- (1.) THIS special appeal is directed against the judgment dated 8-2-95 passed by the learned Single Judge, by which the learned Single Judge allowed the writ petition filed by petitioner Mangi Lal RLW 1995 (1) Raj. 112 and directed the appellants to fix Mangi Lal on the pay of Rs. 540/- from 16-2-84 and give him all the necessary benefits which he is entitled to get. The appellants were further directed to pay the arrears of salary to petitioner Mangi Lal within three months from the date of the judgment.
(2.) RESPONDENT Mangi Lal's father late (Shri) Jetha Ram died on 20-9-77 while he was working as the Pump Driver in the Public Health and Engineering Department, Bikaner. RESPONDENT Mangi Lal, under the provisions of the Rajasthan (Recruitment of the Dependents of Government Servant Dying while in Service) Rules, 1975 (for short, `the Rules, 1975'), on compassionate ground, was given appointment as Store Munshi on work charge basis vide order dated 7-10-78. On 25-6-81 he was granted semi-permanent status on this post. After the grant of semi-permanent status, Mangi Lal moved an application on 20-10-81 that as per his qualification he should have been given appointment on the post of Lower Division Clerk. This request of Mangi Lal was acceeded to and he was appointed as Lower Division Clerk vide order dated 6-8-83. This order dated 6-8-83 appointing Mangi Lal on the post of Lower Division Clerk was later on cancelled vide order dated 30-9-83. The matter was agitated before the higher authorities by Mangi Lal as well as by the Employees' Union and ultimately on 16-2-84 he was again appointed as Lower Division Clerk on substantive basis. The appellant, as Store Munshi, was drawing the basic pay of Rs. 540/- per month in the pay scale of Rs. 490-840/- when he was appointed as Lower Division Clerk. As Lower Division Clerk his basic pay was fixed at the lowest scale of the post of Lower Division Clerk, i. e. , at Rs. 490/ -. The petitioner made a representation to the authority to fix his pay at the minimum of Rs. 540/- which he was drawing as Store Munshi but this request of Mangi Lal was not acceeded to and, therefore, he filed the writ petition. The writ petition was opposed by the respondents on the ground that the appointment of the petitioner-respondent as L. D. C. was fresh appointment and as such he is entitled for the minimum of the pay scale applicable to a Lower Division Clerk. The Learned Single Judge allowed the writ petition by His judgment/order dated 8-2-95, as stated above. It is against this judgment that the appellants have filed this special appeal. It is contended by the learned counsel for the appellants that Mangi Lal was given a fresh appointment on the post of Lower Division Clerk vide order dated 16-2-84 and his fixation of pay was made accordingly. Prior to his appointment as L. D. C. , Mangi Lal was working as Store Munshi on work charge basis. Rule 2 (g) of the Rajasthan Service Rules, 1951 (for short, the Rules, 1951') excludes the applicability of the Rules, 1951 to the work charge employees and, therefore, the case of Mangi Lal was not covered under rule 26 of the Rules, 1951 and the services rendered by Mangi Lal as work charge employee cannot be considered for the purpose of fixation of his pay. It has, also, been contended by the learned counsel for the appe- llants that no judgment contrary to the statute can be passed unless the statute itself is challenged and struck down. In support of his contention, learned counsel for the appellants has placed reliance over: D. N. Agrawal and another vs. State of Madhya Pradesh and others (1), the District Recruit Class II Engineering Officers Association and others vs. State of Maharastra and others (2), Union of India and another vs. Prof. S. K. Sharma (3) and A. R. Antuley vs. R. S. Nayak and others Learned counsel for the respondent, on the other hand, has supported the judgment passed by the learned Single Judge and submits that the appointment given to the respondent-petitioner was given under the Rules of 1975 and was always to be treated as regular appointment though in the order it was mentioned that the appointment is on a work-charge basis but it was in the regular pay scale and was against a permanent vacancy. The appointment was made under the rules framed under the proviso to Article 309 of the Constitution of India and, therefore, in a sense it was a substantive appointment on a permanent post and the petitioner is entitled to be fixed as per category `a' of rule 26 of the Rules, 1951. In support of his contention, learned counsel for the respondent has placed reliance over: Baleshwar Dass and others vs. State of Uttar Pradesh and others (5), Bhanwar Lal Malakar vs. State of Rajasthan and others (6) and Sarwan Singh Mann vs. Union of India and others It is, also, contended by the learned counsel for the respondent that rule 26 of the Rules, 1951 envisage continuity in service and as such his previous service of five years cannot be taken away merely because he worked on work-charge basis. His further contention is that though for the purpose of seniority his previous service can be excluded but for all other purposes, i. e. , for the grant of pension and fixation etc. , the past service rendered by Mangi Lal as work-charge employee cannot be taken away. In support of his contention learned counsel for the respondent-petitioner has placed reliance over: Union of India and others vs. Deep Chand Pandey and another (8) and Ismail Khan vs. State of Rajasthan and another We have considered the submissions made by the learned counsel for the parties. The learned Single Judge, while allowing the writ petition held that the work-charge employees are, also, government servant and, therefore, their appointments to another service cadre or department shall be covered under rule 26 of the Rules, 1961.
