Arun Madan, J. - (1.) The grievance of the petitioner in this writ petition in short is that he was initially appointed as a class IV employee in the Directorate of Tourism Arts and Culture Department, Government of Rajasthan, Jaipur w.e.f. 10.9.1992 and was fixed in the basic pay of Rs. 275/- p.m. on consolidated basis and till the date of his termination i.e. 23.8.1993 he continued in the same pay scale in the said department.
(2.) The petitioner has challenged the impugned order of termination Annexure 1, dated 23rd August, 1993 on the ground that notwithstanding the-fact that he was discharging his duties satisfactorily but vide impugned order referred to above two persons, namely, Prehlad and Ishaq Mohammed, referred to m Annexure-1, who were also class IV employees in Irrigation Department, Government of Rajasthan, were declared surplus by the said department and were absorbed in the tourism department in pursuance of the aforesaid order as a result of which the services of the petitioner were terminated on the pretext that since the said two employees of the irrigation department had been declared surplus and they were absorbed in the tourism department by the respondent subject to the same terms and conditions as in their department, the petitioner being a temporary appointee was to be terminated. It has further been contended by the petitioner that as per the scheme of the Rules of 1988 (Policy for initially appointment Rules, 1988) (hereinafter referred to as the 'Rules of 1988') it is emphatically clear with regard to filling up of the vacancies of class IV employees in the department, all those part-time employees who were working as class IV employee shall be given priority for the purpose of appointment to the said post. It has further been contended that in the instant case the petitioner had been working as class IV employee since 10th September, 1992 and as such there was every possibility for the respondent to have explored his termination and absorption on the said post, but on the contrary in the garb of impugned order dated 23rd August, 1993, since the other two above- named class IV employees belong in, to irrigation department were declared surplus by the said department and they had to be absorbed with the respondents, the services of the petitioner stood terminals d vide the impugned order Annexure 1, as referred to above. It has further been contended that there are other class IV employees in the office of the respondents appointed on regular basis and are drawing salary in the regulate pay scale; whereas the petitioner has been deprived of all these-benefits as a result of the impugned order referred to above. Under the aforesaid circumstances (lie petitioner had earlier filed a writ petition in this court vide S.B. C.W.P. No. 5298/93 which was disposed of vide order dated 3rd September, 1993 passed by this court as under : "I have considered over the matter. If the absorption is made of the regularly selected candidates then the petitioner cannot have any grievance, but if similarly situated persons are absorbed then the petitioner cannot be asked to make room for them. These are the factual aspects and could be considered by the respondents themselves. The writ petition is disposed of with the above direction that if the persons absorbed are regularly selected, they can be absorbed against the vacancies existing in the department and if those persons are similarly situated with the petitioner then the petitioner may be adjusted." The petitioner has further contended that he had duly served the afore ;aid order on the respondent passed by this court but no action was taken by the respondent and as a consequence of which he filed a contempt petition and this court has passed the following order on the said petition : "From the judgment passed and the grievance now shown, it does a not appear that any deliberate non-compliance of the order of this court has been made by the respondent. The proper course for the petitioner is to - approach the respondent that two persons from the Irrigation Department have not joined and therefore, they should review their earlier order. Since it is not a case of non-compliance of the order of this Court the contempt petition is dismissed." The petitioner has further contended in this regard that in pursuance to the order, dated 17th July, 1993 and 23rd August, 1993 since the above-named two persons who were declared surplus by the Irrigation Department had not joined the respondent department and since the two posts of class IV employees were admittedly lying vacant in the department, respondent No. 3 was duty bound to call upon the petitioner to resume his duties as a class IV employees, since the impugned order, dated 23rd August, 1993 on the basis of which the services of the petitioner were retrenched, had lost its very purpose on absorption of the aforesaid two surplus employees. Thereafter even on the basis of orders dated 3rd September, 1993 passed by this court in S.B.C.WE No. 5298/93 and the order passed in contempt petition which have been referred to above, the respondents did not bother to either call upon the petitioner to resume his duties as a consequence of which the petitioner was left with no option but to file the present writ petition in this court on 17.1.1994.
(3.) During the course of hearing learned counsel for the petitioner, Shri Virendra Lodha, has assailed the impugned order, dated 23rd August, 1993, on the grounds inter-alia that the impugned action of the respondents in absorbing the other two surplus employees of the irrigation department is ex-facie illegal, arbitrary and unreasonable and mounts to a clear violation of the provisions of Arts. 14 & 16 of the Constitution of India. It has further been contended in this regard that from the bare reading of the impugned order it is clear that all those part-time employees who were working on the said posts were to be given priority for the purpose of appointment and in the instant case by not giving regular appointment to the petitioner as a class IV employee since he was discharging his duties regularly with the department since 1992 is a clear contravention of the scheme of the Rules of 1988, as such the impugned order (Annexure 1) is not sustainable and deserves to be quashed and set aside.;