I.S. Israni, J.
1. Above mentioned three writ petitions arc based on almost similar facts and involved similar questions of law, are, therefore, decided by one order.
2. All the three petitioners were appointed on fixed salary as L.D.C. in office or respondent No. 2, Rajasthan State Agricultural Marketing Board (herein-after referred to as 'the Board'), Jaipur on temporary basis. The services of petitioners were terminated in writ petitions No. 3374/88 & No. 1151/88 by order dated April 1, 1988 (Annexurcs-14 and 17 respectively) and of petitioner in petition No. 3615/88 by order dated April 4,1988 (Anncxure-4). They were paid particular amount to cover one month's notice period and other payments as required Under Section 25F of the Industrial Disputes Act, 1947 (for short 'the I.D. Act').
3. It is contended by Shri R.M.Lodha, Shri N.K. Maloo and Shri M.B.Sharma, learned Counsel for the petitioners that the orders mentioned above terminating the services of the petitioners are illegal on several counts. The annexures filed in writ petition No. 3374/88 are mentioned which will generally cover the case of all the petitioners. It is submitted that the period of service of petitioners was extended from time to time by various annexures filed by each of the petitioners. It is submitted that respondent No. 2, the Board, resolved in its meeting held on September 17,1974 that since no service rules for the employees of the Board have been framed so far, they shall be governed by rules of Rajasthan Government governing such employees. The Board framed Rajasthan State Agriculture Marketing Board (Service) Byelaws, 1977' (hereinafter referred to as 'Bye-laws') in exercise of powers conferred by clues (F) of Section 22 of the Rajasthan Agriculture Produce Markets Act, 1961 (hereinafter referred to as 'the Act, 1961'). The Board vide its resolution No. 11 dated August 1,1980 (Annexure-7) resolved to about the Work Charge Employees Services Rules, 1964 which are applicable to the work charge employees of Rajasthan Public Works Department. It is submitted that pay and allowances of persons working on work charge basis are directly added in the cost of construction works of Krishi Upaj Mandi Samities which arc being executed by the Engineering Cell of the Board. It is, therefore, contended that the petitioners services arc governed by the Rules which governing the services of Government Employees of Rajasthan. It is also pointed out that when State Government vide its order dated May 21, 1987 revised the pay scales of its work charge employees, the Executive Director of, the Board issued order dated September 7, 1987 (Anncxurc-8) directing that the work charge employees of the Board shall also be governed by the revised pay-scales.
4. It is pointed out that a circular was issued on November 6, 1987 by Executive Director under the instructions of Administrator of the Board, staling therein that since the petitioners were appointed on adhoc basis and work of L.D.C. is taken from them and under Rajasthan Service Rules, typing test is necessary, therefore, the petitioner in writ petition No. 3374/88 was directed to appear for typing test on December 31,1987 (Annexure-9). However, the above circular was cancelled till further decision is taken in the matter vide office order dated December 14,1987 (Annexure-10). It is submitted that as mentioned in Para 17 of the petition No. 3374/88 6 other persons whose names arc mentioned therein were similarly appointed in the year 1980 to 1984 on temporary adhoc basis against sanctioned posts of L.D.C, were given opportunity to take typing test, but failed in tests held on April 16,1986 and August 30, 1986, but still their services were not terminated and are still continuing, while the petitioners services have been dispensed with without allowing them chance to appear in typing test in which they are quite proficient. Some persons were even given third opportunity to take typing test on July 31, 1980 with a view to regularise their services even though they were on same looting like petitioners. It is further contended that the services of the petitioners were infact terminated because vide representations dated February 24,1988 and March 15, 1988 (Annexures-11 and 12 respectively), a demand for giving 'equal pay for equal work' and regularisation of service was made. It is further contended that vide order dated March 29, 1988 (Annexure- 13) a direction was given by Board