VERMA, J. - (1.) THESE two appeals raise questions Of vital importance for Hand Pump Mistries engaged in repairs and maintenance of hand-pumps through out the State of Rajasthan. By consent of all concerned, they have been heard together and are being disposed of by a common order.
(2.) POTABLE water is the prime necessity for any human civilization to survive. Public Health Engineering Department (for short PHED) was initially charged with the duty of supplying neat and clean drinking water in the State. Hand Pumps were installed throughout the State for this purpose. These hand pumps were being repaired and maintained by the PHED. However, the PHED did not find it convenient and feasible to maintain and repair these hand pumps in the far flung rural areas. By virtue of Sec. 23 (2) of Raj. Panchayat Samitis and Zila Parishad Act, 1959 (for short the Act) read with entry 4 (iii) of the Schedule to the Act, 'provision of drinking water facilities' was one of the functions with which Panchayat Samitis were charged. Eventually, repair and maintenance of hand pumps in the rural areas was entrusted to the care of Panchayat Samities. How this was done, we shall notice shortly. The Act by virtue of Sec. 31 read with Rajasthan Panchayat Samitis and Zila Parishad Rules, 1959 (for short the Rules) provided for the staff of the Panchayat Samitis. By virtue of said section 31, the State Government was empowered to fix the strength of each category of posts for each Panchayat Samiti. It was also empowered to prescribe the pay scales and other conditions of service for such staff. By virtue of Rule 4 of the Rules as many as eighteen categories of posts were provided in the staff of Panchayat Samitis. Sub Rule (2) of this Rule empowered the State Government to en-cadre 'any other category of post in the service excluding class IV posts. ' It appears that on 15h August, 1979, the Government of India launched 'the National Scheme of Training of Rural Youth for Self Employment', popularly known as TRYSEM. The main objective of this Scheme was the training of rural young in the 18-35 age group from the target group of families living below poverty line. The training was provided in technical skills to enable them to take up self employment in different vocations. The details of this Scheme are contained in a publication issue by the Rural Development Ministry of the Government of India published in the month of April, 1991 under the title *** Part II of this book deals with the said Scheme TRYSEM. We need not encumber this judgment by reproducing the details of the Scheme. Suffice it would to say, that under the Scheme rural youth were to be provided training in different technical trades so that they could after training, engage themselves in self employment and may play a useful role in the rural society, to which they belonged. The Government of Rajasthan, being anxious to provide good drinking water to the rural public as also to uplift families living below poverty line, among other things, arranged for training of rural eligible youth as hand pump mistries. The Training was provided at various Industrial Training Institutes. The Government provided stipend/honoraria to the trainees. Provision was made for making loans/subsidies available to trained persons so that they could engage themselves in self-employment and may become useful citizens. We may state that the Government at no point of time thought of employing whole-time hand pump mistries, nor it ever thought of encadring the posts of hand pump mistries in the categories of the staff of Panchayat Samitis. However, it took a policy decision to hand over the maintenance and repairs of hand pump in rural areas to Panchayat Samitis within their respective jurisdiction. Panchayat Samitis were empowered to engage duly trained hand pump mistries for this purpose on contract basis. This was initially done by an order issued by Medical and Public Health Engineering Department being No. 14 (II) Group (4) 82 dated 8. 6. 82. A policy document was issued by the Government of Rajasthan in this regard on 12. 8. 83 being F. I (13) RDP/and-2/part II uothou /83/524 under caption "***".
