Saroj Devi vs State of Rajasthan and Others

Veerender Singh Siradhana, J.�This is second round of litigation wherein the petitioner has approached this Court praying for the following relief(s):--

"Therefore, it is prayed that the writ petition may be allowed and the record of the case may kindly be call for and the respondent may kindly be directed to regularized the service of the petitioner w.e.f. 3.5.1995 when she is drawing the minimum pay scale of class-IV employee along with all arrears and benefits considering this fact that the similarly situated persons who are junior to the petitioner have been given the benefit of regularization of their services w.e.f. 30.10.1998 along with all consequential benefits and accordingly the order dated 18.12.2007 may kindly be modified to the extent in case of petitioner in the interests of justice.

Any other appropriate order or direction the Hon''ble Court deem fit and proper may also be granted in favour of the petitioner."

Briefly, the indispensable essential materials facts necessary for appreciation of the controversy raised in the instant writ application are: that the petitioner approached this Court by way of S.B. Civil Writ Petition No. 2260/1995 - Smt. Saroj Devi v. Settlement Commissioner & Ors., which was adjudicated upon by a Coordinate Bench of this Court vide judgment and order dated 4th November, 1996, holding thus:--

"Consequently, both the petitions are allowed in part. The petitioners shall be entitled to get minimum of the pay scale with all other allowances and benefits which are allowed to a regularly appointed Class-IV employee except those benefits and allowances which are payable on regularization. This benefit shall be available to the petitioners from the date of filing of the writ petitions i.e. 3.5.1995. The arrears shall be paid to them within two months from the date of this order.

So far the prayer of regularization is concerned, the same has not been pressed on the plea that the petitioners shall be entitled to be considered for regularization as per seniority under Rajasthan Class-IV Services (Recruitment and Other Service Conditions) Rules, 1963.

Both the petitions are disposed of as indicated above. No order as to costs."

The petitioner has again been impelled to institute the writ proceedings as she has been accorded regularization with effect from 18th December, 2007, whereas many of those who were appointed much later than the petitioner, have been accorded regularization from a date much earlier than that of the petitioner. One of instance cited is that of Smt. Radha Devi, who was initially appointed as a part-time Sweeper with effect from 26th June, 1996, on daily wages basis. Smt. Radha Devi approached this Court, with a prayer for regularization, by way of S.B. Civil Writ Petition No. 3886/2003, decided vide judgment and order dated 27th January, 2005, with a direction to consider her case for regularization and in the meantime to pay minimum of the pay scale of the Class-IV employee with effect from 1st July, 2003. Consequently, Smt. Radha Devi has been accorded regularization vide order dated 2nd September, 2005, with immediate effect, subject to the outcome of D.B. Special Appeal (Writ) No. 446 of 2005 (State v. Smt. Radha Devi), whereas the petitioner, who was engaged on daily wages basis with effect from 11th June, 1992; has been accorded regularization with effect from 18th December, 2007 (Annexure-4).

In response to the notice of the writ application, the respondents have filed their counter-affidavit pleading that vide order dated 30th October, 1998, the petitioner has been accorded minimum of the pay scale and allowances as admissible to Class-IV employees. Further, condition No. 2 specifically stipulated in the order dated 30th October, 1998, that the employees will not be entitled for increments of pay. It is further detailed out that the petitioner was not in possession of the essential educational qualification of having passed Class-V, therefore, she could not be regularized. However, the State Government vide order dated 15th November, 2007, has decided to grant relaxation in the educational qualification, in the cases of employees working on daily wages basis, and accordingly, vide order dated 18th December, 2007, the petitioner has been accorded regularization on the post of Class-IV. The claim of parity with that of Smt. Radha Devi has been repelled for the reason that the benefit of regularization in favour of Smt. Radha Devi was extended in compliance of the order dated 27th January, 2005, subject to the decision on the intra-court appeal, wherein the judgment and order of the learned Single Judge dated 27th January, 2005 was assailed.

