AGRAWAL, C. J. - (1.) RAJASTHAN State Electricity Board, (for short 'board') and its Assistant Engineer (for short 'ae') have filed this Special Appeal under Section 18 of the RAJASTHAN High Court Ordinance against the judgment and order dated 25th Oct. 1990 passed by learned Single Judge in S. B. Civil Writ Petition No. 647 of 1989. The writ petition was allowed with costs of Rs. 1000 to the respondent with a direction to the appellants to give appointment in class IV to the respondent w. e. f. 9. 5. 1989 with all consequential benefits.
(2.) THE respondent, Ashok Lal, alleged in the writ petition that he was appointed as an Orderly vide order dated 15. 6. 1982 by the Assistant Engineer (O&m), RSEB, Bikaner (Annexure 1 to the writ petition), on a monthly salary of Rs. 240. He had been working continuously at the residence of Sri A. K. Sharma, AE. He prayed the Board to increase his salary and regularise his services from time to time but to no avail and aggrieved, he filed the aforesaid writ petition. The writ petition was contested by the Board denying the claim of the petitioner. The appellants alleged that the respondent was employed as a domestic servant as the Board provided facility to its officials to engage an Orderly at their residence of his own choice at a consolidated wages of Rs. 240 per month. As Sri A. K. Sharma ,ae was entitled to such facility, he engaged the respondent as his domestics servant vide his order dated 15. 6. 1982. There was no 'master and servant' relationship in between the respondent and the Board. However, vide order dated 9. 5. 1989, Annexure R-l/2 to the writ petition, the Board took a decision that on satisfactory performance/completion of continuous service of two years by a domestic servant employed by the entitled officials of the Board, he would be recruited as Orderly on regular basis against the sanctioned strength. Though the respondent completed two years continuous service and appeared before a Screening Committee on 13. 9. 1989, but the Screening Committee did not recommend his name for regularisation. Learned Single Judge held that the respondent was an employee of the Board and since the Board was State within the meaning of Art. 12 of the Constitution, the respondent was entitled to the benefits of Articles 38 and 39 for the 'equal pay for equal work. Applying this principle, the learned Single Judge held that in spite of the decision taken by the Board on 9/5/1989 for regularisation of the services of the employees like respondent, he had not been given the benefit. He observed as under : ...[Vernacular Text Ommited]... Sri Ajay Rastogi, learned counsel for the Board produced before us a certified copy of the circular dated 9. 5. 1989 of the Board and relying on paragraph nos. 1,2,3 and 5 of the same, he urged that the respondent was not an employee of the Board and rights and obligations of the respondent are governed by the said circular. He contended that despite bringing this circular to the notice of the learned Single Judge, the same was not taken into account. Having heard learned counsel for the parties, we are of the view that the argument of the learned counsel for the respondent that he was an employee of the Board is not borne out from the facts. What appears is that the Board used to give facility to certain officers to engage a domestic servant. The respondent did not become an employee of the Board. The Board had nothing to do with his appointment. Consequently, a direction for treating the respondent as Board's employee (Orderly) is not called for. The learned Single Judge had given a direction to the effect that the respondent be treated to be an orderly of the Board w. e. f. 9/5/1989. We are of the view that the respondent could not be treated as such without the post being created by the Board. This fact has not been proved on the basis of the record that a post had been created by the Board for the respondent. What was relied upon was Annexure 1 to the writ petition, i. e. an appointment order. This order was issued by the Assistant Engineer as he was entitled to keep a domestic servant on the Board's expenses. So, no benefit could accerue to the respondent under the same.
(3.) ANOTHER fact which needs emphasis at this place is that if the petitioner actually was treated himself to be an employee of the Board, regularly appointed, what prevented him from making any representation before the appropriate authorities? He filed this writ petition on 3/12/1990 whereas he was appointed by the Assistant Engineer on 15. 6. 1982. One fails to understand as to why he did not make such claim before. That being so, the question of Articles 38 and 39 does not come into picture. Mere omission on the part of the Board to produce the result of the Screening Committee, in which the respondent was interviewed would also not clothe him with any right to become a regular employee. Since the direction was confined to the respondent for his benefit and was not of a general nature as was admitted by Sri Joshi, we would not think the present as an appeal but to set aside the direction of the learned Judge. Consequently the appeal is disposed of in the manner indicated above, Only that part of the judgment of the learned Single Judge is quashed in which the appellants are required to pay costs of Rs. 1,000/- to the respondent. Parties shall bear the costs of this appeal. ;