Daulat Ram vs State of Rajasthan and Others

Arun Madan, J.—The petitioner who was appointed as Helper on muster-roll and daily wage basis in Public Health Engineering Department (for short ''PHED'') on 1.9.1981 while Executive Engineer of the said department (non-petitioner No. 2) has been taking the work from the petitioner as Assistant Store Munshi, has moved this court by way of instant writ petition for seeking relief that he may be treated as having been promoted from the post of Helper on which he was initially appointed to that of Assistant Store Keeper w.e.f. 27.4.1985 i.e., the date from which he has been continuously discharging his duties to the department as Asstt. Store Keeper and also when the persons junior to the petitioner as per the seniority list placed on the record vide Annexure 6, were promoted on the said post despite their not working as Asstt. Store Keeper on the principle of ''equal pay for equal work which is enshrined in Articles 39(d) read with Article 14, 16, 21 and 300(A) of the Constitution of India.

The facts which are relevant for deciding the controversy between the parties briefly stated are that the petitioner was initially appointed as Helper on muster-roll daily wage basis in PHED w.e.f. 1.9.1981 in accordance with the Rajasthan Public Works Department (B & R) Work-charged Employees Service Rules, 1964 (for short ''Rules of 1964'') which have been extended and made applicable to PHED of the State Government of Rajasthan. Eversine the date of his appointment the petitioner has been discharging his duties as Assistant Store Keeper but the petitioner was paid his daily wages as applicable to the post of Helper in the said department. It has further been contended in the petition that after completing two years'' satisfactory service, the petitioner was declared semi-permanent vide order, dated 1.3.1984 (Annexure-1) and was placed in the pay scale of 360-460. Perusal of the said order reveals that 12 candidates were appointed alongwith the petitioner who is placed at serial No. 10, while one Jawaharlal who is immediate junior to the petitioner and who was also appointed as Helper on daily wage basis, is placed at serial No. 11 though Jawaharlal was promoted on the post of Assistant Store Keeper which fact is borne out from the relevant documents on the record. The said Jawaharlal who is similarly placed candidate like the petitioner and who was also initially appointed as Helper with the respondent-P.H.E.D. was declared semi-permanent by the same order, dated 1.3.1984. This fact is borne out from Annexure-3 on the record. Thereafter the petitioner made series of representations to the respondents that since he was discharging the duties as Assistant Store Keeper though appointed as Helper but since he has not been paid the wages equivalent to the post of Assistant Store Keeper notwithstanding his continuous discharge of duties on the said post w.e.f. 01.09.1981, the petitioner should not be discriminated by the respondents and should be treated in the same manner as similarly placed candidates like Jawaharlal. Thus the petitioner is entitled to get the regular salary in the prescribed pay scale on the principles of ''equal pay for equal work as enshrined under Article 39(d) of the Constitution of India and its violation would also be violative of petitioner''s fundamental rights which are protected under Articles 14 and 16 of the Constitution. He has further contended that he is entitled to be regularised on the post of Assistant Store Keeper when the persons immediate junior to him have been granted the promotion on the said post in regular pay-scale.

In view of the contentions made in para 24 of the writ petition by the petitioner that on the date of filing the writ petition, i.e. 21.1.1991 atleast four posts of Assistant Store Keepers were lying vacant with respondent No. 2. Keeping this fact in view this court after having issued notice to the respondents protected the petitioner by an interim order, dated 23.1.1991 that during the pendency of the writ petition the petitioner shall not be reverted from the post of Assistant Store Keeper subject to vacancies being available with the respondents. In pursuance of the said interim order of this court, the petitioner has been continuously working and discharging his duties as Assistant Store Munshi to the respondents.

In reply to show cause notice issued by this court the respondents while controverting the aforesaid contentions of the petitioner have contented inter-alia that the petition involves disputed questions of fact and since the petitioner was appointed as daily rated casual labour and thereafter ho was declared semi-permanent, he is not entitled to claim any indulgence from this court in exercise of its jurisdiction under Article 226 of the Constitution of India. They have further contended that it is not open to the petitioner to compare his case or to draw analogy from the case of other candidate Jawaharlal who had approached competent forum, i.e., the Industrial Tribunal and it is from the said forum that he was declared entitled to the relief of pay-scale of Asstt. Store Keeper which is a finding of fact recorded by the learned Tribunal on the basis of evidence led before it, whereas no such finding can be recorded in favour of the petitioner under Article 226 of the Constitution. On merits the respondents have contended that when the post of Asstt. Store Keeper which was earlier in existence has now been abolished and the work which was being done by the Asstt. Store Keeper earlier is now being done by the lower division clerks duly appointed by the Rajasthan Public Service Commission (for short R.P.S.C.). They have further contended that even assuming for the sake of argument that respondent No. 2 had made representations in favour of the petitioner for giving him pay-scale of Assistant Store Munshi on the basis of such recommendations no valuable right is created in favour of an employee like the petitioner for continuing on the said post or to claim pay scale as admissible for the same. It has further been contended by the respondents that if the petitioner is not entitled to be appointed on the post of Assistant Store Keeper which is equivalent to the post of Lower Division Clerk, then his services on the said post cannot be regularised without following the procedure as laid down in the rules and in absence of the same he cannot be entitled to claim any benefit.

