Mohd. Hussain vs State of Rajasthan and Others

Rajesh Balia, J.—Petitioner was appointed as Nakedar at Municipal Board, Chhapar on 26.12.1964 on temporary basis. On the said post, petitioner continued until impugned order dated 9.11.1981 was passed. After serving for seventeen years on the post of Nakedar, petitioner''s services were sought to be terminated under Rule 23 A of the Raj. Service Rules by treating the petitioner still temporary. Learned Counsel for the petitioner laces reliance on a decision of their lordships of the Supreme Court in Bhagwati Prasad Vs. Delhi State Mineral Development Corporation, . In the first instance, it is contended that after 17 years'' continuous service, petitioner cannot still be termed as temporary so as to liables to be removed from service under Rule 23A of the Rajasthan Service Rules. Secondly, it is contended that from the order itself, it is apparent that while salary in lieu of one month''s notice has been given to the petitioner for bringing about the immediate termination of his services but no retrenchment compensation was given as was required to be paid to him u/s 25F(b) of the Industrial Disputes Act, 1 947 and, therefore, the order Annex.3 is void for having not complied-with the condition, precedent for bringing about valid retrenchment.

In reply, it has been contended by the learned Counsel for the respondents that petitioner could not have been appointed as a Nakedar as he is not possessing the requisite qualification meant for the post and also that the petitioner was over-age when he was first appointed on the post of Nakedar. It is further contended by the respondents that a notice under Rule 23A was served on him and, therefore, there was valid termination of the petitioner''s services in accordance with the rules. Reference was also made to certain enquiries being conducted which were held against the petitioner in the past suggesting that the petitioner''s services were not satisfactory.

Having considered the facts of the case and contentions raised before me, I am of the opinion that the petition merits acceptance. So far as the question of petitioner not holding the educational qualification requisite for appointment on the post of Nakedar, is concerned, it is too late now to hold this position against the petitioner. The initial minimum educational qualification prescribed for the post is undoubtedly a factor to be reckoned with, but it is so at the time of the initial entry into the service. Once appointment was made and petitioner is allowed to continue on the post for almost a record of seventeen years, it would be hard and harsh to deny him confirmation in the said post on the ground that he lacks the prescribed educational qualification. I am fortified in my this view by a decision in Bhagwati Prasad Vs. Delhi State Mineral Development Corporation, where-in their lordships of the Supreme Court observed as under:

Practical experience would always aid the person to effectively discharge the duties and is a sure guide to assess the suitability. The initial minimum educational qualification prescribed for the different posts is undoubtedly a factor to be reckoned with, but it is so at the time of the initial entry into the service. Once the appointments of petitioners were made as daily rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualifications. It can be said that three years'' experience, ignoring artificial break in service for short period/periods created by the management, in the circumstances, would be sufficient for confirmation.

Thus, the petitioner by serving for over a period of seventeen years has acquired valuable practical experience which is sufficient to effectively discharge the duties assigned to him for the post and in view of the authoritative pronouncement made by the Hon''ble Supreme Court in the aforesaid case, at this stage petitioner could not be held to be merely temporary employee after serving in the cadre of Nakedar for a period of seventeen years merely because the respondents have not chosen to confirm him on the said post.

Likewise appointing the petitioner on the post of Nakedar after he had crossed the maximum age was respondents own action. Respondent by their conduct in allowing the petitioner to continue in service for such a long period are estopped from challenging their own action. Moreover, it is not anybody''s case that petitioner secured appointment by concealing any fact, which is now sought to be used to raise the plea that his initial appointment was bad. The aforesaid principle apply to this contentions also,

It is also apparent from the order itself that petitioner has not, been paid compensation as required by Section 25F(b) of the Industrial Disputes Act before termination has been brought about. Undoubtedly, for the present purposes, the Municipality comes within the purview of industry'' within the meaning of Section 2 of the I.D. Act, and the petitioner is a workman thereof. It is not the case of the respondents that the petitioner''s services have been dispensed-with as a measure of punishment. Thus, the termination of the services of the petitioner squarely comes within the meaning of retrenchment as defined in Section 2(oo) of the I.D. Act, 1947. It is also apparent from the order, itself, that the condition precedent for bringing about valid retrenchment has not been complied with, therefore, the order cannot be sustained on that ground also.

It may also be noticed that under the orders of this Court , the petitioner is still continuing to serve the respondents. As a matter of fact, petitioner was even granted promotion on the post of Assistant Sanitary Inspector in the year 1988, which was though lateron recalled on account of the petitioner not holding requisite qualification but the fact remains that in the year 1986, petitioner''s services were found satisfactory so as to afford him a promotion, therefore, there appears nothing which could be held against the petitioner for his continuance on the post.

In view of my aforesaid conclusions, I do not propose to examine other grounds raised by the petitioner in this connection.

The petition is allowed, order dated 9.11.1989 [Annex.3] is quashed and the petitioner will be entitled to all consequential benefits. As a result of the same, the interim order passed on 8.12.1981 is made absolute.