KALYANMAL BHANDARI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is a writ petition under Art, 226 of the Constitution by one Shri Kalyan-mal Bhandari for an appropriate writ, direction or order. He has made a twofold prayer: firstly, he has prayed that the option that was taken from him by the Slate of Rajasthan for going to the service of the Rajasthan State Road Transport Corporation, hereinafter to be referred as "the Corporation" was really no option and, therefore, the State Government be directed to take him back to its service and then be further directed to confirm him as upper division clerk from the year he was working as such and then give him all the consequential benefits. In the alternative, he has prayed that a direction be issued to the Corporation to confirm the petitioner on the post of upper division clerk from 30-11-55 and give him all consequential benefits resulting from such confirmation.

(2.) THE petitioner was first appointed as a lower division clerk in the erstwhile Jodhpur State in 1945. He was promoted as upper division clerk on 1-4-49 and was holding this post at the time of the formation of Rajasthan. In the course of integration he was fixed on the post of a lower division clerk in 1952. In October, 1955 he was Jagir Accounts Inspector which post was inter-changeable and equivalent to the post of upper division clerk. On 27-10-61 the petitioner was appointed by transfer as an upper division clerk in the Rajasthan State Roadways Department of the Government under orders of the General Manager, Rajasthan State Roadways, temporarily, vide order Ext. 2 on record. On the formation of the Corporation with effect from 1-10-64 the petitioner's services like those of other employees of the Government in the Roadways Department were placed at the disposal of the Corporation for a period of 6 months in the first instance. The petitioner's period of deputation with the Corporation was extended from time to time. On 15-4-66 options were invited from the employees of the erstwhile Rajasthan State Roadways Department whether they would like to be in the service of the Corporation or revert to the State service. During the period of deputation of the employees the Government created certain supernumerary posts in the Transport Department for keeping the lien of the employees on deputation with the Corporation. The petitioner admits to have given his option for the service of the Corporation, but he avers that at the time he was terribly disturbed and it was under the distress on account of the death of a near relation that without appreciating the implication of the option he gave his option for the service of the Corporation. On 10;-5-67 the petitioner was told that the option given by him was final and he could not be taken back to Government service for which he had been trying. Since then the petitioner was continuing in the service of the Corporation. The petitioner made representations to the State Government that he be confirmed as upper division clerk from the year 1955 and in the Corporation he be confirmed as upper division clerk from the date he was entitled to be confirmed as upper division clerk under the Government. On such representation he has placed on record as Ext. 8 End another such representation he has reproduced in para 9 of his writ petition. lie has averred that he made representations for this time and again between 4-11-66 and 27-6-69 (vide para 9 ). The petitioner's grievance is that his case for confirmation as upper division clerk was ignored by the General Manager of the erstwhile Roadways Department when in August, 1964 certain confirmations of upper division clerks were made by him. Therefore, on 8-9-66 he made a representation to the General Manager of the Corporation, but this was if no avail as the petitioner was told that the General Manager of the Corporation had got no power to confirm the employees of the Government. On 4-11-66 the petitioner submitted a representation to the General Manager of the Corporation again with a view to knowing his fate and whether his representation to the Government had been forwarded or not. In this representation also he repeated his prayer that he be confirmed on the post of upper division clerk from 30-11-55 from which date he was working, as this had adversely affected his seniority. In 1965 a seniority list was published by the. General Manager of the Corporation and the concerned were invited to file their objections, if any. The petitioners grievance is that though he filed objections against this list, his objections were not considered. The petitioner contends that he had been meted out a discriminatory treatment when his case for confirmation as upper division clerk was not considered and he was not confirmed whereas other employees who had been working from subsequent dates as upper division clerks were so confirmed,

(3.) THE writ petition has been opposed by the respondents. The State has not chosen to file any reply to the writ petition. Learned additional Government advocate, has, however, argued the case on the basis of the material available on record. The Corporation has filed a written reply. It is denied that the petitioner is entitled to any relief. It was submitted that the writ petition was a belated one and should be dismissed on that ground alone. Then it was urged that the petitioner opted for the service of the Corporation in pursuance of the option notice Ext. 4 dated 15-4-66 and, therefore, he cannot now be said to be the holder of a public office. The relations between the petitioner and the Corporation were, according to the Corporation, those of ordinary master and servant and consequently the petitioner was not entitled to maintain the writ petition. Apart from this it was urged at the time of arguments by learned Counsel for the Corporation that the petitioner is not entitled to get any relief as he has not impleaded persons who are likely to be affected on the issuance of any writ or direction. At any rate, according to learned Counsel for the Corporation, persons who have been shown senior to the petitioner in the seniority list Ext. 10 were necessary parties in the writ petition.