Sachivalaya Dainik Vetan Bhogi Karamchari Union and Others vs State of Rajasthan and Others

Mohammad Rafiq, J.�S.B. Civil Writ Petition No. 3235/2004 has been filed by Sachivalya Dainik Vetan Bhogi Karamchari Union, Jaipur whereas Writ Petition No. 8722/2005 has been filed by the petitioners with the prayer that fresh notice inviting tender dated 08.04.2004 be quashed and set aside and Condition No. 3 of such notice be quashed and set aside being contrary to the judgment dated 28.01.2003 passed by Division Bench of this Court deciding five writ petitions leading one being D.B. Civil Writ Petition No. 9836/2002 (Vinod Kumar & Anr. v. The State of Rajasthan & Ors.). Writ petition No. 4728/2006 has been filed by the petitioners assailing order dated 29.05.2006 whereby they were discontinued from service. However, subsequently it is informed that Jagdish Prasad Gurjar and Banwari Lal are still being continued and only four petitioners namely Chhotelal, Harbal, Babu Lal and Balveer Singh have been discontinued. Although they had completed eight years by the time they were removed.

As many as 40 class IV employees, all of them working on contractual basis, approached this Court by way of filing D.B. Civil Writ Petition No. 2655/2001 with the prayer that the respondent-State be restrained from replacing them each time whenever contract is awarded to new contractor and be required to make regular appointment and keeping in mind their long duration of the past service, give them relaxation in eligibility condition and award them bonus marks for regularization of their services. The aforesaid writ petition along with four other writ petitions were disposed by Division Bench of this Court on the basis settlement arrived at between the petitioners and the respondent-State in following terms:

"Having regard to the terms of settlement, we direct as follows-

(1) As per condition No. 4 of the conditions of Tender, it would be incumbent upon the contractor (New Contractor) to continue with the services of the existing employee (petitioners) upon the award of the contract to him subject to their identity being verified and subject also to verification of their suitability.

(2) In the event of the Government making regular selection for the vacant posts of Farrash/Sweeper/Class IV/Helper etc. the petitioners shall be given weightage as well as relaxation in the eligibility condition keeping in view their long duration of past services subject to their satisfactory performance.

(3) Subject to the giving of weightage and relaxation in the eligibility condition, the petitioners will have to compete with others, in case, the Government intends to make regular selections on the vacant posts of Farrash/Sweeper/Class IV/Helper etc. and

(4) In case, the petitioners make applications or file representation before the Government, requesting it to grant benefit of Circular No. F.1(5) FD/Rules/2002 dated 13.01.2003 to them the same shall be considered by the Government within a reasonable period of time. Any decision taken by the Government on the applications or representations or the petitioners shall be binding on the contractor(s).

Both the parties have agreed to the passing of the aforesaid directions.

Keeping in view the directions issued by us and the settlement arrived at between the parties, the petitioners wish to withdraw the writ petitions.

Accordingly, the writ petitions are allowed to be withdraw. The withdrawal of these writ petitions however will not affect the directions contained in the order and the department will be free to call for fresh tenders.

The writ petitions stands disposed of."

The petitioners in the present writ petitions were also petitioners in those writ petitions. When in compliance of the aforesaid judgment, the petitioners were not granted regular appointment/benefit of regularization and the Government issued fresh notice inviting tenders on 08.04.2004, Sachivalaya Dainik Vetan Bhogi Karamchari Union filed present writ petition(No. 3235/2004), with the prayer that the respondents be directed to give effect to the terms of settlement recorded in the earlier judgment and grant them benefit thereof and frame a scheme for their regularization by granting them benefit of regular pay scale and allowances and the action of the respondents in persisting with the system of engaging them through contractors be declared illegal. Challenge has been made to Condition No. 3 of the notice inviting tender dated 08.04.2004.

Petitioners are present in person and they have invited attention of the Court towards Annexure-A/1 of the Application No. 22845 dated 23.04.2014. According to the note appended to the aforesaid Annexure-A/1, it is evident that the respondents advertised 289 vacancies of the Class IV employees vide advertisement dated 15.01.2011 for regular appointment. In that note it was provided that as of now 158 contractual class IV employees are working with the respondents and 40 Safai Karmi are working through care taker. The minimum qualification for appointment on Class IV Employee as per Rajasthan Class IV Employee Service(Recruitment and Other Conditions of Service) Rules, 1999(hereinafter referred to as ''the Rules of 1999'') was prescribed as 5th class pass. 50 marks were provided for interview and it was proposed that in view of the judgment passed by Division Bench of this Court in D.B. Civil Writ Petition No. 9836/2002 along with four other writ petitions and as per the aforesaid settlement, five bonus marks be awarded to those who have complete five years of service with the respondents for the purpose of grant of weightage and those employees who have completed more than five years of service with the respondents should be granted ten bonus marks, i.e. 20% of the total marks of interview by way of weightage and that they be granted age relaxation. That proposal was approved by the State Cabinet vide Order No. D55/MM/2013 dated 03.03.2013. Revised position of vacancies as indicated in the aforesaid note shows that as on that day, there were total 489 vacant posts but eventually it was proposed that 144 posts can be added to the already advertised 289 posts. Thus recruitment can be made of 433 posts of Class IV Employees. Only 144 posts were proposed to be added in view of the proviso to Rule 21 of the Rules of 1999 which provides that not more than 50% of the advertised posts can be increased by way of subsequent requisition. However, the proposal was sent to the office of the Hon''ble Chief Minister by the Chief Secretary on 19.09.2013 stating that actual number of vacant posts of class IV employees in the Government Secretariat was 527 and that at the time when initial advertisement was issued, the vacant posts were not available of the reserved category of Scheduled Castes but presently 54 contractual employees are working who belong to Schedule Caste and therefore, in order to maintain balance, it would be desirable to relax the proviso to Rule 21 of the Rules of 1999 and matter for that purpose was placed before the Hon''ble Chief Minister. According to the aforesaid note sheet total 86 contractual employees were to be given age relaxation. 13 such employees were working for the period from 6 to 8 years; another 13 employees were working for the period from 8 to 10 years and 12 employees were working for the period from 10 to 20 years.

