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2005 DIGILAW 885 (RAJ)

M. Hussain v. RSEB

2005-03-22

DINESH MAHESHWARI

body2005
Judgment Rajesh Balia, J.-Heard learned Counsel for the parties. 2. One M.K. Aboobacker has filed S.B. Civil Writ Petition No. 122/1987 on behalf of himself and stating that there are number of persons who have been appointed as Sarang Grade-I in Mahi Hydal Project of the Rajasthan State Electricity Board and who are similarly situated with the petitioner and their names have been mentioned in Schedule-I to the writ petition as their case is similar. The relief in the writ petition was claimed for regularization and grant of regular salary and to fix in the pay scales applicable to the post of Sarang Grade-I and Sarang Grade-II with effect from 1st September, 1981. In substance, the claim was for regularization and grant of salary on the basis of equal pay for equal work. The writ petition was filed in the year 1987. No objection was ever taken by the respondents to the representative capacity of Mr. M.K. Aboobacker. 3. During the pendency of the writ petition, the Rajasthan State Electricity Board, now represented by Ajmer Vidhyut Vitran Nigam Limited after its reconstruction, had regularized the services of the petitioner including all the persons named in the Schedule-I to the writ petition and fixed them in the like pay scales with effect from 21st July, 1991. 4. An application was moved by the respondent-Board that since all the persons including petitioner have been regularized, nothing survives for consideration in this case. That application was replied to by the petitioner by filing an additional affidavit denying the fact that no relief survives in this case. It was clearly stated in the affidavit that, "While passing orders dated 25.06.1991 and 29.07.1991 in the aforesaid manner, the respondent Rajasthan State Electricity Board has taken from me and other similarly situated persons an affidavit to the effect that we have got the relief sought from the Honble Court and as such do not want to pursue this writ petition and will withdraw the writ petition. That the aforesaid was done by the respondent Board by exercising undue influence and by mis-representing the facts. As such it is apparent that nothing turns out on account of affidavit having been obtained from me and other similarly situated, Lis in the present case is very much alive.” 5. That the aforesaid was done by the respondent Board by exercising undue influence and by mis-representing the facts. As such it is apparent that nothing turns out on account of affidavit having been obtained from me and other similarly situated, Lis in the present case is very much alive.” 5. With these averments, it was claimed that they are entitled to get regular pay scale and dearness allowance with effect from their initial date of appointment. 6. A counter affidavit was filed on behalf of the respondent Board, stating that no undue influence was practiced and averment to the contrary made by Mr. Aboobacker is false. It was also stated in counter that other workmen have not filed affidavits. 7. Thus, the facts that all the workmen Sarangs were before the Court was not in dispute. It was also not in dispute that all the workmen including Aboobacker had given an affidavit to the Board that they have no cause surviving and they will not pursue the writ petition and withdraw it. Aboobacker had filed an affidavit that such undertaking was taken from him and other workmen under undue influence. 8. The Management while did accept that such an affidavit was taken from each workmen that writ petition will be withdrawn and denied the use of undue influence in obtaining the affidavit of withdrawal, firstly clearly suggested that Mr. Aboobacker and persons named in Schedule had all been considered as petitioners, else there was no necessity of seeking an undertaking to withdraw writ petition from each of them 9. These pleadings were on record and when the matter came up before the learned Single Judge, without deciding the question of undue influence exercised by the Management on its workmen, learned Single Judge allowed the writ petition only to the extent of Mr. Aboobacker. This implicity amounts to acceptance of plea of exercise of undue influence by Management in obtaining such undertaking else the position of Mr. Aboobacker could not have been different. Still, the learned Single Judge apparently assumed that the writ petition is not pressed by all the persons except petitioner M.K. Aboobacker and he noticed as under:- "During the penedency of the writ petition, it appears that all other persons whose names appear in Schedule-I reached a compromise and they have been regularized and, thus, the writ petition is not pressed on their behalf . However, the petition is pressed only on behalf of the petitioner, M.K. Aboobacker and the grievance of the petitioner is that inspite of the fact that he had been appointed on 17.08.1981 and working continuously since then and he had been deprived of the pay scale paid to the regular employees. During the pendency of the writ petition, the petitioner had been regularized w.e.f. 29th July, 1991. However, Shri R.S. Saluja, learned Counsel for the petitioner, insists that even for the period prior to the date of his regularization, he is entitled for the payment equivalent to the salary paid to the regular employees as he was doing the same work as was being taken from the regular employees on the said post of Sarang." 