Pradesh Janta Jal Yojna Shramik Union vs The State of Rajasthan

We have heard learned counsel appearing for the appellant. Learned Advocate General for the State of Rajasthan has appeared for the respondents.

This Special Appeal is directed against the judgment of learned Single Judge dated 17.09.2013, by which he dismissed the writ petition as well as the stay application, for the prayers made in the writ petition, quoted as below:-

(i) Issue an appropriate writ, order or direction in the nature thereof thereby, the advertisement No. F. II (32) PHED/P.12-13/3349, dated 08.08.2013 issued for the various posts including the post of Pump Drivers/Helpers may kindly be quashed and set aside subject to decision of Hon''ble Court in SBCWP No. 15098/2012;

(i)(A) Issue an appropriate writ, order or direction in the nature thereof thereby, the respondents may kindly be directed to regularize the services of the workers of the petitioner shramik union on the post of Pump Drivers-11 and Helpers prior to initiation of fresh appointment on the similar posts in pursuance of the advertisement dated 08.08.2013.

(ii) Issue an appropriate writ, order or direction in the nature thereof thereby, the respondents may kindly be directed to extend bonus marks as well as relaxation in upper age limit for the workers indulged in similar work on the post of Pump Operators under Scheme of Janta Jal Yojna and other Schemes, against the posts advertised under advertisement dated 08.08.2013;

(iii) Any other appropriate order or directions which this Hon''ble Court may deem fit just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner;

(iv) Cost of the writ petition may also be awarded in favour of the petitioner."

Learned Single Judge held that the question of regularization of the members of the petitioner-Union has been taken up by the respondents, which is pending consideration at the highest level, and if that is so, then dismissal of the writ petition will not come in the way of the rights of the members of the petitioner-Union, but a direction, as prayed in para. (i)(A) of the prayer clause, for regularization of their services prior to initiation of fresh appointment, cannot be granted. The writ petition was consequently dismissed.

Learned counsel appearing for the appellant/petitioner submits that in the previous round of litigation, it was held by a Division Bench of this Court in D.B. Civil Special Appeal No. 987/2012-Superintending Engineer, PHED, Sikar vs. Prahlad Ray & others, and other connected Special Appeals, decided on 06.09.2012, that the Public Health & Engineering Department was the employer of the members of the petitioner-Union, serving as Pump Operators under the services of the Gram Panchayat, for running water pumps, as defined under Section 2(e) of the Act (Minimum Wages Act/1948), which means an employment specified in the Schedule or any process or branch of work, forming part of such employment. The Division Bench, in a matter arising out of an order passed by the Prescribed Authority under the Minimum Wages Act, observed as follows:-

"The definition of the ''employee'' as contained in Section 2(i) of the Act also makes it clear that employee means any person, who is employed for hire or reward to do any work, skilled of unskilled, manual or clerical, in the scheduled employment in respect of which minimum rates of wages have been fixed. Thus, the employment offered by the PHED through Gram Panchayat cannot absolve the PHED from its liability to make payment of wages, it remains employer as defined in Section 2(e) of the Act. The employment even under any local authority is included in the Schedule. The ''scheduled employment'' is defined in Section 2(g) of the Act, which means an employment specified in the Schedule or any process or branch of work forming part of such employment, therefore, the submission raised by the learned Addl. Govt. Counsel appearing for the State is bereft of substance.

In view of the aforesaid discussion, we find the appeals to be devoid of merits and they are liable to be dismissed.

D.B. Civil Cross Objections Nos. 2/2012 has been filed by Prahlad Ray & others for granting the benefit of period of three years, which was granted by the Authority and has been confined to six months by the Single Bench. It is apparent from the first proviso contained in Section 20(2) of the Act that every such application shall be presented within six months from the date on which the minimum wages became payable. No satisfactory cause was given not to file application within a period of six months. Thus, the decision rendered by the Single Bench confining the minimum wages to six months is found to be appropriate and Cross Objections are, thus, liable to be dismissed.

