{1} DB CIVIL WRIT PET.

- 2963/2007

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

ORDER

D.B. CIVIL WRIT PETITION NO.2963/2007

GOPAL KUMAWAT Vs. THE STATE OF RAJASTHAN & ORS.

DATE:29.07.2015

HON'BLE THE CHIEF JUSTICE MR. SUNIL AMBWANI

HON'BLE MR.JUSTICE VEERENDR SINGH SIRADHANA

Mrs. Naina Saraf, for the petitioner.

Dr. A.S. Khangarot, Addl. Govt. Advocate,
Mr. Chetan Bairwa,
Mr. Saurabh Saraswat, Dy. Govt. Counsel, for the respondents.
*****

REPORTABLE

1. By this writ petition, the petitioner, appointed as Lower

Division Clerk(LDC) in the Office of the Public Health & Engineering

Department, vide Office Order dated 03.06.2006, by the Chief Engineer

(Rural), Public Health & Engineering Department, Rajasthan, on

probation, has prayed for quashing the Notification dated 13.03.2006,

notifying the Rajasthan Service (Amendment) Rules, 2006, to come into

force with effect from 20.01.2006, issued by the then Governor of

Rajasthan, in exercise of its powers under Proviso to Article 309 of the

Constitution of India, by which it is provided that all the Government

servants appointed on or after 20.01.2006, on probation, as

probationer-trainee, for a period of two years, will be paid fixed

remuneration at such rates as may be prescribed by the Government

from time to time, and further that after successful completion of

 {2} DB CIVIL WRIT PET.- 2963/2007

probation training, he/she will be allowed minimum pay in the pay scale

of the post, and that the period of probation training shall not be

counted for grant of annual grade increments. The amendment of the

Rules also took away the benefit of leave during the period of

probation, except for female probationer-trainees, who are provided to

be granted maternity leave as per Rules 103 and 104 of the Rajasthan

Service Rules, 1951.

2. The writ petition was filed on 24.01.2007, and was directed

to be listed after four weeks on 04.05.2007. On 30.07.2007, the notices

were issued to the respondents. Dr. A.S. Khangarot, Additional GA,

present in the Court, was directed to accept notice. On 09.08.2007, two

weeks time was allowed to the respondents for filing reply. A reply was

filed on 16.05.2008, after which the the matter has remained pending

for last seven years. It was listed before a learned Single Judge on

24.09.2014, who found that since the vires of the Rules is under

challenge, in view of Rule 55(xi) of the Rajasthan High Court of

Judicature for Rajasthan, 1952, the matter requires to be heard by the

Division Bench.

3. The State counsel has not cared to appear in the Court

despite the names of the Counsels shown in the cause list. Since the

matter is an old matter, and in which a counter affidavit has been filed,

we are proceeding to decide it on merits.

4. Brief facts of the case, are that the petitioner's father died

in harness in May, 1970. He applied for appointment on compassionate

 {3} DB CIVIL WRIT PET.- 2963/2007

ground. His application was kept pending for a long period of time, on

which he filed Writ Petition No.6404/1992, seeking direction to the

respondents to consider his case for appointment under the Rajasthan

Recruitment of Dependants of Government Servants Dying while in

Service Rules, 1975. On 07.01.1998, the writ petition was disposed of

with direction to consider the claim of the petitioner. A D.B. Civil

Special Appeal(W) No.371/1998, filed against the order dated

07.01.1998, was dismissed on 22.10.2002, and on which, the

respondents approached the Hon'ble Supreme Court by filing a Special

Leave Petition, which was also dismissed on 17.04.2003. After a long

delay of three years, an appointment letter was issued on 03.06.2006,

by which the petitioner was appointed on the post of Lower Division

Clerk, on probation, on a consolidated salary of Rs.3000/- per month

only. A reference was made in the letter of appointment about the

Notification dated 13.03.2006, issued by the Finance Department(Rules

Division), Government of Rajasthan, under which the petitioner was to

be provided with consolidated salary of Rs.3000/- per month on two

years probation.

5. The petitioner challenged the Notification dated

13.03.2006, by which the Rajasthan Service Rules, 1951, were amended,

vide the Rajasthan Service (Amendment) Rules, 2006, and by which,

item (iv) below the existing item (iii) of sub-clause (a) of Rule 7; a new

Rule 8; a new clause (30A) below the existing clause (30) of Rule 7; a

new Provisos at the end of existing Rule 24; a new Proviso at the end of
 {4} DB CIVIL WRIT PET.- 2963/2007

existing sub-rule(1) of Rule 26; a new Rule 27C; and new Rule 122A,

were inserted, providing for fixed remuneration for probationers.

