Revabhai Bhudarbhai Solanki vs State Of Gujarat & on 22 January, 2013

[Cites 7, Cited by 10]

Gujarat High Court

Revabhai Bhudarbhai Solanki vs State Of Gujarat & on 22 January, 2013

Bench: Ks Jhaveri

  
	 
	 REVABHAI BHUDARBHAI SOLANKIV/SSTATE OF GUJARAT
	 
	 
	 
	 
	 
	 
	 
	 
	 
	 
	

 
 


	 


	C/SCA/2743/2002
	                                                                    
	                           ORDER

 

 


 
	  
	  
		 
			 

IN
			THE HIGH COURT OF GUJARAT AT AHMEDABAD
		
	

 


 


 


SPECIAL CIVIL
APPLICATION  NO. 2743 of 2002
 


 


 


With 

 


SPECIAL CIVIL
APPLICATION NO. 3930 of 2002
 

================================================================
 


REVABHAI BHUDARBHAI SOLANKI
 &  26....Petitioner(s)
 


Versus
 


STATE OF GUJARAT  & 
1....Respondent(s)
 

================================================================
 

Appearance:
 

MR
PP MAJMUDAR, ADVOCATE for the Petitioner(s) No. 1 - 4 , 6 - 11 , 16 -
21 , 23 , 25
 

MR
SP MAJMUDAR, ADVOCATE for the Petitioner(s) No. 1 - 4 , 6 - 11 , 16 -
21 , 23 , 25
 

NOTICE
UNSERVED for the Petitioner(s) No. 5 , 12 - 15 , 22 , 24 , 26 - 27
 

GOVERNMENT
PLEADER for the Respondent(s) No. 1
 

RULE
SERVED for the Respondent(s) No. 2
 

================================================================
 

 


 


	 
		  
		 
		  
			 
				 

CORAM:
				
				
			
			 
				 

HONOURABLE
				MR.JUSTICE KS JHAVERI
			
		
	

 


 

 


Date : 22/01/2013
 


 

 


ORAL ORDER

1. Both these matters were ordered to be heard along with S.C.A. No.1681/2002 & 1682/2002. The said two petitions were disposed of vide common judgment and order dated 25.04.2011, which is reproduced here under;

Heard learned Advocate Mr. KB Pujara for petitioners and Mr. Anand L. Sharma, learned AGP for respondent State Authority in both petitions.

Facts emerging from events and dates in Special Civil Application NO. 1681 of 2002 are quoted as under:

Events & Dates

1.

Petitioner is a registered Association and is duly recognized by the Government.

2. Present petition is filed on behalf of 18 Wiremen Helpers who are being treated as Work Charged since 27.12.1999 and are now sought to be converted to the status of daily rated, which will result in loss of 5 increments and several service benefits to them.

3. The Government framed a policy of conversion from daily rated to Work Charged cadre on the basis of completion of 5 years by GR at Annexure A dated 4.7.1973.

4. All the concerned workmen herein are appointed between 1977 to 1987.

5. The above GR providing for conversion to Work Charged Cadre was withdrawn vide Annexure-C on 5.1.1990.

6. All the concerned 18 Wiremen Helpers had completed 5 years of daily rated service prior to the above cancellation and therefore Government realized that we were left out from the main seniority list for administrative reasons.

7. This resulted in our being appointed as Work Charged on 27.12.1999.

8. We were required to approach the High Court by filing Spl. CA No. 12825/2000 wherein this Hon'ble Court (Coram : PB Majmudar,J.) protected us by a status quo order dated till 3.1.2001 when our status was sought to be changed to daily rated cadre.

9. At the time of final hearing, the Court was pleased to direct that hearing to be given to us, without expressing any opinion on merits vide Order at Annexure-D when it was argued that the whole scheme of 1973 was cancelled in 1990 by its judgment dated 7.11.2001. However, the GR at Annexure B was not challenged before this Hon'ble Court at that point of time.

10. Pursuant to the above, we were asked to come at 12'0 clock before the Chief Engineer on 27.12.2001 by writing a letter after office hours on 26.12.2001.

