Prabhu Dayal Sharma Vs. State of Rajasthan - Court Judgment

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SubjectLabour and Industrial
CourtRajasthan High Court
Decided OnOct-11-1985
Case NumberS.B. Civil Writ Petition No. 3587 of 1984
Judge Ashok Kumar Mathur, J.
Reported in1985WLN(UC)529
AppellantPrabhu Dayal Sharma
RespondentState of Rajasthan
DispositionPetition dismissed
Cases ReferredSurya Narain Yadav v. Bihar State Electricity Board
Excerpt:
industrial disputes act, 1947 - section 25f and rajasthan panchayat samiti and zila parishad service rules, 1959--rule 23--zila parishad refusing to grant extension in service beyond 6 months--held, petitioner continued in service after 6 months illegally and he is not entitled to benefit of section 25f;panchayat samiti by a resolution moved to the zila parishad for granting extension but the same was refused as is apparent from para 3 of the reply. thus the petitioner could not have been continued beyond the period of six months in this view of the matter if petitioner has continued for some time then that can not entitle the petitioner any benefit under the industrial disputes act because his appointment after the period of six months in clear refusal by the zila parishad is illegal.;(b) constitution of india - article 226--jurisdiction--dispute over fact regarding working in service--held, it cannot be considered in extraordinary jurisdiction;there is serious dispute in the fact whether he worked or not that can not be determined in the extraordinary jurisdiction of this court.;writ dismissed. - - this clearly shows that the appointing authority was well aware of the legal limitations, therefore, they insisted that he should given in writing and he did give in writing this undertaking.ashok kumar mathur, j.1. petitioner by this writ petition has challenged his discharge from the service2. petitioner was appointed as group sachiv on ad hoc basis in the rajasthan panchayat samiti, shahpura in the pay scale of 295-500 by the order dated 24-3-1982 vide anx. 1 thereafter his term of appointment was further extended by the order dated 20-4-1982 for another period of six months. the case of the petitioner was placed before the administration and finance standing committee. the said committee by their resolution dated 2-8-1982 decided that petitioner's services may be regularised because he is likely to be over age it is further said that in this connection the secretary zila parishad, bhilwara may be approached for sympathetical consideration. petitioner further submits that he had given in writing to the respondent samiti that he agreed to continue in service and if his services are not extended by the zila parishad, he will not claim any salary for the period beyond the extension period. he submits that he had been allowed to continue till 31-1-1983 and thereafter he was orally told that he cannot be kept in service. in this back ground petitioner has approached this court.3. a detailed reply has been filed by the panchayat samiti and it has been submitted that as per rule 23 of the rajasthan panchayat samiti and zila parishad service rules, 1959, temporary appointment can be given by the panchayat samit but it cannot extend it beyond six months without previous concurrence of the committee/commission. it has further been submitted in para 3 of the reply that the zila parishad had refused to extend the services of the petitioner. it has also been contended that the petitioner has not completed 240 days.4. mr. mridul appearing for the petitioner has raised three principal arguments. he has submitted that the petitioner's removal from service amounts to retrenchment as defined in section 2(oo) of the industrial disputes act. according to the learned counsel for the petitioner, petitioner's removal also does not fall in the exceptions made in the definition, therefore, his removal from service is retrenchment and in the case of petitioner he has been sought to be retrenched without complying with the provisions of section 25f of the industrial disputes act and as such he is entitled to get a declaration for continuance in service in the panchayat samiti. in this connection mr. mridul has invited my attention to mohanlal v. management bharat electronics ltd. 1981 s.c. 1253. mr. singhvi submitted that this case arose from the industrial tribunal whereas for exercising the extraordinary jurisdiction under article 226 the court has to examine as to whether appointment of the incumbent was in accordance with the rules or not. if the appointment was against the rules, then such illegality cannot be allowed to be perpetuated. in this connection mr. singhvi has cited sang singh v. municipal board, pokaran 1980 rlw 397.5. now the question is whether the petitioner was allowed to continue against the mandate of rule 23 of the rules of 1959 sub-rule (4) of rule 23 of reads as under:(4) the period of such temporary appointment may, however, be extended beyond six months only with the previous concurrence of the committee.according to rule 23 a temporary vacancy can be filled by the appointing authority not extending beyond six months. rule 23 (4) further says that the period of such temporary appointment may be extended beyond six months with the previous concurrence of the committee. thus a temporary appointment if allowed to be continued beyond the period of six months, then the previous approval of the committee is a condition precedent. in para 3 of the reply respondent has categorically stated that the standing committee/zila parishad has refused to grant