DAULAT RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE petitioner who was appointed as Helper on muster -roll and daily wage basis in Public Health Engineering Department (for short 'PHED') on 1.9.1981 while Executive Engineer of the said department (non -petitioner No. 2) has been taking the work from the petitioner as Assistant Store Munshi, has moved this court by way of instant writ petition for seeking relief that he may be treated as having been promoted from the post of Helper on which he was initially appointed to that of Assistant Store Keeper w.e.f. 27.4.1985 i.e., the date from which he has been continuously discharging his duties to the department as Asstt. Store Keeper and also when the persons junior to the petitioner as per the seniority list placed on the record vide Annexure 6, were promoted on the said post despite their not working as Asstt. Store Keeper on the principle of 'equal pay for equal work which is enshrined in Articles 39(d) read with Article 14, 16, 21 and 300(A) of the Constitution of India.

(2.) THE facts which are relevant for deciding the controversy between the parties briefly stated are that the petitioner was initially appointed as Helper on muster -roll daily wage basis in PHED w.e.f. 1.9.1981 in accordance with the Rajasthan Public Works Department (B and R) Work -charged Employees Service Rules, 1964 (for short 'Rules of 1964') which have been extended and made applicable to PHED of the State Government of Rajasthan. Eversine the date of his appointment the petitioner has been discharging his duties as Assistant Store Keeper but the petitioner was paid his daily wages as applicable to the post of Helper in the said department. It has further been contended in the petition that after completing two years' satisfactory service, the petitioner was declared semi -permanent vide order, dated 1.3.1984 (Annexure -1) and was placed in the pay scale of 360 -460. Perusal of the said order reveals that 12 candidates were appointed alongwith the petitioner who is placed at serial No. 10, while one Jawaharlal who is immediate junior to the petitioner and who was also appointed as Helper on daily wage basis, is placed at serial No. 11 though Jawaharlal was promoted on the post of Assistant Store Keeper which fact is borne out from the relevant documents on the record. The said Jawaharlal who is similarly placed candidate like the petitioner and who was also initially appointed as Helper with the respondent -P.H.E.D. was declared semi -permanent by the same order, dated 1.3.1984. This fact is borne out from Annexure -3 on the record. Thereafter the petitioner made series of representations to the respondents that since he was discharging the duties as Assistant Store Keeper though appointed as Helper but since he has not been paid the wages equivalent to the post of Assistant Store Keeper notwithstanding his continuous discharge of duties on the said post w.e.f. 01.09.1981, the petitioner should not be discriminated by the respondents and should be treated in the same manner as similarly placed candidates like Jawaharlal. Thus the petitioner is entitled to get the regular salary in the prescribed pay scale on the principles of 'equal pay for equal work as enshrined under Article 39(d) of the Constitution of India and its violation would also be violative of petitioner's fundamental rights which are protected under Articles 14 and 16 of the Constitution. He has further contended that he is entitled to be regularised on the post of Assistant Store Keeper when the persons immediate junior to him have been granted the promotion on the said post in regular pay -scale.

(3.) IN reply to show cause notice issued by this court the respondents while controverting the aforesaid contentions of the petitioner have contented inter -alia that the petition involves disputed questions of fact and since the petitioner was appointed as daily rated casual labour and thereafter ho was declared semi -permanent, he is not entitled to claim any indulgence from this court in exercise of its jurisdiction under Article 226 of the Constitution of India. They have further contended that it is not open to the petitioner to compare his case or to draw analogy from the case of other candidate Jawaharlal who had approached competent forum, i.e., the Industrial Tribunal and it is from the said forum that he was declared entitled to the relief of pay -scale of Asstt. Store Keeper which is a finding of fact recorded by the learned Tribunal on the basis of evidence led before it, whereas no such finding can be recorded in favour of the petitioner under Article 226 of the Constitution. On merits the respondents have contended that when the post of Asstt. Store Keeper which was earlier in existence has now been abolished and the work which was being done by the Asstt. Store Keeper earlier is now being done by the lower division clerks duly appointed by the Rajasthan Public Service Commission (for short R.P.S.C.). They have further contended that even assuming for the sake of argument that respondent No. 2 had made representations in favour of the petitioner for giving him pay -scale of Assistant Store Munshi on the basis of such recommendations no valuable right is created in favour of an employee like the petitioner for continuing on the said post or to claim pay scale as admissible for the same. It has further been contended by the respondents that if the petitioner is not entitled to be appointed on the post of Assistant Store Keeper which is equivalent to the post of Lower Division Clerk, then his services on the said post cannot be regularised without following the procedure as laid down in the rules and in absence of the same he cannot be entitled to claim any benefit.