10. The plea of regular pay with effect from initial date of appointment of workman was accepted and the writ petition was allowed and the petitioner M.K. Aboobacker was held entitled to get equal pay for equal work from the date of filing of this writ petition before this Court till the date of his regularization. The relief was restricted with effect from the date of filing of writ petition. 11. Soon after this order was made, an application was moved on behalf of other petitioners before learned Single Judge saying that as the statement of not pressing the writ petition was not made by anyone, on the contrary there was a clear indication on behalf of all other persons that they want to agitate their rights as was being agitated by one of the petitioner M.K. Aboobacker and who has been granted the reliefs by this Honble Court and the relief may also be extended to other applicants/petitioners whose names are shown in the Schedule-I attached with the writ petition by recalling or modifying the Judgment dated 24.09.1997. Said application by the present appellants was rejected by the learned Single Judge on 04.03.1998 by a single line order that, this Judgment does not require any clarification. 12. The appellants are aggrieved of restricting the order for granting equal pay for equal work only to Mr. Aboobacker with effect from the date of filing of the writ petition till the date of regularization. 13. The fact remains that the appeal filed by the respondent Board against the Judgment has since been dismissed by upholding the order of the learned Single Judge on merit. Aboobacker with effect from the date of filing of the writ petition till the date of regularization. 13. The fact remains that the appeal filed by the respondent Board against the Judgment has since been dismissed by upholding the order of the learned Single Judge on merit. In the first instance, it appears that this appeal was dismissed on 112.2001. The Division Bench by relying on the decision in D.B. Special Appeal No. 425/1998 decided on 112.2001 dismissed the special appeal filed by the present appellant. On 14.03.2002 when the Review Petition came up for consideration, the Division Bench observed that it appears that on account of some mistake the order passed in D.B. Special Appeal No. 480/1998 has also been placed in D.B. Special Appeal No. 425/1998. This being an apparent clerical error, the order dated 112.2001 was recalled. 14. It is not in dispute before us that Mr. Aboobacker-petitioner in S.B, Civil Writ Petition No. 122/1987 has been granted equal pay for equal work from the date of filing of writ petition before this Court till the date of his regularization. 15. The plea of the respondents that the writ petition filed by Mr. Aboobacker was also filed on behalf of the present appellants and was dismissed as not pressed, cannot be countenanced in view of the application made by the Board and its reply submitted by the petitioner indicating that their claim for pay parity with effect from their date of initial appointment subsists in spite of the orders dated 25.06.1991 and 29.07.1991 and in spite of affidavits obtained from all the workmen not to pursue this petition. Assumption by learned Single Judge about not pressing the petition on behalf of the present appellant-petitioner was, therefore, erroneous. 16. That being the position, further conclusion is irresistible that there is no difference in the case of Mr. Aboobacker and the present appellants and other doing the same work. Even otherwise, the rule of equity requires the respondent which is a State within the meaning of Article 12 of the Constitution to treat its employees at par. The present appellants are entitled to get the benefit of Judgment from the date of filing of the writ petition. 17. Aboobacker and the present appellants and other doing the same work. Even otherwise, the rule of equity requires the respondent which is a State within the meaning of Article 12 of the Constitution to treat its employees at par. The present appellants are entitled to get the benefit of Judgment from the date of filing of the writ petition. 17. Consequently, the appeal is allowed, Judgment dated 24.09.1997 is modified and dismissal of the writ petition on behalf of the present appellants as not pressed is set aside and the benefit of the Judgment passed in S.B. Civil Writ Petition No. 122/1987 (M.K. Aboobacker vs. RSEB & Ors.) by learned Single Judge as affirmed by the Division Bench is directed to be extended to the present appellants also. 18. Accordingly, the appeal stands disposed of . 19. No order as to costs.