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1988 DIGILAW 725 (RAJ)

Vivek Prakash v. State of Rajasthan

1988-10-06

K.S.LODHA, R.S.VERMA

body1988
JUDGMENT 1. - These four matters can be disposed of by a common order as they are connected matters and some of the orders challenged by these writ petitions in these four matters are the same. In the Writ Petition No. 2988/87, Annexure 6 dated 24.11.1987 being numbered P.(7)42/Agriculture/3/84 by which the previous order dated 10.4.87 has been recalled and a subsequent order of the same date, by which certain promotions have been directed to be made as also another order dated 5.12.1987 by which the seniority of Shri Vivek Prakash and Shri P.C. Jain has been fixed, have been challenged so also in the case in Writ Petition No. 3191/87. 2. In Writ Petition N o. 2228/87, order of reversion of Shri Vivek Prakash dated 21.8.1987 has been challenged and it has also been prayed that he should be held entitled to the salary of Chief Engineer from 7.11.1984 upto the date of his retirement i.e. 30.6.88 as he had been ordered to work as Chief Engineer vide orders dated 7.11.84 and 11.9.85 but he was not paid the salary of the Chief Engineer. In Writ Petition No. 11/88, the interpretation put by the Government to rules 9 and 24 of Rajasthan Service of Engineers, Ground Water Board Rules, 1969, has been challenged and it is also claimed that Shri M.L. Chaurasia was entitled to the salary of Superintending Engineer from 19.10.1982 to 9.4.1987 as he had been asked to work as Superintending Engineer vide order dated 13.10.1982 and he took over charge on 19.10.1982. 3. It had been contended by Mr. Mridul appearing for the petitioners in these cases that the orders dated 24.11.1987 Ex. 6 and Ex. 3. It had been contended by Mr. Mridul appearing for the petitioners in these cases that the orders dated 24.11.1987 Ex. 6 and Ex. 5 respectively by which the earlier orders of the promotion and confirmation of the petitioners dated 10.4.87 had been withdrawn and fresh promotions had been directed, were passed without any notice to the petitioners and without affording them any opportunity of being heard and, therefore, they were in violation of the principles of natural justice and in support of his contention, he placed reliance on a number of authorities e.g. Divisional Superintendent, Eastern Railway, Dinapur v. L.N. Kashri ( AIR 1974 SC 1889 ) , Jawahar Lal v.State of Rajasthan ( 1984 RLR 872 ) , Olga Tellis v. Bombay Municipal Corporation ( AIR 1986 SC 180 ) , S. Govinda raju v. Karnataka, S.R.T.C. [ 1986(3) SCC 273 ] and Markandey Singh v. M.L. Bhanot [ 1988(3) SCC 539 ] . Mr. Joshi appearing for the State and the learned counsel appearing for the other respondents could not challenge the fact that no notice was issued to the petitioners before orders dated 24.11.1987 were passed. They, of course, tried to contend that since the earlier order dated 10.4.87 was an erroneous order and, therefore, it had only been corrected by the latter orders dated 24.11.87 and in these circumstances, no notice was necessary. We are unable, to agree with the learned counsel for the respondents. In view of the authorities cited by Mr. Mridul, there is no room for doubt that when any order prejudicial to a person is sought to be passed, he has to be given a proper opportunity of hearing before such an order is passed. in accordance with the principles of natural justice and when such a notice had not been given, the petitioners did not have such an opportunity of being heard. It is no doubt that the order dated 10.4.87 was beneficial to the petitioners whereas the orders passed on 24.11.1987 are prejudicial to their rights. The promotion granted to the petitioners along with its confirmation are sought to be withdrawn by the latter orders and we are clearly of the opinion that such a step could not have been taken without affording an opportunity of hearing to the petitioners. Therefore, on this very ground, these writ petitions are likely to succeed. The promotion granted to the petitioners along with its confirmation are sought to be withdrawn by the latter orders and we are clearly of the opinion that such a step could not have been taken without affording an opportunity of hearing to the petitioners. Therefore, on this very ground, these writ petitions are likely to succeed. In this view of the matter, we need not go into other contentions raised by the learned counsel for the petitioners in these various writ petitions except question of emoluments, which are involved in two of the writ petitions. It may be clarified that although in writ petition No. 11/88, no orders of-reversion etc. are involved but the interpretation of rules 9 and 24 qua the post of Chief Engineer has been challenged and since the orders dated 24.11.1987 referred to above have been passed in view of the interpretation put by the State on these rules, this writ petition should also stand on the same footing as Writ petitions No. 2988/87 and 3042/87. So far as the Writ Petition No. 2228/87 is concerned, the reversion order passed on 21.8.87 by which Mr. Vivek Prakash had been reverted from the post of Chief Engineer to the post of Superintending Engineer was challenged but since that order had been stayed and he continued to work as Chief Engineer upto the date of his superannuation on 30.6.88, the learned counsel for Shri Vivek Prakash does not challenge that part of the order and confines that writ petition only to the question of emoluments referred to above. 