Resultantly, all the appeals as well as D.B. Civil Cross Objections Nos. 2/2012 are hereby dismissed. The Stay Applications are also dismissed."

Against the judgment, the Superintending Engineer, PHED, Sikar and Others, have filed Special Leave to Appeal (Civil) CC-3517/2013, in which Hon''ble Supreme Court, on 18.02.2013, passed by the following order:-

"Delay condoned.

Issue notice.

In the meantime, there shall be stay as prayed for, subject to petitioners ensuring payment of at least 50% of the current minimum wages in favour of the respondent Nos. 1 to 5 with effect from 01.02.2013.

Additional documents, if any, may be filed by learned counsel for the petitioners within six weeks."

It is submitted that findings recorded by the Division Bench in Superintending Engineer, PHED, Sikar vs. Prahlad Ray & others (supra), entitle the appellants for consideration of regularization of their services, and if all the posts manned by them, are filled up by direct recruitment, the appellants will suffer serious prejudice.

It is submitted by learned Advocate General, representing the respondents, that the appellants were not appointed to any public service. They are not the members of the Rajasthan Engineering Subordinate Service (Public Health Branch) Rules, 1967 (for short, the Rules of 1967''). They do not have any right for regularization of their services. They were not appointed against any post, nor they are carrying out the work of Public Health & Engineering Department of the State of Rajasthan. All the appellants were appointed under a Scheme, dated 28.03.1994, called "Janta Jal Yojna", providing for drinking water from the available wells in the area, run by the Panchayat or any society of the residents of the village, for which the State Government made a commitment for providing subsidy of electricity charges from its funds by way of reimbursement. If necessary, deep boring was also provided in the Scheme of the wells under the famine relief. Separate arrangements were also provided for repair of the electric motors running the pumps, for which the Department agreed to subsidize the cost.

Clause 4 of the Scheme provided that no departmental employee will be made available, or posted for running the motors on the wells, and the local committee will make part time arrangements for that purpose. If the committee found it appropriate, it may give the work on contract under the Scheme.

It is submitted that the members of the appellant-Union were appointed under a Scheme (Janta Jal Yojna), in which reimbursement of electricity charges was granted to the extent of Rs. 500/- for electricity to run electric motors to pump water from wells. The subsidy for deep boring, and repairs of the motors was also provided by the PHED. The Scheme categorically stated that no departmental employee would be made available for running of the motors on the wells. The members of the appellant-Union were not appointed by the PHED, nor any appointment order was issued, either by the PHED, or by any other organization including the Gram Panchayat, or any society. They all were casually employed for running the motors on the wells under the Scheme which is still continuing.

It is submitted by learned Advocate General that nature of the employment of the members of the appellant-Union does not fall in any of the categories of the scheduled employment under the Rules of 1967, for which any consideration for regularization may be made for them, and that they have no right to challenge the direct recruitment, to be made on various cadre posts, namely Pump Driver-II, Fitter-II, Electrician-II, Meter Reader, Lineman and Helper under the Rules of 1967. For these posts, included in the Schedule appended to the Rules of 1967, along with other posts, the qualification, eligibility as well as experience is provided. For example, for Pump Driver-II, the qualification prescribed is 8th class, and 5 years experience of the trade or should possess I.T.I. Certificate in Electrical or Mechanical trade. This post can be filled up by promotion to the extent of 75% from Helper or Pump Driver-III, possessing experience of 5 years as Pump Driver-III, or Helper in Pumping section or with total experience of 10 years, out of which 3 years experience as Helper or Pump Driver III, is provided in the Schedule.

It is submitted by learned Advocate General that a total of 1306 posts were advertised in the aforesaid 6 categories, to be filled up by direct recruitment in the quota, prescribed in the Schedule, for which the last date for receiving the application was 08.08.2013. The last date was extended upto 05.09.2013. The process was initiated more than a year ago, but selections have not been made so far, nor any stage, beyond receiving of the applications, has reached in the selections.

