STATE OF RAJASTHAN Vs. PARASMAL MALI

JUDGEMENT

(1.) The instant intra-court appeal has been preferred by the State of Rajasthan for assailing the order dtd. 20/8/2008 passed by learned Single Bench of this Court whereby writ petition No. 4994/2005 preferred by the respondent Parasmal Mali S/o Shri Achla Ram was accepted and the appellants were directed to allow the respondent to join duty as Gram Sewak in pursuance of the order dtd. 31/3/2001 and to grant him all consequential benefits of seniority, fixation of pay etc. on notional basis without back wages.

(2.) Brief facts relevant and essential for disposal of the instant appeal are noted hereinbelow:- The respondent Parasmal was engaged as an Octroi Collector (Chungi Nakedar) purely on temporary basis by the Panchayat Samdari between the years 1995 to 1997. Subsequently, the octroi duty was abolished and accordingly, the respondent was not continued on daily wages. Being aggrieved with the dispensation of his engagement, the respondent-writ petitioner approached this Court by filing a writ petition No. 2591/2003 for assailing the action of the respondents. The writ petition was disposed off by order dtd. 6/8/2004 directing the respondents to consider the case of the petitioner for absorption as a Gram Sewak pursuant to being declared as surplus from the post of Octroi Collector (Chungi Nakedar). Parity was sought for by the respondent with one Balkishan Ojha who had allegedly been given appointment as a Grem Sewak in similar circumstances. The representation so submitted by the respondent was dismissed by communication dtd. 20/6/2005 wherein it was observed that Shri Parasmal was engaged by the Gram Panchayat Samdari on 7/4/1995 as an Octroi Collector on daily wage basis @ Rs.32.00 per day. He continued as such till July, 1997 whereafter, his engagement was discontinued. It was further observed in the order that the respondent's claim of parity with Balkishan Ojha was not tenable because neither Balkishan Ojha nor the respondent were appointed against any sanctioned post. So far as the appointment on Class IV post was concerned, the said process also required adherence to Rule 259(7) of the Panchayati Raj Rules whereas, neither any such post of Class IV employee/Octroi Collector was prescribed in the Rules nor was the respondent provided appointment on such post after following the regular process of recruitment. The said order was challenged by filing petition No. 4994/2005. The learned Single Judge accepted the writ petition of the respondent in light of the order dtd. 24/4/2003 passed by the Division Bench of this Court in DBSAW No. 165/2001 filed by Balkishan Ojha wherein, the claim of the said Balkishan for absorption as a Gram Sewak was accepted while allowing his petition.

(3.) In reply filed before the learned Single Bench, a specific assertion was made by the State that persons akin to Balkishan Ojha who had been absorbed, were as a matter of fact working on the post of Assistant Secretary and thus, Shri Parasmal who was engaged purely on daily wage basis as an Octroi Collector could not claim any parity and was not entitled to continue on the post which had since been abolished. The learned Single Bench was persuaded by the language of the communication (Annexure-10) wherein it was mentioned that Balkishan Ojha had not been appointed against any vacant post by an open invitation and thus, a review was being proposed in his matter as well. This Court observed that the Government had conceded that akin to Balkishan, one Champalal was also absorbed as a Gram Sewak. The Court held that once the welfare State had taken a decision to absorb those employees who were engaged in the collection of octroi, then all similar employees were required to be absorbed, considering them to be in service on the date of abolition of octroi. Pursuant to such discussion, the writ petition of the respondent was accepted.