Rajasthan High Court - Jaipur
Mana Ram And Ors. vs Rajasthan State Electricity Board And ... on 23 April, 1991
Equivalent citations: 1991(2)WLN534
JUDGMENT M.R. Calla, J.
1. These three writ petitions involve common questions of fact and law and, therefore, the same are being decided by this common order.
2. All the three petitioners before me are employees of the Rajasthan State Electricity Board (hereinafter referred to as the RSEB) and each of them has preferred writ petition in the matter of fixation/adjustment/promotion in the category of skilled A and B employees and the order dated 30th July, 1980 has been impugned by all the three petitioners; the order dated 12th of December, 1980 has been impugned by petitioner Manaram and Rikhiram and the petitioner Vijay Singh has claimed a direction for the payment of salary due to him on account of his fixation with effect from 1-1-64 vide order dated 16th of June, 1971. The case of the petitioners is that they had been initially appointed as black-smith i.e. a post equivalent to line-man grade II and while they were working as such the matter was considered for fixation/adjustment/promotion of skilled A and B employees in Sri Ganganagar Division and the Annexure 1 dated 16th of June, 1971 was passed, wherein petitioner Manaram's name appears at Sr. No. 18 placed on record as Anx. 1.
3. As per this order in Column 3 Shri Manaram's designation is black-smith (W/C) and he has been shown to be working as such from 15th April, 1953 as per Column 5 and was fixed as fitter-I against the post of Line-man Gr. I with effect from 1-1-64 as per the columns 8and9 of Anx. 1.
4. The name of petitioner Shri Rikhiram appears at serial No. 11 in this document Ex. 1 dated 16th June, 1971 and his designation has been shown as electrician and wireman II (W/C) as per column 3 since 7/5/51 as per column 5 and fixed as Line-man-I with effect from 1/1/1964 as per columns 8 and 9.
5. It has been stated by the petitioner Vijaysingh that he was appointed as helper in the first instance on work-charged basis on 17th of September, 1957 and was then appointed as Line-man in year 1960. He has further stated that as far as known to him, there were only two grades of line-man prevalent at that time, same being grades I and II and, therefore, the petitioner cannot but be taken to have been appointed as Lineman II. He has then stated that vide order dated 29th of June, 1968 in the subject-matter of fixation/adjustment/appointment etc. of the technical subordinate staff the employees who had not received any promotion on or after 2/1/1961 were to be promoted to the post of next higher scale of pay in the same trade with effect from 1/1/1964 subject to the availability of the vacancies and subject to the suitability of the person concerned, for job and his having discharged duties corresponding to the higher post from the date of promotion being certified by immediate superior in the supervisory cadre in terms of the order Appendix B of a settlement. According to him, presumably on the basis of this principle by an order dated 16th of June, 1971 the adjustment/promotion of skilled A and B employees of Ganganagar Division were made. This order dated 16th June, 1971 was passed on the basis of the review of an earlier order dated 5th December, 1970 as the matter was reviewed by a committee. This order was appealable before the appellate authority as mentioned in the order itself. It appears that appeals were preferred against the order dated 5/12/1970 and the notices thereof the same were issued by the appellate authority to the petitioner Manaram and Rikhiram which have been placed on record as Anx. 2 in the writ petition of Shri Manaram and Rikhiram. Petitioner Vijay singh has made necessary averments regarding the appeal in para 4 of the writ petition. It is further made out from the record that in fact three appeals were preferred by three aggrieved persons against the order dated 5-12-1970 and the notice thereof were issued to each of the petitioners. The case of the petitioners is that as is made out from the contents of the notice Ex. 2 itself no copy of the memo of appeal was annexed with the notice of appeal and all that was mentioned in the notice was that the appeals were lying in the office of the appellate authority and they may see the same in the office. These appeals were decided by the Appellate Authority vide order dated 25th April 1972 and the decision of the appellate authority was conveyed to the petitioner vide Anx. 3 which is the covering letter with the order dated 25th April 1972. The operative part of the order passed by the appellate authority on 25-4-74 reads as under:
Coming to the case of Sarva Shri Dhuramam, Manna Ram, Vijay Singh and Rakhi Ram, I find that they were also appointed as Helper I but have been promoted as Lineman I. I could not understand, how they have been given double promotion which was against the terms of the agreement. If double promotion could have been given the appellant certainly had better claim as he was permanent Helper I on 1-4-51 much before these respondents, who are workcharged Helpers. I, therefore, set aside their promotions and direct that necessary consequential changes may be made by the fixation Committee. They may be promoted as Lineman II if their seniority etc. deserves.
