Ramveer Singh vs Madan Lal

The Special Appeal arises out of the order passed by the learned Single Judge dated 3.5.2002, who had issued the directions as follows:

"The net outcome of the aforesaid discussion is that the writ petition is allowed, and the respondent No. 2 is directed to undertake a regular selection exercise, for appointment to the post sanctioned, to be manned by a suitable person to operate the machine in question. It is made clear that in undertaking the selection exercise, the vacancy should be given wide publicity, instead of confining to correspondence with the Employment Exchange, so as to give adequate opportunity to good number of eligible candidates, who may be available, and who may like to offer their candidature for appointment, and thereafter to select, out of the available candidates in accordance with law.

Considering the circumstance that the respondent No. 3 was given appointment for a specific period of one year only, and is continuing to hold the post under the orders of this Court passed in Writ Petition No. 4533 of 1992, simply because the respondent No. 2 has not chosen to undertake the selection exercise for all this long period of around a decade, and is holding the post, depriving all other eligible candidates, who may be available to offer themselves for appointment. I am constrained to direct the respondent No. 2, to complete the selection exercise positively within a period of four months. On the expiry of which period, the employment of respondent No. 3 would automatically come to an end, unless it is extended, on the extension being sought by respondent No. 2, by express order from this Court. The parties are left to bear their own costs."

The writ petition was filed by Madanlal, a Class IV employee of the Municipal Corporation, who was allegedly trained by the appellant Ramveer Singh for working as a Driver/Excavator Loading Operator in the Municipality for a writ of quo warranto against the appointment of the appellant. The appellant was neither selected nor appointed on any encadred post. He was an employee of Escorts India Limited. At the time of purchase of Excavator cum Loader by the Municipal Council, he was allowed to work under an agreement entered into between the Escorts India Limited and the Municipal Council to operate the machine for a period of one year. It was specified in the terms of agreement that services of the appellant, who was a regular employee of Escorts India Limited, will be utilised by the respondent Council for a limited period. The appellant was required to train the writ petitioner Madanlal. It appears that either the training was not completed or that the Municipal Council was not satisfied with the efficiency of Madan Lal on which the appellant was appointed on contract basis to work as Excavator cum Loader Operator, until regular selection is made on the post.

It is admitted that under the Rajasthan Municipal (Subordinate and Ministerial Service) Rules, 1963, there is no encadred post of Excavator cum Loader Operator in the Municipality and, thus, considering the predicament in which the appellant was placed, he was allowed to serve and the learned Single Judge considering the facts and circumstances of the case, issued directions, quoted as above.

The appellant was aggrieved by the concluding portion of the direction viz; that if the selection process is not completed within a period of four months, his services will automatically come to an end unless they are extended, on the extension sought by the Municipal Council, by an express order from this court.

The reasons for not completing the selection process within the stipulated time by the Municipal Council and thereafter for not seeking extension, have not been brought before this court. We are informed that in response to the proposal sent by the Municipal Council vide its letter dated 6.12.1993, the State Government approved regular pay scale to be given to one post of Excavator cum Loader Operator created in the pay scale of Rs. 1025-1800. The Municipal Council by its order Dt. 15.1.1994 allowed the appellant to work on the newly created post of Excavator cum Loader Operator, until a suitable candidate is available. By a letter dated 29.1.1994, the Administrator of the Nagar Parishad, Bikaner in reply to the sanction letter for one post of Excavator cum Loader Operator to be manned by the appellant Ramveer Singh, requested to relax the maximum age for him, as he had completed 33 years on 18.1.1994, when he was to be appointed.

The Special Appeal was dismissed for want of prosecution on 9.2.2010. Taking advantage of the dismissal of the Special Appeal, the Municipal Council terminated services of the appellant on which he filed S.B. Civil Writ Petition No. 6806/2013, which is still pending in which no interim order has been passed.

After hearing learned counsel for the parties, we do not find any error of law in the judgment of learned Single Judge under challenge in this Special Appeal. Learned Single Judge has taken into consideration the special facts and circumstances of the case in which a writ of quo warranto was filed with regard to the post of Excavator cum Loader Operator in the Municipality. The appellant was initially engaged to operate the machine and to train class IV employee or any driver in the Municipality for operating the machine. Considering the necessity of the services to operate the Excavator cum Loader, he was given contractual appointment, until the selections are made on the post. The Excavator cum Loader Operator is a specialised post for which a special licence is required under the Motor Vehicles Act. The post was not encadred in the Schedule, appended to the Rules and in the circumstances, the directions were issued by the learned Single Judge to allow the appellant to continue until regular selection is made either under the rules after its amendment or otherwise by way of administrative orders. Learned Single Judge however erred in law in issuing direction that if the selection process is not completed within a period of four months, the services of the appellant would automatically come to an end, until they are extended on the extension being sought by the Municipal Council. It is apparent that the learned Single Judge did not conceive the situation where the Municipal Council will neither hold selection nor will seek extension and that compelled the appellant to file this Special Appeal.

We may also observe here that it was not fair on the part of the Municipal Council, in view of the directions issued by the learned Single Judge as well as the interim order passed by the Division Bench of this court, to terminate the services of the appellant. The appellant cannot be said to be at fault in any manner. He was allowed to work as Excavator cum Loader Operator in the Municipal Council and continued to serve for twenty three long years before his services were terminated on the ground that the special appeal has been dismissed for want of prosecution. We may also observe here that the dismissal of the special appeal for want of prosecution did not take away the obligation of the Municipal Council to comply with the directions issued by the learned Single Judge to complete the selection exercise within a period of four months. The Municipal Council had neither challenged the observations of the learned Single Judge nor carried out the directions issued for holding selection on the post within a period of four months from the date of the said judgment. It also did not seek any extension of time from the court for holding selection.

In view of the aforesaid facts and circumstances of the case, this Special Appeal is partly allowed to the extent that the direction issued by the learned Single Judge to the effect that if selections are not made within a period of four months, on the expiry of the said period, the employment of the appellant would automatically come to an end, and the order of termination of the appellant dated 11.2.2013 are held to have been passed arbitrarily taking advantage of dismissal of special appeal for want of prosecution. The order of termination dated 11.2.2013 is consequently held to be illegal. The Municipal Council, Bikaner is directed to take the appellant back in service within a week and to allow him to continue until regular selections are made on the post.

We are informed that the appellant has attained the age of 59 years and that he will attain the age of superannuation of 60 years in a year. Considering the long service rendered by the appellant, it is directed that until the regular selections are made, he will be allowed to continue till he attains superannuation and will be paid salary in the regular pay scale, which was allowed by the State Government by order dated 18.1.1994. The appellant, however, will not be entitled to any back wages or the salary during the period he was not in employment. It is expected of the appellant that now after this judgment, he will withdraw the writ petition pending before the learned Single Judge and that the Labour Court will also decide the matter in terms of the directions issued by us.