In order to devise the method giving weightage reliance was placed upon the judgment delivered by Co-ordinate Bench of this Court at Principal Seat at Jodhpur in S.B. Civil Writ Petition No. 4144/2013 Archana v. State of Rajasthan & Others. Therein challenge was made to the provision of awarding 10% to 30% bonus marks for appointment on the various posts advertised by the Government. Eventually reference was made to Division Bench of this Court. The Division Bench vide its answer/judgment directed that not more than 15% bonus marks can be awarded and ordered that Writ Petition No. 4144/2013 be placed before the Single Bench for its adjudication on other merits of the case.

The petitioners submits that they have been working since 1998 and even those four petitioners, who were discontinued in the year 2006, have also worked for eight years and, thus, all of them have worked for more than five years. They are thus entitled to ten bonus marks each as per the decision taken by the respondents. They would be satisfied if this Court decide these writ petitions by directing the respondent-State to go ahead with declaration of result and on that basis issue regular appointment orders to the petitioners. It is argued that the grant of bonus marks to the petitioners has its roots in the judgment delivered by the Division Bench which in turn was based on the settlement arrived between the State and the contractual class IV employees.

Mr. Kailash Chandra Kumawat, Assistant Secretary, Department of Personnel, B-IV, Secretariat, Jaipur has submitted that the Government has filed SLP against the Division Bench decision of this Court whereunder a capping has been given on award of bonus marks only up to 15 whereas the Government intends to give bonus marks up to 30 and the respondents are waiting for the decision of the Hon''ble Supreme Court and for that reason, result of the selection of Class IV Employees has not been declared so far.

It is indeed pity that the petitioners, who have been working with the respondent-State through contractors, are waiting of regular appointments since 1998 and in this hope, they have completed more than fifteen years of service with the respondents on contract basis through contractors on payment of a very meager amount, which at present is Rs. 166/- per day. The petitioners, were earlier being paid through the contractors and from 2006 onwards, under the order of the Government, they are being paid through the Government. Presently they are being paid on daily wages rate payable to a skilled labour, which is Rs. 166/- per day. Even this amount is not paid whenever it is a non working day/holiday. All the petitioners are in their late 30s and some in early forties. They have responsibility of maintaining large families. The decision of the Government to grant them benefit of bonus marks has its roots in the decision of this Court dated 28.01.2003 passed in the earlier writ petition filed by the petitioners wherein as per Clause (2) and (3) of the settlement arrived at the between the petitioners and the Government, it was agreed that in the event of the Government making regular selection for the vacant posts of Farrash/Sweeper/Class IV/Helper etc. the petitioners shall be given weightage as well as relaxation in the eligibility condition keeping in view their long duration of past services subject to their satisfactory performance. And for this purpose, the petitioners will have to compete with others. It was with a view to giving effect to aforesaid decision/settlement that the respondents devised method of giving bonus marks. They decided to give five bonus marks to such of the contractual class IV employees who have completed five years of service and ten bonus marks to those who have completed more than five years of service. Even those four petitioners, namely Chhotelal, Harbal, Babu Lal and Balveer Singh, who have completed eight years of services, would yet be entitled to same bonus marks at par with others, who have not been discontinued, i.e. ten bonus marks. On particularly query made by the Court, Mr. Kailash Chandra Kumawat, Officer-in-charge has informed that the challenge to the Division Bench decision of this Court has been made by the Government and not by the private litigants, which would mean that the Government has approached the Hon''ble Supreme Court defending its decision to award 30 bonus marks. This only fortifies the claim of the petitioners because the bonus marks which are being granted to them were because of the solemn understanding of the Government given to this Court in the settlement arrived at between the petitioners and the Government. The Government possibly now cannot go back upon their stand and is under obligation to give effect to aforesaid settlement. In fact, the case of the petitioners has to be taken on different footings and not to be linked with other matter, which is subject matter of challenge before the Hon''ble Supreme Court. Grant of bonus marks to the petitioners has got independent approval from the State Cabinet. The Government ought to, therefore, go ahead with the finalization of the process of selection by declaring the result.

In view of above, present writ petitions succeed and are allowed. The respondents are directed to declare the result by awarding bonus marks to the petitioners as per their decision and pass appropriate orders of appointment of selected candidates within a period of two months from the date copy of this order is produced before them.

Application No. 22845/2014 stands disposed of.

Registry is directed to place copy of this order on record of each connected writ petition.