Rajasthan High Court - Jaipur
State And Ors. vs Avas Vikas Sansthan And Ors. on 3 May, 2002
Equivalent citations: RLW2003(4)RAJ2390, 2003(1)WLC388
Author: K.S. Rathore
Bench: K.S. Rathore
JUDGMENT Callia, J.
1. We have before us 37 Special Appeals and one writ petition i.e. 38 matters in all. 37 special appeals filed under Section 18 of the Rajasthan High Court Ordinance, 1949 arise out of the common judgment and order dated 25.4.2000 whereby the learned Single Judge decided 17 writ petitions in all.
2. Out of these 38 matters in all, 16 appeals at serial No. 1 to 6 (6 in number) i.e. DBCSAW No. 696/2000, 294/2001, 293/2001, 246/2001, 247/2001, 248/2001; the appeals at 12 to 19 (8 in number) i.e. 317/2001, 318/2001, 313/2001, 311/2001, 316/2001, 312/2001, 208/2001, 310/2001; the appeals at S.No.34 and 36 (2 in number) i.e. 519/2001 and 766/2001 have been filed by he State of Rajasthan;
17 appeals at serial No. 8 to 10 (3 in number), 20 to 32 and 37 (14 in number) i.e. 674/2000, 869/2000, 667/2000, 01810/2001, 02191/2001, 02190/2001, 02432/2001, 01860/2000, 01859/2000, 01858/2000, 01857/2000, 01954/2000, 01848/2000, 01844/2000, 01842/2000, 01841/2000, 0769/2002 have been jointly filed by the Rajasthan Housing Board and Commissioner Avas Vikas Sansthan;
Rest of the five matters i.e. appeal at Serial No. 7 i.e. 890/2000 has been filed by Shri Brijesh Kumar Goyal, writ petition at No. 1 1 i.e. 6800/99 by Shri R.K. Saini, appeal at No. 33 i.e. 248/2002 by one Shri Narendra Kumar Sharma, appeal at No. 35 i.e. 293/2002 by Shri Anil Trivedi & Ors. and appeal at No. 38 i.e. 315/2002 by Avas Vikas Sansthan Engineering Association. The Civil Writ Petition No. 6800/99 has been listed alongwith these appeals because it has been a writ petition with regard to the same controversy and is to be heard with these appeals in terms of the order dated 30.11.2000 passed by the Division Bench in D.B. Civil Special Appeal No. 890/2000 arising out of S.B. Civil Writ Petition No. 6584/94. This order dated 30.11.2000 is quoted as under-
30.11.2000 HON'BLE MR.JUSTICE ARUN MADAN HON'BLE MR.JUSTICE K.S. RATHORE Mr. Dinesh Yadav, for the Petitioner This matter be listed after showing the name of Shri R.N. Mathur, representing learned counsel for the respondents, alongwith connected matters viz. S.B. Civil Writ Petition No. 1043/2000 (Naseer Khan v. State) and S.B. Civil Writ Petition No. 6800/99 (R.K. Saini v. State), tomorrow i.e. on 01.12.2000.
sd/- sd/- (K.S. Rathore), J. (Arun Madan),J.
3. Whereas all the 37 appeals arise out of the common judgment and order dated 25.4.2000 and subject matter of the writ petition No. 6800/99 is the same as an individual in these matters and the Division Bench by its order dated 30.11.2000 has directed this matter to be heard alongwith these matters, we propose to decide all these 37 appeals and the writ petition No. 6800/99 by this common judgment and order as under:-
4. For the purpose of deciding these appeals, we will refer to the pleadings and documents from the writ petition No. 1750/99 out of which D.B. Civil Special Appeal No. 696/2000 has arisen and as has been filed by the State of Rajasthan and Special Appeal No. 315/2002 which has been filed by he Avas Vikas Sansthan Engineers Association. For the purpose of questions which are common to all the cases, of course, the reference will be made to the cases which are in the different groups with their down features.
