Rajasthan High Court - Jaipur
Purshottam Lal And Ors. vs Rajasthan State Electricity Board on 3 June, 1994
Equivalent citations: 1994(2)WLC709, 1994(2)WLN345
JUDGMENT Arun Madan, J.
1. The aforementioned 35 writ petitions filed under Article 226 of the Constitution of India, have come before us on a reference made by learned Single Judge of this Court vide his common order, dated 2.9.1993 for deciding the identical questions of law raised in the above writ petitions, in the matter concerning the interpretation of Ministerial Staff Service Regulations, 1962 of the Rajasthan State Electricity Board (Hereinafter referred to as "R.S.E.B."). Since the above writ petitions are all connected matters involving the identical questions of law, they are being disposed of by this single common order which shall be operative in all the matters.
2. For the sake of convenience, it shall be appropriate to refer the facts of civil writ petition No. 6916/92, Purshottamlal v. R.S.E.B. The petitioner, Purshottamlal joined service of the R.S.E.B. on 10.11.1978 as Peon (Class IVth). He was appointed as Lower Division Clerk (For short LDC) by order, dated 26th March, 1984, in which his name has been shown at serial No. 19. After completion of 10 years of service including service as class IV servant, the petitioner was given benefit of additional increments. According to the petitioner on the basis of the Arbitration Award given by Shri Mohan Mukherji and Shri Gopeshwar pay scales of the employees belonging to different cadres of the service of R.S.E.B., were revised. Pay scale of the post of L.D.C. was Rs. 370-570, which was subsequently revised to 530-740. At the time of appointment as LDC the petitioner was drawing Rs. 801.46 as Helper and his revised pay was fixed at Rs. 786.30. Respondents did not follow proper principle of fixation of pay of the petitioner and this resulted in virtual reduction of the pay of the petitioner. The petitioner served a notice for demand of justice and when he did not get a reply he filed writ petition.
3. According to the petitioner, although, in his order of appointment issued on 23.6.1984 he has been shown to be a fresh appointee, infact it was a case of promotion and, therefore, it was absolutely essential for the respondents Board to have given the benefit of fixation of pay by treating him to be a promotee. The petitioner's further plea is that when benefit of past service as Helper has been extended to him in the matter of P.F., service weightage, increments etc. there can be no justification for extending the benefit of pay by treating him to be a promotee. At any rate, the petitioner ought to have been given the benefit of pay fixation in such a matter which could not have resulted in reduction of his emoluments and in any case, he ought to have been given an opportunity of exercising his option to retain the pay of the lower post.
4. In their counter affidavit filed the respondents took the stand and that the petitioner shall be fixed in pay scale of L.D.C. after his appointment against direct recruitment as a fresh recruitee under R.S.E.B. Ministerial Staff regulations, 1962 by order, dated 23rd June, 1984 and after the aforesaid Award dated 20th May, 1985. No representation was made by the petitioner after fixation in terms of the Award till the date of filing this petition in this Court and that once the petitioner accepted the fixation made in accordance with the rules existing at the relevant point of time he cannot be permitted to challenge the same now way-back in the year 1992, i.e., when the petition was filed in this Court. The petition suffered from undue latches disentitled the petitioner for the relief claimed as no explanation has been furnished for the delay. Alternatively the learned Counsel for the respondents argued that if the petitioners in the aforesaid writ petitions have any grievance in terms of the aforesaid Award, dated 20th May, 1985, only remedy which is available to the petitioners is to approach the Industrial Forum under the Act of 1947 as the validity of the Award cannot be adjudicated before this Court under Article 226 of the Constitution of India. It was further contended by the learned Counsel for the respondents that the petitioners were only appointed in the cadre of class IV and were later on appointed against direct recruitment quota as LDCs in the year 1984 and on other different dates. Hence it should be treated as a fresh appointment as LDCs and the benefit of past service should not be given to the petitioners for the purposes of pay fixation, since the post of LDCs is governed by the Regulations, 1962 which is a lowest post in the said category, whereas class IV is an independent cadre. It was further contended that the pay scales of class IV employees were as under:
(1) Pay-scale number (1): 240-378
Revised scale 400-640
(2) Pay-scale number (2): 260-464
Revised scale 430-740
The aforesaid scales were revised with effect from 1st April, 1980. Pay scale No. 3 is admissible to LDCs which was existing (370-570) and was revised to 530-950. It was contended by the learned Counsel for the respondents that since the petitioner in writ petition No. 6916/92 was appointed against the direct recruitment quota as LDC vide order, dated 23rd June, 1984, and thus was fixed in the revised pay scale effective w.e.f. 1st April, 1980 in the scale of Rs. 530-950 from the date of appointment as LDC and thus, the benefit or revised pay scales which were made applicable in terms of the Arbitration Award w.e.f. 1st April, 1980 and further fitment having been made w.e.f. 1st April, 1983, the petitioner could not be considered as existing employee in the cadre of LDC either as on 1st April, 1980 or on 1st April, 1983. It was further submitted that since the petitioner was not holding the post of LDC as on 1st April, 1983, he was not entitled as such for his fixation in the cadre of LDC and thus, he was rightly fixed as per terms of the aforesaid Award, dated 20th May, 1985.