Now the decision is taken vide Annexure-D and our representation is rejected merely on the ground that earlier judgment of this Hon'ble Court was not being treated as precedent by the Government. They had also stated that the Resolution dated 17.10.1988 is being implemented and therefore there was no need to implement any other resolution more so because Government has prohibited on 31.3.1989 that no daily rated workers to be converted to Work Charged cadres. This will result in loss of about 5 increments to us and therefore we are approaching Your Lordships immediately after this order is passed. Hence this petition before Your Lordships on 31.1.2002.

Similarly, in respect to Special Civil Application No. 1682 of 2002, facts emerging from Events and Dates are quoted as under:

Events & Dates

1.

Petitioner is a registered Association and is duly recognized by the Government.

2. Present petition is filed on behalf of 31 Room Attendants (Class-III) who are being treated as Work Charged since 27.12.1999 and are now sought to be converted to the status of daily rated, which will result in loss of 5 increments and several service benefits to them.

3. The Government framed a policy of conversion from daily rated to Work Charged cadre on the basis of completion of 5 years by GR at Annexure A dated 4.7.1973.

4. All the concerned workmen herein are appointed between 1975 to 1985.

5. The above GR providing for conversion to Work Charged Cadre was withdrawn vide Annexure-C on 5.1.1990.

7. This resulted in our being appointed as Work Charged on 27.12.1999.

8. We were required to approach the High Court by filing Spl. CA No. 12822/2000 wherein this Hon'ble Court (Coram : PB Majmudar,J.) protected us by a status quo order dated till 3.1.2001 when our status was sought to be changed to daily rated cadre.

10. Pursuant to the above, we were asked to come at 12'0 clock before the Chief Engineer on 27.12.2001 by writing a letter after office hours on 26.12.2001.

Thus, Special Civil Application No. 1681 of 2002 is filed on behalf of 18 Wiremen Helpers who are being treated as Work Charged since 27.12.1999 and are now sought to be converted to the status of daily rated, which will result in loss of 5 increments and several service benefits to them and Special Civil Application No. 1682 of 2002 is filed on behalf of 31 Room Attendants (Class-III) who are being treated as Work Charged since 27.12.1999 and are now sought to be converted to the status of daily rated, which will result in loss of 5 increments and several service benefits to them.

Prayers made by petitioners in Paragraph 16(A) to (F) in Special Civil Application NO. 1681 of 2002 are quoted as under:

16(A) declaring that the GR dated 5.1.1990 at Annexure-B seeking to reverse the earlier earlier policy of GR dated 4.7.1973 without any discrimination or replacement is absolutely arbitrary, unfair and unconstitutional being violative of Article 14 and 16 of the Constitution and quashing and setting aside the same;

(B) alternatively, reading down the above GR at Annexure C to provide for only prospective application to the daily rated workers who joined after 5.1.1990 and further directing that the present group of concerned workmen should not be brought within the purview of the same and our conversion to Work Charged w.e.f. 27.12.1999 is absolutely legal, just and constitutional;

(C) quashing and setting aside the order dated 29.1.2002 rejecting our representation at Annexure D on the ground that it is arbitrary, unfair, violative of S. 9A of the ID Act, discriminatory and permanently restraining the respondents from altering our wages and service conditions by any adverse change/reduction in direct or indirect manner;

(D) declaring that our wages and services conditions cannot be altered without notice u/s. 9A as provided under the ID Act, 1947 and permanently restraining the respondents from making any such alteration at any time in future;

(E) Any other reliefs deemed fit and proper in the circumstances of the case and the costs may be quantified at Rs.6000/- and be payable to the petitioner;

(F) During pendency and final disposal of this Special Civil Application, Your Lordships may be pleased to pass an order directing the respondents to continue to give us same pay scale as Work Charged employee which was given pursuant to Annexure C and these conditions of service associated with the same, without any adverse modification, in any manner, whatsoever.