to retrench all such persons who have served for less than 180 days, but as regards the persons who had served for more than 2 years, a direction was given to adjust them in Sub-Divisions/Divisions where the vacancies are existing. However, instead of following the above direction, an illegal order dated April 1, 1988 (Anncxure-14) was issued by the Administrator of the Board, terminated the services of the petitioners on the ground that their services were no more required. In order Annexure-14, which was, served on petitioner in writ petition No. 3374/88 salary for the month of March, 1988, Rs. 17/- for one day of April, salary of one month for notice period and Rs. 500/- as compensation (total Rs. 1517/-) was also sent by cheque along with the above order. It is contended by learned Counsel that since the month of April had started one day's salary could not have been sent and it was necessary to have sent full salary for the month of April. Salary of one month for the period of notice of one month and also compensation as required Under Section 25F of the I.D. Act should have been sent. In writ petition No. 1151/88 vide Annexure-17 dated April 1, 1988 same amount was sent to the petitioner in the above mentioned writ petition. In writ petition No. 3615/88 vide Anncxure-4 dated April 4, 1988, salary for the month of March. 1988,4 days payment amounting to Rs. 68/-, Rs. 500/- for the period of one month notice and Rs. 250/- as compensation (total Rs. 1318/-) was sent by cheque along with the above mentioned order. It is submitted that provisions of Section 25F of the I.D. Act were hot followed in case of either of the petitioners. It is also submitted that one Chandra Prakash Baradia was appointed on work charge basis on October 1, 1986 has been retailed in service violating principles enshrined in Articles 14 and 16 of the Constitution and also provisions of Section 25G of the I.D. Act by not observing the principles of last come first go'. Similarly one Data Ram was appointed on the post of L.D.C. vide order dated May 29, 1988 (Annex-15) One Kumari Pushpa Sharma was appointed as L.D.C. vide order dated August 23.1988 (Annexure- 17). One Laxmi-Kant Goswami has been appointed on deputation from Agriculture Marketing Department idc order dated May 20, 1988 (Anncxurc-16). It is further pointed out that 12 L.D.Cs. from other departments are working on deputation in the Board. It is contended that in all these appointments and by taking as many as more than 12 persons on deputation on the posts of L.D.C. the principles of 'natural justice and Articles 14 and 16 have been grossly violated/The respondent No. 2 cannot lake persons on deputation from other departments on the clear vacancies and at the same time terminate the services of the petitioners on the ground that their services were no more required and that there were no vacancies. It is also submitted that the appointment of Shri D.Kumar as Administrator is illegal and not in accordance with law as the notification was not published in the Gazette as required by the relevant provisions of the Act/Rules arid the circular dated February 10, 1988 (Annexure-18) issued by Mr.D.Kumar himself regarding assuming his charge cannot be substituted to the notification. It is also contended that in the meeting held under the Chairmanship of the Administrator of the Board on March 21. 1988, it was decided that services of all employees who have been appointed on temporary basis against-sanctioned posts, have not been approved by the selection committee as envisaged in Rule 23 of the Bylaws should be forthwith terminated after giving them notice, pay and retrenchment compensation. It is, therefore, contended that even in terms of the above resolution, petitioners were required to be placed before selection committee and if the Section committee did not approve the selection of the petitioners, then alone, their services could have been terminated after complying with the conditions mentioned therein. It is however submitted that no selection committee was constituted to give opportunity to the petitioncrrs to appear before it for the purpose of approval/selection. Whereas Shri Babulal Yadav, Tilak Singh, Yashwant Kumar Verma and Pushuparti Nath Sharma who were similarly appointed on adhoc basis from year 1980 to 1984 arc allowed to continued in spite of their repeatedly failing in the typing test and even though not approved by selection committee.
