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2009 DIGILAW 165 (GAU)

Takar Poyom v. State of Arunachal Pradesh

2009-03-05

P.K.MUSAHARY

body2009
JUDGMENT P.K. Musahary, J. 1. Heard Mr. D. Pangging, learned Counsel for the Petitioners and also heard Mr. R.H. Nabam, learned Senior Government Advocate appearing on behalf of the Respondents. 2. By this writ petition, the Petitioners have challenged the Order No. RWD/ESTT-13/03-04 dated 20th June, 2008 (Annexure-9 to the writ petition) issued by the Chief Engineer, RWD, Itanagar whereby the corrigendum issued earlier on 30th March, 2005 in connection with the enhancement of the scale of pay of Bulldozer Mechanic has been cancelled. The Petitioners claim that they were appointed as Work Charged Bulldozer Mechanic under Rural Works Division at Along in the scale of pay of Rs. 380-560/- plus other allowances as admissible with effect from the dates from their joining in the duties. Vide order dated 10th November, 1981 (Annexure-2 to the writ petition), the Petitioners joined their duties and had been continuing and rendering service as Work Charged Bulldozer Mechanic. Thereafter by an order dated 03.03.1998 (Annexure-3 to the writ petition) issued by the Executive Engineer (M), RW, MD, Itanagar, the pay scale of the Petitioners was revised to Rs. 4000-6000/- as per Central Civil Service R.P. Rules, 1997 and accordingly, they have been drawing salary in the aforesaid pay scale. Thereafter, the Petitioners were appointed as Mechanic on temporary basis in the scale of pay of Rs. 3050-75-3950-80-4590/- vide Orders No. RWD/ESTT/13/2003-04 dated 5th April, 2004 & No. RWD/ESTT. 13/2003-04 dated 5th April, 2004 against the W/C posts created vide Govt. Order dated 16.12.2003. The Petitioners accepted the said appointment but they raised a grievance before the Respondent authorities that they are entitled to scale of pay of Rs. 4000-6000/- p.m. 3. On receipt of such grievance from the Petitioners, the Chief Engineer, RWD, Itanagar issued a corrigendum No. RWD/ESTT/13/2003-04 dated 30th March, 2005 to the effect that the pay scale of Rs. 3050-75-3950-80-4590/- as reflected in the appointment Order No. RWD/ESTT-13/2003-04 dated 5th April, 2004 in case of the Bulldozer Mechanic be read as Rs. 4000-100-6000/- p.m., which means that the Petitioner would be entitled to get the salary in the scale of pay of Rs. 4000-100-6000/- p.m. Subsequently, the services of the Petitioners were regularized as W/C (R) Bulldozer Mechanic under RWD from their date of initial joining vide Order No. RWD/ESTT/W/C ® 539/05 dated 14th June, 2005 (Annexure-8 to the writ petition) issued by the Chief Engineer, RWD. 4000-100-6000/- p.m. Subsequently, the services of the Petitioners were regularized as W/C (R) Bulldozer Mechanic under RWD from their date of initial joining vide Order No. RWD/ESTT/W/C ® 539/05 dated 14th June, 2005 (Annexure-8 to the writ petition) issued by the Chief Engineer, RWD. After such regularization of the services of the Petitioners as Bulldozer Mechanic, the Chief Engineer, RWD, Itanagar again issued an Order No. RWD/ESTT-13/03-04 dated 20th June, 2008 (Annexure-9 to the writ petition) canceling the earlier corrigendum dated 30th March, 2005 aforesaid issued by him, consequent upon which, the Petitioners would be entitled to draw salary in the scale of pay of Rs. 3050-75-3950-80-4590/- p.m. only. The Petitioners are aggrieved by this order and have approached this Court for appropriate relief (s). 4. Mr. Pangging, learned Counsel for the Petitioners made a very limited submission that this impugned order dated 20.06.2008 was issued reducing the pay scale of the Petitioners fixed at Rs. 4000-6000/- p.m. to Rs. 3050-75-3950-80-4590/- p.m. without giving any prior notice and opportunity of hearing and as such, the same is not sustainable under the law and as such, the same is liable to be quashed inasmuch as the impugned order is visited with civil consequences and also in violation of the principle of natural justice. In support of his submission, he relies on Apex Court's decision rendered in Bhagwan Shukla v. Union of India and Ors. reported in AIR 1994 SC 2480 , wherein it is held that reduction in pay scale of employees without granting any opportunity to show cause amounts to flagrant violation of the principles of natural justice since such order is visited with civil consequences and also makes the employees suffer huge financial loss and such order passed is liable to be set aside. The principle laid down in the said case has been followed by this Court in Vankhuma vs. State of Mizoram and other reported in 2004 (2) GLT 571. 