma are not similar with that of the petitioners.
7. Having pondered over the submissions and on a close scrutiny of material on record I find that the petitioners were screened for the purpose of adjudging their suitability on March 6, 1998 and the impugned order of rejection came to be made on October 25, 2002 i.e. after about four years and seven months. A bare look at the order reveals that the Screening Committee has not found the petitioners suitable for their services being regularised. It has been observed in the order that the category in which the cases of petitioners come is the one of those who were given appointment without their names being sponsored by the Man Power Department and also that many of such candidates have become over age on the crucial date and therefore the matter is referred to the Government for its decision. The Screening Committee has no where said that the petitioners are not suitable to have their services regularised.
8. Fact situation emerges from the material on record may be summarised thus-
(i) The petitioners were appointed on daily rate basis under Nehru Rojgar Yojna which came to an end on November 30, 1997.
(ii) The State of Rajasthan vide order dated January 22, 1998 decided to regularise services of Junior Engineers temporarily appointed and had completed two years in service on November 30, 1997 and working, after subjecting them to screening.
(iii) The interview for the purpose of screening was held on March 6, 1998 but its result was announced on October 25, 2002.
(iv) The Screening Committee vide order dated October 25, 2002 found Kailash Vyas and Anil Kumar Gupta (Genera! category) and Shanker Lal Raigar (SC category) suitable to have their services regularised. Services of rest of Junior Engineers (including the petitioner) were not found fit for regularisation.
(v) As per the proceedings of the Screening Committee names of 66 Junior Engineers who had been working in the municipalities as on November 30, 1997 but were not recommended by the Man Power Department, and some of who became overage as on November 30, 1997, were sent to the State of Rajasthan for necessary decision. Cases of petitioners fall under this category.
(vi) Services of three Junior Engineers viz. Ramesh Chand Sharma, Rameshwar Lal Sharma and Babulal Kandola, who were screened alongwith the petitioners, were regularised.
(vii) Names of Kailash Vyas, Anil Kumar Gupta, Shanker Lal Regar, Ramesh Chand Sharma and Babulal Kandola were not recommended by the Man Power Department, still their services were regularised.
(viii) The Man Power Department is the department that register the names of unemployed engineers and sends names to the departments where the vacancies became available on a requisition being sent by them. The Man Power Department first prepares the list by arranging names in the order in which the qualification was acquired and later on prepares a merit list on the basis of marks secured by the person in the concerned examination.
9. Coming to the case law cited on behalf of the respondent State I find that in Subedar Singh v. Distt. Judge Mirzapur, (2001) 1 SCC 37, ad hoc appointments were made in non-compliance with the statutory rules and the appointees were deputed to do other jobs and in their place some other persons were engaged. In this situation Hon’ble Supreme Court held that procedure adopted to regularise the services of such appointees was illegal. In State of U.P. v. Raj Karan Singh, (1998) 8 SCC 529, it was observed that continuance in service under an interim order of High Court could not confer any right for continuance and could not enhance the case for regularisation. In Committee of Management Arya Nagar v. Sree Kumar Tiwary, (1997) 4 SCC 388, it was held that continuance on the basis of interim stay did not entitle adhoc appointee to regularisation. In Dr. Chanchal Goyal v. State of Rajasthan, (2003) 3 SCC 485, it was indicated that mere continuance of temporary employee in service by virtue of successive extension orders, could not imply waiver of the conditions attached to the original appointment order. Hence could not provide a ground for legitimate expectation against termination of service in terms of the original appointment order. In Rajendra v. State of Rajasthan, (1999) 2 SCC 317, it was held that when posts temporarily created for fulfilling the needs of a particular project or scheme limited in its duration came to an end because the need for the project had to be abandoned wholly or partially for want of funds, the employer can not by a writ of mandamus be directed to continue employing such employees as have been dislodged because such a decision would amount to requisition for creation of posts though not required by the employer and funding such posts though the employer did not have funds available for the purpose. In Surendra Kumar Sharma v. Vikas Adhikari, (2003) 5 SCC 12, it was propounded that Jawahar Lal Nehru Rajgar Yojna was a poverty alleviation programme not meant to provide right to work. The post automatically abolishes for want of funds when there is a specific order that employment of daily wager was of temporary nature coterminus with the scheme itself and the daily wager was not entitled to any relief.