Thereafter these matters were considered in the meeting of Fixation/Promotion/Adjustment committee held on 7th of July 1975 and it appears from the minutes as contained in the document Anx. 4 that this committee decided that the appellate authority may be requested to give one more chance to the petitioners so that they may submit necessary documents/arguments in support of their defence if deemded proper by the appellate authority. This was recorded by the committee because the petitioners had made a grievance in this regard that they wanted to produce some documents which could not be produced earlier in support of their claim. The committee made this reference to the appellate authority in accordance with the Board's agreement with the Prantiya Vidhuyat Mandal Majdoor Federation (for short PVMMF). Accordingly the matter again came up before the appellate authority and the appellate authority recorded its decision on 29th December, 1975 which is enclosed Anx. 5 dated 28th November, 1975 and the appellate authority recorded its order as under:
I have read the minutes of the fixation committee Bikaner dated 7-7-75 sending me certain cases for review. These cases relate to Dhuraram, Rekhi Ram, Mana Ram, Vijay Singh and Sardararam who were respondents in case Nos. 12 and 20 and 1 of Ganganagar Division decided on 23-4-72.I had ordered that as all these respondents were helpers-l on 31-12-63. They could not be promoted as Lineman-I from 1-1-64 as this promotion would tantamount to double promotion which is not warranted under the agreement. There is no question of hearing these respondents again as their case does not rest on their unsuitability for promotion but on the admitted fact that they were helpers-l on 31-12-63 and could not be given a double jump as lineman-l. I do not understand how a case for revision arose. They could have been first promoted as Line-man-lI from 1-1-64 and then as Lineman-I from any subsequent date. It is a technical mistake which the fixation committee should be able to resolve.
Thereafter an office order dated 30th April 1976 Anx. 6 was passed in the matter of fixation/adjustment/promotion of skilled A and B category of Sri Ganganagar division. This order Anx. 6 shows that in pursuance of para 5 of the settlement dated 7th of July 1973 entered into between the Board and PVMMF and issued by the Board by its circular dated 12th July, 1973 the committee constituted under the agreement dated 2nd November 1973 had considered the categories vide Board's order dated 7th June, 1973 and distributed divisions vide Chief Engineer's order dated 30th April 1976 and in terms of this office order, petitioners were promoted as lineman first from 1-4-1968. The names of three petitioners appear in this order dated 30th April 1976 at serial No. 14 (Manaram) at serial No. 8 (Rikhiram) and at serial No. 29 (Vijaysingh) with the designation of lineman I from 1-1-64. It further appears from Anx. 7 that a meeting of the committee was again held after the decision of the appellate authority as referred to hereinabove. The committee could not arrive at a unanimous decision regarding implementation of the decision of the appellate authority and, therefore decided that the case may be submitted to the Chief Engineer. Chairman of the Fixation Committee for Technical Workmen for finalising the pending cases of appellants in respect of fixation of Shri Dhuraram and the three petitioners. Thereafter the order was passed on 30th July, 1980 holding out therein that the appellate authority appointed under an agreement dated 22nd of April 1971 after hearing the appellants against the fixation/adjustment/promotion order dated 16th of June, 1971 of skilled A and B categories of Shri Ganganagar division of the then fixation committee remanded the case of 1964 for review and re-examination and the fixation committee after reconsidering and review decided that the three petitioners who had been fixed as line-man first from 1-1-1964 be now designated after review as line-man II from 1-1-1964. This order dated 30th July, 1980 is Anx. 8 and thereafter an order Anx. 9 dated 12th December 1980 was passed with reference to the order dated 30th July 1980 to make the recovery of the excess amount from the petitioners Shri Rikhiram and Manaram because in view of the order dated 30th July, 1980 they had been fixed as line-man II from 1-1-1964 instead of line-man I. While these orders Anxs. 8 and 9 have been challenged in the writ petition of Shri Manaram and Rikhiram it appears that no amount in excess was paid to Shri Vijaysingh and the petitioner Vijaysingh has claimed the payment in the higher pay scale of line-man I from 1-1-1964 while the other two petitioners i.e. Manaram and Rikhiram have challenged the recovery.