5. Per contra, Mr. Nabam, learned Senior Government Advocate submits that the Petitioners were no doubt appointed as W/C Bulldozer Mechanic in the year 1981 in the scale of pay of Rs. 380-560/- p.m. and the revised pay scale of Rs. 5. Per contra, Mr. Nabam, learned Senior Government Advocate submits that the Petitioners were no doubt appointed as W/C Bulldozer Mechanic in the year 1981 in the scale of pay of Rs. 380-560/- p.m. and the revised pay scale of Rs. 4000-100-6000/- p.m. was given to them in the year 1998, but from the records, according to him, there was no sanctioned post of Bulldozer Mechanic and as such, they were subsequently appointed as Mechanic on temporary basis on 5th April, 2004 against W/C posts created by the Govt. in 2003 and they were given the pay scale of Rs. 3050-75-3950-80-4590/- p.m. He also submits that 13 (thirteen) posts of Mechanic were sanctioned by the Govt. in the year 2003 and against those posts, the present Petitioners were appointed temporarily and to accommodate the Petitioners, the Superintending Engineer (Co-order), RWD, Itanagar vide his letter dated 8th June, 2004 (Annexure-E to the counter affidavit) requested the Deputy Secretary (RWD), Government of Arunachal Pradesh to upgrade 4 (four) posts of Mechanic to the post of Bulldozer Mechanic in the scale of pay of Rs. 4000-100-6000/- p.m. Since no up-gradation of the post of Bulldozer Mechanic was sanctioned by the Govt., the Respondent authorities had to cancel the pay scale of Rs. 4000-100-6000/- p.m. given to them earlier and decided to give them the pay scale of Rs. 3050-75-3950-80-4590/- p.m. and as such, according to Mr. Nabam, learned Senior Government Advocate, no fault can be found in the action taken so far by the Govt. 6. The question of giving the pay scale of Rs. 4000-100-6000/- p.m. attached to the post of Bulldozer Mechanic cannot be given to the Petitioners until and unless the posts of Bulldozer Mechanic are sanctioned by the Govt. The post of Bulldozer Mechanic is higher than the post of Mechanic and they carry different pay scales which can be seen from the list of categorized post with scales furnished by the Govt. vide Order No. RWD/Sectt-10/2002/A dated 23rd December, 2003 (Annexure-D to the counter affidavit). In the said list at serial No. 1, the post of Bulldozer Operator is shown carrying the pay scale of Rs. 4000-6000/- while the post of Mechanic is shown at serial No. 23 carrying the pay scale of Rs. 3050-4590/-. vide Order No. RWD/Sectt-10/2002/A dated 23rd December, 2003 (Annexure-D to the counter affidavit). In the said list at serial No. 1, the post of Bulldozer Operator is shown carrying the pay scale of Rs. 4000-6000/- while the post of Mechanic is shown at serial No. 23 carrying the pay scale of Rs. 3050-4590/-. The Petitioners having accepted the appointment as Mechanic cannot now claim the higher pay scale of the post of Bulldozer Mechanic which carries higher pay scale. They may make such claim if they are appointed against the sanctioned post of Bulldozer Mechanic. The position is clear to the Petitioners and there is no question of reduction in salary as they have accepted the post of Mechanic. This being the position, according to Mr. Nabam, learned Sr. Govt. Advocate, no notice is required to be served on the Petitioners before passing the impugned order dated 20th June, 2008 and no interference is warranted. 