Ram Kishore Meena and Madhu Singh Rajawat Vs. State of Rajasthan and anr. - Court Judgment

Calla, J.

1. Admit. Issue notice to the respondents. Mr. Ajay Purohit, Govt. Advocate accepts notice on behalf of respondent Nos. I and 2 as he had already entered appearance in response to the notice issued before admission. On the request of both the sides, the matter was taken up for final hearing right today.

2. This appeal is directed against the judgment and order dated 16.9.99 passed by the learned Single Judge whereby the petition has been dismissed. Since there have been more than one innings of litigation and there are references and cross references of more than one writ petitions, we find it necessary to narrate the facts in some detail so that the grievance of the appellants is better appreciated for the purpose of its effective adjudication.

3. The appellants were initially appointed by the Collector, Jaipur, vide order dated 28.10.1989, for the period upto 28.2.90, for parliamentary election work. The parliamentary election work was over but their services were extended, from time to time. In the year 1991, when new District Dausa was formed, the petitioners were transferred to Collectorate, Dausa and they joined their duties at Dausa. While they were discharging the duties LDCs at Collectorate, Dausa, a show cause notice dated 13.5.92 was issued stating therein that in view of the decision given by the High Court in the case of Om Prakash and others vs. State of Rajasthan (1), it was not possible to continue them in service. The appellants replied this show cause notice on 19.5.92 stating therein that they were not parties to the said writ petition i.e. S.B. Civil Writ Petition No. 4754/91 filed by Om Prakash and others and the judgment rendered in that case was not applicable to them. A distinction was pointed out that Om Prakash and others who were petitioners in S.B. Civil Writ Petition No. 4754/91, were appointed on 2.12.89 for a period of four months only for the 9th Parliamentary Election work and their services came to an end with the expiry of four months on 31.3.90 whereas in the present case, the appellants' term of appointment was extended, from time to time, and for the period upto the receipt of the government sanction or availability of duly selected candidates from the R.P.S.C., whichever is earlier. It was also stated in the reply to the show cause notice that upon formation of Dausa Distt. several new posts were sanctioned by the State Government and the candidates selected by the R.P.S.C. were not available and therefore, their services may not be terminated. However, the Distt. Collector, Dausa, passed an order on 2.7.92 terminating the services of these two appellants. These appellants filed S.B. Civil Writ Petition No. 4628/92 before this Court against their termination dated 2.7.92. High Court issued notices of the said petition on 21.7.92 as to why the writ petition should not be admitted and finally decided at the admission stage, and also passed an interim order that till further orders, the termination order dated 2.7.92 shall remain ineffective and the appellants shall be allowed to continue as LDCs. This order dated 21.7.92 is reproduced as under:--

fnukad 21-7-92

ekuuh; U;k;kf/kifr Jh vkj-,y- dstM+hoky

Jh ts-ds- fla/kh] vf/koDrk& izkFkhZx.k

izkFkhx.k ds vf/koDrk Jh fla/khmifLFkr gq,] mUgsa lquk x;kA

izkFkhZx.k ds vf/koDrk ds cgl gS fd izkFkhZx.kdh fu;qfDr fnukad 28-10-1989 ds vkns'k }kjk vizkFkhZ us dfu'V fyfid ds inij dh FkhA ;g fu;qfdR vLFkk;h Fkh rFkk le; le; ij c<+k;h x;hA iqu% vizkFkhZus vius vkns'k fnukad 24-5-1990 ds }kjk izkFkhZx.k dh fu;qfDr vof/k jkT; ljdkjls Lohd`fr izkIr gksus rd vFkok jktLFkku yksd lsok vk;ksx ls p;fur vH;FkhZ miyC/kgksus rd tks Hkh igys gks] c<+k;h fnukad 2-7-92 ds vkns'k }kjk flfoy fjV ua- 4754@91esa gq, vkns'k ds vk/kkj ij izkFkhZx.k dh lsok,sa lekIr dj nh tcfd izkFkhZx.k urks ml ;kfpdk esa i{kdkj Fks vkSj u gh ml ;kfpdk ds rF; izkFkhZ ds dsl esa ykxwgksrs gSaA jktLFkku yksd lsok vk;ksx ls vHkh rd p;fur vH;kFkhZ miyC/k ugha g,qgSaA

vizkFkhZ dks uksfVl tkjh gks fd ;g ;kfpdk D;ksu xzg.k dh tkdj xzg.k ds oDr gh vfUre :i ls r; dj nh tkosA

uksfVlst pkj lIrkg dh okilh ds fy;s tkjh fd;stkosa rFkk izkFkhZx.k ds vf/koDrk dks nLrh nh tkosA vfxze vkns'k rd vizkFkhZ dkvkns'k fnukad 2-7-1992 izHkko'kwU; jgsxk rFkk izkFkhZx.k dfu'B fyfid ds inij dk;Z djrs jgsaxsaA