6. The aforesaid claim of the petitioner was traversed in the reply to the writ filed by the Board and as per this detailed reply, the petitioner was never appointed as black-smith or on any post equivalent to line-man-grade II. The petitioners were appointed as helper II on daily wages and that the petitioners continued to work as helper II ever since their appointment till they were fixed by the fixation committee as fitter grade I or the equivalent post as per the settlement dated 22nd of September 1971. It has been submitted in the reply that in want of appointment as black smith, the petitioners could not be fixed as fitter grade I or the post equivalent to fitter I. It has been mentioned in end of para 2 the reply in Manaram's case-that the petitioner may be put to strict proof of the fact that he was appointed as black smith in the year 1962 and he be called upon to produce his order of appointment and further that there was no record with the Board to show that the petitioner was ever appointed as black smith in 1962. The Board's case is that fixation committee was formed in Bikaner circle and an order was is used on 5th of December 1970 making promotion/fixation/adjustment of workman working in that circle and soon thereafter that is on 22nd April 1971 a settlement was made by the Board with the PVMMF whereunder fixation/adjustment and modification had to be made according to the terms and conditions laid down in the settlement for the posts existing on 1-1-1964. Fixation/adjustment etc. had already been made by the fixation committee, though not appointed under the settlement on 5th of December 1970 and the same promotion/fixation/adjustment were embodied in the order dated 16th June, 1971 purporting to be the promotions/fixation/adjustment etc. made in pursuance of the settlement for Bikaner circle. The fixations made vide order dated 5th December 1970 were adopted by the fixation committee in its order dated 16th June, 1971 without making any change whatsoever. In these fixations of 1974, according to the Board's reply, the petitioner was wrongly appointed as line-man grade I with effect from 1-1-64 and the fixation committee did not take into consideration the fact that the petitioner was never appointed as line-man II or on similar post, but was only appointed as helper II and the helper II could not directly be appointed as fitter I and that the petitioner had wrongly pocketed a huge amount of money on account of this mistake of the fixation committee which he is liable to refund.
7. Regarding the order dated 30th April 1976, it has been submitted on behalf of the Board in para 6 of the reply that it was matter entirely different from the order of fixation referred earlier. This order dated 30th April 1976 is a fixation order made by a separate committee at Jaipur making promotion/fixation/adjustment for the post existing on 1-4-68 as per the agreement dated 7th of July 1970. It has been submitted that making promotions/fixation/adjustment for the posts existing on 1-4-68 a settlement was again arrived at between the contracting parties on 7th July 1973 and in pursuance on this settlement on order dated 30th April 1976 was passed but this fixation/promotion was with effect from 1-4-68 and is not related to the promotions/adjustment etc. made from 1-1-64. This order dated 30th April 1978 was also appealed against by Srawan Singh and Ratiram and their appeals against the order dated 30th April 1976 were decided by the appellate authority vide his order dated 24th of November, 1977, and the appellate authority recorded that the petitioner was not appointed as fitter first against the posts of 1964 and unless that order was implemented any further consideration for promotion of the petitioner was not possible. The orders passed in the two appeals against the order dated 30th of April 1976 by the appellate authority have been placed on record as Anxs. B and C and it has been submitted that the matter was sent back by the appellate authority to the fixation committee and the fixation committee had not taken any decision in view of the present writ petitions having been filed. It has been stated in the end of para 6 that the fixation of the petitioner has been set aside by the appellate authority and the fixation of the petitioner as Fitter I either with effect from 1-1-64 or with effect from 1-1-68 does not stand and that it is absolutely wrong to say that the petitioner was appointed as fitter I from 1-4-1968. The case of the respondents is that while the appellate authority had sent back the cases to the fixation committee by its order dated 17th April 1975, in the mean time the fixation committee working at the various places in Rajasthan including the one of Bikaner circle was abolished and central fixation committee at Jaipur was formed to make all promotions/fixations/adjustments and this central fixation committee was constituted under the agreement dated 2nd November 1973 and this is how the matter came back to the Central Fixation committee constituted under the agreement dated 2nd November 1973 after remands from the appellate authority. The relevant Clause (2) of the agreement dated 7th July 1973 is reproduced as under:
It is agreed that the vacant posts as mentioned in the above mentioned clauses will from the date of this agreement be filled up by the Fixation Committee constituted by the Board under the agreement dated 7th July, 1973. In case the appellate authority has remanded the case to the fixation committee constituted under agreement dated 22/3/71, the same will now be disposed of by this new committee if not already disposed of by the Fixation Committee constituted under agreement dated 22/4/71.
