MADAN LAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS writ petition under Article 226 of the Constitution of India has been filed by the petitioner on 31. 1. 1992 against the respondents with the prayer that by an appropriate writ, order or direction, the respondents be directed to assign seniority to the petitioner for the date when he was initially appointed i. e. 6. 11. 1973 and the seniority list dated 29. 10. 1991 (Annex. 5) be declared illegal and be quashed and the respondents be further directed to give selection grade to the petitioner on and from the date when he has completed 15 years of service and also the arrears which had so accrued to the petitioner.

(2.) IT arises in the following circumstances: The petitioner, after having passed matric with Drawing got himself registered with the Employment Exchange, Jodhpur on 21. 7. 72 and his registration number is C/2533/72. IT was submitted by the petitioner that on a requisition having been sent to the Employment Exchange, his name was forwarded to the respondents for selection on the post of Field Assistant-cum- Tracer, pursuant whereto the petitioner was interviewed by the Appointing Authority on 28. 5. 73 alongwith all such persons, who were eligible to be appointed on the post at that time. Pursuant to said interview, the petitioner was appointed on the post of Field Assistant-cum-Tracer vide order dated 6. 11. 73 (Annex. 1) and in that order annex. 1 it was mentioned that the appointment was on officiating basis for a period of six months or till selected hands were made available, whichever was earlier. IT was further submitted by the petitioner that though appointment was described to be on officiating basis, but the fact is that the same was given after following the Rules and considering candidature of all persons eligible at that time. Pursuant to said interview, the petitioner was appointed on the post of Field Assistant-cum-Tracer vide order dated 6. 11. 73 (Annex. 1) and in that order Annex. 1 it was mentioned that the appointment was on officiating basis for a period of six months or till selected hands were made available, whichever was earlier. IT was further submitted by the petitioner that though appointment was described to be on officiating basis, but the fact is that the same was given after following the Rules and considering candidature of all persons eligible at that time. The petitioner resumed duty on 19. 11. 73 and continued on the post of Field Assistant-cum- Tracer uninterruptedly. IT was further submitted by the petitioner that thereafter on a advertisement having been issued bearing No. 1/78 calling applications for appointment on the posts of Field Assistant-cum-Tracer, the petitioner applied for the said post and was selected and he has been shown to be substantively appointed with effect from 5. 2. 1980. IT was further submitted by the petitioner that persons, namely, Pukhraj and Amar Singh, who were appointed after the petitioner have been absorbed substantively from an earlier date. IT was further submitted by the petitioner that he received a seniority list including the names of Tracers substantively appointed upto 31. 3. 1979 in the year 1988 alongwith office order No. P/16/15/seniority/c. E. Irring/3466-79 dated 7. 4. 1988. Since the names of persons, who were appointed after petitioner was initially appointed, were included in the said seniority list while petitioner's name was not included in it, therefore, he made a representation to the Chief Engineer, Irrigation Department, Jaipur on 25. 4. 1988, a copy of which is marked as Annex. 2. The said representation of the petitioner was rejected by the Chief Engineer, Irrigation Department, Jaipur vide order dated 30. 6. 1988 (Annex. 3) stating that the said seniority list includes the names of such persons only who were substantively appointed till 1977 and since the petitioner was substantively appointed in 1980, therefore, his name has not been included in it. IT was further submitted by the petitioner that thereafter, another seniority list dated 17. 7. 1990 (Annex. 4) was issued in continuation of earlier seniority list dated 12. 6. 1989 and 24. 10. 1989 and representations/objections were invited against the said proposed seniority list within a month's time and after considering the representations/objections, a copy of which is marked as Annex. 5. IT was submitted by the petitioner that a number of persons, who were initially appointed after petitioner, but absorbed substantively before him have been shown to be higher in seniority list. IT was further submitted by the petitioner that on 18. 11. 1989, he made a representation to the respondent No. 2 Additional Chief Engineer, Irrigation Zone, Jodhpur for grant of selection grade as he had completed 15 years of service on the post of Tracer from the date of his initial appointment i. e. 6. 11. 1973. A copy of the said representation is marked as annex. 6. The said representation of the petitioner was turned down by the Chief Engineer vide order dated 9. 1. 1990 (Annex. 7) stating that selection grade is given only to such employees who are working either on the lowest post of the services or on such posts from which there is not promotional avenues. IT was further submitted by the petitioner that his case was again forwarded by the respondent No. 2 Addl. Chief Engineer, Irrigation Zone, Jodhpur to the Chief Engineer, but the same was again rejected by the Chief Engineer vide order dated 9. 1. 1991 (Annex. 8 ). Thus, this petition has been filed by the petitioner with the prayer as stated above. A reply to the writ petition was filed by the respondents on 4. 7. 1992 stating that the petitioner was appointed vide order dated 6. 11. 1973 on the post of Field Assistant-cum-Tracer purely on officiating basis for a period of six months or till selected hands were made available, whichever was earlier and since at that time, no formalities for regular appointment such as issuing of advertisement on large scale, selling of forms through postal order, prescribed fee etc. , were observed as per Rule 16 to 20 of the Rajasthan Engineering Subordinate Service (I. B.) Rules, 1967 (hereinafter referred to as "the Rules"), therefore, that appointment of the petitioner cannot be termed as regular appointment as per the Rules of 1967. IT was further submitted by the respondents that the petitioner was selected regularly in the year 1980 and Pukhraj and Amar Singh were selected regularly in 1978 and, therefore, these two persons were treated senior to the petitioner. IT was further submitted by the respondents that advertisement for regular appointment was issued in the year 1979 and in that, the petitioner applied and was selected in the year 1980 on the post of Tracer and regular appointment order was issued vide No. F. 2 (20)12045 dated 5. 2. 1980. Thus, the case of the respondents is that the seniority will be assigned to the petitioner not from the date of his initial appointment, but from the date of his substantive regular appointment i. e. 5. 2. 1980. IT was further submitted by the respondents that there is a clear provision for urgent temporary appointment under Rule 27 of the Rules of 1967, whereas in regular appointments, formalities such as advertisement on large scale, selling of forms through postal order alongwith prescribed fee were observed as per Rules 16 to 20 of the Rules of 1967. Therefore, the regular appointment of the petitioner was made with effect from 5. 2. 1980 and not from his initial appointment which was purely on officiating basis and not made after following the due selection process under the Rules of 1967. Hence, this petition be dismissed. A rejoinder to the reply was filed by the petitioner on 20. 8. 1992.

(3.) THERE is also no dispute on the point that the petitioner was regularly appointed after due selection process on 5. 2. 1980.