6. It is submitted by learned counsel appearing for the

petitioner that the petitioner was eligible and was appointed on

substantive vacancy. Since he was eligible to be appointed on

substantive post, he was entitled to full salary including minimum of the

pay scale, and all allowances including Dearness Allowance, House Rent

Allowance and City Compensatory Allowance, payable to the regularly

appointed employees in the Department under the statutory Rules. The

appointment of the petitioner as probationer-trainee, cannot take away

his right to receive minimum of the pay scale, Dearness Allowance,

House Rent Allowance, City Compensatory Allowance and all other

allowances, which are payable to regular employees. The denial of

allowances, which are paid to them to set off the cost of living, is

grossly illegal, arbitrary, and violative of Article 14, 16, 23 and Directive

Principles of State policy under Article 38 of the Constitution of India.

The dearness allowance is paid to compensate for the rise in the cost of

living, and is payable to all Government servants, irrespective of the

nature of appointment on the post. A probationer-trainee is not

expected to survive on a fixed pay, which is far below the minimum

wages. A provision for fixed remuneration for probationer-trainees, is

wholly illegal and is also violative of Article 23 of the Constitution of

India. Any amount less than living wage paid to an employee amounts to

'begar', and is violative of Article 23 of the Constitution of India. The

 {5} DB CIVIL WRIT PET.- 2963/2007

State, as a model employer, can not deny living wages to the employees

performing same duties and carrying same responsibilities, which are

payable to a confirmed employee.

7. It is submitted that denial of minimum of the pay scale, DA,

HRA and CCA to a probationer-trainee, serving on probation for a period

of two years, is illegal, inasmuch as employment on probation is to find

out the suitability and conduct of a probationer. He cannot be allowed

to serve on the wages less than minimum wages, which are payable to

the regularly selected and appointed Government servants on their

confirmation, after completing the period of probation.

8. It is further submitted that the denial of annual grade

increments to a probationer is also violative of Article 14 and 16 of the

Constitution of India, as on completion of the probation period, the

employee is not put to any special position, except that his work and

conduct is found suitable to allow him to be confirmed and to continue

on the post, in which he has rendered the services during the period of

probation, and which must be counted after probation towards his

annual grade increments.

9. In order to appreciate the contentions of the petitioner, we

find it appropriate to quote the Notification dated 13.03.2006, as

follows:-

“GOVERNMENT OF RAJASTHAN
FINANCE DEPARTMENT
(RULES DIVISION)
 {6} DB CIVIL WRIT PET.- 2963/2007

NOTIFICATION

No. F.1(2)FD/Rules/2006 Jaipur, dated: 13.03.2006

In exercise of the powers conferred by the proviso to Article 309 of the

Constitution of India, the Governor hereby makes the following rules to amend
further the Rajasthan Service Rules, 1951, namely:-

1. These rules may be called the Rajasthan Service (Amendment) Rules,

2006.

2. They shall be deemed to have come into force with effect from
20.1.2006.

3. In the said rules-

(i) below the existing item (iii) of sub-clause (a) of clause (8) of Rule
7, the following new item (iv) shall be inserted, namely:-

“(iv) Probationer-trainee”

(ii) The existing Rule 8 shall be renumbered as Rule 8A and the

following new Rule 8 shall be inserted, namely:-

“8. Notwithstanding anything contained in any rules all appointments in

Government service on or after 20.1.2006 shall be made as a probationer-
trainee for a period of 2 years and during the period of probation training,
he/she will be paid fixed remuneration at such rates as may be prescribed by
the Government from time to time. After successful completion of probation
training he/she will be allowed minimum pay in the pay scale of the post and
the period of probation training shall not count for grant of annual grade
increment(s).

