OM PRAKASH SHARMA Vs. PANCHAYAT SAMITI BAP

JUDGEMENT

(1.) THE petitioner by filing this petition has prayed that his termination order dated 29. 4. 1989 (Annex. 15) and letter dated 22. 4. 1989 (Annex. 14) of the Chief Executive Officer, Zila Parishad, Jodhpur (respondent No. 3) along with the resolution No. 7 (2) dated 12. 4. 1989 of the District Establishment Committee, Jodhpur and the Circular letter dated 24. 3. 1989 (Annex. 13) issued by the Special Secretary to the Government, Rural Development and Panchayati Raj Department, Jaipur (respondent No. 2) be quashed and the respondents be directed to make payment of salary to him in the regular pay scale for the post of Lower Division Clerk w. e. f. the date of his initial appointment on the principle of "equal pay for equal work" and to regularise his services on the post of L. D. C. with all consequential benefits along with interest on his arrears at the rate of Rs. 18% per annum.

(2.) BRIEFLY the case of the petitioner as stated in his writ petition is that he has studied upto Hr. Secondary and has the requisite qualifications to be appointed on the post of L. D. C. Initially, he was appointed on the post of Primary School Teacher by the Vikas Adhikari, Panchayat Samiti, Bap (respondent No. l) on contractual basis on a consolidated salary of Rs. 400/- per month for the period from 15. 4. 1985 to 15. 5. 1985 vide order dated 15. 4. 1985 (Annex. 1 ). Thereafter again vide order dated 18. 7. 1985 (Annex. 2) he was appointed on the post of Primary School Teacher on contractual basis on a consolidated salary of Rs. 400/- per month w. e. f. 25. 7. 1985 to 15. 5. 1986 or till a trained selected teacher was made available. This appointment continued upto 15. 5. 1986. It is alleged by the petitioner that though in pursuance of appointment order Annexure-2, he was appointed to the post of Primary School Teacher, but in fact he was allowed to continue on the post of L. D. C. , which was lying vacant. Thus, he was directed to discharge his duties on the post of L. D. C. It appears that from 16. 5. 1986 to 13. 04. 1987 the petitioner was not employed in the service of the Panchayat Samiti, Bap. Thereafter, the respondent No. 1 by his order dated 14. 4. 1987 (Annex. 4) temporarily appointed the petitioner as L. D. C. on daily wages at the rate of Rs. 15/- per day as the sanctioned post of L. D. C. was lying vacant. It was also mentioned in the said order that payment of salary to the petitioner shall be made from the own income of the Panchayat Samiti. The Panchayat Samiti, Bap in its general meeting dated 24. 4. 1987 by its resolution No. 7 (4) also approved the petitioner's appointment as daily rated L. D. C. It appears that the respondent No. l by his letter dated 9. 7. 1987 (Annex. 5) made a recommendation to the Project Director, District Rural Development Agency, Jodhpur for according approval of the appointment of the petitioner as a daily rated L. D. C. against the vacant post under the National Rural Employment Programme (NREP ). This recommendation was accepted by the Project Director, DRDA, Jodhpur on 13. 7. 1987 and petitioner's appointment as daily rated L. D. C. under the NREP was approved. It is the case of the petitioner that before converting his appointment under the NREP Scheme neither any notice was given to him nor his consent was taken. Thereafter, the daily wage of the petitioner was raised from Rs. 15/- to Rs. 1830/- per day vide order dated 10. 7. 1987 (Annex. 6) issued by respondent No. 1. Since the petitioner was directed to work on Sundays on account of huge quantum of work under famine relief works and other relief works, by office order dated 17. 10. 1987 (Annex. 7), he was also allowed salaries on Sundays. The respondent No. 1 by his letter dated 17. 12. 1987 (Annex. 8) also intimated the Director and the Special Secretary Rural Development & Panchayati Raj Department (respondent No. 2) that in pursuance of the resolution No. 7 (4) passed in the general meeting of the Panchayat Samiti dated 24. 4. 1987 and after seeking the approval of the Project Director, DRDA, Jodhpur, the petitioner was appointed as a daily rated L. D. C. in the Accounts Section of NREP, that his work had been satisfactory and recommended that he should be appointed substantively on the post of L. D. C. The general body of the Panchayat Samiti, Bap in its resolution dated 23. 12. 1987 (Annex. 9) also resolved that the District Collector and the concerning higher authorities be requested for regularising the appointment of the petitioner on the post of L. D. C. , because Shri O. P. Sharma, L. D. C. was under suspension for last 7-8 years. Accordingly, the respondent No. l vide his letter dated 6. 