Prayers made by petitioners in Paragraph 16(A) to (F) in Special Civil Application NO. 1682 of 2002 are quoted as under:

16(A) declaring that the GR dated 5.1.1990 at Annexure-B seeking to reverse the earlier earlier policy of GR dated 4.7.1973 without any discrimination or replacement is absolutely arbitrary, unfair and unconstitutional being violative of Article 14 and 16 of the Constitution and quashing and setting aside the same;

(B) alternatively, reading down the above GR at Annexure C to provide for only prospective application to the daily rated workers who joined after 5.1.1990 and further directing that the present group of concerned workmen should not be brought within the purview of the same and our conversion to Work Charged w.e.f. 27.12.1999 is absolutely legal, just and constitutional;

(C) quashing and setting aside the order dated 29.1.2002 rejecting our representation at Annexure D on the ground that it is arbitrary, unfair, violative of S. 9A of the ID Act, discriminatory and permanently restraining the respondents from altering our wages and service conditions by any adverse change/reduction in direct or indirect manner;

(D) declaring that our wages and services conditions cannot be altered without notice u/s. 9A as provided under the ID Act, 1947 and permanently restraining the respondents from making any such alteration at any time in future;

(E) Any other reliefs deemed fit and proper in the circumstances of the case and the costs may be quantified at Rs.6000/- and be payable to the petitioner;

(F) During pendency and final disposal of this Special Civil Application, Your Lordships may be pleased to pass an order directing the respondents to continue to give us same pay scale as Work Charged employee which was given pursuant to Annexure C and these conditions of service associated with the same, without any adverse modification, in any manner, whatsoever.

It is necessary to note that one common affidavit in reply on behalf of respondent No.1 has been filed in Special Civil Application No. 1681 of 2002 with Special Civil Application No. 1682, 2743 and 3930 of 2002 which is at page 36 in Special Civil Application NO. 1681 of 2002. Relevant averments made by deponent on behalf of respondent No.1 in said affidavit in reply, paragraph 5(i) to ((v) are quoted as under:

5. At the outset, I may be permitted to raise the following preliminary objections with regard to the maintainability of the present petition:

(i) That no legal, statutory or fundamental right of the members of petitioner association has been either abridged, infringed or violated by the respondent State and that therefore the petitioner has no locus standi to file the present petition and hence the petition deserves to be dismissed in limine.

(ii) That the petition suffers from the vices of delay, laches delay and acquiescence. The petitioner association by challenging the GR dated 5.1.1990, haw now come forward after a long span of more than a decade and want to open the issue by raising the alleged grievance for the benefit of conversion from daily rated to work charged employees on the basis of extinct GR dated 4.7.1973. The concerned employees stated to be the members of the petitioner association having acquiesced in the matter the petitioner association may not be permitted to agitate the concluded issue after a long lapse of more than a decade or so and that therefore the present petition may kindly be dismissed on this count alone.

(iii) That it is settled principle of law that once the petitioner association and/or its alleged members have acquiesced over the right/benefit it is now not open for the petitioner association to agitate about the said right at such belated stage. Thus, the petitioner association has lost the right; and when the right is lost the remedy is also lost. The petition deserves to be dismissed in limine on this ground as well.

(iv) That alternatively, the identical issue on the anvil having been decided by the learned Single Judge in Special Civil Application NO. 101 of 2001 with Special Civil Application No. 603 of 2001 (Coram : KM Mehta,J.) by judgment and order dated 19.12.2001, the petitioners are bound by the ratio laid down therein to the effect that the petitioners are getting the benefit as per the Resolution dated 17.10.1988 and that therefore they are not eligible to claim any benefit much less under an extinct Resolution dated 4.7.1973 and in that view of the matter the present petition is not maintainable.

(v) That many disputed questions of facts are involved in the matter and I most respectfully submit that it is a matter of leading evidence and adjudication thereon and hence this Hon'ble Court may not exercise its extra-ordinary jurisdiction under Article 226 of the Constitution of India, and the present petition is not maintainable and deserves to be dismissed in limine on this count also.

Thereafter, para 6.1 to 6.3 of said affidavit in reply filed on behalf of respondent NO.1 being relevant, are quoted as under:

6.1 I say that the in the year 1973, the Roads & Buildings Department issued a Resolution dated 4.7.1973 conferring the benefits of the status of Work Charged employees on the daily wagers as per availability of work charge posts who have completed 5 years of service. Thereafter, the Government constituted a one-man Committee called Ex- R&B Minister Shri Dolatbhai Committee to consider the representations of the association of the daily wagers for giving permanency benefit.

