- (1.) This writ petition under Article 226 of the Constitution of India has been filed by the petitioner against the respondents on 21.10.1999 with the prayer that by an appropriate writ, order or direction, the respondents be directed to regularize the services of the petitioner on the post of Junior Engineer (Diploma) Civil with effect from 1.3.1997.
(2.) The case of the petitioner as put forward by him in this writ petition is as follows : The petitioner passed Diploma in Civil Engineering from Vidhya Bhawan Rural Institute, Udaipur in the year 1986 and a copy of the certificate is marked as Annexure 1 and he has also got man-power registration in the year 1987, which was as such renewed upto June 2000 as is evident from certificate Annexure 2. The case of the petitioner is that he was appointed on the post of Junior Engineer-cum-Supervisor on 1.3.1997 at Devli Talab under Panchayat Samiti, Salumbar and, thereafter, he was working continuously on the said post and he was paid wages according to the rate prescribed under B.S.R. 1996 or at the rate of Rs. 120/- per day. The further case of the petitioner is that for the period from 1.3.1997 to February, 1998 he was being paid wages according to muster roll as he had worked in different programmes conducted by the Panchayat Raj Department. The further case of the petitioner is that thereafter, the Development Officer, Panchayat Samiti, Salumber (respondent No. 5) vide order dated 2.3.1988 (Annexure 3) granted sanction in favour of the petitioner for the post of Supervisor on the basis of job cards and the petitioner was directed to work under the guidance of Junior Engineer on Enikato Construction Work. According to the petitioner, thereafter, he was continuously working on the post of Supervisor-cum-Junior Engineer on the basis of job cards and copies of some of the job cards are marked as Annexure 4 and 5 respectively and as per job cards, wages were given to him according to BSR 1996 or at the rate of Rs. 120/- per day. The further case of the petitioner is that he had worked under the respondent-Department on the basis of job cards upto 31.12.1998 and thereafter, he was again appointed on the basis of muster roll from 1.1.1999 and thereafter, he was continuously working on the post of Supervisor-cum Junior Engineer at different places at different works conducted by the respondent No. 5 Panchayat Samiti, Salumber under the Junior Engineer of the Panchayat Samiti, Salumber. The details of work done by the petitioner from 1.1.1999 are marked as Annexure 6. The further case of the petitioner is that though he was continuously working on the post of Supervisor-cum Junior Engineer since 1.3.1997 satisfactorily, but despite that, he was not given the regular pay scale of Junior Engineer and he was only paid Rs. 120/- per day according to BSR 1996. The further case of the petitioner is that one post of Junior Engineer was lying vacant in the respondent-Department and since he has been continuously working with the respondent Department satisfactorily, therefore, he has a preferential right to that post of Junior Engineer and thus, he made a request to the respondent-Department for regularizing his services on the said post of Junior Engineer (Civil). However, the same was not accepted by the respondents and according to the petitioner, by not accepting his request regularization, the respondents had acted arbitrarily and their action is wholly illegal and that has infringed his legal right, which had accrued in his favour stated above. During the pendency of this writ petition, the petitioner has filed second stay application on 19.5.2004 stating that services of the petitioner on the post of Junior Engineer were not regularized by the respondents on the pretext that no vacancy was available, but on the contrary, through advertisement Annexure 11 dated 21.2.2004, the respondents are going to fill in up 170 posts of Junior Engineer (Civil) and therefore, a further prayer was made by the petitioner that operation of the advertisement Annexure 11 dated 21.2.2004 bye stayed. Thus, in this writ petition, it can be said that the petitioner has made two prayers : (i) That the respondents be directed to regularize the services of the petitioner on the post of Junior Engineer (Civil); and (ii) That operation of the advertisement Annexure 11 dated 21.2.2004 by which 170 posts of junior Engineer (Civil) were advertised for direct recruitment, by stayed. A reply to the writ petition was filed by the respondents and their case is that the petitioner was never appointed on the posts of Junior Engineer and therefore, to say that he was working on the post of Junior Engineer continuously is absolutely wrong. It has been further submitted by the respondents that each Gram Panchayat is a separate unit and the petitioner cannot be permitted to take benefit of the Job Cards given to him by the respective Gram Panchayat so as to claim regularization. Furthermore, the payment, which was made to the petitioner, was made as per rate mentioned in BSR and he was engaged on the basis of Job Card and he was working under the supervision of Junior Engineer. Since the petitioner was never appointed as Junior Engineer (Civil), therefore, he was not entitled to claim regularization on the said post of Junior Engineer (Civil) and his request for regularization was rightly rejected by the respondents. Hence, no interference is called for and this writ petition deserves to be dismissed. On second stay application, it has been submitted by the respondents that through advertisement Annexure 11 dated 21.2.2004, 170 posts of Junior Engineer (Civil) were advertised under the provisions of the Rajasthan Rural Development and Panchayati Raj State and Subordinate Service Rules, 1998 (hereinafter referred to as "the Rules of 1998"). It has been further submitted by the respondents that in case the petitioner feels that he was eligible and fulfils the requisite eligibility criteria/conditions as mentioned in the advertisement Annexure 11, he could have applied for appointment to the posts of Junior Engineer (Civil). If the petitioner does not fulfil the requisite eligibility conditions as mentioned in the advertisement Annexure 11, for that the respondents cannot be held responsible. Hence, the second stay application also deserves to be dismissed. A rejoinder to the reply filed by the respondents was also filed by the petitioner and it has been submitted by the petitioner that since he was continuously working with the respondents on the post of Junior Engineer, therefore, his claim for regularization should have been accepted by the respondents and so far as the eligibility conditions as mentioned in the advertisement Annexure 11 are concerned, it has been submitted by the petitioner that he had crossed the age and therefore, he was not eligible to apply for the post of Junior Engineer (Civil) in pursuance of advertisement Annexure 11 and since one post of Junior Engineer (Civil) was laying vacant in the respondent-Department, therefore, case of the petitioner for regularization on that post should have been accepted by the respondents and by not doing so, legal right of the petitioner has been infringed.
(3.) I have heard the learned counsel for the petitioner and the learned counsel for the respondents and gone through the record of the case.;