DINESH MAHESHWARI, J. - (1.) THIS intra-court appeal is directed against the order dated 03.03.2009 as passed in CWP No.1787/1998 whereby the learned Single Judge of this Court has accepted the case of the writ petitioner (the respondent herein) against denial of regular pay-scale after having been selected in a regular selection process; and has directed the appellants herein to make fixation of the writ petitioner's pay in the regular pay-scale from the date he joined the services pursuant to the order dated 10.04.1992 and further, to grant him all consequential benefits.
(2.) IN brief, the relevant facts and background aspects of the matter are as follows: The appellant Rajasthan State Road Transport Corporation ('the Corporation' for short), through its Service Selection Board, invited applications under an advertisement number 42/91, as published in the newspaper on 07.04.1991, from the eligible candidates for appointment as driver against 228 anticipated vacancies. The respondent submitted his application in response to this advertisement and was subjected to the process of selection; he was included in the select list as sent by the Service Selection Board; and, thereafter, by an order dated 10.04.1992, he was appointed on the post of driver at Bikaner Depot of the Corporation on daily-rate basis. The said appointment was initially for 6 months but was, admittedly, continued from time to time. The respondent submitted a representation claiming regular appointment on the post of driver from the date of his initial appointment, i.e., 10.04.1992; and ultimately, filed the writ petition leading to the present appeal seeking directions against the Corporation for allowing him regular pay-scale with admissible allowances from the date of initial appointment. The appellants submitted a reply to the petition with the submissions that the advertisement in question was issued only in respect of anticipated vacancies but, for no regular vacancy having occurred during the year 1991-92, the persons selected could not be accorded regular appointment. It was, however, submitted that on availability of temporary vacancies of daily-wages employees, the writ petitioner and alikes were accorded appointment on daily-wages basis for a period of 6 months and the same was extended from time to time. It was also submitted that the Corporation had prepared a scheme for regularization of daily-wages employees wherein it was, inter alia, provided that upon completion of 3 years of service and on availability of regular vacancy, an incumbent would be accorded appointment on probation for a period of one year provided his work, conduct and behaviour was satisfactory; no disciplinary proceeding or complaint was pending against him; and he was not involved in any anti-Corporation activity. While placing on record as Annex.R/1 the said scheme, the appellants contended that the services of the writ petitioner were not satisfactory; that after appointment, he had committed number of misconducts wherefor, charge-sheets were issued to him; and that disciplinary proceedings were pending as specified in Schedule-I to the reply. The appellants contended that on account of pendency of disciplinary proceedings, the writ petitioner was not entitled for regularization of his services in terms of the scheme formulated. However, it was submitted that if the petitioner would be exonerated in the inquiry, his case would be considered for regularization in accordance with the scheme. The petitioner filed a rejoinder contending against the submissions as made in the reply and asserted that no inquiry had taken place in respect of any of the alleged charges. The appellants filed a counter to the rejoinder and attempted to show that certain inquiries had indeed been initiated. The learned Single Judge of this Court dealing with the writ petition observed that the submissions in relation to the conduct of the writ petitioner were not having relevance to the grievance sought to be redressed in the petition; and left such part of the submissions at that only. The learned Single Judge noticed the submissions on behalf of the writ petitioner that appointment was accorded to him consequent to a regular selection process under the said advertisement No.42/91; and that the advertisement itself referred to the pay-scale in which the appointment was to be given and hence, an illegality was committed by the Corporation in making appointment on daily- rate basis. Per contra, it was contended on behalf of the present appellants that all the vacancies referred in the advertisement were in anticipation but, due to non-availability of such vacancies, appointment was accorded to the petitioner on daily-rate basis. The learned Single Judge found the stand of the appellants rather strange because the regular selection process took place and after the process of selection, a penal of selected candidates was forwarded; and the Corporation, acting upon such select list, accorded appointment to the selected candidates including the writ petitioner. The learned Single Judge disapproved the stand of the Corporation, while observing as under:- "It is really strange that the corporation is coming with a stand that no vacancy was available with it, though a regular process of selection took place to employ huge number of Drivers. It is no where stated by the respondents that why the anticipated vacancies did not come into existence. As a matter of fact, the stand taken by the respondents regarding