MADAN, J. - (1.) -Petitioner, who is in service of the department of lrrigation Jaipur Zone Government of Rajasthan, Jaipur on the post of Munshi Gr. l since 1. 11. 1977 in pay scale No. 6 of 950-1680 as prescribed for the Work-charged employees who are governed by the Rajasthan Work Charged Employees Service Rules 1964, has filed this writ petition on the grounds inter-alia that notwithstanding his position as Senior Munshi Grade-1 as per his seniority position as reflected from seniority list dated 18. 4. 1991 (Vide Annexure-11) after having been declared permanent Store Munshi Grade-1 in accordance with Work charge Rules, 1964, his candidature for the change of cadre from Store Munshi's to that L. D. C. 's has been ignored by the respondents in contravention of the Rajasthan Subordinate Staff Ru-les, 1957 (for short "the Rules of 1957" ).
(2.) THE case of the petitioner is that after his initial appointment he was made semi permanent work charged employee by order dated 1. 5. 1980 and then was posted at Som Kamble Amba Project, Dam-Sub-Division Dungarpur, but the respondents have been taking work from him on the post of Lower Division Clerk in the recruitment cell because he did also possess the requisite academic qualification. It is also his case that pay scale of 950-1680 prescribed for Munshi Gr. l work charged imployees is equal to the pay scale of Lower Division Clerk and therefore, Devi Singh, respondent No. 5 who was initially appointed as work charged employee in May, 1982 as Munshi Gr. II in pay scale of 800-1250 (scale No. 3) in the office of the Additional Chief Engineer of lrrigation, Jaipur Zone, was appointed by order dated 1. 11. 1990 (Annex. 5) on the post of Lower Division Clerk in pay scale of 950-1680 at basic pay of Rs. 950/-by the department -respondents, whereas he was not appointed as Lower Division Clerk despite the fact that he was senior to Devi Singh. THE petitioner has prayed for quashing of appointment order dated 1. 11. 1990 (Annexure 5) of respondent No. 5 declaring it null & void and against that post, the petitioner has claimed his appointment as LDC w. e. f. 1. 11. 1990 alongwith seniority. THE contention of the petitioner is that his candidature was ignored by the respondents in making selection and giving appointment to respondent No. 5 and two others namely; Madan Lal Choudhary and Mahaveer Singh Poonia who were both appointed as L. D. Cs vide (Annexure-10) dated 2. 7. 1991. In para 5 of the writ petition the petitioner has averred that by order dated 18. 12. 90 (Ann. 4) he was declared as surplus. In reply to this para, the respondents have contended that the petitioner has made false averments in para 5 of his writ petition. Thereupon the petitioner moved an application for deletion of this para 5 which was allowed by order of this Court on 14. 9. 93. The petitioner placed reliance on the Notification dated 18. 12. 1989 whereby the amendment has been made in the Engineering Subordinate Services Rules in the Schedule by adding to Column No. 3 to Rule 6 as under- " that persons employed on work-charged basis in Public Works Department/ lrrigation `indira Gandhi Nahar Board' (including Indira Gandhi Nahar Board Command Area Development Department), Ayurved Department and who have put in atleast two years continuous service as on 1. 4. 88 and such other employees who have been working on lower posts in the department and possess the requisite qualifications for direct recruitment to any of the post of Driver, Tra-cer, Foremen, Junior Draftsman, Laboratory Assistant, Lavoratory Attendant etc. may be considered once only for appointment on these posts against direct recruitment quota alongwith fresh names received from open market candidates and upto 50% vacant posts may be filed out of the above categories of work-charged employee and other employees' in relaxation of age limit prescribed in these rules: Provided they are otherwise found suitable by the selection committee- The concerned appointing authority while inviting applications for direct recruitment to these posts may also invite applications from work-charged employees and other employees working on lower posts in the department possessing the requisite qualifications for the posts. " The petitioner has contended that in gross violation of the Rules, his seniority has been changed qua respondent No. 5 by the respondent lrrigation De-partment because the petitioner since had been appointed much earlier in point of time and had been working in the same zone since 1977, while respondent No. 5 having been appointed subsequently in 1982, could not obviously rank senior to the petitioner. Further respondent No. 5 having never been declared surplus Munshi Gr. II but in gross violation of Rules 4,7 and also in violation of the Circular dated 18. 