5. It is submitted by Shri Ajay Purohit, learned Deputy Govt. Advocate that in all 17 persons in the category of the work charge employees including petitioners were retrenched out of whom some preferred to file writ petitions which have been decided by various orders, in which order dated April 1,1988 has been upheld. It is, therefore, submitted that these petitions deserve to be dismissed on this count itself. It is further contended that the petitioners were appointed on work charge basis and, therefore, the respondent No. 2 was well within its rights to have terminated their services when the same were not required any more after fully observing the provision of Section 25 of the I.D. Act, therefore, question of any violation of Articles 14 and 16 of the Constitution does not arise. It is submitted that the retrenchment orders were issued after the decision had been taken by the Board itself and not by the Administrator alone as is alleged by the petitioners. It is submitted that the order dated March 21,1988(Annex-24) clearly shows that meeting was held by Administrator along with other officers of the Board, expenditure of the Board was renewed and it was seen that expenditure on work charge establishment was more than 1/2 %. Therefore, it was decided to reduce the same to bring it within the permissible level. It Was, therefore, decided as is evident from para 6, that services of all employees who have been appointed on temporary basis against sanctioned posts, and have not been approved by the selection committee an envisaged in Rule 23 of the 'Bye-laws, should be forthwith terminated after giving them notice, pay and retrenchment compensation. The termination of the services has been taken in accordance with terms of this decision. It is pointed out that writ petition of Shashi Kumar bearing No. 824/88 and two others was allowed by the same order dated August 18,1988 as while terminating their services, the salary and allowances test drawn by them (Rs. 1140/- per month) Was not paid to them but only Rs. 650/-, the earlier drawn consolidated salary, was given to them. In writ petition of Ashok there was mistake of calculation, as amount was paid to him less than retired, therefore, this writ petition was allowed. However, it is contended that full payment to the petitioners as required Under Section 25F has been given. It is contended by learned Counsel that legality or otherwise of the appointment of the Administrator cannot be made as collateral attack in writ petition No. 114/88 by the petitioner in writ of quo warrantor. Reliance has been placed on P.S.Menon v. Stale of Kerala and Ors. AIR 1970 Kerala 165. Regarding appointments of Shri Dala Ram and Kumari Pushpa Sharma, it is pointed out by the learned Counsel that both of them arc handicapped and their appointments cannot be challenged by the petitioners who did not fall in this category. It is also submitted that Chandra Prakash Baradia is continuing in service on account of stay order issued by this Court due to writ petition filed by him at Jodhpur. It is also submitted that after 1988 no new appointments have been made even though some seats of L.D.Cs. are lying vacant. However, the petitioners cannot claim to be appointed merely because certain vacancies arc in existence nor they can claim to be regularised. It is also contended that work charge employees who were appointed earlier than the appointments of the petitioners were made, i.e. from 1980 to 1984 were regularised, even after the termination of services of the petitioners cannot have any grievance since they are juniors to the above mentioned work charge employees who have been regularised.
6. I have heard both the parties and perused the documents on record.
7. The appointment order Anncxure-1 in writ petition No. 3374/88 shows that she was appointed, on work charge basis on the post of Typist for period of one month at consolidated salary of Rs. 5(H)/- per month. Her services were terminated vide order dark's April I, 1988 (Anncxurc- 14) by which amount of Rs. 1517/- was paid to her. Similarly in writ petition No. 1151/88 the petitioner was appointed vide order dated April 21, 1988 (Annexure-1) on consolidated pay of Rs. 500/- per month for two months on work charge basis. His services were also terminated vide order dated April 1, 1988 (Anncxure-17) by which amount of Rs. 1517/- was paid to him. In writ petition No. 3615/88 petitioner was appointed on vacant post of L.D.C. on consolidated salary of Rs. 500/- per month on daily wages basis vide order dated August 12,1987 (Annex-2). His services were terminated vide order dated April 1, 1988 (Annexure-4) and amount of Rs. 1318/- was paid to him.