5. Respondents have controverted the claim of the petitioners. Their case is that the petitioner was appointed as direct recruitee on the basis of his having passed the competitive examination held under the Rajasthan Electricity Board Ministerial Staff Regulations, 1962. Petitioner's pay was fixed by order, dated 7th August, 1985 and he cannot be allowed to question pay fixation after a period of 7 years. Further case of the respondent is that as LDC the petitioner was treated as a fresh recruitee. The post held by him as class IV servant has nothing to do with the new cadre of LDC. His service conditions as LDC are regulated by the provisions of Regulations of 1962. Respondents have further stated that there are two pay scales in the cadre of Helper. These pay scales were 240-378 and 260-464. The revised pay scales were 400-640 and 430-740. The revision was affected from 1st April, 1980. Pay scale of the post of LDC was Rs. 370-570, which was revised to Rs. 530-950. By giving interim relief further fitment was made w.e.f. 1st April, 1983. Petitioner was not an existing employee in the cadre of LDCs. as on 1st April, 1980 or 1st April 1983 as on those days, he was a class IV servant and his pay was fixed in the grade of Rs. 400-640 w.e.f. 1st April, 1980. His further fitment was done as on 1st April, 1983 as a class IV servant and he was fixed with the basic pay of Rs. 480/-. Respondents have stated that since the petitioner was not holding the post of LDC as on 1st April, 1983 he had no right to claim fixation as LDC as on 1st April, 1983. Only those LDCs. who were holding that post as on 1st April, 1983, were fixed in the scale of LDC as en 1st April, 1983. Their pay was fixed with the basic of Rs. 595/-. Petitioner was appointed LDc on promotion vide order, dated 23rd June, 1984 after due selection as a departmental candidate and therefore, he cannot claim fixation of his pay in the pay scale of LDC as on 1st April, 1980 or 1st April, 1983.
6. During the course of hearing Shri P.K. Sharma, learned Counsel for the petitioners placed reliance on orders dated 31st October, 1990, passed in S.B. Civil Writ Petition NO. 4019/88, Shiv Dayal Sharma v. R.S.E.B. (Decided by Hon'ble K.C. Agarwal CJ) as also the orders dated 27th November, 1991 and 6th December, 1991, passed in S.B. Civil Writ Petition No. 3552/88, Ramkaran v. R.S.E.B. and Ors. and S.B. Civil Writ Petition No. 3903/88, Mohanlal v. R.S.E.B. respectively, decided by Hon'ble S.N. Bhargava J. as he then was and argued that the cases of the petitioners are similar to the four writ petitions decided by this Court. He argued that since this writ petition as well as the connected writ petitions are similar to the aforesaid writ petitions already decided by this Court, the order passed in the above writ petitions should equally apply to this writ petition as well. In support of his contention learned Counsel for the petitioners placed reliance on the Regulation 24 of the Ministerial Staff Regulations, 1962 which deals with the fixation of pay scales of class IV employees of the respondents. The contention of the learned Counsel for the petitioners was that since the petitioners were drawing pay in the pay scale Rs. 565/- in the cadre of Helpers (class IV cadre) they were entitled to be fixed in the pay scale of LDC at Rs. 580/-. There could have been no occasion for fixing their pay at Rs. 530/- on the date of their promotion as LDC.
7. Shri Ajay Rastogi, learned Counsel for the respondents, on the other hand, placed reliance on order, dated 29.1.1991 pased in S.B. Civil Writ Petition Nos. 2174/88, 2175/88 and 3177/88. He therefore, submitted that the case of the petitioners is fully covered by the decision of the aforesaid case.
