PANWAR, J. - (1.) THESE four appeals involve common questions of law and facts, therefore, they were heard together and are being disposed of by a common judgment.
(2.) RESPONDENT writ petitioners, viz. , Suresh Chandra filed S. B. Civil Writ Petition No. 4053/94; Badri Narain Vyas and four others S. B. Civil Writ Petition No. 2941/91, Umesh Kankariya S. B. Civil Writ Petition No. 2840/96 and Fateh Singh S. B. Civil Writ Petition No. 2440/94 seeking direction not to terminate their services; for payment of salary in the regular pay scale of Lower Division Clerk (for short `l. D. C. ') with all consequential benefits, to regularise the services and payment of arrears of salary etc. By order dated 16. 1. 97 passed in S. B. Civil Writ Petition No. 4053/94 filed by Suresh Chandra, learned Single Judge allowed the writ petition. S. B. Civil Writ Petition No. 2941/91 filed by Badri Narain Vyas was allowed by the learned Single Judge vide order dated 16. 1. 97 almost by an identical order as was passed in Writ Petition filed by Suresh Chandra. The petition filed by petitioner Umesh Kankariya was disposed of in terms of the order dated 16. 1. 97 passed in Writ Petition filed by Badri Narain Vyas and others. Writ Petition No. 2440/94 filed by petitioner Fateh Singh was allowed vide order dated 16. 1. 97 almost by a verbatim order passed in Writ Petitions No. 4053/94 and 2941/91. The appellant State of Rajasthan challenged the afore-mentioned orders passed by the learned Single Judge in the aforesaid writ petitions. To comprehend the controversy involved in these appeals, suffice it to refer to the facts in State of Rajasthan & others vs. Suresh Chandra & another (1), arising out of the order passed in Writ Petition No. 4053/94 and it is taken as a leading case. Respondent writ petitioner Suresh Chandra averred that he was appointment by the Deputy Commissioner (Administration), Commercial Taxes Department, Udaipur, appellant No. 2, against the existing vacancies on the post of L. D. C. after due interview. Vide letter dated 30. 4. 90, appellant No. 2 informed the writ petitioner that him name has been sponsored by the Employment Officer, Udaipur, for the post of L. D. C. on daily wages. He was called for interview to be held on 6. 12. 89. In pursuance of the interview, the writ petitioner was appointed as L. D. C. vide order dated 18. 12. 89 and was allotted to the office of appellant No. 2. The initial order dated 18. 12. 1989 was extended vide order dated 30. 4. 90 and thereafter from time to time. The writ petitioner has also placed on record the orders issued by appellant No. 2 dated 24. 4. 90, 29. 1. 91, 19. 2. 91 and 11. 3. 91 by which his place of posting was regulated. Claiming himself to be the employee of the principal employer, i. e. the appellants and apprehending termination of his services, the writ petitioner filed writ petition under Article 226 of the Constitution of India before this Court being S. B. Civil Writ Petition No. 4053/1994. A counter was filed by the State/appellant to the writ petition, inter alia, stating therein that the appellant No. 2, by inadvertence, omission and mistake, interviewed the writ petitioner and appointed him on the post of L. D. C. The State sanctioned 12 posts of L. D. Cs. and 12 Guards to be manned on contract basis through the detective agency. A copy of the contract (Ex. R/2) alleged to have been executed between respondent No. 2 Goliath Detectives and appellant No. 2 the Deputy Commissioner (Administration), Commercial Taxes Department dated 11. 12. 1989 was filed. The said contract was extended upto 31. 3. 91 vide letter dated 27. 3. 91 Ex. R/4. It was further averred that Goliath Detectives submitted bill amounting to Rs. 15,681/- for the period from 16. 12. 1989 to 28. 02. 1990 for rendering and providing services of L. D. Cs. @ Rs. 925/- in the office of appellant No. 2 and the same was paid by the appellants. On these premises, the appellants averred that there existed no relationship of employer and employee between the appellants and the writ petitioner as he was engaged through Goliath Detectives and privity of contract for providing 12 persons was between the appellant No. 2 and Goliath Detectives. The writ petitioner filed a rejoinder to the reply filed by the appellants and reiterated the stand taken in the writ petition and seriously disputed the mention of sham contract between the appellant No. 2 and Goliath Detectives. As the writ petitioner was not party to the alleged contract and, therefore, the genuineness of the said contract was disputed. It was averred that the appellants, in order to deny a regular employment to the writ petitioner, manipulated various documents noticed above, including the alleged contract Ex. R/2 between the appellant No. 2 and Goliath Detectives. It was further averred that the documents, specially the contract Ex. R/2 executed between the appellant No. 2 and Goliath Detectives dated 11. 