8. Evidently, their services were terminated in lieu of order-dated march 29,1988 (Annexurc-13). it is mentioned in this order that a meeting of Superintending Engineers was held on March 21, to March 23,1988 in which position of excess expenditure incurred on regular establishment and work charge staff was discussed and it was decided that expenditure should be kept within permissible limits. With a view to reduce the expenditure, it is mentioned that 'it is hereby ordered to retrench all such persons immediately who have served less than 180 days and no persons henceforth be engaged either on daily wages or consolidate wages. It is further clarified that any person retained for 180 days or more and engaged henceforth will be the personal-responsibility of the officer concerned and not of the Board/KUMS.' It was further clarified that 'as regards filling up the vacancies of various category/cadre excess semi permanent person or person who have served for more than 2 years should be adjusted latest by 30.4.1988 in Sub-Divisions/Divisions where the vacancies are existing.' Four propositions are clear from the order mentioned above. Firstly, the services of all such persons who have served for less than 180 days shall be retrenched and no persons henceforth was to be engaged either on daily wages or consolidate wages. Secondly, it was further clarified that henceforth, if any person is engaged on daily wages/consolidated wages and is regained for 180 days or more, it shall be the personal responsibility of the officer concerned and not of the Board/KUMS. Thirdly, it was also clarified that for filling up the vacancies of various category/cadre, excess semi permanent person or person who have served for more than 2 years should be adjusted latest by April 30,1988. Forthly, vacancies did exist in Sub-Divisions/Divisions and the persons having more than 2 years service, should be adjusted on such vacancies. In obedience to-order dated March 29,1988 (Annexure-13), Order dated April, 1988 and April 4,1988 were issued, in which it was mentioned that the services of the petitioners who were working on work charge basis were terminated as the same were not required any more and salary for month of March and one day or more for which the petitioners had worked, along with the salary for period of one month notice as also compensation in terms of Section 25 was given to each one of the petitioners by way of cheque along with the termination order. Thus, there was no violation of the provisions of Section 25 of the I.D. Act. However, these orders terminating the services of the petitions were issued as per the directions given vide order Annexure-13 in which services of only such persons had to be terminated who had completed less than 180 days, whereas these petitioners had worked for more than 180 days and in fact completed even according to the respondent No. 2 more than 240 days on account of which the compensation etc. in the terms of Section 25F of the I.D. Act was given to them. Anncxurc-25 dated March 16, 1988 is a letter from Administrator to the Executive Director, in which it has been mentioned that good number of persons have put in more than 6 months services and were continuing on temporary basis which could not have been done as per bye-laws of the Board. It is further mentioned that 'however, they are continuing for no fault of their and this is a lapse on the part of the Board-Officers. Please have consultation with the Legal Advisor and find out what course should be adopted at this stage for such employees'. It, therefore seems that order Anncxure-13 dated March 29, 1989 was issued after getting legal advise as required to be done in Annexure-25. It is also evident from Annex-13, dated March 29, 1989 itself that there did exist vacancies in Sub-Divisions/Divisions and a direction was given that the services of such persons who have served for more than 2 years should be adjusted in such vacancies latest by April 30, 1988. However, instead of adjusting such persons, their services were terminated by various orders as stated above.
