BALIA, J. - (1.) STATE Government through P. H. E. D. Department is in appeal against the order dated 8. 8. 2000 allowing the writ petition filed by the respondent Veerbhan Singh wherein he claims that his services may be regularised as Lower Divisional Clerk in office under Rule 25 (7) of the Rajasthan Subordinate Officers Ministerial Staff Rules 1957 (hereinafter referred as "the Rules of 1957") the petition has been allowed by following the earlier decision in Ram Karan vs. STATE (1 ).
(2.) THE case of the petitioner respondent as emerging from the petition is that he was appointed on 22. 11. 81 by a verbal order on daily wages and since then he is discharging the duties of the clerk. He holds all the qualifications for being appointed as a Lower Divisional Clerk and at the relevant time he was working as Hindi typist an Lower Divisional Clerk. His claim is that under Rule 25 (7) of the Rules of 1957 any person employed on work charged basis in P. H. E. D. and who has put in at least 2 years continuous service on 1. 4. 98 and has passed High School or Secondary/praveshika Examination of Board of Secondary Education, Rajasthan or of a Board recognized by the Govt. or other qualification prescribed for the post for the purpose may be absorbed on the post of Lower Divisional Clerk on regular basis against the vacant post of Lower Divisional Clerk in the respective department to the extent of 50% of the total vacant posts of Lower Divisional Clerk adjudging their suitability by the Committee consisting of the Members as prescribed. THE petitioner fulfills all the conditions for being considered and regularised for the post of Lower Divisional Clerk and the vacancies are also did exist at the relevant time. In support of his claim the petitioner has submitted Certificate Annex. 1 issued by the Assistant Engineer under whom he was working from 8. 1. 90 stating that since 22. 11. 85 the petitioner is discharging functions of Lower Division Clerk at Sub-Divisional, Taranagar. Annexure 2 is the application filed by the petitioner disclosing his qualification as Post Graduate and the work which is discharged by him for increasing his daily rated wages from Rs. 17 to Rs. 20 and which was recommended by his immediate superior officer on 3. 11. 87. Annex. 6 is a document eminating from the office of Assistant Engineer P. H. E. D. , Taranagar in response to the letter received from the Deputy Secretary, P. H. E. D. , Jaipur dated 16. 3. 90 requiring the information that how much work charged employees are available and still employed in the Department who are discharging the functions of Lower Divisional Clerk or equivalent thereto in which it has been found that the name of the petitioner is at Serial No. 6 which also supports Certificate Annex. 1 that the petitioner is working since November 1985 as a Lower Divisional Clerk or position equivalent thereto. THE reference to this letter also shows that the work charged labourers from whom the work of Lower Divisional Clerk or equivalent thereto is being taken and that report has been made for the purpose of making them payment commensurating with the work which they are discharging. This Annex. 6 denotes that if he is to be paid according to remuneration payable for the work discharged by him his salary should go up by Rs. 820 per month. Annex. 6 is a document which has not been denied though veracity of Annex. 1 has been contested in reply to the writ petition. We are of the opinion that Annex. 6 proves beyond doubt positive fact that while the petitioner was labelled as labour/labourer but he was made to discharge functions of Lower Divisional Clerk or equivalent thereto under the work charged establishment since November 1985. It was not disputed before learned Single Judge, nor before us that the petitioner is eligible to be considered under Rule 25 (7) of the Rules of 1957 for being regularly absorbed on the regular establishment of the P. H. E. D. Department. The only contention raised is that Rule 25 (7) is only enabling power and appellants are not bound to exercise that power and it does not vest in petitioner an enforceable right. We fail to see the reason for challenging the order made by the learned Single Judge in terms of the order passed in Ram Karan's case by which the respondents were directed that the petitioner's case shall be considered in pursuance of the Rules amended under Notification dated 18. 12. 89. The petitioner shall be given same treatment as the petitioner in the aforesaid decision has been given. This exercise shall be taken and completed within the period of four months from the date of order. In the decision of learned Single Judge in Ram Karan's case he has referred to the decision rendered in Naga Ram Choudhary vs. State of Raj. That order also arose in similar circumstances in respect of the employee of work charged establishment of P. H. E. D. from Barmer Division. The court has held as under : "it is apparent that while appointment of the petitioner was made on the post of Helper, he has been made to discharge duties of L. D. C. has come on record. It is true that ordinarily for regular appointment or the post of L. D. C. one has to go through the process of the examination conducted by the Raj. Public Service Commission. However, it is apparent that in relaxation of general criteria, the Govt. has worked on work charged and muster roll establishment at least for a period of two years or more as on 1. 4. 98 by absorbing them against 50% vacancies of L. D. C. available in various departments provided otherwise eligible to be appointed on the post without going through the regular examination of Rajasthan Public Service Commission. In view of their own decision, petitioner can not be denied benefit on it. It is clear that petitioner fulfils all the qualification required for the post of L. D. C. and post is also available. The conditions for availing benefit of amendment in Rules by Notification dated 18. 12. 88 an existing in the case of the petitioner as in apparent from Ex. 3. " And the petitioner was allowed with the following directions. "the respondents are directed to regularize the petitioner's services on the post of L. D. C. in pursuance of rules as amended by notification dated 18. 12. 89 as he fulfils all the conditions laid down therein within a period of three months from today. The petitioner will be place in the regular pay scale with effect from the date his services are regularised. There will be no order as to be costs. "
(3.) WE are told that the decision in Naga Ram's case has not been challenged and has attained finality. We are constrained to observe that stand taken by the appellants is wholly unreasonable, when they say that though the petitioner is entitled to be considered, appointed and absorbed as L. D. C. under Rule 25 (7) of the Rules of 1957, it being the discretion of the Appointing Committee, no mandamus can be issued. Rule 25 (7) in our opinion cast an obligation that such power is exercised for the purpose for which the power has been vested with the authority on fulfillment of the conditions for exercise of such power under the Rules. Once it is not disputed or shown that all conditions for absorbing a person from workcharged establishment on the regular establishment, existed it becomes duty that such power is exercised for the purpose for which such power has been vested in the authority. ;