5. The writ petition No. 1750/99 was filed by Avas Vikas Sansthan Engineers Association and 31 others on 03.04.99. The petitioner association came with the case that it is an association of Engineers who have been working in Avas Vikas Sansthan, Jaipur to be hereinafter referred as AVS and the petitioners No. 2 to 31 are the other persons whose interest is common and who are also individually aggrieved. That in the year 1988, the Government of India, Ministry of Urban Development sent a letter dated 12.8.1988 to the Chief Secretaries of all the Centrally Sponsored Scheme for setting up of Building Centres - Guidelines. This letter dated 12.8.1988 is on record as Annexure- 9 with the rejoinder dated 13.3.2000 filed on 14.3.2000. The National Housing Policy which was placed before the Parliament of India arid it was recommended to establish building centres in different parts of the country and for that purpose, the decision/guidelines as contained in this letter dated 13.8.1988 were circulated. The State of Rajasthan accordingly issued the directions to the Rajasthan Housing Board to implement this Centrally Sponsored Scheme for establishment of building centres. Accordingly, the Rajasthan Housing Board, Jaipur issued an office order dated 13.6.1989. The contents of this order show that the Rajasthan Housing Board decided to establish the society in the name and style of Avas Vikas Sansthan i.e. AVS.
6. The Rajasthan Housing Board in its 139th meeting dated 9.3.1988 had contemplated that for this purpose, the society be formed in the name of 'Shilpi Sansthan' as per Annexure-1 filed with the petition. The office order dated 13.6.1989 (Annex.2) with the petition provides that the land of 3 acre each be given for the building centres at Mansarover and Sanganer, Jaipur without any charges and at rest of the six districts i.e. Ajmer, Udaipur, Bikaner, Bhilwara, Kota and Alwar the land be reserved for 3 acre each for the building centres. The Rajasthan Housing Board in collaboration with Housing Urban Development Corporation formulated a scheme and passed the resolution as above and the AVS thus came to be registered as a society with the Registrar of Societies on November 17, 1988. The said society was formed by the Rajasthan Housing Board as per its objectives given in the memorandum. With the further mention that in case of dissolution of this society, the assets of the society after satisfaction of debts and liability were to be dealt in the manner determined by the Rajasthan Housing Board, Jaipur and thus, the society registered in the name of AVS was created as an unit and agency of Rajasthan Housing Board to carry out the national policy as above through the Centrally Sponsored Scheme. Rajasthan Housing Board is a statutory body constituted under Section 54 of the Rajasthan Housing Board Act, 1970 with the sole object of consent manner. The AVS is in the nature of agency of the Rajasthan Housing Board and Urban Development Corporation with the aims and objects of framing schemes for establishing a network of building centres in the State of Rajasthan for transfer of low cost building technology and skill upgradation of persons engaged in constitution of the building.
7. It is the case of the petitioners that the Chairman of the Rajasthan Housing Board is the Ex-officio Chairman of the Sansthan (AVS) and the Managing Director of the sansthan is the Chief Engineer of the Board. Other technical staff has also been taken from the board on deputation for the purpose of imparting training in construction works undertaken by the Sansthan. The funds of the Sansthan have also been collected from the grant and contribution from the Government of Rajasthan, Central Government and the major portion of which has been granted by the Rajasthan Housing Board, Jaipur as envisaged under Regulation No. 12 and Regulation No. 17 provides that possession of the assets of the society, after satisfaction of all debts and liabilities shall be dealt in the manner determined by the Rajasthan Housing Board. The Rajasthan Housing Board Act of 1970 provide for measures to be taken to deal with the satisfy the need of housing, accommodation in the State of Rajasthan.
8. An order dated 16/17.3.89 had already been issued by the Deputy Secretary to the Government Department of Urban Development Housing, wherein the administrative sanction of State Government was conveyed for establishment of building centres at 8 different places by way of addressing the letter to the Housing Commissioner, Rajasthan Housing Board, Jaipur which has been placed on record as Annexure-3 with the petition. The petitioner has stated that the Rajasthan Housing Board in its 147th meeting took the following decisions:-
(i) The expenditure of Secretary of Avas Vikas Sansthan were to be borne by Rajasthan Housing Board.
00 The land required for building centres at Avas Vikas Sansthan were to be made available by Rajasthan Housing Board free of cost.
(iii) The financial aid was to be given by the Rajasthan Housing Board to the Avas Vikas Sansthan.
(iv) The appointment of two directors of two building centres initially at Jaipur by the Rajasthan Housing Board.
9. It has been stated that establishment of the building centres through Avas Vikas Sansthan is basically and primarily the function of Rajasthan Housing board, which function the Rajasthan Housing Board is to perform through the agency of Avas Vikas Sansthan, i.e. a society registered under the Societies Registration Act. Initially employees of the Rajasthan Housing Board were sent on deputation to Avas Vikas Sansthan and till its dissolution such employees from Rajasthan Housing Board were on deputation.