9. A rejoinder to reply was also filed in writ petition No. 3374/88. Copy of order dated October 15,1987 issued by the Administrator shows that a direction, was given to to examine and get a list prepared of all such L.D.Cs. who had been appointed on adhoc basis but have crossed 180 days thereby attracting clause regarding semi permanency.' It was further directed that a notice should be given to such persons to appear for type nest on the date to be fixed. Proceedings on meeting held on March 21, 1988 (Annexure-24) show that after considering the various aspects of the excess expenditure. It was further resolved that 'the S.E.I was directed to discuss the possibility of adjusting the surplus work charge staff within the circle and if need be the extra staff may be reported to the Board for their transfer to other divisions/circles where they can. be gainfully utilized. The Executive Engineers were also directed to immediately remove such work charge people who have put in less than six months service, the report be sent to all concerned.' This also clearly indicates that a resolution was passed by the Board in its meeting that surplus work charge staff will be transferred to other Divisions/Circles where they can be gainfully utilized. However, instead of doing what was resolved by the Board, orders of terminating the services of the petitioners were issued. Anncxures-26 dated January 27, 1986 and 27 dated January 9, 1987 show' that chances to various temporary employees to appear in typing test were given more than once, but after failure their services were not terminated. However, in the case of petitioners, no chance for appearing in typing test was given to them, even though an order was issued, directing them to appear in typing test, which was subsequently cancelled for reasons best known to respondent No. 2. There is no reason, why this discriminatory treatment should have been given to the Petitioners, who were also working on temporary basis with the respondent No. 2 and vide Anncxurc-25 dated March, 16,1988 order was issued by the Administrator to call upon the petitioners to appear in typing-test. The treatment met out to the petitioners is, therefore, violative of the principles enshrined in Articles 14 and 16 of the Constitution. In writ petition No. 3374/88 Annexure-21 has been filed, which is a copy of Proceedings of Assembly (questions and answers) regarding the vacancies of L.D.Cs. and persons working on temporary/daily wages basis, which were given by the State of Rajasthan in the Rajasthan Legislative Assembly. It answers to question No. I a list of sanctioned posts as will as vacant posts was filed, which is marked as Schedule-Ka, while details given regarding Ministerial Staff, it is mentioned that there were in all 104 sanctioned posts of L.D.C. out of which 92 were filled and 12 were lying vacant. In Schedule-Kha, details of appointment made against sanctioned posts for the year 1986 to 1987 have been given by the respondent Board. In this list, the name of petitioner Rajendra appears at Serial No. 5, name of Smt. Asha Sharma appears at Serial No. 7, and that of name of Mahesh Chandra appears at Serial No. 9. It is, thus clear even from the documents discussed above, that 12 posts of L.D.Cs. were lying vacant and the three petitioners were appointed against sanctioned posts even though in the initial stage the orders regarding their appointment of two petitioners show that they were not appointed against sanctioned posts. Therefore, the question of their services being no more required does not arise as they were not appointed to work on any sudden requirement if the work adding which their appointments were made. Evert if the argument of the learned Counsel for respondent No. 2 may be accepted that the three persons regarding whom mention has been made by the leaned counsel for the petitioner were handicapped persons, still according to the statement of vacancies filed, in Assembly by respondent Board itself. there were 12 vacancies of sanctioned posts against which the petitioners were working, there fore, it cannot be said that their services were no more required.
10. I have also do not find am force in the contention of the learned Counsel for the respondent No. 2 that since order regarding terminating the services of some persons, who had filed writ petitions in this Court, was upheld, the orders is terminating the services of these petitioners may also be upheld. Every order of terminating has to be scrutinised on the touchstone of law, individually, keeping in view the facts-regarding services and other circumstances of each petitioner. However, I agree with the contention of the learned Counsel for respondent No. 2 that the petitioner in writ, person No. 3374/88 can not be permitted to raise the question of legallity or otherwise of the appointment of Shri D.Kumar, as Administrator as collatral attack in a writ petition in which prayer for issue of writ of quo warren to has been made. On the one hand, the petitioners support and rely upon certain orders issued by the Administrator e.g. Annexure 23 and 25 and on the other hand challenge is made to his appointment being against the provisions of Act and Rules. Even otherwise the petitioner cannot be allowed to blow hot and cold at the same time, I, therefore, do not find any force in this contention. It is, therefore, held that the petitioner cannot be allowed to raise the question of legallity or otherwise of the appointment of Shri D.Kumar in this writ petition.
