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Judgment
Instant intra-court appeal has been preferred against order of the ld. Single dt. 29/01/2014.
The members of the union approached this Court with the grievance that the resolution of the committee constituted by the Govt. headed by the Secretary, Public Works Department dt. 14/10/2010 be quashed & set aside and they are working and discharging duties on the post of Store Munshi although appointed as Beldar/Chowkidar/Road Mistri/Godami on work charge basis but on the basis of their duties being discharged of Store Munshi may be considered for declaring semi-permanent and permanent on completion of 2 and 10 years of service u/R. 3(3) and 3(2) of the Rules, 1964.
The ld. Single Judge proceeded on the basis of material on record and observed that the self same controversy earlier came before the Court in the case of Lal Chand Sharma v. State of Rajasthan & ors. (SB Civil Writ Petition No. 4838/1996), decided on 02/02/2010 and it was further followed by another coordinate ld. Single Judge of this Court in the case of Rajendra Prasad Sharma & ors. v. State of Rajasthan & ors. (SB Civil Writ petition No. 4955/2008, decided on 30/03/2010 and keeping in view the principles laid down in Lal Chand Sharma v. State of Rajasthan & ors. (supra), directed the State Authorities to declare the members of the union semi-permanent and also permanent on the post of Store Munshi on completion of 2 & 10 years of service u/R. 3(3) and 3(2) of the Rules, 1964 with all consequential benefits.
Office has pointed out delay of 159 days in filing the present special appeal and in support thereof application has been filed seeking condonation of delay.
We have heard counsel for the parties on the application and in our view the delay has been satisfactorily explained supported with affidavit.
Consequently, the application u/Sec. 5 of the Limitation Act stands allowed and the delay in filing the special appeal is condoned.
We have heard counsel for the parties on merits of the matter.
The facts in nutshell available on record manifest that the respondent-union earlier approached this Court by filing SB Civil Writ Petition No. 8972/2008 with the grievance that the members of the union who are discharging duties of the post of Store Munshi may be granted the benefit of semi-permanent and permanent status on the post of which duties are being discharged by each of them. The ld. Single Judge at that stage did not examine case of the individual employee on merits as to whether he is discharging duties of the post of Store Munshi or not or fulfills the requisite qualification under the Rules, 1964 and disposed of the writ petition vide order dt. 23/04/2010 with the following directions:--
"(i) that the petitioner shall give fresh representation to the respondents in response of his grievance with regard to status of semi-permanent and for promotion on the post of Store Munshi.
(ii) On receipt of such representation, the respondent-department shall consider the same by constituting a meeting, which shall finally decide the issue within a period of four months from the date of receipt of representation from the petitioner-Sangthan."
The facts reveal that a Committee was constituted in compliance of the order of the Court dt. 23/04/2010 and the grievance pointed out by the members of the union was turned down by the resolution of the Committee dt. 14/10/2010 which became subject matter of challenge in SB Civil Writ Petition No. 3708/2011 and indisputably in the second round of litigation also nothing came on record which could justify as to whether the individual employee is at all discharging duties of the post of Store Munshi and qualify to hold the post and the ld. Single judge, taking note of the principles laid down in the case of Lal Chand Sharma v. State of Rajasthan & ors. (supra) as also in the case of Rajendra Prasad Sharma & ors. v. State of Rajasthan & ors. (supra), directed the State Authorities to consider the case of each of the members of union to grant them benefit of semi-permanent and permanent status on the post of Store Munshi u/R. 3(3) and 3(2) of the Rules, 1964.
The self same controversy came up before the Division Bench of this Court at Principal Seat, Jodhpur in the case of State of Raj. & Ors. v. Anil Acharya (DB Civil Special Appeal (Writ) No. 546/2014) and other connected appeals and the Division Bench of this Court after examining the judgment in the case of State of Rajasthan & ors v. Hem Singh & ors (DB Civil Special Appeal No. 845/2011) and another Division Bench judgment in the case of State of Rajasthan v. Lal Chand & Ors, decided at Jaipur Bench of this Court, disposed of the batch of special appeals vide judgment dt. 20/11/2014 by observing/holding in Para 17, 21, 22 and 24 ad-infra:--
"17. We, however, find that the writ petitions were required to be decided by learned Single Judge on the facts of each case. Even if the ratio of judgment in Hem Singh''s case was to be applied, learned Single Judges were, in the writ petitions giving rise to these special appeals, required to ascertain whether, in fact, the petitioners were initially appointed as Store Munshi and if they were not initially appointed as Store Munshi, the date from which they were working or the work of Store Munshi was given to them, to give them semi permanent or permanent status and consequently, the payment of arrears, after grant of such status.