8. On the other hand it was contended by the learned Counsel for the petitioners that the aforesaid order is not applicable to them as their appointments were made earlier in point of time, then the petitioners in the said cases. In writ petition No. 6916/92 the petitioner initially appointed as a Helper was promoted as LDC in the quota of 15% of class IV employees which was reserved for their promotions to LDCs. The contention of the learned Counsel for the petitioners was that notwithstanding the past service rendered by the petitioner as Peon till he was promoted to the post of LDC w.e.f. 26th March, 1984, the benefit of past service was not given to him and he was treated as a fresh appointee alongwith other candidates who were directly appointed as LDCs. This discrimination has resulted in great disadvantage to the petitioner as his past service was not considered for the purpose of selection as LDC.
9. In reply to the aforesaid contention of the learned Counsel for the petitioner Shri Rastogi learned Counsel for the respondents placed reliance on Regulation 6 of the Regulations concerning the appointment of Ministerial Staff Regulations, 1962. Regulation 6(1) provides that the appointment to the posts of LDCs., Asstt. Store-keepers and Stenos Gr. III falling vacant in a year shall be made by direct recruitment in accordance with the procedure detailed in Regulation 16. Regulation 6(2) of the Regulations, 1962 provides as under:
The appointment to posts, other than those mentioned in sub-clause (1) and to those posts of Upper Division Clerks, Store-keepers, Accountants and internal Auditors which are filed in by direct recruitment shall be made by promotion from lower grade as indicated in Regulation 17.
Provided that in case the persons in the Lower grades are not considered suitable for promotion to higher grade's, the appointment may be made by direct recruitment with the approval of the next higher authority.
There was an amendment to the aforesaid Regulations substituted by Order No. RSEB/F & R/F.6 (9), date 4.8.90 for the following:
15% posts of Lower Division Clerks including Record Keepers, Asstt. Store-keepers and Bradma Operators shall be filled by promotion from amongst class IVth employees of the Board who have served in the Board for atleast 3 years as a class IV employee and have passed atleast Secondary Examination of the Board of Secondary Education, Rajasthan or any other examination recognised equivalent to it by the Board. The post shall be filled by the Appointing Authorities from amongst class IV employees working in the offices under their administrative control, in the following ratio and proportion.
(i) 7 1/2% posts shall be filled in strictly in the order of Seniority.
(ii) 7 1/2% posts shall be filled in exclusively from amongst the class IV employees who have acquired the requisite Qualification after entering into the Board Service. (This was substituted vide D. 18 dated 1.3.1978 for:
5% posts of Lower Division Clerks including Record keepers, Asstt. Store-keepers and Bradma Operators will be filled by promotion in the order of seniority from amongst class IV employees of the Board "and the class IV employees of the Erstwhile E&M Department whose services have been placed at the disposal of the Board" (Inserted vide notification No. A&F/MSR/D-209 dated 10/12-4-1973) who have served in the Board for atleast three years as class IV employees and have passed atleast Secondary Examination of the Board of Secondary Education, Rajasthan or any other examination recognised equivalent to it by the Board. The posts will be filled by the Board. The posts will be filled by the appointing authorities from amongst class IV employees working in the office under their administrative control), as class IV employee and have passed atleast secondary examination of the Board of Secondary Education, Rajasthan or any other examination recognised equivalent to it by the Board. The posts will be filled by the appointing authorities from amongst class IV employees working in the office under their administrative control.
10. Placing reliance on the aforesaid it was contended by the learned Counsel for the petitioners that the petitioner in writ petition No. 6916/92 was not given the benefit of past services rendered by him as Helper prior to his promotion as LDC in violation of the aforesaid rule. Reference was also made to the Arbitration Award, dated 20th May, 1985 on the reference of Industrial Dispute to the Arbitrators between R.S.F.B. and its workmen given by the Arbitrators published by the State Government vide Notification, dated 10th June, 1985. The operative part of the Award which is applicable to this case is reproduced below:
While implementing the Award, all concerned are requested to keep the following instructions in view:
(i) The Annexure-II (A&B) appended to the Award shall be applicable to the "Existing Board's workmen" which means the Board's workman who is in Board's pay scales during 1st April, 1980 to 31st March, 1983 and drawing pay as per RSEB Employees (Emoluments) Regulations, 1978,
(ii) The Board's workman who was appointed on or after 1st April, 1983 in pay scales under the RSEB Employees (Emoluments) Regulations, 1978 shall be fixed at minimum of the revised pay scale with reference to his date of appointment.