10. The sansthan started making recruitment to the different posts from the year 1989 from junior level or from lower cadre. Thus, the petitioners No. 2 to 32 are Engineers holding either qualifications had recruited Assistant Manager (Works) from Graduate Engineers and also recruited Training Instructors who had diploma in Engineering. The post of Assistant Manager had a avenue of promotion to the post of Manager (Works). After the recruitment as Assistant Manager (Works), some of the petitioners were in fact promoted to the post of Manager (Works) having qualification of Engineering. The details of these particulars of the petitioners have been included in Schedule-A of the writ petition. The reference in this regard may also made to the Annexures 4 & 5 with the writ petition. The Sansthan had published a seniority list of all cadres including technical cadre from time to time and the names of all petitioners are also there in the seniority list which was issued on 16.3.99. The Avas Vikas Sansthan had also promulgated the Employees Service Regulations, 1993 including the method of recruitment. It has also framed Employees Discipline and Appeal Regulation, 1993, while they were so continuing in service as per the details given in Schedule-A appended to the petition i.e. from different dates in the year 1989 onwards, the petitioners first time came across an order dated 15.3.99 issued by the Secretary Urban Development Housing Department to the Housing Commissioner, Rajasthan Housing Board, Jaipur, that the State Government after considering the financial and administrative position of Avas Vikas Sansthan had decided to dissolve it with immediate effect and, therefore, in exercise of powers under Section 60 of the Rajasthan Housing Board Act, a direction was given to the Housing Board to dissolve the Avas Vikas Sansthan with immediate effect with the further mentioned that after dissolution of the Sansthan, the responsibility of dealing with the assets will be of Rajasthan Housing Board; the decision with regard to employees adjustment/absorption had also been taken to the effect that they will be adjusted on priority basis in Municipalities, Municipal Corporations, Jaipur Development Authority and in other Local Self Government Bodies against the vacancies becoming available therein after 31.3.99 on account of superannuation of their employees. The contents of this order dated 15.3.99 are reproduced as under:-
^^jktLFkku ljdkj uxjh; fodkl foHkkx Øekad% i-8¼½fof/k@2@90 t;iqj 15-3-99 vkoklu vk;qDr] jktLFkku vkoklu e.My] t;iqjA fo"k; % vkokl fodkl laLFkku ds volk;u fd;s tkus ckcr A egksn;] mijksDr fo"k;kUrxZr funsZ'kkuqlkj ys[k gS fd vkokl fodkl laLFkku dh foRrh; ,oa iz'kklfud fLFkfr ij fopkj djus ds mijkUr jkT; djdkj }kjk bl laLFkku dks rqjar izHkko ls volk;u fd;s tkus dk fu.kZ; fy;k gS A vr% jktLFkku cksMZ vf/kfu;e 1970 dh /kkjk 60 ds rgr jkT; ljdkj }kjk vkidks funsZ'k fn;s tkrs gSa fd vkokl fodkl laLFkku dk rqjUr izHkko ls volk;u dj fn;k tkos A laLFkku ds volk;u ds ikl laLFkku leLr ifjlEifRr;ksa ds fuLrkj.k dh ftEesnkjh vkoklu e.My dh gksxh A bl laLFkku ds deZpkjh ds lek;kstu ds lEcU/k esa ;g fu.kZ; fy;k x;k gS fd fnukad 31-3-99 ds i'pkr~ uxjikfydk] uxj ifj"kn] t;iqj fodkl izkf/kdj.k] rFkk vU; Lok;Rr'kklh laLFkkuksa esa dk;Zjr deZpkfj;ksa dh lsokfuo`r gksus ds i'pkr~ tks in fjDr gksaxs mu fjDr inksa ij vkokl fodkl laLFkku esa dk;Zjr deZpkfj;ksa dk izkFkfedrk ds vk/kkj ij lek;kstu fd;k tkos A Hkonh;
'kklu mi lfpo**
11. The petitioners further came to know that on 26.3.99, a special general body meeting of Avas Vikas Sansthan was held whereat certain decisions were taken. These decisions are contained in Annexure-7 filed with this petition. The decisions as were taken with regard to the employees of Avas Vikas Sansthan are quoted as under:-
^^fu.kZ; la[;k 2% volk;u ds lEcU/k esa vU; fcUnq & laLFkku esa dk;Zjr vf/kdkjh ,oa deZpkjhx.k dh lsokvksa ds lEcU/k esa A 1- laLFkku esa izfrfu;qfDr ij dk;Zjr leLr deZpkfj;ksa ,oa vf/kdkfj;ksa dks rqjUr izHkko ls vius iSr`d foHkkx esa Hkstk tk, A 2- laLFkku Lo;a dh lsok ds deZpkjh@vf/kdkjhx.kksa dks orZeku esa izHkkoh Je dkuwu o vU; dkuwu ds vUrxZr fu;ekuqlkj lsok lekfIr dh dk;Zokgh vfoyEc dh tk, rFkk bl fu.kZ; dh fØ;kUo;u gsrq volk;u desVh dks vf/kÑr fd;k tkrk gS A 3- laLFkku ds deZpkfj;ksa dks mudh lsok lekfIr ds mijkUr vU; foHkkxksa esa jkT; ljdkj ds vk'oklu ds vuqlkj fu;ksftr djokus esa desVh lg;ksx djsxh A**