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4. While the appellants were so continuing in service on the basis of the interim order dated 21.7.92, an amendment was introduced in Rule 25 of the Rajasthan Subordinate Officers Ministerial Staff Rules, 1957 (in short 'the Rules of 1957') whereby it was provided that all persons appointed as LDCs on ad hoc basis or on daily wage basis during the period from 1.1.85 to 31.3.90 and are still working as such on the date of the amendment i.e. 12.10.92, shall be appointed on regular basis on availability of vacancy, subject to the condition that they pass a performance test to be conducted by the concerned Head of the Deptt. within a period of three years in accordance with the syllabus prescribed in Part-IV of Schedule-1 of the Rules. It was also held out in this notification dated 12.10.92 that if a person fails to pass the said performance test inthree chances to be availed within a period of three years, he shall be liable to be removed from service. In pursuance of the said notification, the appellants were required to appear in the performance test conducted by the Distt. Collector, Dausa on 23.12.92 and the call. letters for this performance test were issued to them on 17.12.92. The appellants appeared in the performance test and passed the same on 23.12.92. After passing the performance test, they were also allowed annual grade increments from the date of passing of the test i.e. 23.12.92 vide order dated 8.1.93 passed by the Distt. Collector, Dausa. Thereafter, on 18.6.93, the Distt. Collector, Dausa issued an order whereby these two appellants were made substantive on the post of LDC. In this order dated 18.6.93 by which they were made substantive, it was not mentioned that the order was subject to the result of the pending writ petition i.e. S.B. Civil Writ Petition No. 4628/92. In our opinion, at this juncture, the appellants would have been well advised to withdraw their petition- S.B.C.W.P. No. 4628/92. But they did not do so. S.B.C.W.P. No. 4628/92, which they had filed against their termination order dated 2.7.92 remained pending and when it came up before the court for hearing on 14.5.97, it was mentioned that the writ petition had become infructuous and accordingly, the court by its judgment and order dated 14.5.97 dismissed the writ petition as having become infructuous. The submission made on behalf of the Government was also recorded that the writ petition was covered by the decision given in the case of Om Prakash and others vs. State (supra), which had been decided on 27.1.92. This order dated 14.5.97 is reproduced as under:

'S.B.C.W.P. No. 4628/92

14.5.97 Hon'ble N.K. Jain J.

Mr. Ravindra Pal Singh, for petitioner

Miss Sumitra Goyal, for respondents.

Heard,

Learned counsel for Respondents submits that this writ petition is covered by the decision of Om Prakash vs. State Civil Writ Petition No. 4754/91 dated 27.1.1992.

In view of this counsel for petitioner submits that this writ petition has become infructuous.

The writ petition is dismissed, as having become infructuous.'