It has been submitted that sufficient opportunity was given to the petitioner by the appellate authority and the fixation committee previously and the order dated 30th July 1988 was made in pursuance of the order of the appellate authority which categorically was of the opinion that the petitioner was only helper I before 1-1-64 and could not have been directly appointed as fitter I which amounts to double jump. After hearing the parties the fixation Committee met at Jaipur on 20th July 1971. This fixation committee voluntarily examined the matter of fixation in case No. 20 i.e. the appeal filed by Shri Srawansingh against 16 persons including the petitioners and according to the minutes of this fixation committee the appellate authority's order was given effect to by making the three petitioners as line man II with effect from 1-1-64 instead of line-man I/Fitter I from 1-1-1964. These pleadings contained in the reply filed on behalf of the Board were further contested by way of a rejoinder and the documents Anxs. 10A, 10B, Anx. 11 etc. were placed on record to show that the petitioner Manaram was a work-charge black-smith. The certificate Anx. 11 relates to Manaram and Rikhiram., and it has been certified that they have been working as line man I since 1-1-64. A reply to the rejoinder was again filed contending therein that the documents Anx.l0 A and 10B produced by petitioner Manaram are not his appointment orders as black smith and that in the representation filed by Manaram on 27th October, 1964 and 28th May, 1965 he has admitted that he was appointed in the year 1953 as helper and that he had worked as helper and drawn the salary of that post upto 1968. The certificate Anx.ll has been described as irrelevant to the fixation orders dated 16th June, 1971 and 1-1-1964 which was made 7 years before the issue of this certificate.
8. This is in substance the narration of the case of the parties which goes to show that the matter regarding the fixation/adjustment/promotion of the staff of skilled A and B categories of the employees of RSEB in Ganganagar division has been a subject matter of consideration by the fixation committee and the appellate authority time and again as narrated herein above. The first grievance which has been raised in this regard on behalf of the petitioners is that once the order dated 16th June, 1971 had been passed as a result of the review of the order dated 5-12-1970 there was no scope for any appeal against the order dated 5th December 1970 and if at all the appeal was to be filed it should have been filed against the order dated 16th June, 1971. Secondly, the notice of the appeal as was given to the petitioner was not accompanied by the memo of appeal and the petitioner could not know the grounds of appeal and in any case the appellate authority did not afford a reasonable opportunity to the petitioner. With reference to the order dated 5th April 1972 it has been contended that even after the aforesaid order passed by the appellate authority, when the matter was referred back by the fixation committee to the appellate authority because the petitioners could not file certain documents before the appellate authority at earlier stage, the appellate authority recorded that there was no question of hearing the petitioners again as their case does not rest on their own suitability for promotion on the admitted fact that they were helper I on 31-12-1963 and could not be given a double jump as line man I, and according to the appellate authority they should have been first promoted as line man I from 1-1-64 and then as line-man II from any subsequent date. Shri Sudesh Gupta appearing on behalf of the Board has submitted that the basic order was passed on 5th December 1970 and therefore, the appeal against the order dated 5-12-1970 was rightly considered by the appellate authority and the same was decided after giving full opportunity to the petitioners. I find that the document Anx. 4 in the form of minutes of the fixation committee held on 7th of July, 1974 clearly shows that there were certain documents in respect of which the number and date have been given by the three petitioners whose cases are dealt within paras 2,3 and 4 of these minutes dated 7-7-75 and the fixation committee itself had referred the matter back to the appellate authority after the order dated 25th of April 1972 on the ground that one more opportunity was to be afforded to the petitioners for producing the relevant documents in support of their defence. It is strange that the appellate authority which had earlier passed the order dated 25th April 1972, while considering the matter again, on being referred by the fixation committee, instead of hearing the petitioners and deciding the matter all over again as directed by the fixation committee, recorded in its order dated 29th of October, 1975 that there is no question of hearing these respondents again. It is therefore clear that the documents which the petitioners wanted to produce in support of their cases were not allowed to be so produced and while passing the order dated 29th October, 1975, the appellate authority did not give any choice to the petitioners and observed that it was a case of technical mistake which the fixation committee was to resolve. It is thus obvious from the documents on record that only a scant regard was shown to the recommendations of the fixation committee by the appellate authority and the appellate authority only insisted on the implementation of its earlier order dated 25th of April 1972 and thus the petitioners were prevented from producing the necessary documents in their support before the appellate authority and hence this decision of the appellate authority and hence this decision of the appellate authority taken on 29th October, 1975 conveyed vide letter dated 28th of November, 1975 through Anx. 5 to the Executive Engineer (O & M) and the fixation committee, cannot be said to have been passed in accordance with law.