further extension of the petitioner's appointment. thus in view of the clear mandate of the rules, the panchayat samit cannot retain any person beyond the period of six months and if they allow to continue such persons beyond the period of six months, then such appointment is illegal. in the present case it is apparent that panchayat samiti by a resolution moved to the zila parishad for granting extension but the same was refused as is apparent from para 3 of the reply. thus the petitioner could not have been continued beyond the period of six months in this view of the matter if petitioner has continued for some time then that cannot entitle the petitioner any benefit under the industrial disputes act because his appointment after the period of six months in clear refusal by the zila parishad is illegal. this fact is further supported by the petitioner own contention stated in para 6 that a written undertaking was taken from the petitioner that if no such permission is received then he would not he paid any salary. this clearly shows that the appointing authority was well aware of the legal limitations, therefore, they insisted that he should given in writing and he did give in writing this undertaking. it is not a case of taking any undertaking from the incumbent under any terror. thus the appointment of the petitioner beyond the period of six months is illegal and as such he is not entitled to get any benefit under the industrial disputes act.6. mr. mridul has next contended that the respondent after taking the work from the petitioner cannot turn back and say that appointment of the petitioner was illegal. in this connection he has cited shailendar and anr. v. university of jodhpur 1982 wln (uc) 7. as i have already held that the appointment of the petitioner was illegal and the petitioner has also given an undertaking that ha will not claim the salary if the permission for continuation has not been received from the zila parishad. thus in this view of the matter if the respondent submits that the petitioner's continuation was illegal, then it is nothing wrong on their part. moreover there is serious dispute regarding working of the petitioner. petitioner has filed a number of documents in his rejoinder showing that he has actually worked after the period of his extension. as against this respondent in its reply has filed documents ex. r. 1 and r. 2 showing that the petitioner did not work in the panchayat samiti. there is serious dispute in the fact whether he worked or not that cannot be determined in the extraordinary jurisdiction of this court. as [ have already held while deciding the first argument that the appointment was illegal, nothing turns on the second submission of mr. mridul.7. mr. mridul has further submitted that no person can take the advantage of his illegal action. i do not find any merit in this argument. in the present case the panchayat samiti has taken sufficient care in informing the petitioner that he will not claim any salary if further extension has not been received from the zila parishad. therefore, there is no question of illegal benefit derived by the panchayat samiti.8. mr. mridul has submitted that the respondent cannot be allowed to challenge their two order and in this connection he has cited heeralal v. slate of rajasthan 1975 wln (uc) 37 and state of assam v. raghava rajgopalachari 1972 slr 44. in the present case there is no order issued by the respondent continuing the services of the petitioner after the expiry of six months on 24-9-1982. respondent has not extended the service of the petitioner but he was allowed to continue on the condition that if concurrence is received from the zila parishad, then he will be paid the salary but no positive order was issued. thus it is not the case that the respondent has challenged their own order. respondent has made it clear that since they could not extend the appointment of the petitioner under rule 23 therefore no extension can be given to him. i think the submission of the respondent is correct and i do not find any substance in the argument raised by mr. mridul9. mr. mridul has lastly contended that the appointment when it was given was not illegal but subsequently when the concurrence was not granted by the zila parishad it has become illegal but no such refusal has been given by the zila parishad, and in this connection he has invited my attention to surya narain yadav v. bihar state electricity board : air1985sc941 . this submission of the learned counsel is without any merit. the petitioner was appointed for a period of 29 days and thereafter for a period of six months. after the expiry of the period of six months no further extension was granted by the panchayat samiti. obviously the panchayat samiti had no power to do so. thus the panchayat samiti moved the zila parishad for extension which was refused. thus when no order has been passed extending the services of the petitioner, it cannot be said that any illegal order has been passed by the panchayat samiti rendering the appointment of the petitioner illegal.10. so far as the case cited by the learned counsel for the petitioner is concerned it has no bearing on the issue involved in the present case. in the case of surya naryan yadav v. rseb (supra) it was held by the supreme court that the defence of the board was ill placed and could not hold as a shield against application of equitable doctrine.11. in the result i do not find any substance in this writ petition and it is hereby dismissed with no orders as to costs.
Judgment:

Ashok Kumar Mathur, J.