12. 89, which was extended upto 31. 1. 1991 vide order dated 27. 3. 91, was created by manipulation subsequent to the appointment of the petitioner as the said contract is neither stamped nor bears inward or outward number of the said Department. It was averred that the writ petitioner has been paid his salary by appellant No. 2 and as such, there exists the relationship of master and servant between the appellants and the writ petitioner. The writ petitioner relied on a notification issued by the State Govt. dated 12. 10. 1992. It was further averred that though the writ petitioner was appointed on the post of L. D. C. after following the procedure and due selection by the appellant-authority, having his name sponsored by the Employment Officer but suddenly he was informed that the engagement of the writ petitioner is through the agency of Goliath Detectives. According to the writ petitioner, he was appointed on the post of L. D. C. directly by the principal employer, appellant No. 2 and, therefore, the alleged contract with Goliath Detectives is a sham and camouflage. In reality, the writ petitioner was an employee of principal employer the appellant No. 2. It was further averred that the writ petitioner has been discharging the duty of L. D. C. under control of appellant No. 2 and there have been annual performance appraisal reports in respect of the writ petitioner by appellants No. 1 and 2 and, therefore, creating sham intermediate contractor is of no consequence. Writ petitioner filed Annex. 18- a notification issued by the State Govt. dated 12. 10. 92, purporting to amend rule 10 of the Rajasthan Subordinate Offices Ministerial Staff Rules, 1957 (for short `the Rules') and claimed regularisation on the basis of said amendment. The said notification is reproduced hereunder :- " (10) Notwithstanding anything contained in rule 7, all persons appointed as L. D. Cs. on adhoc basis or on daily wages basis during the period from 1. 1. 85 to 31. 3. 90 and are still working as such on the date this amendment comes into force shall be appointed on regular basis on availability of vacancy subject to the condition that they pass a performance test conducted by the head of the department concerned within a period of three years in accordance with the syllabus prescribed in part-IV of Schedule-I. Such persons shall be allowed three chances to pass the said test to be availed within a period of three years. Provided, that if a person fails to pass the said test in three chances to be availed within a period of three years, he shall be liable to be removed from services. " The writ petition filed by respondent writ petitioner Suresh Chandra was allowed by the learned Single Judge by the following order :- " The petitioners placed heavy reliance on notification dt. 12. 10. 1992 according to which they claim that they are entitled to be regularised. Interest of justice would, therefore, be met if these petitioners are allowed and the respondents are directed not to terminate the services of the petitioners till they duly consider their cases for regularisation in accordance with notification dt. 12. 10. 1992 (Annex. 18) page 121 issued by the Government of Rajasthan. In the result, the petitions thus, succeed and are allowed. There will be no order as to costs. "
(3.) AGGRIEVED by the orders of the learned Single Judge noticed above, the appellant State of Rajasthan filed the above noticed special appeals. In these appeals, the question which arises for consideration is : whether the respondent writ petitioners are entitled to be regularised by virtue of the notification dated 12. 10. 92; or the said notification does not apply to the writ petitioners. It is contended by the learned counsel for the appellants that each of the writ petitioners were engaged on contract basis through Goliath Detectives on the consolidated emoluments of Rs. 925/- per month and the emoluments were paid by the appellant State for the persons engaged on contract to Goliath Detectives, as is evident from w Ex. R/2 to Ex. R/15. It was further contended that the writ petitioners had never been appointed by the appellants either on ad hoc basis or on daily wages and the notification dated 12. 10. 92 applies to those L. D. Cs. who have been appointed by the appellants on ad hoc or daily wages basis and have been working till the date of the notification on ad hoc or daily wages basis. Learned counsel for the appellants further contended that before the learned Single Judge, the writ petitioners had relied on the notification dated 12. 10. 92 and the orders impugned are solely based on the said notification which, according to him, does not apply to the writ petitioners. ;