Learned counsel for the petitioner reiterating the pleaded facts of the writ application, vehemently argued that the respondents exploited the petitioner, as she was engaged on daily wages basis in spite of availability of work, which was of permanent in nature. The minimum of the pay scale of Class-IV employee was accorded to her only after a direction was made by this Court vide judgment and order dated 4th November, 1996, leaving the matter of regularization to be dealt with by the respondents as per seniority under the Rajasthan Class-IV Employees Service (Recruitment and Other Service Conditions) Rules, 1963 (hereinafter referred to as the ''Rules of 1963'', for short). The learned counsel would further submit that a bare perusal of judgment and order dated 11th April, 2001, passed by the Division Bench of this Court confirming the judgment and order of the learned Single Judge dated 4th November, 1996, observed that the services of the petitioner have been regularized vide order dated 30th October, 1998 whereas now the respondents have taken a contrary stand with reference to the same order i.e. 30th October, 1998. The learned counsel further contended that even the Division Bench of this Court while dismissing the intra-court appeal, as infructuous, confirmed the judgment and order passed by the learned Single Judge in its entirety. Therefore, the respondents were obliged to effect regularization in accordance with the seniority and the petitioner whose initial date of engagement on daily wages basis is 11th June, 1992, ought to have been considered for regularization prior to Smt. Radha Devi, who was engaged on part-time basis and that too, with effect from 26th June, 1996, but has been accorded regularization with effect from 2nd September, 2005 vide order of even date (Annexure-6). The learned counsel referring to representation (Annexure-7) emphasized that it was a deliberate and intentional act of the respondents depriving the petitioner of her legitimate and legal right in an arbitrary and illegal manner.

Per contra; the learned counsel for the respondents supporting the action of the respondents and reiterating the contents of the reply, argued that the petitioner was accorded benefits of minimum of the pay scale and allowances as applicable to Class-IV employee with a specific stipulation in the order dated 30th October, 1998, to the effect that the employees will not be entitled for increments of pay. The learned counsel would further submit that the petitioner has been accorded regularization vide order dated 18th December, 2007, granting relaxation in the educational qualifications. Moreover, Smt. Radha Devi has been accorded benefit of regularization with effect from 2nd September, 2005 in compliance of the order passed by this Court dated 27th January, 2005, which was subjected to challenge before the Division Bench and the regularization has been made subject to the outcome of the special appeal as is evident from a bare perusal of the order dated 2nd September, 2005 (Annexure-6). Thus, there is no element of any illegality in the action of the respondents.

I have heard the learned counsel for the parties and with their assistance, perused the materials available on record.

From the admitted facts and materials available on record, it is not in dispute that the petitioner was initially engaged on daily wages basis on 11th June, 1992 whereas Smt. Radha Devi was engaged as part-time Sweeper on 26th June, 1996. In the writ application preferred by Smt. Radha Devi, adjudicated upon vide judgment and order dated 27th January, 2005, the learned Single Judge while partly allowing the writ application held thus:--

"Accordingly, the writ petition is partly allowed. The respondents are directed to frame a Scheme for regularization of such part-time employees as has been framed for Social Welfare Department and consider the petitioner also for regularization of her services. Till then, the petitioner may be paid minimum of the pay-scale of Class-IV employee w.e.f. 1.7.2003. Necessary consideration be made within three months from the date of receipt of certified copy of this order and payment, as ordered above, may also be made during the above period. It may further be observed that the petitioner may not be subjected to victimization because of this litigation."

From the text of the order dated 2nd September, 2005, in compliance of which services of Smt. Radha Devi have been regularized though subject to the outcome of D.B. Special Appeal Number 466 of 2005, would reveal that the learned Single Judge did not issue any direction to regularize the services of Smt. Radha Devi from a particulate date. All that the respondents were directed to do was to consider the case of Smt. Radha Devi for regularization, after having framed a Scheme for the purpose of regularization, of such part-time employees.

A bare perusal of the judgment and order dated 4th November, 1996, on the writ application preferred by the petitioner and confirmed by the Division Bench of this Court in Intra-court Appeal No. 1448 of 1997 vide order dated 11th April, 2001 in its entirety, would reveal that the prayer for regularization was not pressed on the plea that the petitioner shall be entitled to be considered for regularizing as per seniority under the Act of 1963. The learned counsel for the respondents could not point out any legally sustainable reason for not according regularization, in favour of the petitioner according to her seniority while extending the benefit of regularization to the candidate engaged much later than the petitioner and who had been working on part-time basis.

Having considered the facts and materials available in totality, the action of the respondents according regularization with effect from 2nd September, 2005 to Smt. Radha Devi, who was engaged as a part-time Sweeper with effect from 26th June, 1996 while ignoring the claim of the petitioner, who was engaged on daily wages basis with effect from 11th June, 1992 and according regularization with effect from 18th December, 2007; cannot be sustained and justified.

Consequently, the writ application succeeds and is hereby allowed. The respondents are directed to consider the case of the petitioner for regularization in accordance with the seniority under the Rules of 1963 and as per the Scheme. The petitioner be extended the benefit of regularization from the date she is entitled as per her seniority in accordance with law.

The respondents are further directed to undertake the exercise aforesaid within a period of two months from the date of receipt of a certified copy of this order. The decision arrived at be communicated to the petitioner forthwith.

No costs.