Pursuant to the recommendation of the said Committee contained in its report, the Government issued a resolution dated 17.10.1988 conferring certain benefits upon the daily wagers. I say that with regard to the benefits payable to the daily wagers, the question is required to be decided on assessment of nature of work and length of service put in by the concerned employee and many other allied factors. I further say that as per the policy of the State Government, daily wagers are paid benefits from time to time. In view of the fact that an anomalous situation was created by the aforesaid two resolutions dated 4.7.1973 and 17.10.1988, the Government took a policy decision, vide resolution dated 31.3.1989 that since there was no provision for daily wager to get converted into work charged establishment in the resolution dated 17.10.1988, it was decided not to take any daily wager on work charged establishment, By another resolution dated 5.1.1990, the Government finally cancelled certain earlier resolutions relating to the conferment of benefit to the daily wagers as specified in the preamble of the resolution dated 5.1.1990, in a nutshell therefore, the benefit of conversion from daily wagers to work charged employees after completion of 5 years of service stood cancelled.

6.2 I say that in view of Government Resolution dated 17.10.1988, there is total ban in the matter of appointment of Rojamdar. I say that cancellation of Government Resolution dated 4.7.1973 is a policy decision of Government and it is further in the interest of working community at large and in the interest of establishment. I say that there could not be any compulsion to release benefit in view of the resolution. I say that there could not be any compulsion to release benefit in view of the resolution. I further say that after all it is an administrative decision and how to run administration is the prime concern of the Management, i.e. Government in the instant case, and therefore the petition s such deserves to be dismissed only on this ground. I say that there are no merits as such to claim the benefit in view of specific order passed by this Hon'ble Court in various identical matters as stated hereinabove.

6.3 I further say that in the year 1999, as a result of a mistake on the part of certain officer of the department, the benefit of the extinct resolution dated 4.7.1973 was inadvertently extended to the petitioners. No sooner the said mistake was detected, than the same was withdrawn by the Department vide office order dated 8.1.2001. I say that as soon as the said mistake came to the notice of the higher authorities, an inquiry was ordered to be initiated against the concerned officer and the Government instructed the concerned Superintending Engineer to cancel the said order extending/conferring the benefit of the resolution dated 4.7.1973. Aggrieved by the said action of the respondent State, the petitioners filed Special Civil Application No. 12822/2000, 12825/2000 and 25/2001 praying for quashing of said order dated 8.1.2001 and further for directing the respondent State to continue the benefit under the extinct resolution dated 4.7.1973. I say that the aforesaid petitions were disposed of by this Hon'ble Court (Coram : P.B. Majmudar,J.) vide judgment and order dated 7.11.2001 permitting the petitioners to make a representation to the State Government highlighting their grievances, with further direction to the State Government that upon receipt of such representation State may dispose of same in accordance with law. I say that pursuant to the order dated 7.11.2001 passed by this Hon'ble Court, the petitioner union filed a representation before the appropriate authority and the said authority after considering the representation and after affording an opportunity of hearing, passed an order dated 29.1.2002 inter alia holding that the petitioner Union is not entitled to claim any benefit under the extinct Government Resolution dated 4.7.1973.

Para 7.2 to 7.7 of said affidavit in reply filed on behalf of respondent no. 1 also being relevant, are quoted as under:

7.2 With reference to pr 4 of the petition, I deny that it is a fit case for invoking provisions of section 9A of the Industrial Disputes Act, 1947. I say that the said benefit was inadvertently conferred on the daily wagers and it being an obvious mistake, the same was rectified by an office order dated 3.1.2001 and the same does not affect the settlement arrived at between the State Government on one hand and the petitioner Union on the other and that therefore there is no question of applying the provisions of section 9-A of the Industrial Disputes Act, 1947.

7.3 With reference to pr 5, I say that the benefit of the Government Resolution dated 4.7.1973 was given to several daily wagers throughout the State. Assuming without admitting that the members of the petitioner union were left out and were not given the benefit of the said resolution dated 4.7.1973, then, in that case, petitioner union ought to have approached the Hon'ble Court at that point of time. I say that even otherwise the petitioners are getting similar benefit as per Government Resolution dated 17.10.1988 and now they cannot claim any benefit under an extinct Government Resolution dated 4.7.1973. I further say that the petitioners are working with the respondent as per the need of the State Government and being daily wagers, they are not entitled for regularization and if that status is granted by virtue of an extinct GR dated 4.7.1973, then, the petitioners would be getting double benefit I.e. one under the GR dated 4.7.1973 and the other under GR dated 17.10.1988 which in turn will increase financial burden on the Government resulting into loss of economy and unrest and heart burning amongst similarly situated employees. I further say that the resolution dated 4.7.1973 was finally treated as cancelled by GR dated 31.3.1989 and 5.1.1990. In view of this, there arises no question of violation of Articles 14 and 16 of the Constitution of India and the action of the respondents is absolutely legal, proper and reasonable.

