STATE OF RAJASTHAN Vs. MANGI LAL

JUDGEMENT

(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.

(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.