Note: In cases where recruitment process has started the following

procedure shall be followed by the RPSC/recruiting authority:-

(i) Where a request of recruitment has already gone to the

RPSC/recruiting authority but the RPSC/recruiting authority is still to issue the
advertisement or last date of filling application is yet not over: Administrative
department may request the RPSC/recruiting authority to ensure that the
advertisement is issued in light of the amendment. In cases where
advertisements have issued, but last date for filling application is yet not over.
In such cases, the RPSC/recruiting authority, both through advertisement and
letters, should inform the applicants about the amended rule and give him/her
the option of withdrawing from the proposed examination, if he/she, so
desired, on a full refund basis (refund of application fee).

(ii) In case where the request of recruitment to the RPSC/recruiting

authority has gone and the advertisement has also issued, and last date of
filling forms by the candidates is also over: In such cases, the RPSC/recruiting
authority, both through advertisement and letters, should inform the
 {7} DB CIVIL WRIT PET.- 2963/2007

applicants about the amended rule and give him/her the option of withdrawing
from the proposed examination, if he/she, so desired, on a full refund basis
(refund of application fee).

(iii) Where the RPSC/recruiting authority has already conducted the

written examination but interviews have not been held: The RPSC/recruiting
authority should inform all the interviewers in writing of the changed rules and
take his/her written acceptance of his/her willingness to appear for continuing
to be a candidate in the job, before the interview itself.

(iv) Where the RPSC/recruiting authority has conducted the

interviews and made recommendations to the appointing authority: Before
issuing the appointment letters, the appointing authority should inform the
candidates of the changed rules and obtain his/her consent for being
appointed under the new rules before a final letter of appointment is issued.

(v) Where appointment letters have already been issued (prior to

issuance of DOP Notifications dated 20.1.2006), the appointments will have to
be made under the old rules.”

(iii) below the existing clause (30) of Rule 7, the following new clause (30A)
shall be inserted, namely:-

“(30A) Probationer-trainee means a person appointed through

direct recruitment against a clear vacancy in the cadre of
service and placed under training on fixed remuneration for a
period of two years or extended period, if any.”

(iv) at the end of existing Rule 24, the following new provisos shall be
inserted, namely:-

“Provided further that a probationer-trainee will receive a fixed

remuneration at such rates as may be prescribed by the Government
from time to time and on completion of period of probation, minimum
pay of the pay scale of the post shall be allowed under this rule, from
the day following the day of successful completion of the period of
probation.

Provided further also that a government servant, who is already in

regular service of State Government, if appointed as probationer-trainee
for a period of two years on or after 20.1.2006 shall be allowed pay in
his/her own pay scale of the previous post or fixed remuneration at such
rates as may be prescribed by the Government from time to time,
whichever may be beneficial to him/her and after successful completion
of period of probationer-trainee, his/her pay shall be fixed in pay scale
of the new post as per provisions of Rule 26.”

(v) at the end of existing sub-rule (1) of Rule 26, the following new proviso
shall be inserted, namely:-
 {8} DB CIVIL WRIT PET.- 2963/2007

“Provided that during probation training period the provisions of this

rule shall not be applicable. The probationer-trainee shall be allowed
pay in his/her own pay scale of the previous post or fixed remuneration
as per provisions of Rule 24. After successful completion of probation
training his/her pay shall be fixed under the provisions of this rule.”

(vi) below the existing Rule 27B, the following new Rule 27C shall be
inserted, namely:-

“27C. The provisions of Rule 27A and 27B shall not be applicable to the
probationer-trainee. After successful completion of period of probation
training, the probationer-trainee, shall not earn annual grade increment
(s) for the period of probation training.”

(vii) below the existing Rule 122, the following new Rule 122A shall be
inserted by the following, namely:-

“122A (i) Probationer-trainee shall earn no leave during the

period of probation.

(ii) Female probationer-trainees shall be granted

maternity leave as per Rule 103 and 104.”

By Order of the Governor,

Sd/-
(M.L. Gupta)
Officer on Special Duty”

10. By a separate Notification, issued on the same day on

13.03.2006, the Rajasthan Civil Services(Revised Pay Scales) Rules, 1998

were amended vide Rajasthan Civil Services(Revised Pay Scales) (First

Amendment)) Rules, 2006, inserting new Rule 18 below existing Rule 17.

The Notification dated 13.03.2006, amending the Rajasthan Civil

Services(Revised Pay Scales) Rules, 1998-Fixed remuneration to

probationer trainees, is quoted as below:-

“GOVERNMENT OF RAJASTHAN
FINANCE DEPARTMENT
(RULES DIVISION)
 {9} DB CIVIL WRIT PET.- 2963/2007

NOTIFICATION

No.F.12(6)FD(Rules)/05 Jaipur, dated 13.03.2006

Sub:- Rajasthan Civil Services (Revised Pay Scale) Rules, 1998-Fixed

remuneration to Probationer Trainees).

