MAHARBAN SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE petitioner was initially appointed as work charge Nakedar in Feb. 1963 under the Directorate of Mines and Geology. In the year 1973, the Governor of Rajasthan had ordered for conversion of existing posts of Nakedars into that of Lower Division Clerks (for short as LDC), resultingly after the abolision of the posts of Nakedars 231 posts of LDCS, were created in the scale of Rs. 110-230. THE petitioner who fulfilled the qualifications as prescribed for the post of LDC, was appointed as LDC vide Annex. 1 w. e. f. 1. 10. 1973 and was confirmed on the said post on 14. 10. 1982 vide Annex. 2, attached with the writ petition. THE counsel for the petitioner submits that similarly number of other employees who were initially working as Nakedars were also appointed as LDCs because of the conversion of the posts to the post of LDC after abolition of the post of Nakedars. THE petitioner has attached the list of certain persons.

(2.) THE grievance of the petitioner is that despite the fact that he and other similarly situated persons were absorbed as LDCs, but still in the provisional Seniority list, prepared by the Department of Mines and Geologycal relating to the service of the LDCs, name of the petitioner was not included. This Seniority list was prepared in the month of April 1985. According to the petitioner, only persons holding the posts of LDCs were included in the seniority list, who were appointed upto Sep. 30, 1973. Number of persons, who were so absorbed from the post of Nakedars, were also effected and representations were made to the Department and it was revealed that the names of all such persons have been omitted from the seniority list because of the reason that list contained the names of only those persons, who have been appointed as LDCs upto Sep. 30, 1973 who had passed the examination held by RPSC in the year 1974. A final seniority list was prepared vide Annex. 4, but still the petitioner was not given relief. It is submitted that the petitioner was regularly appointed against the substantive vacancy w. e. f. 1. 10. 1973 and had been awarded all the yearly increments in regular manner. It is further submitted that vide Schedule `c', a notification dated 30. 8. 78 was issued which was to be operated from 1. 10. 1973 providing the absorption of petitioner and similarly situated persons and Rule 27 of the Rajasthan Subordinate Offices Ministerial Staff Rules, 1957 (hereinafter referred to be as "rules of 1957") was amended yet by another notification dated 5. 5. 1984. Proviso (xvii) to Rule (xvi) was substituted vide notification "schedule D". It is submitted that the Governor of Rajasthan was pleased to sanction 231 substantive posts of LDCs in the scale of Rs. 110-230 and all the posts were permanent and the petitioner was absorbed against one of such posts. THE petitioner relies on Rule 25 (2) of the Rules of 1957 wherein it has been mentioned that persons temporarily appointed as LDC upto 7. 11. 75 who have been continuously holding such posts or higher posts, shall be deemed to have been appointed regularly on temporary basis provided they fulfil other conditions pres- cribed in the rules and they shall be eligible to be appointed substantively as LDC according to the date of their temporary appointment. THE petitioner is aggrieved by the action of the respondents for not including his name in the seniority list and further attacks the omission of the name of petitioner and other similarly situated employees from the seniority list being without any reasonable cause and justifica- tion. THE petitioner further submits that the employees appointed as LDCs through the RPSC subsequent to the appointment of petitioner, have been included in the seniority list and the petitioner has been discriminated along with the similarly situated persons. THE petitioner challenges the provisions of Rule 27 to the fact that seniority of the persons appointed to the lower posts to the service, shall be deter- mined from the date of confirmation of such persons to the said post. THE petitioner submits that the date of confirmation is of no consequence for the reason that he was appointed against the substantive post by amending the rule when the posts of Nakedars were abolished. THE petitioner is also aggrieved from the fact that because of the reason that their names have not been included in list at proper place or rather has been omitted from the seniority list, many junior persons who were appointed as LDC much later than the petitioner as similarly situated persons, have been promoted to the next cadre by ignoring the rights of the petitioner and similarly situated persons. THE petitioner prays that Rule 27 of the rules of 1957 may be declared unconstitutional and be struck down.

(3.) IT is crystal clear that vide amendment of Rule by way of notification dated 30. 8. 78 (Annex. R/1) attached with the written statements, reproduced above, earstwhile Nakedars were to be appointed as LDCs from 1. 10. 73 and by relaxing the upper age limit, type writing speed or passing the examination to be held by RPSC, prescribed under the rules for direct recruitees and further the seniority of such employees was to be fixed as per amended rules of this very notification i. e. from the date of substantive appointment. Any other amendment made later on for the seniority to be fixed from the date of confirmation, shall not be applicable to the case of present petitioner or similarly situated persons/employees.