Dismissed

Babulal Sharma v. State and Ors.

Rajasthan HC3 Mar 2014SAW/1175/2013

Case brief

AI extract

What is this about?

The Court dismissed an intra-court appeal against an order rejecting an employee's claim for absorption and appointment as a Lower Division Clerk (LDC). The Court held that since the appellant was originally appointed as a Class IV employee and the alleged transfer to LDC lacked valid government approval, no right to absorption existed.

What did the court decide?

Appeal dismissed; absorption on the post of LDC refused; appellant remains a Class IV employee.

Babulal Sharma Vs State and Ors. — Pension and Retirement Benefits | Rajasthan HC (2014)

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D.B. CIVIL SPECIAL APPEAL (W) NO.1175/2013

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

:JUDGMENT:

Babu Lal Sharma

Vs.

State of Rajasthan & Ors.

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D.B. CIVIL SPECIAL APPEAL (W) NO.1175/2013

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Date of Judgment

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:: 3^rd March 2014

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HON'BLE MR. JUSTICE DINESH MAHESHWARI HON'BLE MR. JUSTICE BANWARI LAL SHARMA

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Mr.Ravindra Singh for the appellant

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BY THE COURT: (Per Dinesh Maheshwari, J.)

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By way of this intra-court appeal, the petitioner-appellant seeks to challenge the order dated 23.10.2013 passed in CWP No.1264/2012 whereby, the learned Single Judge of this Court has rejected his claim for absorption and appointment on the post of Lower Division Clerk (‘LDC’) under the Rajasthan Voluntary Rural Education Service Rules, 2010 (‘the Rules of 2010’).

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Put in brief, the relevant background aspects of the matter are as follows: On the recommendations of Selection Committee, the appellant came to be appointed as Class IV employee in Shri Bhanwarlal Duggar Ayurved Vishva Bharati, Gandhi Vidhya Mandir, Sardarshahar under the appointment order issued on 08.01.2000. The appellant joined as such and continued to serve until he was transferred to Gram Jyoti Kendra on 10.02.2006. The appellant, thereafter, made an application on 20.10.2009 for being appointed on the post of LDC and referred to the qualifications possessed by

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D.B. CIVIL SPECIAL APPEAL (W) NO.1175/2013

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him. It appears that on the application so made by the appellant, the Managing Committee of Buniyadi Uchch Madhyamik Vidhyalaya, Gandhi Vidhya Mandir, Sardarshahar adopted a resolution on 22.10.2009 that he may be transferred after promotion against the vacant post of LDC. However, the Managing Committee consciously resolved that such a transfer with promotion be accorded only after the approval of Education Department. It appears further that pursuant to this resolution, the Secretary, Gandhi Vidhya Mandir, Sardarshahar proceeded to address a letter dated 23.10.2009 to the Director, Secondary Education but therein, he merely suggested that for the purpose of transfer of an employee from one aided post to another in the same pay scale, approval of the Education Department was not required. However, without specifically mentioning that the appellant was working on a Class IV post, it was suggested that his transfer on the post of LDC, from aided post in Gram Jyoti Kendra to another aided post in Buniyadi Uchch Madhyamik Vidhyalaya, may be approved. In response, the Director, Secondary Education, Rajasthan, Bikaner stated in his letter dated 23.12.2009 the consent of the Government for transfer of the appellant from one aided post to another in the same pay scale and under the same Managing Committee while also stating that the approval of the Government or the Education Department for transfer of an employee in the same pay scale from one aided post to another was not required as such. Pursuant to this letter dated 23.12.2009, the appellant was allegedly “transferred” to the post of LDC in Buniyadi Senior Uchch Madhyamik Vidhyalaya, Gandhi Vidhya Mandir by the order dated 24.12.2009; and he purportedly

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D.B. CIVIL SPECIAL APPEAL (W) NO.1175/2013

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joined on 26.12.2009.

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After having, thus, been purportedly ‘transferred’ to the post of LDC, the appellant made an application on 08.02.2011 seeking appointment in the government service as envisaged by the Rules of 2010. The application so made by the appellant was forwarded by the employer and after due consideration, the concerned Screening Committee approved his appointment as Class IV employee; and an order to that effect was issued by the District Education Officer (Secondary), Churu on 24.06.2011. The appellant was, thereafter, duly relived by his employer-institution on 30.6.2011 for joining in pursuance of the said order dated 24.06.2011.

