- (1.) This writ petition has been filed by petitioner-Mangi Lal Gurjar with the prayer that the order dated 5/9/1997 by which petitioner was given appointment by respondent No.2 Branch Manager, Rajasthan Financial Corporation, Tonk for a period of 80 days with the stipulation that thereafter his services shall stand terminated and he should be recommended if any other fresh unit was taken over by the Rajasthan Finance Corporation be quashed and set-aside and the respondents be directed to regularize the petitioner w.e.f. 14/6/1994, the date from which, his immediate junior Mahesh Kumar Bairwa has been so regularized.
(2.) Shri Lokesh Sharma, learned counsel for the petitioner has argued that petitioner was engaged as Chowkidar by the respondents w.e.f. 7/10/1987. His services were abruptly terminated on 31/8/1988. The industrial dispute was referred to the labour court by the appropriate government at his instance to decide the legality of his termination. Labour Court, Jaipur vide award dated 14/7/1997 while declaring his termination order illegal directed his reinstatement with continuity in service along with backwaters but with the direction that he shall be entitled to the salary/wages, which are being paid to the person immediately junior to him or otherwise on daily wage basis. It is contended that presently, the petitioner has been paid as per the daily wages prescribed by the government and since his initial engagement so made on 7/10/1987; petitioner has completed 27 years of service with the respondents. Learned counsel submitted that one Mahesh Kumar Bairwa was appointed on daily wage basis on 1/2/1993 and he was regularized w.e.f. 14/6/1994 and therefore the petitioner should also be allowed regular pay scale and benefit of regularization from that date. Petitioner served a notice for demand of justice on the respondents to that effect but when no response was received, he filed this writ petition. Learned counsel cited Rajasthan Financial Corporation (Staff) Regulations, 1958 (for short, the "Regulations of 1958") published in the Rajasthan Local Laws (Volume XXVI) and argued that the post of Chowkidar was an encadered post, the post of Messenger on which Mahesh Kumar Bairwa was not regularized and therefore stand taken by this court that the post of Chowkidar is not encadered in the Regulations of 1958 is not correct. Learned counsel argued that though the labour court held that petitioner should be granted the wages at par with his immediate junior working with the respondents either on the same post or any other equivalent post and therefore even the post of Messenger should be considered as equivalent to the post of Chowkidar. Petitioner ought to be therefore granted all benefits of regularization from the date Mahesh Kumar Bairwa was granted. Learned counsel for the petitioner has argued that the as per the judgment of the Supreme Court in Secretary State of Karnataka Vs. Uma Devi, 2006 4 SCC 1, the State Government has, by notification dated 27/02/2009, promulgated 'the Rajasthan Class-IV Service (Recruitment and other Service Conditions) (Amendment) Rules, 2009', to consider cases of all such employees who have been working on the post of Class IV and have completed ten years of service on 10/04/2006 so as to regularize them in service and therefore the services of the petitioner are liable to be regularized on the post of Chowkidar.
(3.) Shri R.D. Rastogi, learned counsel for the respondents has opposed the writ petition and submitted that the petitioner was engaged for a specific period as a Chowkidar to guard the factories/industries that are taken over by the Rajasthan Financial Corporation from time to time. Once such units are auctioned/sold, petitioner shifted to another unit so taken over. It is contended that even though benefit of continuity was granted yet the labour court merely directed that petitioner shall be paid on daily wage basis and this is how the petitioner is continued on daily wage basis. Learned counsel denied that the post of Chowkidar is encadered. In support of his argument, learned counsel placed reliance upon Appendix 1 of the Regulations of 1958 amended upto December, 1995 and submitted that Appendix 1 did not contain the post of Chowkidar encadered with the Rajasthan Financial Corporation under the said Regulations. The post of Messenger is included at Sr.No.1 but there is no post of Chowkidar and it is therefore submitted that so far as case of Mahesh Kumar Bairwa is concerned, it is distinguishable for two reasons; firstly, he was engaged against the encadered post even though on daily wage basis therefore if regularized subsequently, petitioner cannot claim parity with his case secondly, petitioner was engaged as a Chowkidar on need basis whenever certain units are being taken over by the Rajasthan Financial Corporation and once those units were auctioned/sold, need ended. Therefore, engagement of the petitioner was not regular in nature. Learned counsel for the respondents argued that the ratio of judgment of the Supreme Court in Uma Deviis not applicable in the present case and case of the petitioner may not be covered thereby because in para 53 thereof, the Supreme Court has held that case of those, who are being continued in service due to intervention of the court order, may not be liable to be considered.;