In exercise of the powers conferred by the proviso to Article 309 of the

Constitution of India, the Governor of Rajasthan is pleased to make the
following rules to amend further the Rajasthan Civil Services (Revised Pay
Scales) Rules, 1998, namely:-

1. These rules may be called the Rajasthan Civil Services (Revised Pay
Scales) (First Amendment) Rules, 2006.

2. They shall be deemed to have come into force with effect from
20.01.2006.

3. In the Rajasthan Civil Services (Revised Pay Scale) Rules, 1998-

i) below existing rule 17 the following new rule 18 shall be

inserted namely:-

“18. Amount of fixed remuneration for a probationer-trainee:-

The amount of fixed remuneration for a probationer-trainee shall
be as mentioned in schedule VI appended to these rules.”

ii) after the existing Schedule V, the following shall be appended

as Schedule VI namely:-

SCHEDULE VI

“Amount of fixed remuneration for probationer-trainee.

Revised Pay Scales under RPS 1998 Amount of fixed

Pay (To be allowed after successful remuneration per
Scale completion of Probation Training) Month (Rs.) (To be
No. allowed during the
period of Probation
Training)
1. 2550-55-2660-60-3200 2500
2. 2610-60-3150-65-3540 2550
3. 2650-65-3300-70-4000 2600
4. 2750-70-3800-75-4400 2700
5. 2950-75-4075-80-4475 2900
6. 3050-75-3950-80-4590 3000
7. 3200-85-4900 3150
 {10} DB CIVIL WRIT PET.- 2963/2007

Revised Pay Scales under RPS 1998 Amount of fixed

Pay (To be allowed after successful remuneration per
Scale completion of Probation Training) Month (Rs.) (To be
No. allowed during the
period of Probation
Training)
8. 3400-90-5200 3350
9. 4000-100-6000 3950
9A. 4500-125-7000 4450
10. 5000-150-8000 4950
11. 5500-175-9000 5450
12. 6500-200-10500 6450

12A. 7500-250-12000 7450

13. 8000-275-13500 7950
14. 9000-300-14400 8950
15 10000-325-15200 9950
16. 10650-325-15850 10600
17. 11300-350-16200 11250
18. 12000-375-16500 11950
19. 13500-400-17500 13450
20. 14300-400-18300 14250
21. 16400-450-20000 16350
22. 18400-500-22400 18350

Note: (1) The Probationer-Trainee shall be entitled only to fixed remuneration

as above and he/she will not be entitled to Special Pay, Dearness Pay,
Dearness Allowance, House Rent Allowance, City Compensatory Allowance,
Non-Practicing Allowance, Non-Clinical Allowance, Rural Allowance, Project
Allowance, Mess Allowance, Washing Allowance or any other allowance(s)
called by whatever name. Similarly, he/she will not be eligible for grant of Ad-
hoc Bonus and uniform/liveries except wearing of uniform is a legal compulsion
under the rules.

(2) No Traveling Allowance shall be admissible for joining as a probationer-

trainee. In case journey on duty, he/she shall be allowed T.A. as on tour and in
case of transfer only Mileage Allowance and incidental on the basis of fixed
remuneration shall be admissible.

(3) No deduction towards General Provident fund and State Insurance shall be
made from the fixed remuneration.

(4) Probationer-trainee shall be eligible for Casual Leave of 12 days in a

calendar year and for period of less than a calendar year; it shall be admissible
 {11} DB CIVIL WRIT PET.- 2963/2007

in proportion on the basis of completed months.

(5) No deputation allowance shall be admissible to a probationer-trainee, if,

deputed to “Foreign Service” for training etc.

(6) For an existing employee already in service prior to 20.01.2006 an option

shall be given to opt either for the “fixed remuneration” or the existing pay
scale (not the scale of his/her new appointment), whichever is beneficial to
him/her while he/she is under probation training. After successful completion
of probation training period, pay may be fixed as per the rules, where such a
Government servant will get due advantage of being in a regular pay scale
earlier, and will get due protection of his/her pay.

