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2003 DIGILAW 466 (JHR)

Ghane Shyam Mahto v. Damoder Valley Corporation

2003-04-10

TAPEN SEN

body2003
JUDGMENT Tapen Sen, J. 1. Heard Mr. A.K. Mehta, learned counsel for the petitioners. Nobody appears on behalf of the respondents even on repeated calls. 2. At the outset, Mr. A.K. Mehta submits that since he has not made the persons enlisted in Annexure-17 as party respondents, he, therefore, does not press the amendment application and he confines the writ application only to the extent prayed for originally at paragraph 1 of the same. 3. In the instant writ application, the petitioner has submitted that in the Damoder Valley Corporation (hereinafter referred to as the DVC for sake of brevity), two sets of employees namely the Boilder Turbine Auxiliary (BTA) and Fitter exists in two different cadres altogether. The learned counsel for the petitioner has submitted that the BTA cannot be intermingled with the Fitters and notwithstanding the own declaration of the DVC accepting the two cadres as different, they published a draft gradation list where they proceeded to include Fitters in the cadre of BTA. The petitioners had made representations before the authorities concerned to look into the matter but they have not done so. On the aforementioned two grievances, the petitioner have filed this writ application. 4. All the petitioners are skilled workers who have qualifications of Metric and ITI Mr. A.K. Mehta, learned counsel for the petitioner has submitted that in order to run its various Power Plants, the DVC is required to employ persons in various cadres and trades in the shape of both skilled and unskilled workmen. So far as the unskilled workmen are concerned, they are always placed in the Group-C whereas the skilled workmen are placed in Group-B. All the petitioners, however, were appointed in Group-C although they were entitled to be appointed in the Technician grade-III i.e. in the BTA Cadre because they had the educational qualifications of having passed the Matriculation Examinations as also the examinations conducted by the ITI. However, for reasons best known to the authorities, they were appointed in Group-C. The petitioners have further stated that on 30.12.1986, as is apparent from Annexure-2, the Corporation (DVC) "issued an advertisement for the post of BTA. Accordingly, all the petitioners applied and they were subjected to a Trade Test-cum-Interview. Thereafter, they were selected and on 13.8.1990, by Annexure-3, they were temporarily appointed on the post of Technician Grade-II (BTA). According to Mr. Accordingly, all the petitioners applied and they were subjected to a Trade Test-cum-Interview. Thereafter, they were selected and on 13.8.1990, by Annexure-3, they were temporarily appointed on the post of Technician Grade-II (BTA). According to Mr. A.K. Mehta, the post of Technician Grade-III (BTA) is totally different and distinct from the Cadre of Fitters and Automobile Driver. Mr. Mehta relies upon Annexure-4 and submits that on 30.12.1986, a Notice once again was given for the selection to the post of Technicians Grade-3 and Automobile Drivers, both of which, are in the Grade of Fitters but certainly not in the Cadre of BTA. From a perusal of the aforementioned Notice dated 30.12.1986, it appears that applications were called for from casual workers for the post of Technician Grade-III i.e. in different categories of Riggers, Fitters, Welders, Carpenters, Black Smiths, Electricians and Automobile Drivers. Pursuant to the aforementioned Notice as contained at Annexure-4, the petitioners have annexed a sample letter that was sent to such a casual worker who had applied for being selected to the post mentioned in Annexure-4, Annexure-5 shows that the Corporation itself refers to the applications for the posts of the categories mentioned above. However, while making the appointments i.e. while making the appointment to the post of Technician Grade-III which should have been confined exclusively to the different categories mentioned in Annexure-4 and which do not include the category of BTA yet, the Corporation, for reasons best known to them, issued appointment letters appointing these casual workmen in the Technician Grade-III Fitter/BTA. 5. Mr. Mehta contends that they could not have included and/inserted the Cadre BTA in the appointment letter as this amounted to intermingling of two different and separate cadres. There is much force in what Mr. Mehta has submitted in as much as apart from the aforementioned documents referred to, Annexure-7 is a clear pointer to the fact that even the Corporation, while issuing an office Circular in relation to minimum wages of daily rated employees, gave a list/category of different kind of casual workers engaged by them. Serial Nos. 6 and 7 are exclusively shown as Fitter Grade-I and Fitter Grade-II. It does not say that they are Fitter/BTA. 6. Serial Nos. 6 and 7 are exclusively shown as Fitter Grade-I and Fitter Grade-II. It does not say that they are Fitter/BTA. 6. In that view of the matter, the contention of learned counsel for the petitioner that the respondents could not have issued a draft gradation list containing the names of non BTA persons in the cadre of the BTA employees appears to be well founded. The persons mentioned at serial number 58 to 78 were all casual workers who had been appointed as Technician Grade-III but they were not skilled workmen falling in the category/Grade of cadre BTA. What is most important is that by Annexure-9 (which is a letter of the Joint Director of Personnel dated 16.11.1995) establishes beyond doubt that the Technical Grade- III Fitters and Technical Grade-III BTA are totally different and distinct to each other. This has been said by the Joint Director of Personnel himself "while considering the prayer for mutual transfer made by one Technical Grade-III Mechanical Fitter and a Technical Grade-III BTA employee. At paragraph-2 of the said letter, it has been said that such a mutual transfer of these two different categories of employees cannot be done as their trades are different to each other. It prima facie therefore appears to this Court that the grievances of the Writ Petitioners as well founded. 7. However, in the absence of any assistance from the side of the respondents because of their non-appearance in this case, this Court is left with only the pleadings made in the writ application and the counter affidavit filed by the respondents on 11.7.1997. In the counter affidavit, at para-graph-8 and 11, it has been stated that the appointment of the petitioner was a special consideration made by the Corporation due to agitational programmes by the different categories of empanelled persons, and their appointment was not based on their merit nor on the basis of existing rules of the Corporations and accordingly, a quota as mentioned therein was fixed. Such a submission made in paragraph- 8 does not find support in the order by which the petitioners were appointed i.e., Annexure-3 being the office order dated 13.8.1990. Such a submission made in paragraph- 8 does not find support in the order by which the petitioners were appointed i.e., Annexure-3 being the office order dated 13.8.1990. So far as the statement made in paragraph-11 is concerned to the effect that there is no trade in the DVC like Fitter (BTA), the same also appears to be not correct being in the teeth of different Annexures and specially Annexure-9 which is a letter of the Joint Director of Personnel clearly admitting that these are two trades which are different to each other. Even the gradation list which has been marked Annexure-8 begins with the sentence that "gradation list of BTA" has been prepared. 8. For all the reasons above, it is, therefore, necessary that the respondents are directed to apply their mind in the matter and redress the grievances of the petitioners in accordance with law. Consequently, this writ application is disposed off giving liberty to the petitioners to approach the respondent No. 2 who will pass necessary orders upon the representation of the petitioners within a period of two weeks from the date of receipt thereof. Since this Court has given a prima facie finding on the basis of documents brought on record and since it has been deprived of proper assistance on account of non appearance of the respondents and/or its counsel, it will be desirable for the said respondent No. 2 to deal with the issue after hearing all the concerned parties and also explain as to whether these two category of workmen are really two different and distinct cadre or not. Let it be recorded that such an explanation must be in accordance with law after explaining all the documents referred to above including the letter of the Joint Director of Personnel as contained at Annexure-9 and in the event no satisfactory explanation can be given, then appropriate orders in relation to bifurcation of cadre by preparation of fresh gradation list shall be done. With the aforementioned observations and directions, this writ petition stands disposed off.