4. 1988 (Annex. 10) requested the Collector, Jodhpur for according sanction for giving regular appointment to the petitioner on the post of L. D. C. in regular pay scale w. e. f. 14. 4. 1987. The Pradhan of Panchayat Samiti, Bap by his D. O. letter dated 19. 12. 1988 (Annex. 12) also requested the Director, Rural Development & Panchayati Raj Department, Rajasthan (respondent No. 2) for regularisation of the petitioner on the post of L. D. C. It was also mentioned therein that the petitioner was working as a daily rated L. D. C. since 14. 4. 1987 in the NREP, RLEGP, DDP & Famine Relief Schemes satisfactorily and that he has also crossed the maximum age limit for the appointment in the Government service and has become over age. However, the respondent No. 2 by his impugned letter dated 24. 3. 1989 (Annex. 13) addressed to all Chief Executive Officers of Zila Parishads and Vikas Adhikaris of all Panchayat Samitis in the State intimated that it has been observed that generally when any post falls vacant on account of the retirement, transfer, death, promotion or training of an employee in the Panchayat Samiti, information thereof is not sent to the Development Department by the concerning Panchayat Samiti is, that on the other hand temporary or daily wage appointments are made against such posts and thereafter recommendations are made for regularisation of such employees to the Development Department, that some times the services of such employees are terminated without complying with the provisions of the Industrial Disputes Act with the result that such employees procure stay orders either from the Labour Court or the High Court and that ultimately such illegal terminations are quashed and those employees are reinstated in service with back wages resulting in unnecessary financial burden on the exchequer. The respondent No. 2, therefore, directed in future no appointment either temporary or on daily wages basis be made against any vacant post and that if any appointments on daily wages or on temporary basis have been made by the Panchayat Samitis then the services of such employees should be terminated after complying with the provisions of Section 25f of the Industrial Disputes Act, 1947. Thereafter, the respondent No. 3 communicated the resolution No. 7 (2) dated 12. 4. 1989 passed by the District Establishment Committee, Jodhpur to the respondent No. l intimating that the appointment of petitioner Om Prakash Sharma as daily rated L. D. C. was not made under first and second proviso to. Rule 23 of the Rajasthan Panchayat Samitis & Zila Parishads Service Rules, 1959, and that petitioner's appointment was made despite the total ban on appointments imposed by the Government and, therefore, his services be terminated and compliance thereof be reported. Thereupon in pursuance of letter dated 2. 4. 1989 (Annex. 14), the respondent No. l issued the impugned termination order dated 29. 4. 1989 giving him one month's notice pay and retrenchment compensation under section 25f of the Industrial Disputes Act on the ground that there was no excessive work in the NREP. It is the case of the petitioner that the cheque dated 1. 5. 1989 for an amount of Rs. 926/- given to him along with the termination order could not have been encashed on the same day though his services were dispensed with w. e. f. the fore-noon of 1. 5. 1989, the requirements of mandatory provisions of Section 25f (a) & (b) of the Act were not complied with, and, therefore, his retrenchment is void ab initio and illegal. He has also contended that his services have been terminated in the arbitrary exercise of power, which amounts to unfair labour practice. He has asserted that the impugned order Annexure-13 could not be applied in his case because the same did not operate retrospectively. On the other hand, respondent No1l had made repeated recommendations for his regularisation on the post of L. D. C. against the vacant post, but his services have been terminated arbitrarily and illegally. He has further contended that on the basis of well crystallised principle of 'equal pay for equal work', he is entitled to get salary in the prescribed pay scale of the L. D. C. and also regularisation on the said post.

(3.) I have heard the learned counsel for the parties and the learned Dy. Government Advocate at length and carefully perused the relevant record. On the joint request of the parties, this writ petition is being finally disposed of at the admission stage.