7.4 With reference to pr 6, I say that it is not true that the respondent has reclassified the petitioners and that the action on the part of the respondent State is arbitrary, unreasonable and violative of Articles 14 and 16 of the Constitution of India. I deny that the GR dated 4.7.1973 is cancelled only qua the number of workers as mentioned in para 6 at Gandhinagar and that said action is unconscionable, arbitrary and ex-facie unfair. At the cost of repetition, I say that as a result of mistake on the part of certain officer of the Department, the benefit of extinct Resolution dated 4.7.1973 was inadvertently extended to the petitioners and no sooner the said mistake was detected, the same was rectified by the Department. So far as GR dated 5.1.1990 is concerned, the same was issued by the respondent State as a matter of policy decision for the reasons that;

(i) an anomalous situation was created by the two resolutions dated 4.7.1973 and 17.10.1988;

(ii) resolution dated 17.10.1988 was not providing for conversion of daily wagers to work charged employee;

(iii) all the daily wagers were covered by the resolution dated 17.10.1988 and resultantly they will be getting double benefit viz. under both the resolutions dated 4.7.1973 and 17.10.1983(1988).

I say that the resolution dated 5.1.1990 is a policy decision taken by respondent State and it is settled law that the State Government can change its policy from time to time under the changing circumstances.

7.5 With reference to para 7, I deny that the decision of re-converting the petitioners is arbitrary and retrogressive. I say that the petitioners are availing the benefit available to the daily wagers by virtue of GR dated 17.10.1988 land hence there is no question of the petitioners being deprived of any benefit available to them, more so under various extinct GRs issued by the Government from time to time. I say that the State is conscious about the sacrosanct and valuable rights of the citizen and equally sacrosanct sacred obligation of the State and the respondents are performing this obligation with utmost priority.

7.6 With reference to para 8, I say that it is not correct that the decision of reverting back to the daily wager status has resulted in loss of 5 increments and other service benefits, as alleged or otherwise. There being no legal right accrued in favour of the petitioners, the petitioners cannot ask for any benefit which was wrongly conferred by the Department. It is not proper on the part of the petitioners to raise grievance with respect to reversion of status from work charged employee to daily wager employee.

7.7 With reference to para 12, I say that the judgment and order dated 22.9.1999 of this Hon'ble Court (Coram : H.K. Rathod,J.) passed in Special Civil Application NO. 4962/1987 cannot be made applicable to the case of the present petition. The facts of the said case are distinct and different. In that case, the employees (petitioners) having completed more than the required eligible service, had sought for conversion from daily wagers to work charged employees and at that point of time, the G R dated 4.7.1973 under which they were claiming the benefit was very much in existence and the rights under the said G R had legally accrued to them, whereas in the present case the GR dated 4.7.1973 was not in vogue at all land in its place had come into existence the GR dated 17.10.1988 extending various benefits to the daily wagers, and the petitioners herein are bound by the same. Assuming without admitting that the members of the petitioner were left out at the relevant point of time and they were not extended the benefit, then, in that case, the petitioners ought to have ventilated their grievance promptly and not after the delay of more than a decade, more particularly when the said resolution was extinct by then and a new GR dated 17.10.1988 extending various similar benefits, had come into existence.

In Special Civil Application NO. 1681 of 2002, affidavit in rejoinder is filed on behalf of petitioners by petitioner No.2 Bachubhai S. Patel which is at page 46 in SCA NO. 1681 of 2002. Relevant averments made in para 2,3,4,5,6,7,8,9,10,11,12,13,14,15 and 16 are quoted as under:

2. That for granting benefit of G.R. dated 4-7-1973 the respondent no.2 had passed order dated 27-12-1999 and the Executive Engineer, Patnagar Yojna Vibhag No.3, Gandhinagar thereupon passed individual order dated 29-1-2000 in respect of each of the employees in the list Annexure-G to the petition. Copy of the order dated 27-12-1999 passed by the respondent no.2 herein and copy of one of the orders dated 29-1-2000 passed by the Executive Engineer are at ANNEXURE-H colly.