By order of the Governor,

Sd/-

(M.L.Gupta)
Officer on Special Duty”

11. A reply, supported by an affidavit of Shri Sudheer Mishra,

the Officer In-charge, was filed stating therein that as per the

Notification of the Finance Department, dated 13.03.2006, the

petitioner was appointed on a consolidated monthly salary of Rs.3000/-

per month for probation period of two years, as per the Rules. The

State-respondents have not given any reply to the grounds challenging

the validity of the Notification. A short reply, supported by an affidavit

of Shri Sudheer Mishra, filed by Shri Jugal Kishore Agarwal, Additional

Government Advocate, is quoted as below:-

“1. That the contents of para No. 1 to 5 need no

comments.

2. That the contents of para No.6 of the writ petition

are denied as stated. It is submitted that as per
Notification of the Finance Department dated
13.3.2006 (copy whereof shall be kept ready for
perusal of the Hon'ble Court at the time of hearing of
the writ petition) petitioner has been appointed on a
consolidated monthly salary of Rs.3000.00 per month
 {12} DB CIVIL WRIT PET.- 2963/2007

for probation period of two years, which is as per the

Rules.

3. That the contents of para No.7 of the writ petition

are denied as stated. It is submitted that the
Notification dated 13.3.2006 is clear for appointment
of an employee on or after 21.1.2006. No exemption
for appointment on compassionate ground has been
given in the said Notification, as such the said
Notification is equally applicable on the petitioner.

REPLY TO THE GROUNDS:

In the context of the aforesaid submissions, the

contents of ground (a) to (d) are denied. It is reiterated and
submitted that petitioner has been given appointment after
20.01.2006 as such in terms of Notification dated 13.03.2006
he is not entitled for regular pay scale and he has been rightly
given appointment as per rules on a consolidated salary of
Rs.3000.00 per month for a probation period of two years.

8. That the contents of para 8 of the writ petition

are denied.

9. That the contents of para 9 of the writ petition

are denied.

Prayer as sought for in the writ petition is also denied.

Petitioner is not entitled to seek any relief in this writ
petition.

It is, therefore, most humbly prayed that

aforementioned reply may kindly be accepted and taken on
record and accordingly the Writ Petition filed by the
Petitioner may kindly be dismissed with costs.”

Yours' Humble Respondents

Through Officer Incharge

Jaipur
Dated

Through Counsel

[Jugal Kishore Agarwal]

Addl. Govt. Advocate”
 {13} DB CIVIL WRIT PET.- 2963/2007

12. Learned counsel appearing for the petitioner has relied on

the judgments of the Hon'ble Supreme Court in Central Inland Water

Transport Corporation Ltd. and another Vs. Brojo Nath Ganguly and

another, AIR 1986 SC 1571; Daily Rated Causal Labour employed

under P & T Department through Bhartiya Dak Tar Mazdoor Manch

Vs. Union of India and others, AIR 1987 SC 2342, and the judgments

of a Division Bench of this Court in Ramesh Chandra and Ors. Vs. State

of Rajasthan and Anr., 1988(2) WLN 396, and in Prashant Vohra &

Another Vs. State of Rajasthan & Others, 2005(1) WLC(Raj.) 264, in

support of her submissions.

13. In all these judgments, the Supreme Court and the

Rajasthan High Court have held that the State must act as a model

employer. It cannot take undue advantage of the need of the employee,

who does not have any real choice in the matter of employment due to

economic compulsions. The payment of wages less than living wages

which are provided by way of allowances, for employees who have been

regularly selected and appointed on substantive posts, is unjust, unfair,

unreasonable and violative of Article 14 of the Constitution of India. The

Court acting as sentinel on the qui vive is under an obligation to prevent

the contravention of the fundamental rights. Where the State has

offered unfair terms of employment and the candidate accepts it taking

up the job without demur, he cannot be held to have accepted the

employment on such terms, which are unfair and unconstitutional.

 {14} DB CIVIL WRIT PET.- 2963/2007

14. In Ramesh Chandra and Ors. Vs. State of Rajasthan and

Anr.(supra), considering the principle of “equal pay for equal work”,

reiterated that where similar employees who are working on probation

in the same job, the minimum of pay scale and allowances are payable

to them as a part of the constitutional mandate of the Supreme Court.

