Narendra Kumar Jain, J.
1. The petitioner initially preferred this writ petition on 7th June, 2004 with a prayer to issue appropriate writ, order or direction directing the respondents to regularize his service on the post of LDC and to grant him the selection scale on completion of 9 years of service, which he completed on 17th February, 1998. This Court issued notice to show cause to the respondents on 10th June, 2004 for 17th June, 2004 The notice of stay application was also issued. However, the respondents terminated the service of the petitioner vide order dated 10th June, 2004 itself. The petitioner moved an application for amendment in the writ petition challenging his termination order dated 10th June, 2004. This Court allowed the application for amendment in the writ petition and thereafter petitioner filed the amended writ petition.
2. The brief facts of the case are that respondents created a post of Lower Division Clerk in Zila Sainik Board, Ajmer under PEXSEM scheme vide order dated 7th February, 1989 and petitioner was appointed on the post of L.D.C. Vide order dated 18th February, 1989 upto 28th February, 1989. The service of the petitioner was extended from time to time. The PEXSEM scheme was closed and petitioner was thereafter absorbed and was posted vide Order dated 30th May, 1996 (Annexure-5) issued by Director, Soldier Welfare Department, Rajasthan, Jaipur along-with one similarly situated person Shri Bajrang Singh Arya, LDC. Vide order dated 19th August, 1997 (Annexure-6), the respondent- Director extended the service of the petitioner till further order. The similarly situated person Bajrang Singh Arya was granted first selection scale on completion of 9 years service by the respondent-Director vide order dated 3rd June, 1997 with effect from 12th August, 1996, therefore, the petitioner filed an application for grant of selection scale on completion of 9 years of service as on 17th February, 1998 vide his application dated 20th December, 2002. The case of petitioner for grant of selection scale was not considered and decided, hence the petitioner served a notice of demand of justice on the respondents on 3rd June, 2004 and ultimately filed the present writ petition for regularization of his service and grant of selection grade. During the pendency of this writ petition, the service of petitioner was terminated and writ was allowed to be amended.
3. The respondents in their reply to the writ petition contended that petitioner was appointed on the post of LDC on temporary basis under the PEXSEM scheme and after closer of PEXSEM scheme, the petitioner was absorbed as per absorption rules, but the Director without seeking permission absorbed the petitioner, therefore, as per Government order it was directed that absorption of the petitioner is not in accordance with the Rules and as such his services cannot be regularized. So far as termination order of petitioner dated 10th June, 2004 is concerned, the respondents, in para 12 of the reply contended that the State Government directed to terminate the service of the petitioner and in pursuance thereof the service of the petitioner was terminated and it was mentioned in the order itself that one month's salary will be payable to petitioner in lieu of notice.
4. The submission of learned Counsel for the petitioner is that a perusal of the impugned order dated 10th June, 2004 (Annexure- 11) passed by the respondent No. 3 makes it clear that it has been passed in violation of the principle of natural justice as no notice was given to the petitioner before passing this order. The petitioner was working since 18th February, 1989 continuously and without any notice, the order of termination dated 10th June, 2004 has been passed. The said order is not only violative of principle of natural justice, but it is also malafide as petitioner preferred the writ petition on 7th June, 2004 and this Court issued notice to the respondents on 10th June, 2004 and on the same day the order terminating the service of the petitioner was passed. It is further contended that similarly situated person Bajrang Lal was granted selection scale on completion of 9 years service vide order dated 3rd June, 1997 (Annexure-7), therefore, petitioner also filed an application for grant of selection scale on completion of 9 years service vide application dated 20th December, 2002 (Annexure-8), which was not considered and when the petitioner served a notice and filed writ petition for regularization of his service and grant of selection scale, the service of the petitioner has been terminated without following the principle of natural justice, despite the fact that petitioner served the respondents for continuous more than 15 years. The learned Counsel for the petitioner further contended that the services of six persons were terminated by the respondents on the same day i.e. 10th June, 2004, who were holding the post of Chowkidar, Class-IV employee and this Court allowed their writ petitions - S.B. Civil Writ Petition No. 3979/2004, Keshar Singh v. State of Rajasthan and Ors. vide order dated 3rd August, 2005; S.B. Civil Writ Petition No. 3953/2004, Nathu Lal v. State of Rajasthan and Ors. vide order dated 3rd August, 2005, and thereafter these persons have been taken back in service and they are working in the respondent-Department. The case of the petitioner is also similar with the case of these persons, therefore, the present writ petition may also be allowed and impugned order terminating the service of the petitioner be quashed and respondents be directed to reinstate the petitioner on his post with all consequential benefits.
5. The learned Counsel for the respondents contended that petitioner was only holding the post of LDC on temporary basis. Although the petitioner was absorbed soon after closer of PEXSEM scheme in 1996, but his order of absorption was contrary to Rules, therefore, his services could not have been regularized and as per the order of the State Government dated 12th May, 2004, the service of the petitioner was terminated vide order dated 10th June, 2004. So far as violation of principle of natural justice is concerned, he contended that there is a note in the order itself that one month's salary will be payable to the petitioner in lieu of notice. However, he does not dispute that six persons holding different posts in the respondent-Department were terminated on the same day i.e. 10th June, 2004, out of which two persons Keshar Singh and Nathu Lal have been reinstated as their writ petitions were allowed by this Court and their order of termination was set-aside by this Court. So far as regularization of service of petitioner is concerned, the learned Counsel contended that regularization of service cannot be claimed as a matter of right.