3. I further say and submit that before giving the benefit of G.R. dated 4-7-1973 by the order dated 27-12-1999 the respondents had duly verified and checked all the facts entitling the petitioners to the benefit of G.R. dated 4-7-1973 and the matter was decided at the highest level i.e. the State Government, as is revealed from the documents provided to the petitioners Advocate by the respondent no.2 by letter dated 1-9-2010 as per ANNEXURE-I colly. It is crystal clear from the said documents that the petitioners who were wrongfully excluded from the benefit of G.R. dated 4-7-1973 had made representation dated 15-6-1999. The Executive Engineer made recommendation to the Superintending Engineer by letter dated 28-6-1999 stating the facts that the petitioners had passed Wireman Examination of the Gujarat State Technical Examination Board, that they were employed for the essential requirement of electric repairs and maintenance for the purpose of water supply, that similarly situated employees were already granted the benefit etc. The Superintending Engineer thereupon approached the State Government by letter dated 20-7-1999 for necessary approval. The State Government granted such approval by letter dated 6-11-1999 clearly stating that the daily wage employees who were employed prior to 5-1-1990 were entitled to the benefit of G.R. dated 4-7-1973 and that necessary orders for making them work-charge employees may be passed by the Superintending Engineer who is the competent authority. Thereafter complete employment details and record of service of the petitioners were duly and fully scrutinized and thereafter the orders dated 27-12-1999 as per Annexure-C came to be passed. There was therefore no illegality in granting benefit of G.R. dated 4-7-1973 to the petitioners by orders dated 27-12-1999. As a matter of fact the petitioners had already completed more than 5 years as daily wage employees much prior to the G.R. dated 5-1-1990 and therefore the petitioners were definitely entitled to the benefit of G.R. dated 4-7-1973 but they were erroneously not granted the said benefit which error was rectified by the orders dated 27-12-1999 as per order at Annexure-C. The respondents are therefore not justified in withdrawing the said benefit by the impugned orders dated 29-1-2002 at Annexure-D.

4. The petitioners say and submit that the issue is squarely covered by the judgment of this Hohn ble Court rendered in SCA No. 4962/1987 decided on 22-9-1999 (Coram : H.K.Rathod J), copy of which is at ANNEXURE-J hereto. The said judgment has attained finality as no Letters Patent Appeal has been preferred against the said judgment as is revealed from the status report. In the said petition the concerned petitioners were daily rated workers of 1979 to 1984 group and they were not granted the benefit of G.R. dated 16-11-1973 by treating them as work-charge employees. In the said petition, this Hon ble Court directed that they should be treated as work-charge employees as per G.R. dated 16-11-1973. The facts of the petitioners are similar in as much as the petitioners were not granted the benefit of G.R. dated 4-7-1973 to which they were entitled by being treated as work-charged employees and therefore they made representations pursuant to which the benefit of G.R. dated 4-7-1973 was granted to the petitioners by orders dated 27-12-1999. The subsequent order dated 29-1-2002 whereby the said benefit is sought to be withdrawn is therefore required to be quashed and set aside. 5. It is submitted that during the pendency of the petition, the learned Advocate of the petitioners had requested the respondents to make payment of difference of arrears arising from 5th Pay Commission but the respondents have withheld the same in view of the pendency of the present petition, as stated in their letter dated 6-6-2007 as per ANNEXURE K. The respondents are therefore required to be directed to forthwith release all the benefits pursuant to 5th Pay Commission. The respondents are also required to be directed to release the benefit of 6th Pay Commission which has come into force w.e.f. 1-1-2006 so as to obviate further litigation by the petitioners. Copies of Wireman Certificate issued by the Government of Gujarat to the petitioners are at ANNEXURE L colly.

6. I say that it is denied that the present petition is not maintainable as any of the preliminary objections raised in paragraph 5 of the respondent s affidavit in reply. It is denied that the petition suffers from the vices of delay, latches or acquiescence as alleged. As a matter of act as soon as the impugned orders came to be passed the petitioners have approached this Hon ble Court. I say that the petitioners who were wrongfully not granted benefit of conversion from daily rated to work charge employees on the basis of G.R. dated 4-7-1973 had made representations and the Department itself redressed the grievances of the petitioners. It is denied that identical issue has been decided in SCA No. 101/2001 with SCA No. 603/2001 by judgment and order dated 19-12-2001 (Coram : K.M.Mehta J). I say and submit that the facts of the said petitions and the issued decided are not identical to the facts of this case and the issue involved in the present petition. The said judgment is therefore not applicable in the facts of the present case.