4. This brings us to the question of emolumnents. We shall first take up Writ Petition No. 2228/87 filed by Shri Vivek Prakash. In para No. 3 of the Writ Petition, it has been mentioned that by order dated 7.11.1984, the petitioner was posted as Chief Engineer, Ground Water Department. It is further mentioned that the petitioner was posted as Chief Enn eer while holding the post of superintending Engineer and it was said that the petitioner will discharge the duties of to "Chief Engineer in addition to his own duty as Superintending Engineer. It is now not in dispute that he continued to discharge: these duties upto the date of his superannuation i.e. 30.6.88. In. reply on behalf of the State in para A/3, it is stated that "the averments of this para are also not disputed. It is now not in dispute that he continued to discharge: these duties upto the date of his superannuation i.e. 30.6.88. In. reply on behalf of the State in para A/3, it is stated that "the averments of this para are also not disputed. However, it is submitted that the petitioner has not been posted as Chief Engineer by Government order dated 7.11.1984. The petitioner Shri Vivek Prakash being the senior most officiating Superintending Engineer was simply permitted to hold the charge of the post of Chief Engineer in addition to his own duties of Superintending Engineer. It is wrong to state that the petitioner was posted as Chief Engineer. There is difference between "permitted to hold the charge" and "to be posted on a higher post". It is contended by Mr. Mridul that since the petitioner had been made to work as a Chief Engineer and he carried out the duties of Chief Engineer, he entitled to the salary of a Chief Engineer. Merley mentioning that he was only permitted to hold the charge as Chief Engineer does not detract from the fact that he was made to discharge the function of the Chief Engineer in addition to his own duties as Superintending Engineer. Therefore, when he worked as Chief Engineer for a continuous period for almost 31/2 years, he is entitled to the salary of the Chief Engineer. It is urged that if any other person would have been posted as Chief Engineer, he would have drawn 'the salary of Chief Engineer and, therefore, on the principle of equal pay for equal work, the petitioner is also entitled to the same and cannot be deprived of it. In this connection, he has placed reliance upon P. Grover v. State of Haryana ( AIR 1983 SC 1060 ) . Mr. Joshi appearing for the State reiterated the stand taken by the State in the reply He was, however, not able to explain what was the difference between "permitted to hold a charge" and "to be posted on a higher post". Mr. Joshi, of course, contended that a current arrangement could have been made under rule 50 of the Rajasthan Service Rules and this was what had been done in this case by the order dated 7.11.1984. Mr. Joshi, of course, contended that a current arrangement could have been made under rule 50 of the Rajasthan Service Rules and this was what had been done in this case by the order dated 7.11.1984. However, a perusal of rule 50 would go to show that there is no such provision for merely permitting a person to carry on or hold the current charge. On the other hand, it clearly envisages that current arrangements can be made on the dual charge and if a person is formally appointed to hold the full charge of the duties of another post in addition to his own duties under sub-rule (1) above the combination of appointment or dual arrangement shall in no case continue for a period of more than six months, and accordingly no special pay or charge allowance shall be admissible beyond a period of six months. On the expiry of the period of six months regular appointment or promotion should be made to fill up the post failing which the vacant post shall be deemed to be in abeyance, and for the period of six months, the person will be entitled to the allowance mentioned in sub-rule (1). In this case, as already stated above, the petitioner had continued to work as Chief Engineer from 7.11.1984 to 30.6.1988, may be by virtue of a stay order of this Court and the post has not come under abeyance. Therefore, it cannot be envisaged that for six months, he would have got the allowance permissible under sub-rule (1) of rule 50 and after the expiry of six months, he would not get any allowances despite the fact that he continued to work as Chief Engineer. In these circumstances, it clearly appears to us that the petitioner was entitled to the emoluments of the Chief Engineer from 7.11.1984 to 30.6.1968. 5. The case of Shri M.L. Chaurasia in Writ Petition No. 11/88, proceeds on the same lines. It is not in dispute that Shri M.L. Chaurasia while holding the post of Executive Engineer was asked to work against the post of Superintending Engineer by order dated 13.10.1982 and he continued on that post till 9.4.1987 and thereafter by order dated 10.4.1987, he was regularly promoted as Superintending Engineer. It is not in dispute that Shri M.L. Chaurasia while holding the post of Executive Engineer was asked to work against the post of Superintending Engineer by order dated 13.10.1982 and he continued on that post till 9.4.1987 and thereafter by order dated 10.4.1987, he was regularly promoted as Superintending Engineer. It is also not in dispute that he had not been paid the salary of Superintending Engineer from 19.10.1982 when he took over the charge under the order dated 13.10.1982 upto 9.4.1987. For the reasons stated by us while considering the writ petition of Shri Vivek Prakash, we are of the opinion that Shri M.L. Chaurasia, is also entitled to the emoluments of the Superintending Engineer from 19.10.1982 to 9.4.1987. 6. As we have held that the orders dated 24.11.1987 are liable to be quashed for the reasons already stated above and we have further held that Mr. Vivek Prakash and Shri M.L. Chaurasia are entitled to the emoluments referred to above, these writ petitions are partly allowed. Both the orders dated 24.11.1987 are set aside, so also is the order dated 5.12.1987. We further hold that the petitioner Shri Vivek Prakash and Shri M.L. Chaurasia are entitled to the emoluments for the period specified above for the post concerned on which they had worked during that period. We also direct that the State Government shall afford an opportunity of being heard to Shri M.L. Chaurasia and Shri P.C. Jain if they so desire to appear and then pass further orders in accordance with the law and dispose of the representation filed by Shri P.C. Jain against order dated 10.4.1987 say within three months from today. 7. In the circumstances of the case, we shall make no order as to costs.Orders accordingly. *******