(3.) THE first question which requires consideration is: whether the appointment of the respondent-petitioner was on work-charge basis or a permanent appointment? It is true that the respondent- petitioner was given appointment on compassionate ground under the Rules, 1975 because his father died while he was in service. To determine the nature of the appointment given to the petitioner what has to be seen is the substance of the matter, the attending circumstances, the mode, manner and the terms of the appointment etc. Mere use of the words in the appointment letter that the appointment was on work-charge basis, will not make the appointment as a temporary, substantive or on work-charge basis. In the present case the petitioner-respondent neither agitated nor pleaded this point in the writ petition nor this was agitated before the learned Single Judge. In the absence of any pleading in the writ petition the issue cannot be decided. THE legality and correctness of the judgment, also, cannot be considered and decided o n the basis of the question which was not raised before the learned Single Judge. Since the petitioner-respondent neither pleaded this issue in the pleading taken in the writ petition nor was it agitated before the learned Single Judge during the course of arguments, therefore, this point cannot be decided in the absence of the material available on record. THE contention, raised by the learned counsel for the respondent, in this view of the matter, is bereft of any substance. The next controversy involved in the present case is: whether the services rendered by respondent Mangi Lal as Store Munshi on work charge basis can be considered under rule 26 of the Rules, 1951 for the purpose of fixation of his pay at the time of his appointment as Lower Division Clerk? It is not in dispute that the appointment of Mangi Lal on the post of L. D. C. was a fresh appointment and at the time of his appointment as L. D. C. he was working as Store Munshi on work charge basis in the office of the Superintending Engineer, P. H. E. D. , Bikaner. Rule 2 of the Rules, 1951 states that these Rules shall apply to all persons appointed by the Government of Rajasthan to the posts or services under its administrative control or in con- nection with the affairs of the State. Clause (g) of Second provosto rule 2 of the Rules, 1951 states that these Rules shall not apply to the work- charge employees, that is, the persons who are not on regular establishment and are paid out of provisions for expenditure on works, maintenance of works, or State Trading Schemes and similar other provisions for funds, other than provisions under Budget Unit of appropriation "pay of Officers" and "pay of Establishment. " Rule 26 of the Rules, 1951 provides that a government servant already serving in one service, cadre or department, who is appointed to another service, cadre or department by direct recruitment or special selection (including transfer other than by deputation, from one service, cadre or department, to another) and not by promotion according to Service Rules, shall have his initial pay fixed according to the Table given in rule 26 of the Rules, 1951. For the purpose of fixation of the initial pay on new post, as per rule 26, the last pay drawn on old post only in three categories of the cases has to be considered. The categories of the old posts which are mentioned in Table appended to rule 26 of the Rules, 1951 for consideration of the fixation of the initial pay on the new posts are:- Category Last pay on old post. (a ). Substantive on a permanent post and not officiating ona higher post. (b) (i) substantive on a lower post but officiating on a higher permanent or temporary post in the same service, cadre or department provided that such officiation was in accordance with the provisions of Service Rules relating to promotion, promulgated under proviso to Article 309 of the Constitution. (ii) Temporary on a permanent or temporary post, provided that appointment was made by direct recruitment, promotion, special selection. Emergency recruitment or as a part of initial constitution of a service or cadre in accordance with provisions of the Service Rules relating to recruitment, promotion and initial constitution promulgated under proviso to Article 309 of the Constitution. (iii ). Temporary on a permanent or temporary post, provided that if there are no service rules promulgated under proviso to Article 309 of the Constitution and the post was within the purview of the R. P. S. C. appointment was made on the advice of the R. P. S. C. (iv) Temporary on a permanent or temporary post, provided that appointment had been made in the process of absorption of persons declared `surplus' due to abolition of posts, and that pay drawn on the abolished post was of the type described in paragraphs (a), (b) (i), (b) (ii) and (b) (iii) above. (c) (i) Temporary on a permanent or temporary post having been appointed ad hoc, without following the procedure laid down in the Service Rules promulgated under proviso to Article 309 of the Constitution, or the Rajasthan Public Service Commission (Limitation of Function) Regulation and Government Instructions issued thereon. (ii ). Temporary on a permanent or temporary post, having been appointed in the process of absorption of persons declared `surplus' due to abolition of post but pay drawn on the abolished post was not of the type described in paragraphs (a), (b) (i), (b) (ii) and (b) (iii) above. (iii ). Temporary on a permanent or temporary post, appointment to which is not regulated by any Service Rules promulgated under proviso to Article 309 of the Constitution and which is also not within the purview of the Rajasthan Public Service Commission. (iv ). Temporary on a permanent or temporary post other than the type described in paragraphs (i) to (iii) above. Rule 2 (iii) proviso (g) clearly states that these Rules will not apply to work charge employees. For the applicability of rule 26 the person must be holding a post on substantive, temporary or ad hoc basis and the post must be permanent or a temporary on a regular establishment. This rule though prescribes for consideration of the service of the substantive or a temporary employee or ad hoc employee on permanent or temporary post but nowhere envisages the service of the work charge employees who are covered by the Work Charge Employees (including P. W. D. (B&r), Garden, Irrigation, Water Supply and Ayurvedic)', Rules, 1964. Though the word `substantive', `temporary' or `ad hoc' has been included in the various categories for the purpose of fixation of the pay but the cases of the work charge employees have not been included in the Rules, rather they have been specifically excluded by rule 2 (iii) proviso (g ). The work-charge employees are not the employees on regular establishment. They are paid out of the provisions for the expenditure on works, maintenance of works, or State Trading Schemes and similar other provisions for funds other than the provisions under budget unit of appropriation `pay of officers' and `pay of establishment'. The work charge employees are not the persons on the regular establishment of the State Government and as per rule 2 (iii) proviso (g) of the Rules, 1951 are not applicable to the work charge employees, therefore, for the purpose of fixation of the pay, the service rendered by the employees as work charge employee cannot be taken into consideration. He is not a permanent, temporary or ad hoc employee in any cadre. ;