7. I say that no disputed questions of facts are involved in the present petition and no evidence is required to be led because the issue is arising from the G.R. dated 4-7-1973 the benefit of which was rightly granted to the petitioners by orders dated 27-12-1999 and it is sought to be wrongfully withdrawn by the impugned order dated 29-1-2002.

8. I say that the respondents have categorically admitted in paragraph 6.1 of their affidavit in reply that in the year 1973 the Roads and Buildings Department issued G.R. dated 4-7-1973 conferring the benefit of status of work-charge employees on the daily wagers who have completed 5 years of service. It may be that the Government thereafter issued G.R. dated 17-10-1988 pursuant to the One-Man Committee called Shri Daulatbhai Committee and by resolution dated 5-1-1990 the Government cancelled certain earlier resolutions relating to conferment of benefits to daily wagers. However, I say and submit that the G.R. dated 5-1-1990 has only prospective application and it cannot be applied retrospectively. The present petitioners had already become eligible to get the benefit of G.R. dated 4-7-1973 much prior to the subsequent G.R. dated 5-1-1990 and therefore the rights had accrued in favour of the petitioners prior to G.R. dated 5-1-1990 which cannot be defeated or deprived by retrospectively applying the G.R. dated 5-1-1990. It is pertinent that only legislative enactment can be applied retrospectively but administrative orders cannot be made applicable with retrospective effect. The respondents having already granted the benefit of G.R. dated 4-7-1973 to thousands of daily-wage employees the respondents cannot deny similar benefit to the petitioners who had become entitled to such benefits prior to cancellation of the said G.R. dated 4-7-1973 by G.R. dated 5-1-1990 as otherwise the same would violative the Articles 14 and 16 of the petitioners.

9. It is denied that the benefit of G.R. dated 4-7-1973 was inadvertently extended to the petitioners as a result of mistake on the part of certain officers of the Department, as falsely alleged in paragraph 6.3 of the affidavit in reply. As a matter of fact from the documents which are provided to the petitioners now as per Annexure-I colly it clearly transpir3es that the benefit of G.R. dated 4-7-1973 was extended to the petitioners after due consideration and decision at the highest level and after examining the entire service record of the petitioners.

10. I say and submit that no effective hearing was given by thy respondent authorities before passing the impugned order as already stated in the petition.

11. I say that the provisions of section 9A of the Industrial Disputes Act, 1947 are squarely applicable in the present case in as much as no notice as required under section 9A for effecting change in the conditions of service of the petitioners by the impugned orders was ever given to the petitioners. It is pertinent that the item nos. 1 and 8 of the IVth Schedule specifically covers change in conditions of service for which notice under section 9A of the I.D. Act 1947 is required to be given. Admittedly no such notice has been given to the petitioners under section 9A and therefore the impugned order is liable to be quashed and set aside.

12. I say that in paragraph 7.3 of the reply affidavit the respondents have themselves admitted that benefit of G.R. dated 4-7-1973 was given to several daily wagers throughout the State. I say that the petitioners who were left out therefore made representations and their grievance was redressed by the respondents themselves. They were therefore not required to approach the Hon ble Court.

13. it is denied that the petitioners would be getting double benefit i.e. one under G.R. dated 4-7-1973 and other under G.R.dated 17-10-1988. The petitioners are neither getting any double benefit nor they are desirous of getting any double benefit. The petitioners are fully satisfied with the benefit granted to them under G.R. dated 4-7-1973. If the said benefit is withdrawn and the petitioners are granted the benefit of G.R. dated 17-10-1988 that would deprive the petitioners of benefit of 5 increments and several other consequential benefits. Such action would be clearly contrary to law and violative of Articles 14 and 16 in as much as thousands of other daily wagers throughout the State have already been granted the benefit of G.R. dated 4-7-1973 and the same has not been withdrawn by the respondents.