15. Article 38(1) of the Constitution of India, provides that the

State shall strive to promote the welfare of the people by securing and

protecting as effectively as it may a social order in which justice, social,

economic and political, shall inform all the institutions of the national

life. Clause (2) of Article 38, inserted by the Constitution (Forty-fourth

Amendment) Act, 1978, provides that the State shall , in particular,

strive to minimise the inequalities in income and endeavour to eliminate

inequalities in status, facilities and opportunities, not only amongst

individuals but also amongst groups of people residing in different areas

or engaged in different vocations.

16. Article 23 of the Constitution of India, provides fundamental

rights against exploitation, and reads as follows:-

“23. Prohibition of traffic in human beings

and forced labour.-(1) Traffic in human beings and
begar and other similar forms of forced labour are
prohibited and any contravention of this provision
shall be an offence punishable in accordance with
law.

(2) Nothing in this article shall prevent the

State from imposing compulsory service for public
purposes, and in imposing such service the State
shall not make any discrimination on grounds only of
religion, race, caste or class or any of them.”
 {15} DB CIVIL WRIT PET.- 2963/2007

17. In Vasudevan S. Vs. Mittal S.D., AIR 1962 Bombay 1943,

it was held that 'Begar' means labour or service extracted by

Government, or a person in power without giving remuneration for it.

18. In People's Union for Democratic Rights Vs. Union of

India, AIR 1982 SC 1943, the payment of remuneration less than

minimum wages were found to be an unfair and inhuman practice of

begar and would amount to forced labour. It has a wider expression,

which would be attracted when a person is compelled to give labour or

service even though remuneration paid for it, on the wages less than

minimum wages. Such a practice will amount to 'begar', which is

punishable in respect of the labourers under the Labour Laws, and is

violative of Article 14, 16 and 21 of the Constitution of India, which

guarantees equality before law and equal protection of law and right to

life.

19. It is difficult to believe that a person who is appointed on

regular basis on a substantive post and is put on probation, could

survive on fixed remuneration of Rs.3000/- per month in the year 2006.

Even today, the survival on fixed wages is virtually impossible as the

cost of living has risen considerably, for which dearness allowance is

payable to all Government servants. A Government servant is not

expected to borrow or beg to survive in the period of his/her probation.

20. In the State of Rajasthan, by operation of the impugned

Notifications and Rules, all classes of employees, whether appointed

after undergoing statutory process of selection on substantive post, or

 {16} DB CIVIL WRIT PET.- 2963/2007

otherwise on ad hoc basis under the Rules, are appointed on probation

for two years, during which they are paid fixed remuneration, without

any benefit of allowances and increments. As on date, a class-IV

employee, appointed in the State service on regular basis, is paid fixed

remuneration of Rs.6200/- per month, and a class III employee is paid

Rs.8900/- per month. Even a Rajasthan Administrative Service Officer, a

Doctor, Assistant Professor or any Engineer is appointed on probation on

fixed pay of Rs.12000/- per month for two years without any increment

or leave benefit. He has to undergo two years of service on probation,

on completion of which, he is entitled to regular salary including

minimum of the pay scale and allowances, without any benefit of

increment or arrears for the period during which he was on probation.

This practice is wholly illegal, arbitrary, unreasonable and violative of

Article 14, 16, 21 and 23 as well as Article 38 of the Constitution of

India, which together form the conscience of the Constitution. A person

appointed on fixed remuneration without the benefit of allowances,

which are paid to him to meet the cost of living and inflation, has no

option but to accept the employment, and has to wait for two years for

regular pay and allowances, which amounts to forced labour, prohibited

by the Constitution of India.

21. We do not find any justification, nor any explanation is

given by the State of Rajasthan, as to why the persons eligible for

appointment and appointed on substantive posts, placed on probation,

are not paid allowances, which are payable to all the employees
 {17} DB CIVIL WRIT PET.- 2963/2007

confirmed after probation of two years.

22. We are informed that all categories of employees in

Rajasthan, even if they are selected through Rajasthan Public Service

Commission and appointed on substantive post in the regular cadre put

on probation, are paid a fixed pay, and is denied the benefit of

allowances and increments, which is applicable to all the Government

servants, serving in the State of Rajasthan, except the Officers of the

Rajasthan Judicial Service, who have been saved by the judgment of

Hon'ble Supreme Court in All India Judges' Association case.

