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2008 DIGILAW 1650 (RAJ)

Jetha Ram v. State of Rajasthan

2008-07-09

GOPAL KRISHAN VYAS

body2008
JUDGMENT 1. - By this petition, petitioner has prayed for quashing the order dated 13.01.2005 and further prayed for granting benefit of Circular dated 25.01.1992 as and when it became due with interest at the rate of 24%. It is also prayed that respondents may be directed to give pay scale of Helper from the date of appointment as Helper along with revision of pay scale with arrears and interest at the rate of 24% p.a. 2. The case of petitioner is that he was given regular pay scale of helper and was posted as helper in the year 1982 and for that purpose he was posted as helper vide Annex.2 dated 13.03.1991 and his name was included in the seniority list Annex.3 in which name of petitioner is shown as helper (Sahayak) w.e.f. 31.07.1982 by the respondent department itself. Petitioner was considered for promotion on the post of Fitter Gr.I and accorded promotion on the said post vide order dated 26.05.2004 (Annex.12) with all benefits while treating him as helper since 1982. The petitioner has claimed the benefit of selection scale in the said cadre but it was denied, therefore, a writ petition was preferred by him before this Court in the year 2004. The said writ petition was registered as S.B. Civil Writ Petition No.1917/2004 in which it was ordered that petitioner may file representation to the respondents and in compliance of that order representation and a notice for demand of justice was sent by petitioner with the hope that the grievance of petitioner with regard to grant of selection scale may be redressed without further delay. 3. The petitioner's case was considered and vide order dated 13.01.2005 (Annex.9) not only the claim of petitioner with regard to grant of selection scale in the cadre of helper is rejected but it is also observed by Superintending Engineer, PHED, Nagaur Circle that order dated 29.07.1982 passed by the Executive Engineer, Division Merta and order passed by Executive Engineer, Deedwana dated 13.03.1991 are illegal because petitioner was wrongly appointed on the post of helper instead of Class IV employee, therefore, both the orders were quashed and petitioner is entitled for selection scale which is provided for Class IV employee while treating him as Class IV employee. 4. 4. Learned counsel for the petitioner vehemently argued that after declaring petitioner surplus he was appointed on the post of helper by the competent authority in the year 1982, therefore, there was no occasion for the Superintending Engineer, PHED Nagaur to declare the order dated 29.07.1982 and subsequent order dated 13.03.1991 passed by Executive Engineer, Division Merta and Deedwana as illegal and same cannot be quashed or cancelled after lapse of 22 years, more so petitioner was promoted on the post of Fitter Gr.I while treating him as Helper in the year 1982, therefore, the order Annex.9 passed by the Superintending Engineer is patently illegal because Superintending Engineer, PHED, Nagaur has exceeded its jurisdiction while treating the absorption of petitioner on the post of helper as illegal after lapse of 12 years. Learned counsel for the petitioner has invited my attention towards judgment of Hon'ble Apex Court in case of Bhagwati Prasad v. State of Rajasthan reported in (1990) 1 SCC 361 so also judgment rendered by Hon'ble Apex Court in M.A. Hameed v. State of A.P. reported in (2001) 9 SCC 261 in which their Lordships of Hon'ble Supreme Court has held that reversion of an employee after 11 years is illegal, unjustified even if his appointment was temporary or irregular in any manner. In case of Bhagwati Prasad (supra) it has been held that eligibility and qualification are relevant at the time of appointment and not at the time of confirmation. Herein this case, petitioner was posted in the pay scale of helper in the year 2004 and further he was granted promotion on the post of Fitter Gr.I in the year 1984 and now when petitioner is claiming selection scale in the technical cadre then impugned order Annexure 9 has been passed which is contrary to law. 5. Learned counsel for the petitioner has also invited attention of this Court towards decision rendered in S.B. Civil Writ Petition No.3284/2004 (Lal Mohammad v. State of Rajasthan and another) and submitted that Lal Mohammad was also given pay scale along with petitioner vide Annex.2 dated 13.03.1991 and his writ petition was allowed by this Court on 22.09.2005 in which learned Single Judge of this Court has held that: . "It is evident from the letter dated 23.03.1987 of the Chief Engineer, PHED, Jaipur addressed to the Executive Engineer, PHED, Division-Suratgarh that the posts of Helper were lying vacant in the Department and the employees of the PHED, including the petitioner had the requisite experience, therefore, the X.En. was granted permission to cancel his earlier order dated 30.11.1985, by which the other employees of the PHED, similarly situated to the petitioner, were reverted from the post of Helper to that of Class IV servant. Not only that, but also, it is very much clear from the office order dated 14.04.1978 issued by the Respondent that the services of petitioner were treated equivalent to that of Helper. It is also clear from the Office Order dated 14.02.1974 that the name of petitioner was sponsored by the Employment Exchange, Nagaur and, after