1. Petitioner by this writ petition has challenged his discharge from the service

2. Petitioner was appointed as Group Sachiv on ad hoc basis in the Rajasthan Panchayat Samiti, Shahpura in the pay scale of 295-500 by the order dated 24-3-1982 vide Anx. 1 Thereafter his term of appointment was further extended by the order dated 20-4-1982 for another period of six months. The case of the petitioner was placed before the Administration and Finance Standing Committee. The said Committee by their resolution dated 2-8-1982 decided that petitioner's services may be regularised because he is likely to be over age It is further said that in this connection the Secretary Zila Parishad, Bhilwara may be approached for sympathetical consideration. Petitioner further submits that he had given in writing to the respondent Samiti that he agreed to continue in service and if his services are not extended by the Zila Parishad, he will not claim any salary for the period beyond the extension period. He submits that he had been allowed to continue till 31-1-1983 and thereafter he was orally told that he cannot be kept in service. In this back ground petitioner has approached this Court.

3. A detailed reply has been filed by the Panchayat Samiti and it has been submitted that as per Rule 23 of the Rajasthan Panchayat Samiti and Zila Parishad Service Rules, 1959, temporary appointment can be given by the Panchayat Samit but it cannot extend it beyond six months without previous concurrence of the Committee/Commission. It has further been submitted in para 3 of the reply that the Zila Parishad had refused to extend the services of the petitioner. It has also been contended that the petitioner has not completed 240 days.

4. Mr. Mridul appearing for the petitioner has raised three principal arguments. He has submitted that the petitioner's removal from service amounts to retrenchment as defined in Section 2(oo) of the Industrial Disputes Act. According to the learned counsel for the petitioner, petitioner's removal also does not fall in the exceptions made in the definition, therefore, his removal from service is retrenchment and in the case of petitioner he has been sought to be retrenched without complying with the provisions of Section 25F of the Industrial Disputes Act and as such he is entitled to get a declaration for continuance in service in the Panchayat Samiti. In this connection Mr. Mridul has invited my attention to Mohanlal v. Management Bharat Electronics Ltd. 1981 S.C. 1253. Mr. Singhvi submitted that this case arose from the Industrial Tribunal whereas for exercising the extraordinary jurisdiction under Article 226 the court has to examine as to whether appointment of the incumbent was in accordance with the Rules or not. If the appointment was against the Rules, then such illegality cannot be allowed to be perpetuated. In this connection Mr. Singhvi has cited Sang Singh v. Municipal Board, Pokaran 1980 RLW 397.

5. Now the question is whether the petitioner was allowed to continue against the mandate of Rule 23 of the Rules of 1959 Sub-rule (4) of Rule 23 of reads as under:

(4) The period of such temporary appointment may, however, be extended beyond six months only with the previous concurrence of the Committee.