12. It is the further case of the petitioners that instead of their absorption, the services of the petitioners were sought to be terminated. The petitioners felt aggrieved against the termination because they had rendered several years of service arid now they were sought to be terminated for no fault of their's. At this juncture, the petition was filed with the prayers that the respondents be restrained from terminating the services of the petitioners and the Rajasthan Housing Board may be directed to treat the petitioners as its own employees and to take the petitioners on suitable posts of Project Engineer (Junior) and Project Engineer (Senior) and in alternatives should be pleased to declare that the condition contained in order dated 15.3.99 making their absorption to be conditional was illegal. A direction was also sought for the absorption of the petitioners on suitable posts with all consequential benefits of their past services and protection of pay. A further direction was sought for payment of salary which had not been paid since, 1998 and a further direction for payment of regular salary and other allowances to the petitioners till their absorption on equivalent or suitable posts. The liquidation of the society was also sought to be restrained and that any other order or direction which the Court may consider just and proper in the facts and circumstances of the case may be passed in favour of the petitioners.
13. The notice of the petition was issued by the Court on 6.4.99 and Panel Lawyer appearing for the Rajasthan Housing Board was directed to accept the notice on behalf of respondents No. 3, 4 and 5. The Advocate General was directed to accept notice on behalf of respondent No. 3. Thereafter on 9.4.99, it was ordered after hearing both the sides that the services of the petitioners shall not be terminated till 18.4.99. On 22.4.99, the case was directed to be listed on 4.5.99 alongwith other connected matters and on 4.5.99 the case was directed to be listed on 14.5.99.
14. A reply dated 15.4.99 to the writ petition has been filed on behalf of the respondents No. 1 and 2. It appears that an application dated 21.4.99 had been filed by the Rajasthan Housing Board Diploma Engineers Association and the Diploma Engineers Association was permitted to be heard as an intervener. An application dated 23.4.99 was also filed seeking the deletion of petitioner No. 21 i.e. Rajendra Kumar Sharma from the list of the petitioners. An application dated 14.2.2000 also appears to have been filed by the petitioners with the prayer for the payment of salary from April, 99 onwards. We also find in the application filed on 01.03.2000 by the petitioners, the prayer that the documents enclosed therewith may be taken on record i.e. a letter dated 26.2.2000 sent by the Deputy Secretary to the Government Urban Development Department and a draft of the appointment orders and a draft of the affidavit was supposed to be filed and list of the employees of Avas Vikas Sansthan for appointment in Jaipur Development Authority, for appointment in Rajasthan Housing Board and for appointment in Urban Improvement Trust, Local Self Government Department and Panchayati Raj Department as also the Rajasthan Housing Board's Order dated 28.2.2000 making 24 appointments as Project Engineers (Junior) for a period of one year on probation.
15. To this application, a reply dated 14.3.2000 was filed and a reply to the second application was filed on 14.3.2000. A rely dated 14.3.2000 to the writ petition was filed on behalf of the State of Rajasthan on 15.3.2000. A rejoinder dated 14.3.2000 to the reply of respondents No. 1 and 2 was filed. It appears that in March, 2000 several applications for withdrawal of the petitions were filed because the withdrawal of the petition was made a condition precedent for seeking the alternative employment. However, no orders were passed on these applications and all the petitions ultimately came to be decided by learned Single judge by the impugned order dated 21.4.2000.