6. I have considered the submissions of learned Counsel for the parties.
7. The undisputed facts of the case are that petitioner was appointed as LDC by respondents vide order dated 18th February, 1989 (Annexure-2) under PEXSEM scheme, where he was allowed to continue till closer of the scheme and absorption of the petitioner vide order dated 30th May, 1996 (Annexure-5) alongwith similarly situated person Bajrang Singh, therefore, the service of the petitioner was continued and his services were extended till further order by the respondent No. 3 vide order dated 19th August, 1997 (Annexure-6). The similarly situated person Bajrang Singh was granted first selection scale on completion of 9 years of service vide order dated 3rd June, 1997 with effect from 12th August, 1996 and petitioner also moved an application on 20th December, 2002 to grant him first selection scale on completion of 9 years as on 17th February, 1998, but as his case was not considered and decided, he preferred the present writ petition before this Court with a prayer to consider his case for grant of selection scale as well as regularization of his service. This Court issued notice to show cause on 10th June, 2004 for 17th June, 2004 and the respondents terminated the service of the petitioner on 10th June, 2004 itself. The application for amendment in the writ petition filed by the petitioner was allowed and he was allowed to challenge the termination order dated 10th June, 2004 also. The above facts make it clear that petitioner was working on the post of LDC since 18th February, 1989 continuously till his order of termination was passed on 10th June, 2004. The order dated 10th June, 2004 (Annexure-11) clearly shows that it has been issued on the basis of the order of the State Government dated 12th May, 2004 and before passing this order, no notice was served upon the petitioner, however, there is a reference that one month's salary will be payable to petitioner in lieu of notice as per Rules. The actual payment of one month's salary was not paid to the petitioner along-with termination order dated 10th June, 2004. The PEXSEM scheme was closed with effect from 1st May, 1996 and petitioner was absorbed by the order of the Director vide order dated 30th May, 1996 and he was posted and allowed to continue on the post of LDC along-with Bajrang Singh Arya, similarly situated person. The learned Counsel for the petitioner orally informed on the instructions of the petitioner that Bajrang Singh retired before 10th June, 2004, therefore, his services were not terminated and was sanctioned his pension and other pensionary benefits and he is getting the same. The learned Counsel for the respondents also does not dispute that no notice was served upon the petitioner before passing the impugned order of termination dated 10th June, 2004, but his contention is that in the order itself it is mentioned that one month's salary will be payable to the petitioner. It is also not disputed that writ petitions of Keshar Singh and Nathu Lal, whose services were also terminated on 10th June, 2004, have been allowed by this Court and they have been taken back in service and they are working on their posts. In these circumstances, it is clear that termination order of the petitioner has been passed in violation of the principle of natural justice as no notice was served upon him before passing the said order; he was working continuously in the department for last more than 15 years; although he was appointed initially on temporary basis, but his services were continued from time to time and even after closer of PEXSEm scheme he was absorbed by the order of the respondents in the year 1996. The trouble started when similarly situated person Bajrang Singh was granted selection scale on completion of 9 years and petitioner made a representation to grant him the same relief, but the same was not granted and he served a notice on the respondents and preferred the present writ petition. In these circumstances, it is clear that the impugned order of termination of the petitioner is not only violative of Articles 14 and 16 of the Constitution and the principle of natural justice, but it suffers from malice in law also and the same cannot be allowed to be sustained and the same is hereby quashed and set-aside. So far as grant of selection scale to the petitioner and regularization of his service are concerned, the only direction which can be issued to the respondents is that in case, the case of other similarly situated persons has been considered for both or any of the reliefs, then the case of the petitioner may also be considered for the same.
8. Consequently, the writ petition is allowed. The impugned order of termination of the petitioner dated 10th June, 2004 (Annexure- 11) is set-aside. The respondents are directed to reinstate the petitioner immediately on his post, on which he was working prior to passing of the order dated 10th June, 2004. Since the petitioner has not worked during this period, although there was no fault on the part of the petitioner, but instead of awarding the full arrears of salary, I think it fit and proper to direct the respondents to pay the 50% of the salary for the said period, but his services will be treated in continuation and without any break in it for all other purposes. However, the petitioner will be entitled for the full salary from the date of this order. So far as matter of grant of selection scale or regularization of service of the petitioner is concerned, it is left open for the respondents to consider the case of the petitioner sympathetically in view of the observations made here-in-above.
9. In the facts and circumstances of the case, the parties are directed to bear their own costs.
10. The learned Counsel for the respondents prays for one month's time to comply with the order of this Court. The prayer appears to be reasonable. The respondents are granted one month's time to comply with the order.
11. Since the writ petition itself has been decided, therefore, no order is required to be passed on the first and second stay application and consequently, both the applications stand disposed of.