11. A contention has also been raised on behalf of all the petitioners that even though they were working on the post of L.D.C. but they were given daily wages in shape of consolidated salary of Rs. 500/-. Thus, it is pointed out that, principles enshrined in articles 14 and 16 of the Constitution have been violated and they have not been paid 'equal wages for equal work' as they were not paid the salary and other emoluments paid to such L.D.Cs. who were regularly appointed and were drawing regular scale of pay. It does not need to be discussed in details when catena of decisions of the Apex Court as well as out own High Court arc there that merely because a person is temporary, he cannot be paid less wages than what is given to regularly appointed person who also performs the same duty. The nature of duty performed by the petitioners is absolutely same as is performed by such L.D.Cs. who are regularly appointed and who are getting regular pay scale. It is pointed out that petitioners had accepted this salary. It may be mentioned that in our country where unemployment is abundant and employment is scares, an unemployed person by sherc force on circumstances has to either accept unreasonable wages or accept the alternate of keeping himself hungry, which is the consequence of being out of employment. Therefore, the petitioners had no choice but to accept the terms of employment as offered by respondent No. 21, therefore, hold that the petitioners arc entitled to gel minimum basic salary of the post of L.D.C. on which they worked.
12. A reference may be made to case of Ralan lal and Ors. v. State of Haryana and Ors. : (1986)ILLJ23SC . This was a matter concerning appointment of teachers on adhoc basic at commencement of year, whose services were terminated before summer vacation. The Apex Court deprecated this policy being violative of Articles 14 and 16 and directed the Stale Government to make appointments as per rules and fill up vacancies in which teachers who are, working on ad-hoc basis are now working. It is evident from the facts and documents mentioned above that there did exist vacancies and even on the floor of the Assembly a statements was laid on table of the house by the concerning Minister giving out that there were as many as 12 vacancies of L.D.Cs. in the office of respondent No. 2. Such being the position, it could not be said that the services of the petitioners were terminated, as the same were no more needed. This policy of 'hire & lire' has been deprecated by the highest Court of this land' as also by this Court-time and again. Directions to make a scheme for absorption of the casual laborers continuously working in the P & t Department for more than one year was given by the Apex Court. In case of Daily Rated Casual Labour employed under P& T Department through Bhartiya Dak Tar Mazdoor Manch v. Union of India 1988 (1) SCC 122. In this case, petitioners arc also working sincce more than one year. In case of Dhirendra Chamoli and Ors. v. State of U.P. 1986 (1) SCC 637.), the matter of several employees of Nehru Yuvak Kendras in the country who were employed on adhoc basis from year to year was considered and such practice was deprecated while considering the question of regularization of such employees. It was observed that regularisation of services of these temporary employees could not be done since there were no sanctioned posts and it was hoped that since the adhoc employees were working for as many as 12 years, the posts will be sanctioned by the Central Government in the different Yuvak Kendras so that these persons can be regularised. However, in the present petitioners, it has come up quite clear that the petitioners wore working against sanctioned posts and further there exist as many as 12 vacancies of L.D.Cs. as given out on the floor of the Assembly. Even in order dated March 29, 1988 (Anncxurc-13), it has been clearly mentioned that such persons who have served for more than two years should be adjusted in Sub-Divisions /Divisions where vacancies arc existing. Therefore, it will by only appropriate that the services of the petitioners should be regularised provided they fulfill the required qualifications and pass out the tests, if any prescribed for the purpose.
13. In the result, these three-writ petitions arc allowed. The orders dated April 1, 1988 in writ petition No. 3374/88, order dated April 1, 1988 in writ petition No. 1151/88 and April 4,1988 in writ petition No 3615/88 arc quashed and set aside. The petitioners shall be reinstated with all consequential benefits. It is further directed that the petitioner shall be paid minimum basic salary of the post of L.D.C. on which each one of them was working from the date of filing of the writ petition. The petitioners shall also be entitled to get the allowances as per the rules without compensatory allowance. It is further directed that services of the petitioners shall be regularised within a period of 4 months provided they possess the required qualification and pass out any tests etc. prescribed for the same.
14. The writ petitions are allowed accordingly without any order as to costs.