Mahaveer Prasad Kumhar vs State of Rajasthan

Veerendra Singh Siradhana, J.—The instant batch of the writ application raises a common question of law and facts, and therefore, is being taken up for adjudication by this common order.

When the matter came up on 27th May, 2014, none appeared on behalf of the petitioners. However, in order to grant yet another opportunity of hearing to the learned counsel for the petitioners/petitioners, the matter was posted to 30th May, 2014, with an order to the effect that if none appears on the next date, the matter will be dealt with according to law, including proceedings ex-parte. Today i.e., on 30th May, 2014, neither the learned counsel for the petitioners nor any of the petitioners, is present in the Court to pursue the matter. No request for adjournment has been made either.

Shorn off unnecessary details, the skeletal material facts necessary for appreciation of the controversy raised in the instant batch of writ applications are required to be first noticed. The facts of S.B. Civil Writ Petition Number 1002 of 2006, are being taken note of as the lead case. The petitioners submitted their application forms, for consideration of their candidature, in response to the advertisement dated 27th February, 1999, issued by the District Establishment Committee, Zila Parishad, Ajmer, inviting applications from the eligible candidates for appointment to the post of Gram Sevak-cum-Paden Secretary carrying the pay scale of Rs. 3200-85-4900 plus allowances. From the materials available on record, it is reflected that a general ban was imposed upon the appointment, which was later on lifted. The petitioners being successful in the selection process, were offered appointment to the post, in response to the advertisement aforesaid, on a consolidated salary of Rs. 1200/- (Rupees: One Thousand Two Hundred), as is reflected from the orders dated 27th October, 1999 (Annexure-R/1); 6th November, 1999, and 19th November, 1999 (Annexure-R/3). The petitioners were later on, confirmed after successful completion of probation period of two years against the aforesaid post, and were accorded regular pay scale of Rs. 3200-85-4900, with effect from 1st June, 2002. Aggrieved of grant of regular pay scale with effect from 1st June, 2002, instead of initial date of appointment i.e., 6th November, 1999, the petitioners have approached this Court praying for the relief(s) under the prayer clause, which reads thus:-

I/Issue an appropriate writ, order or direction in the nature there of and there by direct the respondents to grant regular pay-scale 3200-85-4900 to the petitioner from date of his first appointment.

II/Direct the respondents to pay to the petitioner the difference between the salary paid during the period of probation to the petitioner on consolidated bases and the salary based on pay scale of Rs. 3200-85-4900 with all consequential benefits.

III/Direct the respondent to pay to the petitioner interest @ 18% per annum on the difference between the salary paid to the petitioner and the salary based on pay scale Rs. 3200-85-4900.

IV/Any other appropriate order or direction which may be deemed fit and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner.

Cost of the litigation may also be awarded to the petitioner.

This Court while issuing notices to the state-respondents on 17th February, 2006, took note of the submissions made on behalf of the petitioners claiming their entitlement for regular pay scale, from the date of their initial appointment or at least for notional fixation, placing reliance on the opinion of the Division Bench of this Court in the case of Prashant Vohra & Anr. v. State of Rajasthan & Ors.: 2005(1) WLC (Raj.) 264/

The respondents in response to the notice of the writ application, have filed their counter-affidavit/reply placing on record the decision taken to continue with the selection process, but on account of financial constrains, the selected candidates were to be paid fixed honorarium of Rs. 1200/- (Rupees: One Thousand Two Hundred) per month during the period of probation and in consequence thereof, order dated 6th November, 1999, was issued offering appointment to the petitioners in pursuance to the advertisement dated 27th November, 1999, with a condition in an unequivocal terms that they would be entitled to fix honorarium of Rs. 1200/- (Rupees: One Thousand Two Hundred) per month during the period of probation, which could also be extended, if the work was not found satisfactory. On successful completion of the probation period, the petitioners have been confirmed and were accorded regular pay scale of Rs. 3200-85-4900.

I have heard the learned counsel for the respondents and perused the materials available on record.

The learned counsel for the respondents, reiterating the pleaded facts in the counter-affidavit and referring to the documents placed on record, has insistently argued that since the petitioners themselves accepted the terms and conditions of the offer of appointment, wherein it was specifically detailed out that they will be entitled to fix honorarium of Rs. 1200/- (Rupees: One Thousand Two Hundred) per month during the period of probation, which was subject to further extension in the event of services were not found satisfactory. Therefore, now the petitioners are estopped to take a somersault and challenge the condition, which they have accepted without any demur. The learned counsel would further submit that the writ application(s) preferred in the year 2006, after their service have been confirmed with effect from 1st June, 2002, on successful completion of the probation period of two years;

further indicates that the writ applications suffer with the vice of delay and laches, and therefore, merits rejection on that count alone.