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The appellant accepted the appointment order so issued on 24.06.2011 and joined pursuant thereto on 01.07.2011. Thereafter, the appellant made a representation on 24.08.2011 with reference to the facts above noticed and, with the submissions that he had been working on the post of LDC with his erstwhile employer, prayed for his appointment on the post of LDC rather than as a Class IV employee. This representation having not been considered, the appellant preferred the writ petition leading to this appeal, seeking the relief that the impugned order dated 24.06.2011 may be set aside and the respondent authorities may be directed to absorb and give him appointment on the post of LDC.

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It was argued before the learned Single Judge that the date on which the case of the appellant was forwarded by Gandhi Vidhya Mandir, he was working on the post of LDC and, therefore, under the provisions of the Rules of 2010, the State Government was under an obligation to absorb him on the post of LDC. The learned

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D.B. CIVIL SPECIAL APPEAL (W) NO.1175/2013

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Single Judge found the contentions as urged on behalf of the petitioner-appellant bereft of substance with the observations that there was no evidence available on record to prove that he was provided appointment after due process of law on the post of LDC. The only order referred by the appellant had been the one dated 24.12.2009, which was clearly a case of transfer and not the appointment on regular basis. The learned Single Judge observed that the case of the appellant was recommended by the aided institution for absorption on the post of Class IV and not on the post of LDC and, therefore, no directions could be issued to the respondents to absorb him on the post of LDC. Accordingly, the learned Single Judge proceeded to dismiss the writ petition by the impugned order dated 23.10.2013.

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Seeking to question the order aforesaid, it has strenuously been argued that the appellant had been working on the post of LDC in Gandhi Vidhya Mandir and no order of his alleged demotion was ever served on him. It is submitted that until the last date of his working with Gandhi Vidhya Mandir, the appellant was discharging the functions on the post of LDC and even census work was assigned to him, as assigned to an LDC. It is submitted that absorbing the appellant on the post of Class IV employee is entirely arbitrary and discriminatory, causing serious prejudice to him and hence, the matter calls for interference.

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Having given thoughtful consideration to the submissions made and having examined the record, we have not an iota of doubt that the claim of the appellant remains entirely baseless and he is not entitled to any relief.

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D.B. CIVIL SPECIAL APPEAL (W) NO.1175/2013

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It is apparent on the face of record that the appellant was regularly selected on a Class IV post in the aided institution and had been working as such. There had been propositions for his promotion to the post of LDC but the Managing Committee of the Institution was conscious of the fact that such a promotion would require an approval of the State Government and stated so in its resolution dated 22.10.2009. However, it had been an oblique methodology where the Secretary of the Institution, in his communication dated 23.10.2009, concealed the material fact from the Director, Secondary Education, Bikaner and projected the matter in a rather distorted manner with the suggestion as if it were a case only of transfer from one post to another in the same pay scale. The Director, in his communication dated 23.12.2009, only clarified that the consent of the Government was not required for transfer from one aided post to another in the same pay scale. On the strength of this communication dated 23.12.2009, the institution proceeded to post the appellant as LDC by the order dated 24.12.2009. It was rather a crude attempt to over-reach the process of law and the same was specifically objected against in the internal audit carried out by the Assistant Accounts Officer of the Office of the District Education Officer (Secondary), Sikar in his report, a copy whereof has been placed on record by the respondents with their reply to the writ petition as Annex.R.3/2. The so-called “transfer” to the post of LDC was found to be of a gross irregularity. According to the respondents, thereafter, an order was issued on 16.03.2011 (Annex.R.3/1) by the institution concerned, reverting the appellant to the post of Assistant. Even if the appellant alleges that such an

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D.B. CIVIL SPECIAL APPEAL (W) NO.1175/2013

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order was not received by him, in our view, it makes hardly any difference.

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The posting of the appellant as LDC was a fundamental illegality and did not invest him with any right qua the post of LDC.

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Though the appellant attempted to seek absorption on the post of LDC under the Rules of 2010 but, on the basis of existing record, the respondents had rightly absorbed him as Class IV employee i.e., on the post he was regularly selected.

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The learned Single Judge has rightly observed that when the appellant was not appointed on regular basis on the post of LDC, there was no question of his absorption on the post of LDC. The appellant, who had consciously joined on a Class IV post pursuant to the order dated 24.06.2011, cannot be acceded any legal right to claim his absorption on the post of LDC.

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In an overall comprehension of the matter, we are satisfied that the baseless writ petition has rightly been dismissed by the learned Single Judge and no case for interference is made out.

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The appeal fails and is, therefore, dismissed.

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(BANWARI LAL SHARMA),J. (DINESH MAHESHWARI),J.

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Babulal Sharma v. State and Ors.

Case brief

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Babulal Sharma v. State and Ors.

Case brief

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