non-availability of vacancies does not bear confidence in view of the fact that as a consequent to process of selection initiated in pursuant to advertisement No.42/91 appointments were given as early as possible after completion of the process concerned. The persons so employed remained in employment of the respondents without any break for years together and are still serving. If the vacancies were not available with the respondent-corporation then there was no need to give appointment to the petitioner and the persons alike. It is also pertinent to note that even according to the respondents the appointments were given against temporary vacancies, however, it is not their case that such vacancies were fortuitous. A vacancy may remain temporary for years together due to fortuitous reason such as non-grant of administrative sanction, therefore, nature of vacancy is required to be determined by various factors including reasons of its creation, its lifespan, mode adopted while filling that etc. If a vacancy is created to satisfy permanent and perennial work of the establishment for an indefinite period, then such a vacancy is nothing but a permanent vacancy, though no formal declaration would have been made in this regard. Such temporary vacancies, on becoming part of the cadre strength are required to be treated as regular vacancies from the date of their coming into existence. The respondents could have made even ad-hoc appointments against these vacancies, but in the instant case the respondents were never intending to do so as that is apparent from perusal of the advertisement No.42/91 that refers for regular appointments in very specific terms. The appointment was given to the petitioner after holding regular process of selection against a post created for indefinite period, therefore, he is required to be treated as a substantive appointee. The petitioner was certainly entitled to be employed in regular pay scale referred in the advertisement No.42/1992 from the date of his initial appointment. No just reason is available to deny the pay scale referred in the advertisement concerned to the petitioner from the date of his initial appointment."
(3.) THE learned Single Judge, accordingly, allowed the writ petition and issued directions as under: - "Accordingly, this petition for writ is allowed. The petitioner is required to be treated as a substantive Driver with respondent-Corporation from the date he joined service in pursuant to the order dated 10.4.1992. The respondents are directed to make fixation of the petitioner's pay in regular pay scale i.e. of Rs.950-1680 from the date he joined service in pursuant to the order dated 10.4.1992. The petitioner shall also be entitled to get all consequential benefits." It is noticed that this intra-court appeal, against the aforesaid order, as passed by the learned Single Judge on 03.03.2009, had been considered earlier before different Benches. On 11.04.2011, a co-ordinate Bench considered the matter and granted time to the counsel for the appellants for obtaining instructions as regards existence of vacancies on the date of advertisement. An additional affidavit was filed thereafter on behalf of the appellants on 14.07.2011 stating, inter alia, that pursuant to the notification No.42/91, ultimately, 63 candidates were found eligible and their names were included in the penal for giving appointment against the anticipated vacancies for the year 1991-92 but, according to the appellants, "none could be given appointment because of non- availability of the anticipated vacancies". It has also been pointed out that a writ petition was filed by the incumbents seeking relief of regularization wherein this Court directed the appellants to consider their case as per the scheme prepared for regularization and pursuant thereto, the case of the writ petitioner was also considered but he could not be regularized. It has also been contended in the affidavit that the earlier writ petition was filed through the Union but the directions applied to each and every candidate including the writ petitioner; and he was not entitled to maintain the second writ petition. It has further been stated in the affidavit that after the notification No.42/91, for the first time, the vacancies were notified on 05.03.2010 and, in between, "neither there was any vacancy nor any advertisement was issued." Another co-ordinate Bench considered this matter on 15.09.2011 and directed the appellants to file the list of all the drivers who were appointed pursuant to the notification No.42/91; and the yearwise position of the vacancies on the post of driver from the year 1991. Pursuant to these directions, another affidavit has been filed on behalf of the appellants on 24.01.2012. Paragarph-5 of this affidavit is reproduced, verbatim, as under:- "5. That this Hon'ble Court on 15.9.2011 directed the appellants to prepare a chart of the year wise vacancies of the drivers occurring from 1991. Hence, in pursuance of the above directions of this Hon'ble court, the position of year wise vacancies of the drivers is submitted in the form of chart as under:- S.No. Period No. of vacancies 1. 1.4.1991 235 2. 31.3.1992 515 3. 31.3.1993 648 4. 1.6.1994 339 5. 1.4.1995 256 6. 1.8.196 (sic) 776 7. 1.3.1997 577 8. 1.4.1998 158 9. 1.2.1999 423 10. 1.2.2000 315 11. 1.4.2001 567 12. 1.7.2002 176 13. 1.3.2003 1126 14. 1.5.2004 153 15. 1.4.2005 135 16. 1.3.2007 377 17. 1.3.2008 441 18. 1.4.2009 549 19. 1.4.2010 727 20. 1.4.2011 1588" ;