We have heard the respective submissions and find that considering the nature of the appellants'' employment, which can, at best, be said to be casual or part time under the Gram Panchayat, or Society under the Janta Jal Yojna Scheme, was by way of incentives given by the State Government, for the Gram Panchayats, or Societies of the villagers, to run the pump set to lift water from the wells in the villages with scarcity of water. Considering the shortage of availability of potable water in the villages in the State of Rajasthan, the Scheme was conceived by way of incentives to the villagers, either through Gram Panchayats, or by forming self help groups (societies) for installing and running of the motors on the wells, providing subsidy only for electricity charges; for deep boring of the wells, and repairing of the motors. The persons employed by the Gram Panchayat/Society for running or repairing of the motors on the wells under such Scheme, cannot claim to be the employees of the Public Health & Engineering Department. There is no element of employment, nor they were appointed as against the scheduled posts under the Rules of 1967.

We have examined the judgment of the Division Bench in Superintending Engineer, PHED, Sikar vs. Prahlad Ray & others (supra), and find that the judgment was rendered in respect of the claim for minimum wages, raised before the Prescribed Authority under the Minimum Wages Act, 1948. The Division Bench, in the context of payment of minimum wages to the persons who were found to be working as Pump Driver under the Scheme run by the PHED, had observed that it is apparent that the Scheme belongs to the PHED; it was handed over for management to the local bodies/authorities; the budget was to be provided by the PHED; movable and immovable property remained vested in the PHED; monthly sum of Rs. 500/- which was being paid to the pump driver in the form of honorarium, used to be disbursed by the PHED; besides other amount for upkeep of pumps, electricity charges were also paid by the PHED. It was thus found for the purposes of finding out as to who would be the employer for payment of minimum wages that the Scheme is of the PHED, and merely because permission has been given to the local bodies/authorities to run the Scheme on part time basis or through the employees, which they were supposed to engage, such employees remain, in essence, the employees of the PHED.

The observations made by the Division Bench, were in the context of determining as to who is the ''employer'' under Section 2(e) of the Minimum Wages Act, 1948. The Court was not examining whether the respondents in that case were appointed on the cadre posts, or on any post under the Rules of 1967 for regularization or in any permanency in employment. It was only for a limited purpose of finding out as to who is the employer for the purpose of paying the minimum wages. The qualification, eligibility and experience for the post was not considered, nor was required to be considered by the Court. These findings do not, in any manner, give any right to the appellants in this Special Appeal, to either claim regularization, or to stall the regular appointments, to be made regularly on the cadre posts, described in the Schedule. We are, thus, in agreement with the findings recorded by learned Single Judge that the appellants do not have any right for regularization. In view of these findings he erred in law in observing that their cases are pending for consideration of regularization. There was no occasion in the matter, after denying the right for regularization, to make any further observation.

We however find that the members of the appellant-Union, even if they are not discharging their duties, as against any post in the Department under the Rules, have a right to be considered for appointment, provided they are eligible, qualified, and possess the requisite experience for the advertised posts.

We are informed that 1306 posts of various categories have been advertised, whereas the appellants are 2485 in number. We have no doubt that most of the members of the appellant-Union must have applied in pursuance of the advertisement, if they are eligible and experienced. If however any of them has not applied, in the hope of getting some relief of regularization in this Special Appeal, which we have decided today, must be given an opportunity, if he is eligible, qualified and possessing requisite experience to apply for the advertised posts.

In view of the above, we direct that the respondents will issue necessary advertisement within three weeks, making it open for the members of the appellant-Union only, for those who have not applied, to apply for the posts, advertised vide advertisement dated 08.08.2013 within a period of 15 days from the date of advertisement, and to consider the applications made by the appellants, provided they are eligible, qualified, and possess requisite experience for selection to the posts under the Rules of 1967.

The Special Appeal is accordingly disposed of. The second stay application stands dismissed.