Judgment 21/03/2017 (24 of 29) [CW-18268/2016] By this common order, bunch of fifty-four writ petitions shall be decided together, as the learned counsel for the parties are in agreement that on facts and law, all writ petitions are identical. For facility, facts are being gathered from S.B. Civil Writ Petition No. 18268/2016, preferred by Firoj Arif. The petitioner on 17.9.2003, was initially appointed as Nurse Grade-II on urgent temporary contract basis on a fixed pay. The learned counsel for the petitioners submitted that the selection of the petitioner was made after following a regular process, however, Mr. Shyam Arya, the learned Additional Advocate General appearing for the respondents has denied this fact. Be that as it may, it is not denied that the petitioner since 2003, is discharging his duties as Nurse Grade-II. It may be noted here that some of the writ petitioners were appointed in similar manner in the year 2000 and till today they are working with the respondent Rajasthan Government as Nurse Grade-II in the Health Department. It is undeniable fact that Director, Medical, Health and Family Welfare Department on 18.7.2008, issued an advertisement for recruitment to the post of Rural Nurse Grade-II under the Rajasthan Rural Medical and Health Subordinate Service Rules, 2008 (hereinafter called as Rules of 2008). Petitioners to the bunch of writ petitions applied in pursuance of the advertisement and were selected on 10.8.2009 as Rural Nurse Grade-II under the Rules of 2008. They were paid Rs.10,000/- as (25 of 29) [CW-18268/2016] a fixed salary and as per the terms of the appointment letter, they have to undergo probation for two years and during the period of probation, they were to be paid fixed remuneration @ Rs.10,000/- per month. After their recruitment in pursuance of the advertisement issued in the year 2008, petitioners also raised a claim that their previous service of six years or more rendered as Nurse Grade-II with the State of Rajasthan be counted towards their confirmation and superannuation. Thus, in the present writ petitions, two claims have been raised; firstly, that in view of the judgment rendered by Division Bench of this Court in the case of Gopal Kumawat vs. The State of Rajasthan & Ors., D.B. Civil Writ Petition No. 2963/2007, decided on 29.7.2015, the petitioners are entitled to be paid regular pay scale during the period of probation and the act of the respondents to pay fixed remuneration during the probation period is bad in the eyes of law and violative of principle of equal work equal pay. Secondly, it is urged in the writ petitions that after their due selection in pursuance of the advertisement issued in the year 2008, services rendered by the petitioners earlier, on urgent temporary contract basis is liable to be counted towards confirmation, seniority, grant of selection scale and superannuation benefits. The learned counsel for the parties are in agreement that both the claims made in these writ petitions are subject matter of litigation. (26 of 29) [CW-18268/2016] So far as first claim is concerned, the learned counsel for the parties are in agreement that a Division Bench of this Court in Gopal Kumawats case (supra) has held that a probationer during discharge of his services cannot be paid fixed remuneration and is entitled to regular pay scale. The learned counsel for the parties are also in agreement that the judgment of Division Bench of this Court is subject matter of appeal before Supreme Court and such claim raised by the employees of the State of Rajasthan is to be adjudicated by the Supreme Court. The learned counsel for the parties have jointly prayed that so far the first prayer regarding grant of regular pay scale during period of probation is concerned, the present writ petitions be disposed of with the direction that the parties to the lis shall abide by the decision of the Supreme Court, wherein validity of the judgment rendered in Gopal Kumawats case (supra) is pending. The joint prayer made by the learned counsel for the parties is just and appropriate. Therefore, so far first prayer made by the petitioners that they be paid regular pay scale during the period of probation is concerned, it is ordered that the parties to the present bunch of writ petitions shall abide by the outcome of the judgment to be rendered by the Supreme court in the case of State of Rajasthan vs. Gopal Kumawat. So far second claim regarding counting of service rendered by the petitioners on urgent temporary contract basis towards confirmation, seniority, grant of selection scale, gratuity (27 of 29) [CW-18268/2016] and superannuation benefits is concerned, the learned counsel for the parties are in agreement that a co-ordinate Bench at Principal Seat at Jodhpur in bunch of three writ petitions, lead case being Dr. Prem Singh Vs. State of Rajasthan & Ors., S.B. CWP No.9583/2008, decided on 12.2.2014, has held as under:-
7. Consequently, these writ petitions are allowed with a direction to the State Government to grant the benefit of continuity of service to the petitioners and the period of service rendered earlier, may be reckoned from the initial date of appointment for all purposes since the new 2008 Rules now stand repealed w.e.f. 03.01.2012 and in the saving clause of the said Notification, it is clearly provided that the appointments, orders and anything done under the said Rules of 2008 shall be deemed to have been made in the provisions of Rajasthan Medical & Health Service Rules, 1963.Mr. Shyam Arya, the learned Additional Advocate General has stated that the judgment rendered in case of Dr. Prem Singh (supra) is subject matter of appeal in D.B. Civil Special Appeal (W) No. 532/2016, The State of Rajasthan & Ors. vs. Dr. Paritosh Ujjwal before a Division Bench at Principal Seat at Jodhpur. It is contended that in the said appeal, order of the Single Judge in Dr. Prem Singhs case (supra) has been stayed. At this juncture, the learned counsel for the petitioners has contended that he is ready and willing to give undertaking that he shall abide by the outcome of the D.B. Civil Special (28 of 29) [CW-18268/2016] Appeal (W) No. 532/2016 and therefore, the present writ petitions be disposed of by ordering that the respondents shall be bound to follow the judgment to be rendered in D.B. Civil Special Appeal (W) No. 532/2016 pending before Division Bench at Principal Seat at Jodhpur. To this prayer made by counsel for the petitioners, the learned counsel for the respondents has no objection. Consequently, the present bunch of fifty-four writ petitions are disposed of, by issuing following directions:-8. The writ petitions are, accordingly, allowed with aforesaid observations and directions. No costs. A copy of this order be sent to the concerned parties forthwith.
a) That the petitioners during the period of probation are entitled to grant of regular pay scale instead of fixed remuneration as held by Division Bench of this court in the case of Gopal Kumawat vs. The State of Rajasthan & Ors., D.B. Civil Writ Petition No. 2963/2007, decided on 29.7.2015, subject to decision of Supreme Court in the pending appeals, wherein validity of judgment rendered in Gopal Kumawats case (supra) is to be determined.
b) That in case the judgment rendered in the case of Gopal Kumawats case (supra) is set aside by the Supreme Court, the petitioners shall be dealt by the respondents State in the light of the judgment to be delivered by the Supreme Court, otherwise, the State of Rajasthan shall abide by the mandate of law laid in Gopal Kumawats case (supra) by the Division Bench of this Court.
c) That so far grant of benefit of previous service rendered by the petitioners on urgent temporary contract basis is concerned, the parties to the lis shall abide by the outcome of D.B. Civil Special (29 of 29) [CW-18268/2016] Appeal (W) No. 532/2016, The State of Rajasthan & Ors. vs. Dr. Paritosh Ujjwal, pending before Division Bench at Principal Seat at Jodhpur. (KANWALJIT SINGH AHLUWALIA)J. Mak/-
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