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2012 DIGILAW 690 (UTT)

Khem Raj Bhatt v. State of Uttarakhand

2012-11-08

K.J.SENGUPTA

body2012
Judgment Kalyan Jyoti Sengupta, J. The petitioner in this case has challenged the order of the respondents/State dated 13th December, 2005 by which the petitioner, in essence, has been down graded while deleting his name from the seniority list of Ministerial employees. 2. The short fact of the case is as follows: 3. The petitioner was initially appointed as a Driver which is a Class-III post in the pay scale of 950-1500. Apart from the skill of driving vehicles, he had acquired skill of stenography both in Hindi and in English languages. The petitioner was asked to discharge the duty of Typist in view of shortage of ministerial employee and the petitioner continued to discharge his duty as such. In 1990, he met with an accident and it was difficult for him to drive heavy vehicle. So, the petitioner was utilized by the respondents as Office Assistant and in the process he continued to discharge duties not only that of stenographer, typist but also of clerk for some times. While recognizing his nature of the duty apart from driver, the Director by an order dated 4th August, 2001 fitted the petitioner to the pay scale of 3050-4590 which was admissible for typist, computer operator etc. In that order, it has been specifically mentioned that the petitioner is discharging the duties of typist because of his incapacity in discharging the duties as a driver. Not only the aforesaid order was passed, this was acted upon on payment of salary in the said pay scale and he was placed in the seniority list of Office Assistant. 4. Unfortunately, in the year 2005, a notice was issued to him asking to show cause why his name should not been deleted from the list of cadre of Office Assistant. The cause was shown by the petitioner mentioning all facts and also the relevant rules. It was claimed that the change of cadre on account of incapacity due to ailment or accident or otherwise and, as such, he has been fitted to the post of Office Assistant. By the impugned order, such assertion of the petitioner has been rejected and it was said that he was originally driver and he should not be fitted and/or appointed to the post of Office Assistant. His name in the cadre, consequently in the seniority list of the Office Assistant is absolutely illegal and this was done by mistake. By the impugned order, such assertion of the petitioner has been rejected and it was said that he was originally driver and he should not be fitted and/or appointed to the post of Office Assistant. His name in the cadre, consequently in the seniority list of the Office Assistant is absolutely illegal and this was done by mistake. So, he was reverted to the position of Driver deleting his name from seniority list. 5. Learned counsel for the petitioner submits that he is not at fault and taking note of his client’s capability and efficiency he was fitted to the post of Office Assistant and accordingly pay scale was granted. He contends that change of cadre in the department is admissible under Rule 15 of the Uttar Pradesh Fundamental Rules. He further submits that because of his accident, he could not continue as a driver and before the accident it is the department that utilized his services in the post of Stenographer, Typist, and computer operator. As such, by this order, the respondents had held out a promise to be fitted to the post of Office Assistant and indeed it was done. The petitioner has also altered his position accepting the promise. Besides, the impugned order is violative of Article 21 of the Constitution and almost in similar case he says that the Supreme Court in the case of Narendra Kumar Chandla Vs. State of Haryana and others, (1994) 4 SCC 460 has approved the change of cadre on account of illness. 6. Learned counsel for the State, on the other hand, submits that since he was appointed as a driver, he cannot be allowed to continue to remain in the cadre of Office Assistant and by mistake he was categorized so, hence mistake has been detected in 2005 and then sought to be corrected by the impugned order placing the petitioner at right position. 7. Having heard the contention of the learned counsel for the parties and going through the material filed in the writ petition, I find that the impugned order has not considered the legal implication of issuing the order before 4th August, 2001 nor it has considered that he is discharging duty in the changed cadre from 4th August, 2001 till 2005. The factual background needs to be considered in the light of Rule 15 of above Fundamental Rules. The factual background needs to be considered in the light of Rule 15 of above Fundamental Rules. In the impugned order, there is no consideration as regard applicability of the same. I find in the factual matrix, Rule 15 has some relevancy and the same needs consideration. The Supreme Court in the above cited decision has also recognized the change of cadre in the same establishment on account of disease or otherwise. The Supreme Court in the said case has explained the applicability of Article 21 in almost identical case. In paragraph 7 of the said report, the Supreme Court has said as follows: “Article 21 protects the right to livelihood as an integral facet of right to life. When an employee is afflicted with unfortunate disease due to which, when he is unable to perform the duties of the posts he was holding, the employer must make every endeavour to adjust him in a post in which the employee would be suitable to discharge the duties.” 8. I think in this case the meaning of livelihood has to be understood in the context of the amount a particular person is earning. The livelihood has also to be adjudged in the light of standard of the educated person in the society. The petitioner is qualified not only in motor driving skill, but also stenography both in Hindi and in English, typing and computer operation. Under these circumstances, the petitioner cannot be treated as an ordinary driver nor a labour. He has been able to establish his worth in the department and the department was also satisfied with his works in other fields. Under this circumstance, I think the post of motor driver should not be befitting to his standard of his livelihood. 9. Accordingly, the impugned order is not sustainable and the same is set aside. I direct the authority concerned to examine the matter afresh taking note of the factual position and also the Rule as mentioned above and examine the applicability thereof. This shall be done within eight weeks from the date of communication of this order. 10. The writ petition is disposed of. 11. No order as to costs.