16. Aggrieved from this judgment, these appeals have been filed. Even before us, in these appeals the cabinet memorandum dt.9.3.99, the cabinet memorandum dated 8.5.99 and several other documents have been filed by the parties. The appeal was admitted on 4-1.2002. It also appears that in Special Appeal No. 667/2000 and 674/2000, an order was passed on 30.5.2000 while admitting the appeals, the paragraph 45 Sub-clause (iii) of the judgment passed by the learned Single Judge shall stand stayed. The concerned authorities were granted liberty to provide employment to the employees of the dissolved Avas Vikas Sansthan in accordance with the scheme of the Government. With the further direction that this exercise shall be done within 3 months from the date of passing of the aforementioned order. Therefore, an application was moved by the State on 15.9.2000 stating therein that the time which was granted by the order dated 30.5.2000 be extended for 4 months to complete the process providing employment to the employees of the dissolved Avas Vikas Sansthan and for compliance of the order dated 30.5.2000, it was stated that out of 590 employees 225 employees had already been absorbed/adjusted and efforts are being made to identify the more number of posts against which the remaining employees of the dissolved Avas Vikas Sansthan would be absorbed/adjusted. Therefore, the Government by passing various orders adjusted all the remaining employees in various departments of the State Government including Jaipur Development Authority, Local Self- Department in various Municipalities, urban Improvement Trusts, Corporation, Panchayati Raj Department etc. The allotment of surplus staff of Avas Vikas Sansthan had been made to various department and orders in this respect had been passed on 30.8.2000 and 4.9.2000 whereby these persons were required to report and upon their reporting the different departments were issuing necessary orders for their posting and persons concerned were being allowed to join. The appointments were made according to the conditions of the order dated 26.2.2000.
17. That out of these employees, the appellants in Special Appeal No. 890/2000 i.e. Brijesh Kumar Goyal & Ors. and the petitioner Mr. R.K. Saini & Ors. in Writ Petition No. 6800/99 are those, who are selected to be accommodated. They are represented by Mr. Ashok Gaur, Ms. Ashish Joshi and Mr. Dinesh Yadav. The appellant Mr. Narendra Kumar Sharma in appeal No. 248/2001, respondent in appeal No. 519/2001 has also not been appointed/accommodated on the ground that he was not regular in the service of the Avas Vikas Sansthan. Appellants Mr. Anil Trivedi & Ors. in appeal No. 293/2001 represented by Mr. Alok Sharma are the members of the municipal staff. The learned Single Judge has disposed of he petitions with the directions that all these petitioners are entitled to unpaid salary as directed in para 45(1) of the judgment; the condition of the independent cell in he name of Law Cost Housing Centre or any other name, under the control of the Rajasthan Housing Board for setting up a net work of building centres in the districts of Rajasthan in accordance with the National Housing Policy of the Central Government and to continue the petitioners on same posts as was held by them as mentioned in para 45(ii) in the judgment; and that the policy of State Government for fresh employment to the permanent/substantive employees of the dissolved Avas Vikas Sansthan shall stand quashed. The petitioners who got fresh appointment may if they so choose, continue in the said job and directions issued in this order in that event shall not affect them.
18. Thus, before us, the grievance of the State of Rajasthan, Rajasthan Housing Board and Avas Vikas Sansthan is against all the directions as have been given by the learned Single Judge; the grievance which is raised by Shri Brijesh Kumar Goyal & Ors. and Shri R.K. Saini & Ors. is that they had to be absorbed but they are still waiting for absorption; the grievance of appellant Narendra Kumar Sharma is that he has not been absorbed even now because he is not being treated as a regular employee of Avas Vikas Sansthan. All these persons have raised grievance before this Court that the mere fresh appointment at the lowest post available for direct recruitment as has been given in the various local bodies is not enough, the persons who had worked for number of years since, 1989 should also get the benefit of the total service rendered by them for the purpose of pension and conformity of service and the higher grades on completion of 9, 18 and 27 years of service.
19. So far as the appeals, which have been filed by the State of Rajasthan, Rajasthan Housing Board and Avas Vikas Sansthan are concerned.
A. we find that the direction (i) given by learned Single Judge with regard to the entitlement and payment of unpaid salary is in accordance with law and the same does not want any interference.