Somewhat identical controversy has been examined by the Division Bench of this Court in the case of Prashant Vohra & Anr. (supra), wherein the Division Bench observed thus:-

Learned counsel for the appellants fairly stated that the appellants are not insisting for payment of difference between the salary paid to them on consolidated basis and salary based on pay scale of Rs. 3200-85-4900 from the date of their initial appointment to the date of confirmation. But, they are claiming notional benefit of the pay scale of Rs. 3200-85-4900 from the date of initial appointment till 1st June, 2002. The submission is a fair one and needs to be accepted since they were deprived of the regular scale of pay even though they had succeeded in the examination held for selection of candidates for the aforesaid post. The State must act as a model employer. It cannot take undue advantage of the need of the employee, who does not have any real choice in the matter of employment due to economic compulsions. In case he does not take up the job he and his family face starvation and deprivation. An applicant seeking employment in a scarce job market scenario has almost no bargaining power against the mighty State. The action of the State which is unjust, unfair and unreasonable is violative of Article 14. Being violative of Article 14, the same can be challenged and challenge cannot be defeated on the ground that protection of fundamental right stood waived by the conduct of the challenger. As otherwise the guarantee offered by Part III of the Constitution will become a teasing illusion and a mirage. The Court acting as sentinel on the qui vive is under an obligation to prevent the contravention of the fundamental rights. It is, however, made clear that where the State has offered fair terms of employment and the candidate accepts the same by taking up the job without demur, in that event he is bound by the terms and he cannot be allowed to challenge the same subsequently.

In the facts and circumstances of the case, the appeal is allowed and the order of the learned Single Judge is set aside. It is directed that the appellants shall be given notional benefit of the pay scale of Rs. 3200-85-4900 from the date of their initial appointment till 1st June, 2002. Thereafter, they shall be given actual benefit of the regular pay scale and their salary shall be fixed afresh within a period of two months. We would also like to clarify that neither expressly nor by implication we have held the appellants to be entitled to secure actual payment of salary on the basis of pay scale of Rs. 3200-85-4900 from the date of initial appointment to the date of confirmation. It is only from the date of confirmation that the appellants will be entitled to limited relief as indicated above.

A glance at the opinion of the Division Bench in the case of Prashant Vohra & Anr. (supra) would reveal that the controversy raised in the instant batch of writ applications stand squarely covered. A welfare State is expected to act as a model employer and cannot justify its action in taking undue advantage of the situation where jobs are square and unemployment is ever increasing. The petitioners, in fact, had no option and had to yield to the terms and conditions including one incorporating payment of fixed honorarium of an amount of Rs. 1,200/- (Rupees: One Thousand Two Hundred) per month during the period of probation.

The learned counsel for the respondents could not point out any rule by virtue of which such a condition could be incorporated in the recruitment process initiated for the appointment to the post of Gram Sevak-cum-Paden Secretary carrying pay scale of Rs. 3200-85-4900 plus allowances as advertised vide advertisement dated 27th October, 1999. In the event of action of the State being violative of the mandate of Article 14 of the Constitution of India, an assailment of such an action cannot be drawn out on the ground that the protection of fundamental rights guaranteed by the constitution stood waived by the conduct of the petitioners in accepting the condition to the contrary stipulated in the offer of appointment.

For the reasons and discussions herein above as well as in view of the opinion of the Division bench of this Court in the case of Prashand Vohra & Anr. (supra), the writ applications deserve to be disposed of in the same terms.

In the result, the writ applications are allowed. It is directed that the petitioners be accorded notional benefits of pay scale of Rs. 3200-85-4900 from the date of their initial appointment until their confirmation on successful completion of probation period. Thereafter, the petitioners would be entitled for actual benefit of regular pay scale and their salary shall be fixed afresh.

It is made clear that neither expressly nor by implication, the petitioners would be entitled to actual payment of salary for they having participated in the selection process for appointment to the post in the pay scale of Rs. 3200-85-4900. From the date of their initial appointment to the date of confirmation, the petitioners will be entitled to the limited relief as indicated herein above.

However, in the facts and circumstances of the case, there shall be no order as to costs.