11. Shri Rastogi, learned Counsel for the respondents opposing the prayer of the petitioners argued that the benefit of the aforesaid Award is not applicable to the case of the petitioner, since the petitioner was appointed on 10.11.1978 and he was promoted as LDC on 23.6.1984 which in terms should be considered as a fresh appointee, while the Award was passed on 20th May, 1985 and hence the petitioner being a fresh appointee as LDC could not be given the benefit of past service. It was further contended that the petitioner is not covered by the terms and reference of the aforesaid Award, since the benefit of revised pay scales in any event could be given to the employees of the Board who were fixed in the pay scales W.E.F. 1.4.1980.
12. Shri Rastogi, learned Counsel for the respondents placed reliance on the judgment of the Apex Court in the matter of General Manager, South Central Railway, Sikandrabad and Ors. v. V.R. Siddhanti and Ors. 1974 (1) S.L.R. 597 wherein the Apex Court has held that the guarantee of equality is not applicable as between members of distinct and different classes i.e. to say reasonable classification according to some principle to recognise intelligible inequalities or to avoid or correct inequalities is allowed, but not mini- classification which creates inequality among the similarly circumstanced members of the same class or group. This judgment has no relevance to the facts and circumstances of present case, in as much as while in the case of the petitioners they are promotees from amongst the departmental candidates; whereas in the case of direct recruitees they are deemed to be fresh appointees in view of the fact that they have relinquished their past lien in their parent departments, if any, and have joined the service with the Board directly in the cadre of LDCs. and hence notwithstanding the fact that they having merged themselves with the departmental candidates form one distinct class after their appointments, but the benefit of past service should not be extended to them In view of the fact that as per Board's Regulations there is clear reservation for the departmental candidates to the extent of 15% only Whereas for direct recruitees and others there is reservation of the balance 85% of vacancies.
13. We have heard the contention advanced by the learned Counsel for the parties and perused the records and the documents available on the record.
14. We are of the considered opinion that the petitioners in these writ petitions are those employees of the respondent who were serving as in different capacity in lower cadre (Class IV) prior to their promotion as LDCs with the respondents. Most of the said petitioners have put in 10 or 20 years of service including service as class IV employees and, therefore, neither in equity nor in law it would be justified to deny the petitioners the benefit of past service for the purpose of their fixation in revised pay scales as LCD's, which became affective pursuant to the Arbitration Award dated 20th May, 1985.
15. We are further of the considered opinion that the terms of the aforesaid Award are fully applicable to the case of the petitioners and Annexure-II (A & B) appended to the Award shall be applicable to the petitioners who shall be deemed to be "existing Board's Workman" which means in the pay scales of the Board during the period 1.4.1980 to 31.3.1983 and the petitioners in terms of the said Award should be given not only the benefit of revised pay-scales which became affective pursuant to the aforesaid Award, but should also be given all consequential benefits pursuant to the pay fixation to which they are entitled.
16. It will be pertinent to refer to the order of the learned Single Judge of this Court dated 2.9.1993 in which reference has been made to the order dated 31.10.90 passed by this Court in the matter of Shivdayal Sharma v. R.S.E.B. decided on 31.10.90, wherein the court had taken note of the regulation-24 and held that the petitioner was entitled to the benefit of the said Regulations. Court also observed that in the counter affidavit no reason has been given by the respondents for reduction of the petitioner's salary from Rs. 580/- to Rs. 530/- in writ petition Nos. 3552/88, 3553/83 and 3903/88. No reply was filed by the respondents even though the petitions remained pending before the court for quite some time. Attention of the court was drawn to the order dated 31st October, 1990 passed in the case of Shivdayal Sharma v. R.S.E.B. (decided by Shri K.C. Agrawal CJ) and two orders dated 27th November 1991 and 6th December, 1991 in the said writ petitions. In these matters the court took the view that the post of LDCs which the petitioners were holding as on 1.4.1983, they had no right to have their pay fixed in the cadre of LDC by treating them to be existing employee in that cadre. However, the aforesaid orders passed by different Benches of the court it was not brought to the notice of the court that in the matter of Shivdayal Sharma v. R.S.E.B. Civil Writ Petition No. 4019/88 a decision had already been given by the court. Similarly when the orders dated 27.1.91 and 6.12.91 were passed, it was not brought to the notice of the court that apparently two contrary decisions had come into existence on the same subject matter. Learned Single Judge of this Court (Shri G.S. Singhvi J.) has depricated this fact strongly in his referral order, dated 2.9.93 by observing that clearly the officers of R.S.E.B. had acted with gross negligence and on account of their failure to bring this fact to the notice of the court on 29.1.91 that a decision had already been given in one case a contrary decision by a co-ordinate court Bench came to be given which was entirely due to the lapse and inaction on the part of the R.S.E.B.