B. The directions at (ii) as have been given by the learned Single Judge, that the Government shall call upon the Rajasthan Housing Board to frame necessary regulations under Sub-section (2) of Section 53 of the Rajasthan Housing Board Act so as to crete an independent cell in the name of Low Cost Housing Centre or any other name, under the control of the Rajasthan Housing board for setting up a network of building centres in the districts of Rajasthan in accordance with the National Housing Policy of the Central Government and that petitioners shall be continued on the same posts held by them and Service Regulations for them shall be framed and further that the newly created Low Cost Housing Centres or any other name, shall have independent status and service conditions of the employees shall not affect the rights of the existing employees of the Rajasthan Housing Board and till the regulation are framed the Rajasthan Housing Board, may entrust the necessary work to the petitioners and the petitioners shall be paid salary regularly and their past services shall be maintained. The property of the dissolved Avas Vikas Sansthan shall not be disposed of and attempt shall be made to implement the National Housing Policy effectively with the help of HUDCO and the State Government is expected to provide all necessary help to newly created cell, are concerned, we are of the opinion that such directions could not have been given. True it is that, it was under the National Housing Policy that the Rajasthan Housing Board decided to form the society in the name of Avas Vikas Sansthan but later on if it was found by the creators of this Sansthan that it was not financial viable and that it was required to be closed and the same has been done as desired by the Government, the respondents can not be asked to come up with the independent cells in the nature of Low Cost Housing Centre which would again be only a substitute of Avas Vikas Sansthan. It is for the Government to take a policy decision as to whether the Avas Vikas Sansthan should have been continued or that, in its place they should have Low Cost Housing Centres or any other name. The change of the names is not all the material. The correct position is that whether any such body like low cost housing centre should be established or not, is a matter of policy for the Government and in regard to such policy matters the directions are not required to be given by the Court. The directions as have been given at (ii) under para 45 of the judgment by the learned Single Judge are neither feasible nor they could be given by the Court in the facts of the present case and therefore, the direction at (ii) cannot be sustained. To that extent the appeals filed by the State Government, Rajasthan Housing Board and Avas Vikas Sansthan deserve to be allowed.
C. The direction at (iii) as given by the learned Single Judge is concerned, we find that the policy framed by State Government in order to provide fresh employment to the permanent /substantive employees of the dissolved Avas Vikas Sansthan has been quashed. In our opinion the Government's decision to provide fresh employment to the employees of the Avas Vikas Sansthan was not at all required to be quashed in as much as the Government had actually shown a concern the employees of the Avas Vikas Sansthan and decision which had been taken by the Government to provide employment to the employees of the Avas Vikas Sansthan in the various local bodies was a decision in favour of the employees and the Government did act as a welfare State in evolving this formula and, therefore, there was no warrant or justification to quash such a decision which was in favour of the employees and to accommodate them. This policy was actuated with a sense of compassion for the young persons who were employed in Avas Vikas Sansthan and who had continued for quite some time. It is apparent that such decision was taken by the Government only because Avas Vikas Sansthan had in fact been brought into existence for the purpose of executing the national housing policy. Since the Government itself was responsible for the creation of the Avas Vikas Sansthan through the Rajasthan Housing Board for the purpose of carrying out of the national housing policy the Government of Rajasthan appears to have owned the moral responsibility to find out the alternatives for such employees. Such a just decision was not required to be quashed. It is true that the learned Single Judge has mentioned that the petitioners who had got fresh appointment, if they so choose, continue in the said job and that direction issued in his order in that event shall not affect them and by doing so the petitioners who have already got fresh appointment have been protected notwithstanding the quashing of the Government policy framed to provide fresh employment for permanent/substantive employees. Therefore, that part of the direction at (iii) is not required to be disturbed but the first part of the direction at (iii) i.e. "the policy framed by the State Government in order to provide fresh employment to the permanent/substantive employees of the dissolved AVS shall stand quashed", cannot be sustained. This part of the direction at (iii) also deserves to be set aside.
20. Thus all 33 appeals which have been filed by the State of Rajasthan, Rajasthan Housing board and Avas Vikas Sansthan i.e. S.A.W. Nos. 696/2000, 294/2001, 293/2001, 246/2001, 247/2001, 248/2001, 317/2001, 318/2001, 313/2001, 311/2001, 316/2001, 312/2001, 208/2001, 310/2001, 519/2001, 766/2001, 674/2000, 667/2000, 1810/2001, 2190/2001, 2432/2002, 1860/2000, 1859/2000, 1858/2000, 1857/2000, 1954/2000, 1848/2000, 1844/2000, 1841/2000, 769/2002, 869/2000, 2191/2001, 1842/2000 are partly allowed by setting aside the directions at (ii) and the above quoted first part of the direction at (iii) of the impugned judgment and against the directions at (i) all these appeals fail and are hereby dismissed.