23. An appointment is initially made on probation to guard

against errors of human judgment in selecting suitable personnel for

service. The period of probation gives an opportunity to the employer to

observe the work, ability, efficiency, sincerity and competence of the

employee. If he is not found suitable for the post, a right is reserved by

the employer to dispense with the services of the probationer. In

Purshottam Lal Dhingra v. Union of India, AIR 1958 SC 36, the concept

was explained in these words:-

“An appointment to a permanent post in government

service on probation means, as in the case of a person
appointed by a private employer, that the servant so
appointed is taken on trial.”

24. In Ajit Singh v. State of Punjab, AIR 1983 SC 494, the

Supreme Court observed:

“To guard against errors of human judgment in

selecting suitable personnel for service, the new
recruit was put on test for a period before he is
absorbed in service or gets a right to take post. Period
 {18} DB CIVIL WRIT PET.- 2963/2007

of probation gave a sort of locus poenitentiae to the

employer to observe the work, ability, efficiency,
sincerity and competence of the servant and if he is
found not suitable for the post, the master reserved a
right to dispense with his service without anything
more during or at the end of the prescribed period
which is styled as period of probation.”

25. A probationer appointment, by its very nature, has been held

of transiently in character and in the absence of any special contract or

special rule; regulating conditions of service, the implied term of such

appointment may be terminated at any time. His right to continue arises

only on confirmation. The period of probation is normally provided in the

service rules or in the order of appointment. A probationer is entitled to

be considered for confirmation upon successful completion of probation

in accordance with the service rules. On confirmation he secures a right

to the post. The confirmation, however, is at the discretion of the

employer who is to form an opinion before the period of probation is

completed regarding the suitability and satisfactory service of the

probationer. The discretion, however, has to be exercised on the basis of

his performance and conduct of the employee. In case the work of the

probationer is not satisfactory his services can be terminated without

giving any right to the employee, provided there is material to justify

termination on the ground of inefficiency and unsuitability which is

subject to judicial review.

26. The emoluments to be paid to an employee on probation,

however, do not depend upon his appointment on probation. For the

purpose of payment of salary and allowances, he must be treated as a

 {19} DB CIVIL WRIT PET.- 2963/2007

regular employee if he is appointed after selection under the rules of

appointment on a substantive post in the cadre. His emoluments can not

be reduced on the ground that he is on probation. The employer can not

discriminate a probationer for the payment of pay and allowances by

treating him differently than a confirmed employee for pay and

allowances, for the same nature of the work and the responsibility. Any

discrimination in payment of pay and allowances to a probationer as

against regular employee is violative of Articles 14, 16, 21 and 23 of the

Constitution of India.

27. The State as an employer, may provide different pay scales

for different grades. Where, however, the employee at the entry level is

placed on probation and is discharging the same duties and

responsibilities as a confirmed employee, he cannot be discriminated on

the ground that the period of probation has not come to an end with

confirmation. The State Government cannot cause hostile and invidious

discrimination between the employees performing the same nature of

duties and responsibilities on the ground that a probationer has not been

confirmed.

28. We may also add that the pay and allowances of an employee

are fixed on the recommendations of pay commission. No material has

been placed before us to demonstrate that the Central Pay Commission

or the State Pay Commission has made any such recommendation in

which a probationer may be entitled to receive a fixed pay without any

allowances during the period of his probation.

 {20} DB CIVIL WRIT PET.- 2963/2007

29. The public services comprise different grades of

employment. It is basically a hierarchical system. The pay scales are

framed in a descending order. The highest scale is prescribed for the

highest grade and thereafter, followed by lower scales attached to the

descending grades of service. In St.Stephen's College Vs University of

Delhi,(1992) 1 SCC 558, the Supreme Court held that the provision of

different grades for employees in the descending order is consistent with

Article 14 of the Constitution of India, which mandates that unequals

cannot be treated as equals. The pay scale may also be different for a

promotional post, but just as unequals cannot be treated as equals, the

State Government cannot discriminate between equals. There cannot be

discriminatory treatment in fixing, awarding or granting pay scales or pay

to similarly situate employees carrying out the same duties and

responsibilities. Such a discrimination, as in the present case, between a

probationer and a confirmed employee is violative of Articles 14 and 16

of the Constitution of India. The Notification dated 13.03.2006 providing

for a fixed pay for the probationer until he is confirmed, creates two

classes of employees at the entry level, for same duties and

responsibilities.

