Sunil Kumar Garg, J. - (1.) THE above four writ petitions are being decided by this common order as in all of them, common questions of law and facts are involved. FACTS OF WRIT PETITION No. 2281/2002
(2.) THIS writ petition under Article 226 of the Constitution of India has been filed by the petitioner against the respondents on 10.7.2002 with a prayer that by an appropriate writ, order or direction, the order dated 29.6.2002 (Annex. 6) passed by Secretary, Rajasthan State Agriculture Marketing Board (hereinafter, referred to as the Board) (respondent No. 2) by which services of the petitioner were terminated after making compliance of Section 25 -F of the Industrial Diputes Act, 1947 (hereinafter referred to as the Act of 1947) be quashed and set aside and further more, if the petitioner is treated as surplus, he may be dealt with under the provisions of Rajasthan Civil Services (Absorption of Surplus Personnel) Rules, 1969 (hereinafter referred to as the Rules of 1969). The facts of the case as put forward by the petitioner are as under: (i) That the petitioner was initially appointed as Driver vide order dated 11.7.1977 (Annex. 1) by Assistant Engineer, Rajasthan State Agricultural Marketing Board and thereafter his services were confirmed and was put in the regular pay scale vide order dated 1.10.1988 (Annex. 1) passed by the Manager (P & A), Rajasthan State Agricultural, Marketing Board and since then the petitioner was discharging the duties as Road Roller Driver. (ii) That further case of the petitioner is that services of the petitioner were terminated by the respondents with effect from 30.12.1997 and being aggrieved against that order, the petitioner preferred a writ petition before Jaipur Bench of this Hon'ble Court being S.B. Civil Writ Petition No. 698/98 and that writ petition was finally allowed on 11.5.2001. It may be stated here that writ petition No. 698/98 was decided along with several other writ petitions by common order. Jaipur Bench of this Court while allowing the earlier writ petition filed by the petitioner observed that since provisions of Section 25 -F of the Act of 1947 were not complied with, therefore, termination of the services of the petitioner was found illegal and it was further observed that the respondents were free to take appropriate steps in regard to services of the petitioner in accordance with law. (iii) That the respondents challenged the order dated 11.5.2001 before Division Bench by filing special appeal, which was dismissed through judgment dated 13.7.2001. (iv) That the further case of the petitioner is that through order dated 7.8.2001 (Annex. 2) passed by the General Manager (Admn.), Rajasthan State Agriculture Marketing Baord, the petitioner and other persons were reinstated in service with all consequential benefits. (v) That further case of the petitioner is that through order dated 25.8.2001 (Annex. 3) passed by the General Manager (Admn.), the petitioner was given posting at Ajmer. (vi) That the Board in its meeting dated 26.11.2001 passed resolution No. 11 and in pursuance of that resolution, the petitioner was declared surplus through order dated 21.12.2001 (Annex. 4) passed by the General Manager (Admn.) of the Board. In the order dated 21.12.2001 (Annex. 4), it was clearly mentioned that till absorption in other Department, the petitioner would continue to get his salary from the Board. (vii) That the further case of the petitioner is that through order dated 29.6.2002 (Annex. 6) passed by the Secretary of the Board (respondent No. 2), his services were again terminated with effect from 30.6.2002. (viii) Further case of the petitioner is that the petitioner is regular employee of the Board and his services are governed by the provisions of the Rajasthan State Agriculture Marketing Board (Service) Bye -laws, 1977 (hereinafter referred to as the Bye -laws of 1977) which were framed while exercising the powers conferred by Class (G) of Section 22 -L of the Rajasthan Agricultural Produce Markets Act, 1961 (hereinafter referred to as the Act of 1961). The petitioner is working since 1977 and he is a confirmed employee and, therefore, the provisions of Act of 1947 are not applicable in the case of petitioner and petitioner cannot be treated to be workman and if the petitioner was declared surplus, he is required to be absorbed in any Department because Rajasthan Service Rules, 1951 (hereinafter referred to as the Rules of 1951) are applicable to the employees of the Board as per the Byelaws of 1977 and therefore, services of the petitioner are required to be absorbed if he was declared surplus and there is no question of terminating the services of the petitioner under the provisions of Section 25 -F of the Act of 1947 and therefore, the impugned order dated 29.6.2002 (Annex. 6) passed by the respondent No. 2 (Secretary of the Board) is bad in law and is liable to be set aside. (ix) That the further case of the petitioner is that on 30.3.2002, the Board issued an order that if the employees working on the post of Road Roller Driver were ready to be absorbed on the post of class IV employee, then they might give their consent and accordingly, the petitioner had already submitted his consent to be absorbed on class IV post. A copy of order dated 30.3.2002 is market as Annex. 7. From this point of view also, the services of the petitioner cannot be terminated and atleast he is to be absorbed in the service on the post of Class IV employee. Hence, this writ petition with the abovementioned prayer.
(3.) REPLY to the writ petition was filed by the respondents and the main contention of the respondents is that since in the earlier writ petition filed by the petitioner being S.B. Civil Writ Petition No. 678/98, termination order of the petitioner and some other persons were declared illegal because compliance of Section 25 -F of the Act of 1947 were not made and since in passing the impugned order dated 29.6.2001 (Annex. 6), compliance of Section 25 -F of the Act of 1947 has been made, therefore, now the petitioner cannot say that the impugned order dated 29.6.2002 passed by respondent No. 2 (Secretary of the Board) is bad in law as the order dated 29.6.2002 (Annex. 6) has been passed keeping in mind the observation made by Jaipur Bench of this Court through order dated 11.5.2001. Apart from this as per Rule 2 of the Rules of 1969, absorption in the service can be made only if posts are vacant and, therefore, since posts are not vacant, from this point of view also, the petitioner is not entitled to the relief sought for and this writ petition be dismissed.;