21. We may now take up the the set of appeals as have been filed by the association and the employees. In the appeal which has been filed by the association, the grievances have been raised that the Government vide its policy decision has provided for employment to the employees of Avas Vikas Sansthan in the local bodies at the lowest post on which the direct recruitment is provided but has denied the benefit of seniority and continuity of service, and since the employment has been directed to be given at the lowest of the pay scales without any benefit whatsoever for the services rendered in Avas Vikas Sansthan, such decision of the Government cannot be said to be just and the care care should have been taken to absorb all these employees in the local bodies rather than giving them fresh appointment and their pay should have been protected, they should have been given the benefit of the service rendered by them in the matter of seniority as also the benefit of higher pay scale on the completion of service of 9, 18 and 27 years as per circular dated 25.1.92 by including the service rendered by them in the AVS.
22. While considering these grievances we find that the employment could not have been provided to the employees of the Avas Vikas Sansthan on the corresponding posts in the local bodies for the simple reason that it would affect the seniority of exiting employees in such bodies who had faced the regular recruitment for that purpose and were already working. The regular appointees of such local bodies could not be made to suffer the loss of seniority by allowing absorption of the employees of the Avas Vikas Sansthan so as to allow them to steel a march over them. In such matters while granting the relief, the balance has to be struck and all aspects have to be taken care of. We, therefore, find that the claim of the employees that they should have been absorbed on the corresponding posts, cannot be sustained.
23. However, the fact remains that even if these employees were decided to be appointed in the local bodies on the lowest post on which direct recruitment was provided, while providing such employment, their pay could be protected and should have been protected and the care could also be taken to give credit of the services rendered by the them for the purpose of pension and retiral benefits and also for the purposes of giving them the benefit of the higher scales on completion of 9, 18 and 27 years of service as per the circular dated 25.1.92, which was applicable in case of the Government employees.
24. It is very clear from what has been mentioned in the earlier part of the judgment that the Avas Vikas Sansthan by itself was a brain child of National Housing Policy and the State and Housing Board had acted for the purpose of implementing the housing scheme and for such an implementation if the employment was provided for certain number of years and thereafter, Avas Vikas Sansthan was sought to be liquidated for the reasons that it was no more financially viable and the welfare state took the decision to appoint them in the local bodies at the lowest post meant by direct recruitment so as to safeguard the rights of the existing employees in the matter of seniority and promotions, the Government ought to have also granted them the protection of pay and the benefit of the service rendered by them in the Avas Vikas Sansthan for the purpose of pension and other retiral benefits as also for the purpose of higher pay scales on completion of 9, 18 and 27 years of service in terms of the circular dated 25.1.92 which was applicable to the Government employees.
25. In the Cabinet memorandum dated 8.5.99, the decision was taken that employees of Avas Vikas Sansthan be appointed in the Municipal Corporations, Municipal Boards, UIT, JDA arid other local bodies against the vacancies becoming available on account of retirement of the employees. 604 employees were proposed to be benefited under the Golden Shake Hand Scheme by giving appointment, keeping in view of the eligibility of such employees against the lowest post which could be filed up by direct recruitment without any protection of pay and that the past services shall not be counted for any purpose and the pay shall be fixed at the lowest of pay scale. Vide Cabinet order No. 101/99 the proposal made with regard to the employees of Avas Vikas Sansthan were approved and accordingly the order Annex.5 dated 11.8.99 had been issued.
26. We have also looked into the list of Avas Vikas Sansthan Engineers appointed in different Government departments. This chart includes 172 names in all. All the employees who have been working in different categories such as Executive Engineer, Assistant Engineer, Junior Engineer etc. It is of course true that Chief Secretary himself had kept the Avas Vikas Sansthan at par with the Government enterprises so as to consider the question of their absorption. However, even if it is taken that these employees could not be absorb keeping in view the loss of seniority and adverse impact on the prospects of promotion of the existing employees of the local bodies, we find that the pay protection as had been proposed earlier and denied later could have been granted. Nor these employees could be deprived of the benefit of services rendered in AVS at least for the purpose of pension and retiral benefits and for higher scales on completion of appropriate number of years of service, keeping in view of the spirit of the Government's decision of 1992 even if no seniority could be given to them.