9. The yet another aspect of the matter is that order dated 30th April 1976 has been passed in pursuance of the settlement dated 7th of July 1973 arrived at between the Board and the PVMMF and as per this order of the three petitioners have been promoted as line man I from 1-4-1968. Now with the passing of this order dated 30th April 1976 the three petitioners stood promoted as line-man I from 1-4-1968 while they had been earlier fixed as line man from 1-1-1964. In any case this order dated 30th April 1976 was an order subsequent to all other orders passed in past including the orders passed by the appellate authority and this order dated 30th April 1976 was passed on the consideration in pursuance of the settlement dated 7th of July, 1973. Although it has been contended by Shri Sudesh Gupta on behalf of the Board as has also been stated in the reply filed on behalf of the Board and particularly in para (X) at page 60 of the reply that this order dated 30th April 1976 had been set aside the appellate authority and that the matter was pending with the fixation committee, I am not satisfied as there is no document on record to show that this order dated 30th April 1976 had been set aside by the appellate authority. The appeals preferred against the order dated 30th April 1976 were decided by the orders Anx. B and Anx. C placed on record by the Board itself. I have gone through both these orders passed by the appellate authority in the appeal of Shri Srawan Singh and Ratiram. I called upon Shri Sudesh Gupta learned Counsel appearing on behalf of the Board to show as to how it can be said on the basis on these order that the order dated 30th April 1976 passed in favour of the petitioners had been set aside by the appellate authority, but he failed to point out any part from these orders or otherwise from the available record that the order dated 30th April 1976 had been set aside and it is obvious that the averment made in para 10 of the reply filed on behalf of the Board that the order dated 30th April 1976 had been set aside by the appellate authority is contrary to the record. All that can be said on the basis of the order Anx. B and Anx. C is that the appellate authority without dealing with the correctness, legality or propriety of the order dated 30th April 1976 which was impugned in these appeals, rest content by insisting the compliance of the implementation of his earlier order and directing that the fixation of respondents as line man I from 1-4-1968 even though tentative cannot be up held and his order dated 17th of July, 1974 should first be implemented and then the case of the appellant should be considered for promotion. Similar is the position with regard to Anx. C and instead of deciding the validity or otherwise of the order dated 30th April 1976 the appellate authority has again observed as under:
I do not under stand why my order dated 14th July 1975 has not yet been Implemented, I therefore direct the fixation committee to implement the order and thereafter consider the case of the appellant for fixation having regard to the seniority and suitability a vis the respondents and-others.