On the question of similar benefits having been extended to the similarly placed employees, it has been contended in the reply that if the persons junior to the petitioner have been extended any benefit of pay scales as that applicable to the post of Assistant Store Keeper, the petitioner on that basis by itself is not entitled for any relief on the plea of discrimination unless he has a specific right for appointment on the said post with reference to the relevant rules on the subject. In such circumstances it has been contended by the respondents that the petitioner has no right to be promoted on the post of Asstt. Store Keeper which is equivalent to the post of L.D.C. now recruited through process of selection by R.P.S.C. and such disputed questions require positive evidence which cannot be adjudicated in the writ jurisdiction of this court.

I have heard learned Counsel for the parties at length and have examined their rival claims and contentions as well as the legal position on the subject.

Prima-facie I am of the considered opinion that before a person can claim violation of any legal-right he has to positively establish on the record that how his right has been violated and on the basis of which rule as applicable to him which he seeks to enforce and in absence of such vindication the court cannot automatically assume the entitlement of the petitioner for a particular relief on the principle of ''equal pay for equal work merely as assumption that some similarly placed candidates have been given relief and, therefore, the petitioner should also be extended the same. For vindication of any right, there has to be a positive proof on the record as regards the violation of a particular rule which is applicable to a candidate and it is only on assumption of the same by positive evidence on the record that any analogy with regard to parity being extended on the principles of ''equal pay for equal work'', as laid down under Article 39(d) of the Constitution of India, can be permitted to be extended to the aggrieved party and not as a matter of right in every case.

Learned Counsel for the petitioner has failed to point out as to which of the rules as applicable to similarly placed employees of P.H.E.D. has been violated nor he has pointed out as to how the petitioner is entitled to claim similarity in pay scale to a person who was appointed as a Helper like the petitioner while he has been discharging the duties on the post of Assistant Store Keeper and this being a disputed question of fact can only be established by adducing positive evidence on the record before an appropriate forum. I am fortified in my observations from the Full Bench judgment of this court in the matter of Gopal Lel Teli v. State of Rajasthan 1995 (1) WLC 1 wherein the learned Full Bench has specifically observed that in such like cases where the disputed questions of fact are involved which require adjudication upon evidence to be rendered by the parties before an appropriate forum like the Labour Court/Industrial Tribunal, should be adjudicated before such forums and the remedy is not by way of filing writ petition under Article 226 of the Constitution of India, particularly when such alternative remedy is available. Hence it is not open to the petitioner to compare his case with that of any other candidate or to have similarly been extended benefits of pay scale of Assistant Store Keepers though appointed as Helpers.

I am further of the view that since the post of Assistant Store Keeper already stands abolished in the department of PHED and assuming that the said post has been abolished as per the contentions advanced by the learner counsel for the respondents during the course of hearing and which are also substantiated by the pleadings on the record, assuming that the contentions of the petitioner are correct, even then it is not open to the petitioner to claim any benefit of regularisation as Asstt. Store Keeper in absence of any appointment order having been issued by the respondents in this regard or promotion to the said post and which the petitioner has neither placed on the record, nor any equivalence can be claimed on that basis.

During the course of hearing learned Counsel for the petitioner has placed reliance upon the following decisions:

Shiv Dayal v. State of Rajasthan and Ors. 1997 (2) WLC 462. Nar Narain Tiwari v. State of Rajasthan and Ors. 1997 WLN(UC) 132(Raj.) and Sohan v. State of Raj. and Ors. 1995(2) WLC 407.

I have examined the ratio of the aforesaid decisions and I am of the considered view that they are not applicable to the instant case.