27. So far as the case of Narendra Kumar Sharma is concerned, he has faced the regular selection, his name was also included in the waiting list and it is not disputed that two employees whose names were included in the main list had left, and therefore, he could not be deprived of regular appointment, has to be deemed to be a regular appointee and treated as such and he has to be considered for such alternative employment in any of the local bodies at par with other employees who have been appointed.
28. The cases of Brijesh Kumar Goyal and R.K. Saini have not been treated at par by the respondents while providing alternative employment on the ground that they were project employees. Whether they were project employees or they were otherwise employed, the fact remains that they had been employee by Avas Vikas Sansthan and their services were placed in the project at Latoor and thereafter, in Avas Vikas Sansthan.
29. Latoor in the State of Maharashtra had faced a disastrous natural calamity on account of earth quake and fast construction of houses to rehabilitate the bereaved and uprooted persons at Latoor, Rajasthan Government had extended its helping hand and sent the team of Engineers to Latoor and such employees were called project engineers. The employees of Avas Vikas Sansthan were also sent to Latoor project, it is not in dispute that such of the employees who had been sent to Latoor Project such as Mr.Bhaskar Datt Tripathi, Vinit Kumar Nageech, Dinesh Chandra Gupta, Karan Kumar and one Shri Bhanwani Singh and others who had been sent to Latoor have been provided the alternative employment. Therefore, there is no justification to make a distinction amongst the employees of the same class on the ground that they had already been appointed on the project. If the benefit had been given to certain employees who were employed in project and sent to Latoor, such benefit could not be denied to other similarly situated employees, who had also been sent to Latoor in the same project and therefore, we find that Shri Brijesh Kumar Goyal appellant of D.B. Civil Special Appeal No. 890/2000 is also entitled for alternative employment in the local bodies in the same manner as the other employees have been given. Petitioners in Civil Writ Petition No. 6800/99 are also entitled to the same treatment.
30. The upshot of the discussion as aforesaid is that-
(i) the appeals filed by the State Government, Housing Board and Avas Vikas Sansthan numbered as above (696/2000, 294/2001, 293/2001, 246/2001, 247/2001, 248/2001, 317/2001, 318/2001, 313/2001, 311/2001, 316/2001, 312/2001, 208/2001, 310/2001, 519/2001, 766/2001, 674/2000, 667/2000, 1810/2001, 2190/2001, 2432/2002, 1860/2000, 1859/2000, 1858/2000, 1857/2000, 1954/2000, 1848/2000, 1844/2000, 1842/2000, 1841/2000, 769/2002, 869/2000, 2191/2001), are partly allowed to the extent that the directions given by the learned Single Judge at (ii) under para 45 and the first part of the direction at (iii) of the impugned judgment are set aside. Against the direction at (i) these appeals failed and dismissed.
(ii) The State appeal No. 519/2001 filed against Shri Narendra Kumar Sharma & Ors. is hereby dismissed and the appeal field by Narendra Kumar Sharma (248/2002) is allowed in the terms as aforesaid.
(iii) The appeal No. 890/2000 and writ petition No. 6800/99 filed by Shri Brijesh Kumar Goyal & Ors. and Shri R.K. Saini & Ors. respectively are allowed as above.
(iv) The appeal No. 315/2002 filed by Avas Vikas Sansthan Engineers Association is also allowed in the terms as aforesaid.
(v) Accordingly, the employees of Avas Vikas Sansthan who have been provided the alternative employment in the local bodies as above and who are to be provided alternative employment as per directions contained in this judgment will be appointed on the lowest post meant for direct recruitment at the minimum of the pay scale but they shall be entitled to the protection of their pay as they were drawing in the Avas Vikas Sansthan at the time of liquidation of Avas Vikas Sansthan. The service rendered by all these employees in Avas Vikas Sansthan shall also be counted for the purpose of pension and other retiral benefits but ho benefit of this service shall be given to them for seniority nor they will have any claim for the purpose of appointment on the corresponding posts, they will also be entitled to the benefit of the higher pay scales on completion of their 9, 18 & 27 years of service in the spirit of the Government circular dated 25.1.92.
(vi) The benefit of the recommendation of the 5th Pay Commission shall be given to the employees only on notional basis. No actual financial benefits for the period in past is required to be given on this account but while protecting their pay the pay which the would have drawn had they been paid according to the recommendations of the 5th Pay Commission shall be the basis line for notional benefits. We order accordingly. All these 37 appeals and the writ petition are decided as above. Parties to bear their own costs.