30. The differential treatment meted out to similarly situate

employees is violative of Article 14 of the Constitution of India. In Union

of India V/s Satya Brata Chowdhury, (2008) 16 SCC 383, the

differential treatment between the Time-keepers in Eastern Railways,

who were given the revised pay scales of the Fifth Pay Commission from
 {21} DB CIVIL WRIT PET.- 2963/2007

18.2.2000 instead of 1.1.1996, on the ground that their pattern of

recruitment was different from the Time-keepers in other Railways and

because Eastern Railway Time-keepers were treated as workers under

the Factories Act, 1948 for grant of overtime allowance, was held to be

unconstitutional.

31. In Union of India V/s Anil Kumar, (1999) 5 SCC 743, the

allocation of two pay scales for the same post was held to be

discriminatory. In P.Savita V/s Union of India, 1985 (Supp) SCC 94, the

division of Senior Droughts-men in the Ministry of Defence Production

into two categories with a different pay scale, although the duties and

functions discharged by both the categories remained the same, was

held to be discriminatory.

32. In the present case, no material has been placed before us,

nor any plea has been taken in the reply that the probationers, during

the period of their probation, do not perform the same duties and

responsibilities and are not required to carry out the same functions as

confirmed employees.

33. We find the practice of payment of fixed remuneration

without any allowances and benefit of increments to the probationers,

who were appointed after adopting the regular selection process, on

substantive posts, or even after following the selection process on ad

hoc basis, as well as all those employees who are appointed on

substantive posts, to be wholly illegal and arbitrary, and pernicious

practice of forced labour.

 {22} DB CIVIL WRIT PET.- 2963/2007

34. We find no justification for the State Government, to adopt

the practice of paying fixed remuneration to the probationers, which is

not prevalent, either in the Central Government, or in any other States

in the country. The Government of Rajasthan has adopted this evil

practice of forced labour for its employees, taking advantage of the

attraction of the Government service. The Notifications dated

13.03.2006, amending the Rules, are thus, declared to be

unconstitutional, being violative of Article 14, 16, 21, 23 and 38 of the

Constitution of India, and against the conscience of the Constitution of

India.

35. The writ petition is allowed. The Notification dated

13.03.2006, amending the Rajasthan Service Rules, 1951, and the

Notification of the same date i.e. 13.03.2006, amending the Rajasthan

Civil Services(Revised Pay Scale) Rules, 1998- Fixed remuneration to

probationer trainees, are hereby quashed. The State-respondents are

directed to pay the entire differential amount of regular pay scale and

allowances to the petitioner, after deducting the amount of fixed

remuneration paid to him during the period of probation.

36. Now since by this judgment, we have declared the

Notification dated 13.03.2006, amending the Rajasthan Service Rules,

1951, and the Notification of the same date i.e. 13.03.2006, amending

the Rajasthan Civil Services(Revised Pay Scale) Rules, 1998- Fixed

remuneration to probationer trainees, to be unconstitutional and

consequently quashed the same, we direct that the State Government

 {23} DB CIVIL WRIT PET.- 2963/2007

shall, pay to all its employees, appointed on regular or ad hoc basis

under the statutory Rules on substantive posts, except the employees

appointed on contract, daily rated or work charged employees, regular

pay in time scale along with all allowances including Special Pay,

Dearness Pay, Dearness Allowance, House Rent Allowance, City

Compensatory Allowance, Non-Practicing Allowance, Non-Clinical

Allowance. Rural Allowance, Project Allowance, Mess Allowance,

Washing Allowance or any other allowance, as are admissible to a

confirmed employee in the same department. The payment of these

allowances will not be dependent upon the period of probation, or

successful completion of the period of probation. The probationer-

trainees will also be entitled to deductions towards General Provident

Fund(GPF), State Insurance, and Travelling Allowance, as are admissible

and payable to the regular employees. They shall also be entitled to

annual grade increments for the period of probation, after confirmation

and Casual Leave, as in the case of other regular employees.

37. The petitioner is made entitled to the cost of Rs.10,000/-

(Rs. Ten thousand), for pursuing the writ petition.

(VEERENDR SINGH SIRADHANA),J. (SUNIL AMBWANI),C.J.

/KKC/

Certificate:

All corrections made in the judgment/order have been incorporated in the

judgment/order being emailed.

KAMLESH KUMAR
P.A.