interview, he was appointed as Centrifugal Operator in the pay scale of Rs. 66-9-90. The aforesaid order also reveals that the post of Centrifugal Operator is equivalent to that of Helper. Thus, in view of the aforesaid facts and circumstances of the case, it is clear that the petitioner was initially appointed on the post of Centrifugal Operator, which is equivalent to that of Helper and the services of Helper were taken by the Department. However, he was absorbed as Class IV employee, but no order to that effect was passed by the Department. The persons situated similarly, were absorbed as Class IV employees, but by virtue of the order dated 23.03.1987 passed by the Chief Engineer, they were posted on the post of Helper, whereas, the petitioner, who was never appointed as Class IV employee and directly appointed as Helper, has now abruptly been reverted from the post of Helper to that of Class IV without following the principles of natural justice. It may be mentioned that in view of the principle laid down in M.A. Hameed's case (supra) by their Lordships of the Supreme Court, after such a long time, reversion of the petitioner from Helper to Class IV servant is wholly unjustified, as settled position, cannot be allowed to be unsettled by the Department on account of their fault. Consequently, the writ petition is allowed. The order dated 28.04.2004 (Annex.4) is quashed and set aside. There will be no order as to costs." 6. Consequently, the writ petition is allowed. The order dated 28.04.2004 (Annex.4) is quashed and set aside. There will be no order as to costs." 6. It is, therefore, prayed by the petitioner that he is also entitled to same relief and his writ petition may be allowed. 7. Per contra, learned counsel for the respondent submitted that petitioner was working as Class IV employee and he was declared surplus in the year 1978 and initially he was absorbed on the post of Class IV employee but later on erroneously he was given posting on the post of Helper and was wrongly allowed pay scale of Helper, therefore, vide impugned order Annex.9 the Superintending Engineer, PHED, Nagaur has rightly cancelled the order dated 29.07.1982 and 13.03.1991 because under these orders petitioner was wrongly granted benefit of the post of Helper and was wrongly treated as Helper, whereas, he was absorbed on the post of Class IV employee, therefore, no interference is required in this case and order passed by Superintending Engineer deserves to be upheld and writ petition deserves to be dismissed. 8. I have considered the rival submissions and considered the material on record. In my opinion (though petitioner was declared surplus and absorbed in the respondent department on the post of Class IV employee but at the time of absorption the post of Helper was not in existence, therefore, subsequently vide order dated 29.07.1982 petitioner was given posting on the post of Helper and he was granted pay scale of Helper and for all purposes respondents treated the petitioner as Helper till passing order Annex.9 and he was allowed to work on the post of helper till 2004, thereafter, promoted on the post of Fitter Gr.I 9. Upon pleadings, it is also admitted position of the case that not only petitioner was treated as Helper but his name was also included in seniority list Annex.3 dated 04.06.1986 and subsequently he was also promoted on the post of Fitter Gr.I vide order dated 26.05.2004 and now when the petitioner is claiming selection scale then respondents while considering his case as per order of this Court for deciding representation held that petitioner was wrongly granted appointment on the post of Helper in the year 1982 and passed an order for treating the petitioner as class IV employee. In my opinion, when petitioner was allowed to work on the post of Helper since 1982 for more than 22 years in the pay scale of the post of Helper and Fitter Gr.I then in view of judgment of Hon'ble Supreme Court in M.A. Hammed's case there is no question to treat the petitioner irregularly or illegally appointed on the post of Helper, more so after two decades petitioner is required to be treated absorbed on the post of Helper and was rightly granted promotion to the post of Fitter Gr.I so also petitioner is very much entitled to get selection scale in the technical cadre, therefore, in my opinion Superintending Engineer, PHED, Nagaur has illegally passed the impugned order Annex.9 which is in contravention of basic principle of law. It is also obvious that impugned order has been passed without any notice to petitioner. In these circumstances, order Annex.9 dated 13.01.2005 is against the principle of natural justice. Hence, not sustainable in law and deserves to be quashed. 10. In view of above, while following the judgment rendered by Coordinate Bench in S.B. Civil Writ Petition No.3284/2004 (Lal Mohammad v. State of Rajasthan) decided on 22.09.2005 writ petition is allowed. Order Annex.9 dated 13.01.2005 is quashed and respondents are directed to treat the petitioner in technical cadre and shall treat him as absorbed on the post of Helper and promotion granted to him on the post of Fitter Gr.I shall be maintained and petitioner may be granted selection scales as provided under Notification dated 25.01.1992 issued by the Finance Department of Government of Rajasthan within a period of three months from the date of submitting certified copy of this order.No order as to costs.Writ Petition Allowed. *******