During the course of hearing learned Counsel for the respondents has placed reliance upon the following decisions of the Apex Court:

State of Rajasthan Vs. Kunji Raman, and Shankarsan Dash Vs. Union of India,

In the matter of State of Rajasthan v. Kuni Raman (supra) the question which has arisen for consideration of the Apex Court in Special Leave to Appeal before the Apex Court was as to whether by treating the work-charged employees of Mahi Project differently from the employees working on the regular establishment of Public Works Department and thereby making the R.S.R. and the Project Rules. 1962 and 1975 inapplicable to them, whether the State Government can be said to have discriminated and acted in an arbitrary manner. This was in the context of interpretation of the relevant provisions of Rajasthan Service Rules, 1951 with reference to work-charged employees of the department. It was held that a regular establishment and a work-charged establishment are two separate types of establishments and the persons employed therein form two separate and distinct classes. It was further held that a work-charged establishment thus differs from regular establishment which is of permanent nature and hence the respondents could not be held entitled to the benefit of equal pay scales as extended to the employees of a regular establishment being a work-charged employee on the basis of doctrine of equal pay for equal work, and hence no discrimination or violation of Articles 14 and 16 of the Constitution of India can be said to arise in such cases.

In the matter of Shankarsan Dash v. Union of India (supra) it was held by the Apex Court that merely because the names of some candidates had been included in the select list by the Selection Committee who were subsequently not found eligible for appointment for IPS and Police Services Group B and who could not be selected on assessment of their relative merits, does not be itself confer any vested right with those candidates for appointment in the IPS merely by inclusion of their names in the select list and hence no discrimination can be said to have been made qua regularly selected candidates who were appointed on the said post. It was further observed by the Apex Court that the decision not to fill up the vacancies has to be taken in appropriate cases bonafide for appropriate reasons and if the vacancies or any of them are filled up the State is bound to respect the comparative merits of the candidates as reflected in the recruitment test and no discrimination can be permitted. It was further observed as under:

The process of final selection has to be closed at some stage and when a decision in this regard is accordingly taken and the process for further allotment to any vacancy arising later is closed, it is not material if in pursuance of a decision already taken before closing the process of final selection, the formal appointments are concluded later. What is relevant is to see as to when the process of final selection is closed. Mere completing the formalities later cannot furnish any ground to the candidate who is not selected to claim discrimination.

In the matter of State of Haryana v. Piara Singh and Ors. (SIC) 1992 SC 2130 in Special Leave to Appeal filed before the Apex Court against the judgment of Punjab & Haryana High Court the question which had arisen for consideration of the Apex Court was regarding the modalities which should be adopted by the department for regularisation of services of the ad-hoc employees and unless and until the conditions prescribed under the Rules are fulfilled, no direction can be given for such regularisation. It was further held that the court must while giving directions for regularisation of service, act with due care and caution and it must first ascertain the relevant facts, and must be cognizant of the several situations and eventualities that may arise on account of such directions. A practical and pragmatic view has to be taken, inasmuch as every such direction not only tells upon the public exchequer but also has the effect of increasing the cadre strength of a particular service, class or category. It was further deserved by the Punjab & Haryana High Court in the instant case that in directing wholesome regularisation of all such persons who had put in one year''s service, and that too unconditionally had acted hastily in the matter in giving the direction that all those ad-hoc/temporary employees who have continued for more than an year in service should be regularised is unsustainable. Since the aforesaid direction had been given by the High Court without reference to the existence of vacancies or without determining the cadre strength of service, the impugned order of the High Court was quashed and set aside by the Hon''ble Apex Court in Appeal.

Applying the ratio of the aforesaid decision to the instant case I am of the view that no such direction for regularization of service of the petitioner can be given on the post of Asstt. Store Keeper, since the petitioner was neither appointed nor promoted on the said post by P.H.E.D. and hence no such direction can be given to regularise the services of the petitioner on the aforesaid post for which there was no specific order of appointment or promotion. I am further of the view that the petitioner being work-charged employee of the PHED cannot claim any legal right to appointment on the higher post on which the appointment can only be given subject to the fulfillment of the conditions as stipulated under the rules and merely because some work has been taken by the concerned department against a different post on which the employee was not appointed or promoted, cannot by itself confer any vested right of regularization or appointment on such post.

I am further of opinion that in view of the specific stand taken by the respondents that the post of Store Munshi has since already been abolished in P.H.E.D. and which fact has not been specifically assailed or controverted by the petitioner nor any appointment can be made against a post which is no longer in existence, no vested right has accrued in favour of the petitioner to claim appointment on the said post. Moreover the said post is equivalent to the post of L.D.C. for which appointments are being made by respondents only through the process of selection conducted by its agency i.e. R.P.S.C.

As a result of the above discussions I find no merit in this writ petition and the same is dismissed.