(3.) THIS document noticed that the PHED was not in a position to discharge the heavy responsibility of maintaining the hand pumps. It then said that Panchayat Samitis could be entrusted with this duty. Persons trained under TYRSEM Scheme could be utilized for this purpose. Panchayat Samitis shall be responsible for selection, training and appointment of hand pump mistries. They shall also be responsible for payment of their honoraria. It then added that such hand pump mistries should not be treated as government employees. It said that hand pump mistries would be appointed on part time basis on contract and Panchayat Samitis could entrust at least 30 and at most 40 hand pumps to one person for repairs and maintenance. It was for each Panchayat Samiti to fix up territorial limits within which each hand pump mistry was to function. The document further stated that each hand pump mistry would be free to carry on his personal business besides the repairs and maintenance of hand pumps. For each hand pump, a hand pump mistry was to be paid Rs. 150/-annually. Out of this amount Rs. 100/- was payable as remuneration and Rs. 50/- were payable on account of purchase of spare parts, used for repairs. If any savings were to be there against this head, the balance was to belong to the hand pump mistry! It was stipulated that if any hand pump mistry was found absent from his area, deductions could be made from his remuneration for the period he was absent. In case, any hand pump mistry even after reprimand and explanations being called did not perform his duty satisfactorily, his engagement could be terminated. It was reiterated that hand pump mistry was not a government servant and State was under no obligation to provide him with any post. Certain other stipulations were also made in this policy document, which are not germane to the matters in hand. It appears that different circulars were issued by the Rural Development Department of the Government of Rajasthan. By a Circular dated 8. 1. 1986, the amount of Rs. 150/- was enhanced to Rs. 200/-, out of which Rs. 67/-were to go towards purchase of spare parts. By a circular dated 5. 2. 87, it was inter alia provided that total remuneration payable annually to a Hand Pump Mistry was not to exceed Rs. 8000/- even if he was entrusted with more than 40 hand pumps. By another circular dated 12. 11. 87, this position was inter alia reiterated. It was added that if repairs of any hand pump required assistance of a fitter for this purpose, the hand pump mistry concerned could take such assistance of a fitter. By a circular dated 16. 12. 87, it was stipulated that if there was any saving out of Rs. 67/- allotted for purchase of spare parts, the money shall belong to the concerned hand pump mistry. By another circular dated 23. 4. 88, a ceiling of Rs. 5320/- was imposed for repairs and maintenance of 40 hand pumps. It was inter alia reiterated that if any hand pump mistry was absent from his area and a hand pump needed repairs, the same could be got repaired by another mistry; a deduction from remuneration payable to the hand pump mistry of the area could be made and the mistry actually repairing the pump could be paid out of the said deductions. Gram Panchayats were charged with overseeing of the performance of the hand pump mistries of their respective areas. By a circular dated 27. 9. 88, it was inter alia provided that if any hand pump mistry was summoned to Panchayat Samiti Head Quarter, he could be paid actual fare plus Rs. 10/- per day as daily allowance but no hand pump mistry could be called for more than three such meetings in a month. However, posts of hand pump mistries were neither created in any Panchayat Samiti nor such posts were ever encadered in the staff of Panchayat Samitis. It appears that hand pump mistries eventually started claiming status of an employee of the concerned Panchayat Samiti; they claimed regularisation with regular pay scales and other allowances as admissible to hand pump mistries under PHED. The concerned Panchayat Samitis and the Government did not accede to this request. This culminated in a batch of writ petitions being filed at the Jaipur Bench of this Court in which petitioner-hand pump mistries inter alia claimed that they were employees of concerned Panchayat Samitis and were serving for long periods and were entitled to regularisation. They also claimed regular pay scales. The writ petitions were opposed on behalf of the State and the concerned Panchayat Samitis. This batch of writ petitions being S. B. Civil Writ Petition No. 4556 of 1990 Radhey Shyam Dhobi vs. State & Others and other connected writ petitions came to be decided on 20. 8. 1991 by a learned single Judge of this Court at Jaipur. The writ petitions were partly accepted and the claim of the petitioners that they were employees of the concerned Panchayat Samitis was accepted and order for regularisation of their services were made. Of course, the claim of grant of pay scale as comparable to Hand Pump Mistries in other departments was negatived. This order was assailed before a division bench of this Court at Jaipur in D. B. Special Appeal No. 464 of 1991 State of Rajasthan vs. Hand Pump Mistries Union. This Special Appeal was dismissed on 24. 10. 91 and the order of the learned Single Judge was upheld. It was held that services of Hand Pump Mistries were not contractual and they were entitled to regularisation of their services. It does not appear that the State challenged this judgement of the division bench by filing SLP before the apex Court. The order of the division bench at Jaipur thus, appears to have attained finality. We were told at the bar that inspite of this judgement, no regularisations were made and the things stand, as they were. ;