5. It may be mentioned that the petition of Om Prakash and others as mentioned in the above noted order dated 14.5.97 was the same petition on the basis of which their services were sought to be terminated and were in fact terminated on 2.7.92 which order itself was the subject matter of challenge in S.B.C.W.P. No. 4628/92 filed by them, wherein they were contending that their case was not at all identical to that of Om Prakash and only on that basis, their termination was made ineffective by the Court on 21.7.92. Their Writ Petition No. 4628/92 had become infructuous not because of decision in the case of Om Prakash and others but because they had been made substantive during the pendency of the petition, as aforesaid. A seniority list of substantive LDCs was also issued on 26.5.99, as for the year 1999-2000 and in this seniority list, the names of these two appellants had also been included at SI. No. 15 and 16 respectively. To the misfortune of these two appellants, the Collector, Dausa yet proceeded to pass an order dated 13.8.99 by saying that SBCWP No. 4628/92 filed by the appellants had been dismissed on 14.5.97. The said order dated 13.8.99 passed by the Collector was dehors the existence of the order dated 18.6.93 whereby these two appellants had acquired the permanent status. While passing this order dated 13.8.99, the Collector, Dausa made the dismissal of their SBCWP No. 4628/92 as the basis and did not notice that in the order dated 14.5.97 itself it was mentioned that the writ petition had been dismissed as being infructuous (not on merits). Thus, the developments which had taken place after their termination on 2.7.92, (during the pendencyof the petition No. 4628/92 while termination order dt. 2.7.92 was ineffective under court's order) whereby they had acquired substantive status in accordance with amendments made in the Rules of 1957 and on the basis of their passing the performance test, and further that their names had also been included in the seniority list of LDCs issued on 26.5.99, which were on record with the author of this order dated 13.8.99 i.e. the Collector, Dausa himself, were altogether ignored as if they were of no consequence. It is this order dated 13.8.99 passed by the Collector, Dausa which gave rise to the filing of the present S.B.C.W.P. No. 4789/99 by the appellants and which has been dismissed by the learned Single Judge without taking note of the fact that the earlier writ petition had been dismissed as having become infructuous and not on merits and during the pendency of the earlier petition, the appellants had already acquired the substantive status in accordance with the Rules and that the Collector had passed the present order of termination dated 13.8.99 as if it was a natural consequence of the dismissal of their earlier writ petition as having become infructuous on 14.5.97 as is very clear from the following mention made by the learned Single Judge in the impugned order dated 16.9.99:-

'though after dismissal of the writ petition the services of the petitioners stood terminated automatically on 14.5.97, still an order dated 13.8.1999 has been passed by the respondents terminating the services of the petitioners on the ground of directions issued by this Court in the case of Om Prakash and also the writ petition filed by the petitioner having been dismissed.

6. It appears from the reading of the entire impugned order dated 16.9.99 passed by the learned Single Judge that his attention was not invited to all these developments which took place between 2.7.92 and 13.8.99 though pleaded in the body of the petition and as to how and in what circumstances, the earlier writ petition was dismissed as having become infructuous because they had already acquired the substantive status in the meantime in accordance with the Rules.

7. In the facts and circumstances of the present case when the order dated 18.6.93 (Annexure-4 with writ petition) is available on record, whereby the appellants had been made permanent in service and the factual position in this aspect is not contested rather admitted before us, the order dated 13.8.99 (Annexure-5 with writ petition) is found to be wholly oblivious of the order dated 18.6.93 by which the appellants were made permanent.

8. Mr. Ajay Purohit, Govt. Advocate has submitted that even if during the pendency of Writ Petition No. 4628/92, an order had been passed by the respondents in the year 1993, granting permanent status to the petitioners, the said writ petition (No. 4628/92) having been dismissed vide order dated 14.5.97, the petitioners cannot be allowed the benefit of the order dated 18.6.93 by which they were made permanent in service. The submission is devoid of merit and has been stated only to be rejected which we do hereby.

9. The order making the petitioners to be permanent is unconditional and unqualified, and was passed in accordance with rules on their passing the performance test. Notwithstanding the dismissal of the earlier writ petition on 14.5.97, the services of permanent employees could not be terminated in a perfunctory manner as was done on 13.8.99 without application of mind. The order dated 13.8.99 militates against the record as well as rules and shows the apathy of the officer and the author of this order dt. 13.8.99. We, therefore, find that the order dated 13.8.99 passed by the Collector suffers from total lack of application of mind nor it could have been passed as an order consequential to the order dated 14.5.97 which was passed in the earlier writ petition. As a result, the order dated 13.8.99 terminating the service of the appellants (petitioners) can not be sustained in the eye of law and we find that the learned Single Judge has erred in dismissing the writ petitfon. Lord Kenyon C.J. (1732-1802) observed in Cotton vs. Thurland (2), as under:

'In the hurry of business...the most able Judge are liable to err.'

10. Be that as it may, injustice done to the appellants has to be brought to an end by strength of justice and therefore, we rectify this error by allowing this appeal of course with no regrets for the error because the appellants have continued in service throughout the pendency of this appeal on the strength of the interim order passed by this Court on 12.10.99.

11. Accordingly, this appeal succeeds. The order dated 16.9.99 passed by the learned Single Judge is hereby set aside. The writ petition is allowed, the order dated 13.8.99 terminating the services of the appellants is hereby quashed and set aside. The appellants shall be entitled to all benefits as if the impugned order of termination had never been passed against them. The appeal is allowed. Costs made easy.