7. I have given my anxious consideration to the submissions made by the learned Counsel for the parties. It is an indisputable position that the Petitioners were appointed as W/C Bulldozer Mechanic in 1981 in the scale of pay of Rs. 380-560/- p.m. but they were subsequently appointed as Mechanic on temporary basis on 5th April, 2004 in the scale of pay of Rs. 3050-75-3950-80-4590/- p.m. and in the appointment letter, it was clearly recited that the appointment is made against the W/C posts created by the Govt. vide letter dated 16th December, 2003. This temporary appointment to the post of Mechanic was made in favour of the Petitioners as there was no sanctioned post of Bulldozer Mechanic. It is also an indisputable position that the post of Bulldozer Mechanic carries higher pay scale i.e. Rs. 4000-100-6000/- p.m. while the post of Mechanic carries lower pay scale of Rs. 3050-75-3950-80-4590/- p.m. and the Petitioners have accepted the said appointment as temporary Mechanic. 8. The Superintending Engineer (Co-order) vide letter dated 8th June, 2004 (Annexure-E to the counter affidavit) requested the Deputy Secretary (RWD) to the Govt. of Arunachal Pradesh to upgrade 4 posts of Mechanic to Bulldozer Mechanic to accommodate 4 persons including the Petitioners. The up-gradation was not done as requested by the aforesaid Superintending Engineer and as such, the Petitioner could not be allowed to draw the salary in the pay scale of Rs. of Arunachal Pradesh to upgrade 4 posts of Mechanic to Bulldozer Mechanic to accommodate 4 persons including the Petitioners. The up-gradation was not done as requested by the aforesaid Superintending Engineer and as such, the Petitioner could not be allowed to draw the salary in the pay scale of Rs. 4000-100-6000/- p.m. A communication dated 9th August, 2004 (Annexure-M to the counter affidavit) was issued from the Deputy Secretary (RWD), Government of Arunachal Pradesh to the Chief Engineer (RWD), Itanagar wherein it is stated that the Govt. has banned for up-gradation of any posts and as such, till now no up-gradation could be made nor any sanction has been accorded to the creation of the posts of Bulldozer Mechanic. 9. On perusal of the documents furnished in the pleadings, it is found that the communication made between the concerned Superintending Engineer, RWD and the Govt. in RW Department was not made known to the Petitioners and they were not in a position to know the aforesaid factual position. Moreover, the Petitioners were not informed that there is no sanctioned post of Bulldozer Mechanic and the scale of pay of Rs. 4000-6000/- as claimed by them would be given only after creation of such posts of Bulldozer Mechanic by the Government. Thus, the admitted position is that the Petitioners were not informed and no notice was given to them before issuing the impugned order dated 20th June, 2008. The Petitioners, as they are making the claim of pay scale of Rs. 4000-6000/- p.m., has a right to know about the reasons for not giving them the pay scale of Rs. 4000-100-6000/- p.m. 10. In reply to the submission made by the learned Sr. Govt. Advocate, it is fairly submitted by Mr. Pangging, learned Counsel for the Petitioners that the Govt. may take any decision in the matter but the Petitioners are aggrieved only because they were not given any opportunity of hearing before passing the impugned order as the rejection order is visited by civil consequences and at this stage, the impugned order dated 20th June, 2008 may be set aside. 11. may take any decision in the matter but the Petitioners are aggrieved only because they were not given any opportunity of hearing before passing the impugned order as the rejection order is visited by civil consequences and at this stage, the impugned order dated 20th June, 2008 may be set aside. 11. Considering the aforesaid facts and circumstances and submissions, I am of the considered view that the Petitioners are entitled to have a chance of hearing on the basis of principle of natural justice and also in the light of the decision rendered by the Apex Court in the case referred to above, to ventilate their grievance regarding the pay scale. 12. In view of the above, the impugned order dated 20th June, 2008 is set aside and quashed with liberty to the Respondent authorities to take a decision afresh in the matter after affording a chance of hearing to the Petitioners by the Deputy Secretary (RWD) in presence of the Superintending Engineer concerned and the Petitioners as well. The Petitioners may be given necessary notice for such hearing. 13. With the aforesaid directions, this writ petition stands dispose of. 14. No order as to cost.