According to Rule 23 a temporary vacancy can be filled by the appointing authority not extending beyond six months. Rule 23 (4) further says that the period of such temporary appointment may be extended beyond six months with the previous concurrence of the Committee. Thus a temporary appointment if allowed to be continued beyond the period of six months, then the previous approval of the Committee is a condition precedent. In para 3 of the reply respondent has categorically stated that the Standing Committee/Zila Parishad has refused to grant further extension of the petitioner's appointment. Thus in view of the clear mandate of the Rules, the Panchayat Samit cannot retain any person beyond the period of six months and if they allow to continue such persons beyond the period of six months, then such appointment is illegal. In the present case it is apparent that Panchayat Samiti by a resolution moved to the Zila Parishad for granting extension but the same was refused as is apparent from para 3 of the reply. Thus the petitioner could not have been continued beyond the period of six months In this view of the matter if petitioner has continued for some time then that cannot entitle the petitioner any benefit under the Industrial Disputes Act because his appointment after the period of six months in clear refusal by the Zila Parishad is illegal. This fact is further supported by the petitioner own contention stated in para 6 that a written undertaking was taken from the petitioner that if no such permission is received then he would not he paid any salary. This clearly shows that the appointing authority was well aware of the legal limitations, therefore, they insisted that he should given in writing and he did give in writing this undertaking. It is not a case of taking any undertaking from the incumbent under any terror. Thus the appointment of the petitioner beyond the period of six months is illegal and as such he is not entitled to get any benefit under the Industrial Disputes Act.

6. Mr. Mridul has next contended that the respondent after taking the work from the petitioner cannot turn back and say that appointment of the petitioner was illegal. In this connection he has cited Shailendar and Anr. v. University of Jodhpur 1982 WLN (UC) 7. As I have already held that the appointment of the petitioner was illegal and the petitioner has also given an undertaking that ha will not claim the salary if the permission for continuation has not been received from the Zila Parishad. Thus in this view of the matter if the respondent submits that the petitioner's continuation was illegal, then it is nothing wrong on their part. Moreover there is serious dispute regarding working of the petitioner. Petitioner has filed a number of documents in his rejoinder showing that he has actually worked after the period of his extension. As against this respondent in its reply has filed documents Ex. R. 1 and R. 2 showing that the petitioner did not work in the Panchayat Samiti. There is serious dispute in the fact whether he worked or not that cannot be determined in the extraordinary jurisdiction of this Court. As [ have already held while deciding the first argument that the appointment was illegal, nothing turns on the second submission of Mr. Mridul.

7. Mr. Mridul has further submitted that no person can take the advantage of his illegal action. I do not find any merit in this argument. In the present case the Panchayat Samiti has taken sufficient care in informing the petitioner that he will not claim any salary if further extension has not been received from the Zila Parishad. Therefore, there is no question of illegal benefit derived by the Panchayat Samiti.

8. Mr. Mridul has submitted that the respondent cannot be allowed to challenge their two order and in this connection he has cited Heeralal v. Slate of Rajasthan 1975 WLN (UC) 37 and State of Assam v. Raghava Rajgopalachari 1972 SLR 44. In the present case there is no order issued by the respondent continuing the services of the petitioner after the expiry of six months on 24-9-1982. Respondent has not extended the service of the petitioner but he was allowed to continue on the condition that if concurrence is received from the Zila Parishad, then he will be paid the salary but no positive order was issued. Thus it is not the case that the respondent has challenged their own order. Respondent has made it clear that since they could not extend the appointment of the petitioner under Rule 23 therefore no extension can be given to him. I think the submission of the respondent is correct and I do not find any substance in the argument raised by Mr. Mridul

9. Mr. Mridul has lastly contended that the appointment when it was given was not illegal but subsequently when the concurrence was not granted by the Zila Parishad it has become illegal but no such refusal has been given by the Zila Parishad, and in this connection he has invited my attention to Surya Narain Yadav v. Bihar State Electricity Board : AIR1985SC941 . This submission of the learned counsel is without any merit. The petitioner was appointed for a period of 29 days and thereafter for a period of six months. After the expiry of the period of six months no further extension was granted by the Panchayat Samiti. Obviously the Panchayat Samiti had no power to do so. Thus the Panchayat Samiti moved the Zila Parishad for extension which was refused. Thus when no order has been passed extending the services of the petitioner, it cannot be said that any illegal order has been passed by the Panchayat Samiti rendering the appointment of the petitioner illegal.

10. So far as the case cited by the learned counsel for the petitioner is concerned it has no bearing on the issue involved in the present case. In the case of Surya Naryan Yadav v. RSEB (supra) it was held by the Supreme Court that the defence of the Board was ill placed and could not hold as a shield against application of equitable doctrine.

11. In the result I do not find any substance in this writ petition and it is hereby dismissed with no orders as to costs.