Thus it appears that the appellate authority simply felt concerned, to see that his earlier orders are implemented rather than pronouncing upon the validity of the order which was impugned before it in the appeal. Be that as it may what I find from the totality of the case is that the matters regarding fixation/adjustment/promotion of the three petitioners have not been dealt with fairly, they have not been allowed to produce the documents which could be helpful to them in making out their cases and what is more surprising is that when the order dated 30th April 1976 has been subsequently passed it was to govern the rights of the parties and this was an order in favour of the petitioners of course not from 1-1-64 but from 1-4-68 and once this order had been appealed by the aggrieved persons, the appellate authority should have adjudicated upon the validity of the order dated 30th April 1976 instead of insisting upon the implementation of its earlier order. Even if on the submission of Shri Sudesh Gupta, it is assumed by construction of the orders Anx. B and Anx. C that the order dated 30th April 1976 should be deemed to have been set aside by the appellate authority, I am of the opinion that the orders Anx. B & Anx. C do not amount to an effective adjudication on the premises which had been filed by the aggrieved persons against the order dated 30th April 1976 and, therefore, it will be in the interest of all concerned, to direct the appellate authority to consolidate the two sets of cases firstly, the three appeals which have been decided by the appellate authority earlier on 29th of October, 1975 and the two appeals which were filed against the order dated 30th April 1976 which have been decided by the order Anx. B and Anx. C placed on record with the reply of respondent Board and thereafter decide all the matters after affording reasonable opportunity to the parties and both the parties may be allowed to produce the necessary documents in support of their respective claims and thereafter the whole matter may be decided with regard to the fixation/adjustment and promotion of the petitioners and other aggrieved persons who had preferred appeals against the petitioners and while doing so, due regard be given to the back ground in which the order dated 30th April 1976 had been passed in pursuance to an agreement dated 7th of July 1973 arrived at after the earlier orders of 5th December, 1970 and 16th of June, 1971.
10. Regarding the validity of the order Anx. 9 by which the recovery is sought to be effected from the two petitioners Shri Manaram and Rikhiram, it will be sufficient to say that there is ample evidence on record to show that the two petitioners had been working as line-man first since 1-1-1964 as is very obvious from the certificate dated 24th of November 1977 Anx. 11 issued by the Assistant Engineer Rural RSEB. Sri Ganganagar read with the other document and necessary pleadings available on the record and they have been paid as line man first from 1-1-1964, there is no question of any payment of excess amount to them. Even if it is found that the orders regarding the fixation which had been passed had been wrongly passed, since the actual work had been done by them on the higher post and the duties of the higher posts were discharged by them. If they have been paid for the actual work done by them on the higher post there is no question of any recovery being effected from them. Whether they are entitled to the higher pay scale or not in future i.e. after the passing of the impugned orders is a matter ultimately be decided as and when the appellate authority decided the controversy finally. But so far as the period for which they have already paid, the question of recovery simply does not arise and to that extent the order Anx. 9 which has been impugned and which has been passed on the basis of the order dated July 30, 1980 cannot be sustained in the eye of law and there is no question of any recovery from the two petitioners. So far as the claim of the petitioner Vijay Singh for the payment of the higher pay scale from 1-1-1964 is concerned, it would depend upon the ultimate decision which may be taken in this regard as indicated above.
11. Accordingly, the impugned order Anx. B dated 30th July, 1980 and the order Anx. 9 dated 12th December, 1980 are quashed and set aside in so far as they relate to the petitioners and it is directed that the appellate authority would consolidate the three appeals and the two appeals against the order dated 30th April, 1976 and then decide the whole matter after affording all reasonable opportunity to both the parties i.e. the present petitioners as well as the persons who had filed the appeals against the orders dated 5th December, 1970/ 16th of June, 1971 and the order dated 30th April 1976 and the appellate authority would pass a speaking order after effective adjudication of the rival claims of both the parties and all these matters will be decided by the appellate authority within a period of six months from the date the copy of this judgment is made available to the appellate authority through the concerned officers of the Board and the concerned officers of the Board would implement the order of the appellate authority within two months thereafter i.e. from the date the appellate authority decides these matters and thus the whole exercise including the consideration by the appellate authority and the implementation of the order which would be passed by the appellate authority shall be completed with in a period of 8 months from the date the certified copy of the order is made available by the petitioners to the concerned authorities of the Board and the appellate authority.
12. No recoveries shall be effected from petitioners Manaram and Rikhiram in pursuance of the order Anx. 9 dated 12th December, 1980 passed on the basis of the order dated 30th July 1980 as the orders dated 30th July 1980 and 12th of December 1980 have been quashed and set aside as a result of this judgment. The question of payment in higher pay scale to the petitioner Vijaysingh and the payment in the higher pay scale to the two petitioners i.e. Manaram and Rikhiram after the passing of the impugned orders shall depend upon the ultimate decision which may be taken in their cases by the appellate authority.
13. The three writ petitions are allowed as indicated above. No orders as to costs.