THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.4705/1995. Smt.Gauri Devi Vs. State of Rajasthan & Ors. Date of order : September 10, 2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri N.S. Chouhan for the petitioner. None present for the respondents. ******
This writ petition has been filed by the peeitiioner with the prayer that order of his termination be quashed and respondents be directed to regularize her services on the post of Sweeper/Class-IV and the respondents be directed to pay to her pay scale in the regular pay scale.
2) Contention of the learned counsel for petitioner is that petitioner was initially engaged as Sweeper in the office of Commercial Taxes Officer, Ajmer by an order issued on 18/2/1988 for a period of 12 months. Initially, she was being paid @Rs.75/- per month. Term of her appointment was extended upto 10/3/2009. By different orders thereafter also, respondents extended her term of appointment till further orders. Presently, petitioner is working with the respondents with full devotion. It is contended that pay of the petitioner was increased to Rs.150/- per month vide order dated 9/9/1993 w.e.f. 1/8/1993. Petitioner submitted representation that since she is working with the respondents for last 8 years yet she has not been paid confirmed on the post of Sweeper, she may be paid salary of the regular pay scale of that post. Assistant Commissioner (Adm.) wrote a leter on 1/4.5.1995 to the Commercial Taxes Officer, Ajmer (Circle-I) and asked his opinion about the matter of confirmation of the petitioner on the post of Sweeper. Commercial Taxes Officer, Circle-I, Ajmer in reply thereof, wrote a letter to the Assistant Commissioner on 9/5/1995 mentioning therein that petitioner has been sincerely working without there being any complaint against her conduct. He therefore strongly recommended that services of the petitioner be regularised and she be confirmed on the post of Sweeper. Learned counsel submitted that the CTO-I Ajmer again sent a letter to the Assistant Commissioner (Admn.), Jaipur on 9/5/1999. In response thereto, Deputy Commissioner Headquarter Jaipur sent a letter dated 9/8/1995 to the Deputy Commissioner (Admn.) Ajmer for deciding the matter. Pay of the petitioner was thereafter increased from Rs.150 to Rs.240/- per month vide order dated 29/6/1995. Petitioner is still working on the post of Class-IV. However, of the Deputy Commissioner (Admn.) arbitrarily vide order dated 25/7/1995 terminated her services w.e.f. 1/8/1995. Even thereafter, CTO-I Ajmer wrote a letter to the Assistant Commissioner on 27/6/1995 strongly recommending case of the petitioner for regularization. Post of Sweeper is still lying vacant in the petitioner department as would be evident from the letter dated 26/7/1995. Petitioner has also produced documents in the shape of Ann.15 and Ann.16 to show that she was issued necessary material for doing the work of cleaning. Learned counsel submitted that even after termination, petitioner was reengaged and thereafter again respondents terminated her services which is evident from the letter dated 18/10/1996 by Assistant Commissioner Ajmer Circle-A. Learned counsel submitted that petitioner has rendered services of 8½ years and her services were already terminated by the respondents therefore action of the respondents be directed to be declared illegal and they may be directed to revise her salary.
3) Learned counsel in support of his argument relied on the judgment of Supreme Court in Bhagwati Prasad Vs. Delhi State Mineral Development Corporation : (1990) 1 SCC 361 and on the strength of this judgment argued that a daily rated worker on completion of continuous length of service of three years should be regularized.