10. As earlier noticed the petitioner although got appointment as daily wagers in Nehru Rojgar Yojna which came to an end on November 30, 1997, the State of Rajasthan took decision to screen them for the purpose of regularisation of their services. The petitioners were screened on March 6, 1998 and result of screening was declared on October 25, 2002. The services of the petitioners it appears were not found suitable on the ground that their names were not recommended by Man Power Department although the Screening Committee had no where stated that the petitioners are not suitable to have their services regularised. It is not the case of the respondent State that the posts of Junior Engineers were temporarily created for fulfilling the needs of Nehru Rojgar Yojna and on coming to an end of said Yojna the Municipalities could not continue the petitioners for want of funds. It appears that the respondent State decided to screen the temporarily appointed Junior Engineers against the vacancies existed in various Municipalities. The authorities concerned did not chose to determine the vacancies to the posts of Junior Engineers, when the same occurred and could not make selections for appointment. Section 98 of the Rajasthan Municipalities Act 1959 impose statutory duty on Municipalities and they are under statutory obligation to perform such duties under the statute relating to construction, alteration and maintenance of public streets, culverts, municipal boundary marks markets, slaughter houses, drains, sewers, drainage works, sewerage works, baths, washing places, drinking fountains, tanks, wells dams, public latrines, privies and urinals and in order to perform this statutory duties posts of Junior Engineers have been created. The Municipalities in view of Section 101 may at their discretion have to provide fund for the said purpose. Their Lordships of the Supreme Court in Municipal Council Ratlam v. Vardhichand, AIR 1980 SC 1622, indicated that a responsible municipal council constituted for the precise purpose of preserving public health and providing better finances can not run away from its principal duty by financial inability.
11. Having carefully scanned the documents appended with the writ petition I am of the view that the cases of Rameshwar Lal Sharma, RameshChand Sharma, Babu Lal Kandola and the petitioners are identical. Man Power Department did not recommended the names of Rameshwar Lal Sharma, Ramesh Chand Sharma, Babulal Kanoda and they were also appointed as daily wagers under the scheme. They did not possess better qualification than that of the petilioners. There is also no justification on the part of the respondent State to ignore the claims of the petitioners. What is required by Article 14 of the Constitution is that the State shall not, by its acts, discriminate as between two individuals who are similarly circumstanced. Article 14 may be related to the Preamble to the Constitution directly, it is the first of a series which embodies the ideal of equality expressed in the Preamble. Equality before the law means that among equals the law should be equal and should be equally administered and that the likes should he treated alike. Article 14 protects all persons from discrimination by the legislative as well as executive organs of the State. In John Vallamattorn v. Union of India, (2003) 6 SCC 611, their lordships of the Supreme Court propounded, that “the guarantee of equal protection under Art. 14 embraces the entire realm of “State action”. It would extend not only when an individual is discriminated against in the matter of exercise of his right or in the matter of imposing liabilities upon him, but also in the matter of granting privileges etc. In all these cases the principles is the same, namely, that there should be no discrimination between one person and another if as regards the subject matter of the legislation their position is the same. All persons in similar circumstances shall be treated alike both in privileges and liabilities imposed. The classification should not be arbitrary; it should be reasonable and it must be based on qualities and characteristics that have reasonable relation to the object of the legislation.” In my opinion act of respondent State in not treating Rameshwar Lal Sharma, Ramesh Chand Sharma, Babulal Kandola and the petitioners alike, is discriminatory and violalive of Article 14 of the Constitution of India. The petitioners who have rendered more than ten years of service as Junior Engineers and have become overage, can not be left in lurch.
12. As a result of the foregoing discussions, I allow instant writ petitions and direct as under –
(i) the impugned order dated October 25, 2002 so far it relates to the petitioners stand set aside.
(ii) the respondents shall give similar treatment to the petitioners as has been given to Rameshwar Lal Sharma, Ramesh Chand Sharma and Babu Lal Kandola and regularise the services of the petitioners on the post of Junior Engineer in accordance with law.
(iii) the respondents shall ensure compliance of this order within two
months from the date of receipt of copy of this order.
(iv) there shall be no order as to costs.