17. The distinction between the promotees and direct recruitees is clearly spelt out from the Regulation 6 of the aforesaid regulations. As per the Regulation 6, 15% of the posts of LDCs including Record-keepers, Asstt. Store-keepers and Bradma Operators etc. shall be filled by promotion from amongst class IV employees of the Board who have served the Board for last 3 years as class IV employees and have passed atleast Secondary Examination of the Board of Secondary Education, Rajasthan or any other examination recognised equivalent to it by the Board. The said posts shall be filled by appointing authorities from amongst class IV employees working in the office under their administrative control in the ratio of 15% by promotion from amongst departmental candidates and the remaining 85% of the posts by way of direct recruitment on the basis of competitive examination as stipulated in the Regulations. In other words it shall be mandatory upon the appointing authority to Jill in 15% posts of LDCs from amongst the promotees, i.e., departmental candidates of class TV staff who have by virtue of their seniority and requisite qualifications after entering into Board's service, have made them selve eligible for promotion to the cadre of LDCs. This obviously implies that the remaining 85% of the posts have to be filled in from other source i.e., on the basis of competitive examination by direct recruitment.
18. It is settled law that direct recruitment and promotion cannot be equited on the same footing so as to deprive the benefit of past service to the promotees who are departmental candidates like the petitioners in these writ petitions. It will be wholly improper, unjust, irrational and contrary to the principles of natural justice, equity and fair play to deprive the departmental candidates the benefit of past service for the purpose of fixation in the revised pay scales into the new cadre to which they have been promoted and while such pay fixation into the new cadre they should not be deprived of the benefit of past service rendered by them.
19. We are therefore, of the view that for the purpose of pay fixation promotees to the next promotional cadre of LDCs, 15% of those candidates who have been promoted from departmental candidates shall be entitled to benefit of past service in class IV cadre from which they have been promoted for the purpose of their pay fixation as LDCs, while the remaining 85% who have been appointed directly as LDCs on the bias of competitive examination shall not be entitled to the benefit of past service in other departments since they have already relinquished their right of past service rendered by them, if any, in other departments. Consequently the petitioners in the above writ petitions are entitled to succeed and the petitions are allowed with cost. We direct that the petitioners who constitute 15% of the posts of LDCs as departmental candidates shall be entitled to the benefit of past service for the purpose of pay fixation in the revised pay scale which they have rendered in the past in the cadre of class IV employees of the Board prior to their promotion into the cadre of LDCs as per Regulation 6, while the remaining 85% of such other candidates who have been appointed as LDCs on the basis of competitive examination shall not be entitled to the benefit of post service which they might have rendered in other department prior to their appointment s LDCs in the respondent- board.
20. We further direct that the respondents Board shall make proper pay fixation of the petitioners by extending them the benefit of revised pay scales in terms of the Arbitration Award dated 20th May, 1985 including such arrears to which the petitioners may be entitled and interest at the rate of Rs. 12% per annum on the amount due to the petitioners to be calculated w.e.f. 1.4.85. The payment due on pay fixation in terms of the Award which became effective w.e.f. 17th July, 1985, i.e. the date of its enforcement, shall be made immediately preferably within a period of 8 weeks from today.
21. We further direct that the remaining 85% candidates who have been appointed into the cadre of LDCs. on the basis of competitive examination shall not be entitled to the benefit of past service which they may have rendered in other departments prior to their joining in the Board.
22. We further direct that those petitioners who are departmental promotees shall be given the benefit of continuity of past service rendered by them to the Board w.e.f. their respective dates of their initial appointments.
23. With the aforesaid observations all the above writ petitions are disposed of accordingly.