Mohemmed Altaf vs State of Rajasthan and Others

Veerender Singh Siradhana, J—Aggrieved of the office order dated 22nd June, 1996, according promotion to respondent number 5, the petitioner has instituted the present writ proceedings praying for the following relief(s):--

"(i) That by an appropriate writ, order or direction the impugned order dt. 22.6.96 so far it relates to the promotion of Resp. No. 5 may kindly be quashed and set aside and further the respondents may kindly be directed to promote the humble petitioner to the Post of meter reader w.e.f. 22.6.96 with all consequential benefits instead of respondent No. 5.

(ii) That by an appropriate writ, order or direction the respondents may kindly be directed to regularise the petitioner w.e.f. his initial date of appointment instead of declaring him work charged employee.

(iii) That any other writ, order or direction which this Hon''ble Court may deem just and proper in the facts and circumstances of the case may also be passed in favour of the petitioner.

(iv) Cost may be awarded in favour of the petitioner."

Briefly, the skeletal materials facts necessary for appreciation of the controversy raised herein are: that the petitioner was initially engaged on 22nd December, 1984, on daily wages basis in Devli Sub Division, District Tonk, for a period of six months, which was later on extended vide another order dated 27th July, 1985, upto 31st December, 1985. The petitioner was thereafter accorded appointment as ''Helper-cum-Chowkidar'' with effect from 1st January, 1986, in the pay scale of Rs. 365-460.

A provisional seniority list was issued for the period with effect from 1st September, 1986 to 31st March, 1990, unit-wise as contemplated under the Rajasthan Engineering Subordinate Service (Public Health Branch) Rules, 1967 (hereinafter referred to as the ''Rules of 1967'', for short). The provisional seniority list for Urban Division at Tonk did not include the name of the petitioner whereas his name ought to have been included in the seniority list. On 17th April, 1995, the petitioner addressed a representation claiming promotion to the post of Meter Reader for he completed ten years of regular service, and therefore, was entitled to a declaration to that effect and promotion in consequence thereof.

Learned counsel for the petitioner, reiterating the pleaded facts and grounds of the writ application, stressed that the petitioner was, in fact, appointed on regular basis as ''Helper-cum-Chowkidar'', as would be evident from order of appointment dated 22nd December, 1984 (Annexure-1). The period of six months of initial appointment was later on extended by a subsequent communication dated 27th July, 1985, for another six months upto 31st December, 1985, followed by a regular appointment with effect from 1st January, 1986, on the post of ''Helper-cum-Chowkidar'' vide order dated 31st December, 1985.

According to the learned counsel, name of the petitioner ought to have been included in the provisional seniority list drawn for the period with effect from 1st September, 1986 to 31st March, 1990, as available at Annexure-4, from where it is reflected that appointment of respondent No. 5 (Ram Lal) was made with effect from 30th May, 1988, whereas the petitioner was appointed, on the same post, with effect from 1st January, 1986. Thus, being senior to respondent number 5, the petitioner ought to have been accorded promotion as ordained by the Rules of 1967.

It is further contended that under the Schedule appended to the Rules of 1967, the post of ''Meter Reader'', as indicated at serial number 22, is to be filled up by direct recruitment and promotion in the ratio of 75:25. Further, the period of ten years of service experience, as a qualification, contemplated for promotion; specifically indicates that the ''Helper'' ought to have been appointed on regular basis. Therefore, the initial date of appointment of the petitioner i.e. 22nd December, 1984, ought to have been considered for the purpose of experience. Hence, the petitioner is entitled for promotion to the post of ''Meter Reader-I'', as contemplated under the Rules of 1967.

In response to the notice of the writ application, the respondents have filed their counter affidavit specifically pleading that the claim of the petitioner is absolutely misconceived and misleading for the appointment of the petitioner was made ''purely on temporary basis'' for a period of six months on daily wages basis, as would be evident from Annexure-1. The period of engagement on daily wages basis was thereafter extended for another six months. The petitioner was appointed as ''Helper-cum-Chowkidar'' only with effect from 1st January, 1986. According to the State-respondents, the appointment of the petitioner was under the ''Work Charged Rules, 1964'', whereas respondent number 5 was appointed under the Rules of 1967. The very appointment of the petitioner, which was made under a different set of Rules; his claim for promotion under the Rules of 1967, is absolutely misconceived and misleading. It is further pleaded that since the petitioner was not appointed under the Rules of 1967, therefore, his name was not included in the seniority list drawn for the relevant unit, as would be evident from Annexure-4, for the period with effect from 1st September, 1986 to 31st March, 1990. Moreover, the provisional seniority list, as available at Annexure-4, was never challenged and no objections were filed by the petitioner.