We make it clear that Hem Singh''s case was decided on the findings that the petitioners in those cases were either employed initially on the post of Store Munshi in Work Charge Establishment of Public Health & Engineering Department or they were allowed to work subsequently as Store Munshi and that they were entitled to be granted semi permanent status after completing two years of service and permanent status after completing 10 years of service. On the facts, as they were given in Hem Singh''s case, it was decided that all such persons were entitled to consequential benefits of working on the post of Store Munshi. The benefits, however, had to be given from the date, they were working as Store Munshi and for which, they should be eligible and have not received any promotion in their field, such as Pump Driver or Fitter.
Now since the screening is in process and the report of the Screening Committee is under consideration of the State government, we do not propose to examine each and every case for ascertaining the facts as to whether the respondents are entitled to be given benefits and whether they will be entitled to any arrears. Any decision taken by the State Government will abide by the judgment of the Hon''ble Supreme court in the Special Leave to Appeal, in which, notices have been confined to payment of arrears prior to 2007 or of any orders, which the Supreme Court, pass on an application, which the State Government proposes to move.
On the aforesaid discussion, all these special appeals are disposed of with directions that the respondents will be entitled to the benefit of Division Bench judgment in Hem Singh''s case, only after and subject to the Screening to be carried out for weeding out the persons, who were either not eligible or have received promotions in their own trade other than the trade of Store Munshi. It goes without saying that this judgment will be subject to the judgment of Hon''ble Supreme Court in Special Leave to Appeal (Civil) No. 18046/2012. There shall be no orders as to costs."
Indisputably, in the instant case also, the case of the individual employee has not been examined neither by the Committee nor by the ld. Single Judge and the principle laid down is still the subject matter pending before the Apex Court and the Division Bench of this Court in Para No. 24 of its judgment in the case of State of Raj. & Ors. v. Anil Acharya (DB Civil Special Appeal (supra), observed that it will be subject to outcome of the pending Leave to Appeal (Civil) No. 18046/2012.
But the fact still remains that the case of the individual employee has to be examined obviously on the principals laid down by coordinate Bench of this Court that whether the employee is discharging duties of the post of Store Munshi and indisputably, that has not been looked into by the ld. Single Judge in the instant case nor there is any material on record to support thereof and the direction of the ld. Single Judge in the impugned judgment to grant benefit of semi-permanent and permanent status straight away to the employees in the cadre of Store Munshi u/R. 3 (3) and 3(2) of the Rules, 1964, in our view, may not hold good moreso when the coordinate Bench of this Court has examined the self same dispute and arrived to a conclusion that a Committee has to be constituted which may look into the record of individual employee and take decision as to whether the employee is entitled to seek benefit of semi permanent and permanent status on the post of Store Munshi of which duties, as alleged, he has discharged of which reference has been made in the case of State of Raj. & Ors. v. Anil Acharya (supra).
It is also brought to our notice that after the contempt proceedings were initiated by the respondents, without going into merits of the matter an order dt. 01/04/2015 came to be passed by the Chief Engineer, Public Works Department, Raj., Jaipur granting benefit of semi-permanent and permanent to the members of the union who initially were 29 in number, out of which one died and one has retired from the post of Store Munshi but that remain subject to the final outcome of the present special appeal and no substantial right could be said to be conferred.
It is also brought to our notice that the order dt. 01/04/2015 has been passed without examining the case of individual employee by the Committee constituted in the light of the judgment rendered in the case of State of Raj. & Ors. v. Anil Acharya (supra)
We have heard counsel for the parties and taking note of the view which the coordinate Division Bench has expressed in the case of State of Raj. & Ors. v. Anil Acharya (supra), we are of the confirmed view that unless the Committee examines the case of individual employee based on record, obviously by a general stroke of pen would not be entitled, ipse-dixit, the benefit of semi permanent and permanent status on completion of 2 and 10 years of service u/R. 3(3) and 3(2) of the Rules, 1964 as a matter of course and as already observed, the order of the ld. Single Judge is not sustainable at the same time, since all these employees have been given benefit of semi permanent and permanent status on the post of Store Munshi without their cases remain examined individually by the Committee and that being subject to final outcome of the present special appeal, we clarify that let these employees may be allowed to continue as an ad hoc arrangement for the time being in the cadre of Store Munshi and the Committee constituted under the orders of coordinate Division Bench of this Court in the case of State of Raj. & Ors. v. Anil Acharya (supra), shall examine the case of each of the employees based on their service record and take decision in accordance with law keeping in view the principles laid down by this Court and if the Committee arrives to the conclusion that either of them is not entitled to continue as Store Munshi, obviously based on service record, is at liberty to pass appropriate orders and at the same time, if any adverse order is passed against any individual, he will be at liberty to avail remedy which the law permits.
The appeal accordingly succeeds and is hereby allowed and order of the ld. Single Judge dt. 29/01/2014 is quashed & set aside and the employees appointed as Store Munshi pursuant to order dt. 01/04/2015 may be allowed to continue and the candidature of each of the employee be examined by the Committee constituted under order of the Division Bench dt. 20/11/2014 & if any of the persons is not found to be eligible/suitable to be absorbed as Store Munshi, the authority shall be at liberty to take action against such employee in accordance with law. No costs.