12. 89, was adjusted on the post of Lower Division Clerk. According to the petitioner, other juniors namely Nanagram and Mahesh Kumar, who were also appointed as Munshi Gr. II in the same Zone much subsequent to the petitioner, have also been appointed on the posts of Lower Division Clerk. Thus, the depart-ment has applied defferent yardstick for the said appointments and the petitioner has been discriminated. The respondents have denied that the petitioner was asked to work as LDC. The case of the respondents is that the cadres of Munshi and Lower Division Clerk are distinct and separate and cannot be equated for consideration of promo-tion or appointment inasmuch as experience certificate (Ann. 3) does not show the petitioner of having worked as LDC nor can any equation he claimed qua the post of Store Munshi. It has further been contended by the respondents that the respondent No. 5 was appointed in accordance with clause (c) of sub-rule (1) of Rule 7 of the Rajasthan Civil Services Rules after duly undergoing selection process and was not in any way promoted from Munshi Gr. ll to Lower Division Clerk, inasmuch as the process of appointment being through as the process of appointment being through a duly constituted Selection Committee, hence, the relative of candidates who belongs to different cadres, seniority has no relevance because the selection was made in accordance with rules and petitioner cannot have any cause for rais-ing any grievance. The respondents have further contended that the ground of seniority in the cadre of Store Munshi has nothing to do with the application of amended rules by which the post of LDC was open for direct recruitment from other categories to the extent of 50% and otherwise also the seniority of the petitioner cannot be equated with an employee of different division, and according to the am-ended Rules, if any post has to be filled, then it should be from the surplus work charged employees and since the petitioner was never declared as surplus, he was not entitled to take benefit to that admissible to surplus employees. Moreover, the Rules permit appointments of only work-charged employees to the post of LDC and not regular Munshis.
(3.) THE respondents have further contended that though the petitioner was initially appointed for a period of 3 months and thereafter continued in service as per exigency of the work in the projects of the lrrigation Department and he was declared Semi-permanent on the post of Munshi in accordance with Rule 3 (3) of the Rules, 1964, the duties which the petitioner has been performing on the post of Munshi cannot be equated to the post of Lower Division Clerk and hence the case of the petitioner cannot be equated to that of respondent No. 5 since he was subjected to face selection process and after adjudging his suitability, the selection committee had recommended his appointment on the post of Lower Division Clerk to which he was appointed in accordance with the amended Rules. I have heard the learned counsel for the parties at length and carefully considered the contentions and material on record besides the relevant rules. Admittedly the petitioner is a semi-permanent work charged employee of the lrrigation Department of the State since 1. 5. 1980 and ever since then has been continuing in service. Being work charged employee, his services are governed by the Rajasthan PWD (B&r) including Gardens, Irrigation, Water works and Ayurvedic Departments Work-charged Employees Service Rules, 1964 (for short "rules of 1964"), which were framed for regulating recruitments and conditions of service of the work-charged employees of the aforesaid departments including lrrigation Department. The Work-charged Employee Rules have been repealed by the Raja-sthan PWD (B&r) including Gardens, lrrigation, Land Development (Programme) Circle CAD Chambal Department, Kota (including its Division/sub-Divisions) Water Works, Ayurvedic & Forest Department (excluding Departmental Operation Circle) Work-charged Employees Service (Repeal) Rules 1995 which came into force w. e. f. 17. 2. 95 as published in Rajasthan Gazette Extra Ordinary 4 (g) (1) dt. 21. 2. 95. However, under proviso to Rule 2 of the aforesaid Repeal Rules of 1995 the existing Work-charged employees shall continue to be governed by the Rules so repealed till their retirement or absorption/ appointment on regular posts in any other department of the State Government. Thus by virtue of proviso to Rule 2 of the afore-said Repeal Rules of 1995, the petitioner being existing work-charged employee would continue to be governed by the Work-charged Employees Rules of 1964 till his retirement or absorption/appointment on a regular post in any of the aforementioned departments of the State Government. ;