I have heard the learned counsel for the parties and with their assistance, perused the materials available on record as well as gave my thoughtful consideration to the rival submissions at Bar.

Indisputably, the initially appointment of the petitioner was made on daily wages basis purely on daily wages basis, as would be evident from the order (Annexure-1) dated 22nd December, 1984. The period of engagement on daily wages basis was extended upto 31st December, 1985. The petitioner was accorded appointment on the post of ''Helper-cum-Chowkidar'' in the pay scale of Rs. 360-460 vide order dated 31st December, 1985, with effect from 1st January, 1986, as would be evident from a glance of the order dated 31st December, 1985 (Annexure-3). No material has been placed on record to substantiate the fact that the appointment of the petitioner was on regular basis under the Rules of 1967.

The provisional seniority list drawn for the period with effect from 1st September, 1986 to 31st March, 1990, as available at Annexure-4, would reveal that name of Ram Lal (respondent number 5), is reflected under the column indicating ''regular appointment'', with effect from 14th March, 1983 as ''Beldar'' at Malpura, District Tonk. It is further apparent from the details under the column ''date of appointment'', which has been further divided into three columns; (a) muster roll, (b) work-charged and (c) regular, as indicated under column number 5, 6 and 7. The appointment of Ram Lal (respondent number 5), has been indicated as regular with effect from 14th March, 1983, and he has been accordingly included in the ''provisional seniority list'' at Serial Number 2. The petitioner appears to have not submitted any objection to the ''provisional seniority list''.

From the facts, circumstances and materials available on record, it is evident that the appointment of the respondent number 5 with effect from 14th March, 1983, was a regular appointment as reflected in the ''provisional seniority list'' at Annexure-4, for the relevant period, which did not include the name of the petitioner.

Moreover, the very nature of the appointment as indicated from the order dated 22nd December, 1984, reflects the appointment of the petitioner on daily wages basis, which was extended for another six months and the regular appointment was accorded only with effect from 1st January, 1986. Therefore, in the opinion of this Court, the claim of the petitioner for seniority over and above respondent number 5, is without any factual foundation. The matter of seniority was never agitated by the petitioner, which appears to have been drawn in the backdrop of the nature of appointment under the relevant Recruitment Rules. The petitioner was engaged on daily wages basis in the year 1984 and continued in the same capacity till 31st December, 1985.

By now, it is well settled that the matters of seniority in service should not be reopened after a lapse of a reasonable period, which results into disturbing the settled position. The provisional seniority list issued for the period with effect from 1st September, 1986 to 31st March, 1990, unit-wise as contemplated under the Rules of 1967, was not responded to by the petitioner by way of any objection. There is no material available on record to indicate that the petitioner ever disputed or filed any objection to the provisional seniority list (Annexure-4). A three Judge Bench of the Hon''ble Apex Court of the land in the case of B.S. Bajwa and Another Vs. State of Punjab and Others, (1998) 1 AD 261 : AIR 1999 SC 1510 : (1998) 1 JT 57 : (1999) LabIC 229 : (1998) 1 SCALE 78 : (1998) 2 SCC 523 : (1998) SCC(L&S) 611 : (1997) 6 SCR 451 Supp , observed thus:--

"7. Having heard both sides we are satisfied that the writ petition was wrongly entertained and allowed by the Single Judge and, therefore, the judgments of the Single Judge and the Division Bench have both to be set aside. The undisputed facts appearing from the record are alone sufficient to dismiss the writ petition on the ground of latches because the grievance made by B.S. Bajwa and B.D. Gupta only in 1984 which was long after they had entered the department in 1971-72. During this entire period of more than a decade they were all along treated as junior to the other aforesaid persons and the rights inter se had crystalised which ought not to have been re-opened after the lapse of such a long period. At every stage the others were promoted before B.S Bajwa and B.D. Gupta and this position was known to B.S. Bajwa and B.D. Gupta right from the beginning as found by the Division Bench itself. It is well settled that in service matters the question of seniority should not be re-opened in such situations after the lapse of a reasonable period because that results in disturbing the settled position which is not justifiable. There was inordinate delay in the present case for making such a grievance. This alone was sufficient to decline interference under Article 226 and to reject the writ petition."

The claim of the petitioner for promotion to the post of ''Meter Reader-I'', on the basis of his seniority, which ought to have been recorded in the provisional seniority list for the period with effect from 1st September, 1986 to 31st March, 1990 (Annexure-4), reckoning his initial appointment with effect from 1984, cannot be sustained on any of the grounds pleaded in support thereof.

For the reasons and discussions herein above, the writ petition is devoid of any substance, and lacks in merit, and therefore, deserves to be dismissed.

Ordered accordingly.

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