4) Although no one has appeared on behalf of the respondents but reply to the writ petition is available on record. Besides that, an additinal affidavit has also been filed by the officer in charge, therefore matter is considered on the basis of the averments contained therein. In reply, respondents have submitted that petitioner was engaged on part time basis on consolidated payment of Rs.75/- per month. She was doing the work of cleaning and brooming in the office of the Commercial Taxes Officer, Circle A which is now upgraded to the Assistant Commissioner, Commertial Taxes, Circle-A, Ajmer. There is only three rooms and one gallary which is hardly a job of an hour. It is submitted that there is no sanctioned post of Sweeper in the office of Assistant Commissioner, Commercial Taxes, Circle-A, Ajmer. Pay of the petitioner was increased from Rs.100/- to Rs.150/- per month. Apart from doing the work of cleaning in the office of answering respondents, petitioner is also doing the same job in PWD office and other offices. Petitioner neither possesses qualification of the post of Class-IV nor was there any sanctioned post of Class-IV in the office of Assistant CTO Circle-A, Ajmer. In the counter affidavit filed by the officer-in-charge, which is on record, the respondents have disputed the genuineless of letter Ann.13 filed by the petitioner and denied that this letter originated from their office and this was a forged and fabricated document. It is conotended that petition be dismissed on this count alone. One Shri P.C. Jain, CTO Circle-A Rajasthan has filed yet another affidavit in response to the query of this court, whether petitioner was presently working in the department. In that affidavit, he submitted that petitioner was not working with the office of the Commercial Taxes Officer whereas as per information furnished to them by another part time sweeper, she was presently working in various 4-5 other bungalows of Civil Line Area, Ajmer on part time basis and she is working for last 25 years in various bungalows. It was further stated in the affidavit that working hours of the petitioner was confined from 8 to 10 a.m. prior to the office hours.
5) Petitioner has filed additional affidavit and assertion made by the petitioner is that she was not working on part time basis. It is submitted that officials of the respondents themselves recommended case of the petitioner for regularization and her nature of appointment was never described as part time. She has stated that there are large number of rooms in the office of the respondents and petitioner was looking after the work of cleaning in nearabout 10 rooms, all toilets, bathrooms, toilets attached to the officers rooms, chowk, gallary and varandh of first floor, staircase, area within the boundary wall of main building, reception counter, garden etc. and all such work cannot be completed within two hours as stated by the respondents. Contention of the learned counsel for the petitioner is that services of the petitioner were terminated only because her case was recommended for promotion and when the matter was sent to heqaquarters, instructions were issued to terminate her services. It is submitted that action of the respondents is unfair labour practice. Having recommended case of the petitioner for regularisation, subsequently, they could not say that her services were not satisfactory. Impugned-order has been passed in the colourable exercise of powers issued by the respondents solely with the aim to deprive the petitioner of her legitimage appointment.
6) There are in fact two pleas of the petitioner, one is that her termination order be declared illegal and be quashed and set- aside and other one, to grant her regular pay scale and for regularisation of her services on the post of Class-IV/Sweeper. In so far as second prayer is concerned, in view of authoritative pronouncement of the Supreme Court in Secretary, State of Karnataka and others Vs. Uma Devi (3) and others, decided on 10/4/2006 and reported in (2006) 4 SCC 1, this court in exercise of its powers under Article 226 of the Constitution of India cannot straight way direct regularisation of the petitioner’s services especially when respondents have been repeatedly contending that there is no sanctioned post of Sweeper but at the same time, the manner in which respondents have terminated services of the petitioner cannot be appreciated. From the documents and material on record, it is clear that services of the petitioner were terminated only because she was representing for regularisation of her services. Deputy Director (Adm.) terminated her services assigning the reason that she was not discharging her duties properly and was not paying regards to her superiors. Prior to terminating services of petitioner as Sweeper, respondents were required to serve upon the petitioner a notice or otherwise make compliance of the relevant rules on the subject. But at the same time, now that this petition was filed by the petitioner questioning the correctness of this termination order in the year 1995, requiring the respondents now to reinstate petitioner in service is not proper ends of justice.
7) In the result, writ petition is partly allowed. Respondents are directed to pay a lump sum amount of Rs.50,000/- to the petitioner in lieu of her reinstatement towards full and final settlement.
Compliance of the judgment shall be made within a period of three months from the date copy of this judgment is produced before the respondents.
anil (MOHAMMAD RAFIQ), J