14. I say and submit that the State Government may be well within its right to take any policy decision for justified reasons but even such policy decision has to stand the test of Article 14 and 16 and it cannot be applied with retrospective effect. The respondents therefore cannot apply the G.R. dated 5-1-1990 to the petitioners who had become entitled to benefit of G.R. dated 4-7-1973 much prior to G.R. Dated 5-1-1990.

15. I say and submit that the respondents are duty bound to implement the ratio of the judgment dated 22-9-1999 passed in SCA No. 4962/1987 (Coram :

H.K.Rathod J) and the respondents cannot say that it was implemented by the State Government without treating it as precedent. I say and submit that to treat a judgment precedent or not is a prerogative of the Court and not of the respondents.

16. I say and submit that in the aforesaid premises the petition is required to be allowed with appropriate costs and the respondents are required to be directed to forthwith release all the benefits of 5th Pay Commission and 6th Pay Commission which have been wrongfully and arbitrarily withheld by them during the pendency of the present petition.

It is necessary that similar rejoinder is also filed by petitioners in Special Civil Application No. 1682 of 2002 page 40 which is almost repetition of same averments made in earlier rejoinder in Special Civil Application No. 1681 of 2002.

Before filing detailed rejoinder, one short rejoinder is also filed by petitioner No.2 Manilal Son of Somabhai Solanki which is at page 48 paragraph 1 to 4 from page 48 to 51 are quoted as under:

1. I say and submit that during the pendency of the petition, the respondents have provided relevant documents to the petitioner s learned Advocate by letter dated 1-9-2010 as per ANNEXURE-H colly. From the said document, it is clearly revelaed that the matter of giving benefit of G.R. dated 4-7-1973 was duly and fully examined by the highest authorities in the Department and the State Government had directed that the daily rated employees employed since many years who were not granted benefit of G.R dated 4-7-1973 and thereby injustice was caused to them because of the benefit of the G.R. dated 4-7-1973 not having been granted due to administrative reasons, then after due verification of their service record the Superintending Engineer was competent to pass orders of work charge for them. Thereafter after duly verifying the service record of the employees they were granted the benefit of work charge as per G.R. Dated 4-7-1973.

2. I further say and submit that the issue is squarely covered by the judgment of this Hon ble Court dated 22-9-1999 rendered in SCA No. 4962/1987 (Coram :

H.K.Rathod J) copy of which is at ANNEXURE-I hereto. The said judgment has attained finality and therefore the present petition is required to be allowed.

3. I further say that on behalf of the employees the learned Advocate of the petitioner had made representation to the respondents for payment of arrears pursuant to 5th Pay Commission. However the respondents have withheld the same only because of the pendency of the present petition as stated in their letter dated 6-6-2007 as per ANNEXURE-J hereto. The respondents are therefore required to be directed to forthwith release all the benefit pursuant to the 5th Pay Commission as well as 6th Pay Commission which has been implemented by the State Government w.e.f. 1-1-2006.

4. In the aforesaid premises the petition may be allowed with appropriate costs and direction as aforesaid may kindly be issued so as to obviate further litigation by the petitioners.

In group of special civil application no. 12822 of 2000 with Special Civil Application NO. 12825 of 2000 with Special Civil Application NO.25 of 2001, this Court (Coram : Hon'ble Mr. Justice PB Majmudar,J.) has passed common order on 7th November, 2001 which is at page 27 to 31. Said order dated 7.11.2001 is quoted as under:

By filing this group of Special Civil Applications the petitioners have challenged the order of the State Government by which the benefits of status of work-charge given to the concerned employees vide order dated 14/16.2.2000 are withdrawn.

2 It seems that one Section Officer, Shri Devendra Bhatt, gave certain directions by writing a communication to the Executive Engineers informing them to give work-charge benefit to the concerned employees on the basis of the Government Circular dated 4.7.1973. On the basis of the said communication dated 25.1.2000 the department started giving the work-charge benefit to the concerned employees. Thereafter the State Government has having realised the mistake on the part of the Section Officer passed the impugned order dated 2.1.2001 informing various Executive Engineers to discontinue the said benefit, cancelling the aforesaid instructions of the Section Officer, on the ground that in view of the subsequent Government Circular, there is no question of giving the work-charge benefit to the petitioners. The petitioners in this group of petitions have challenged the same on various grounds.

3 It is argued on behalf of the petitioner that once the work-charge benefit is given to the employees, the said benefit cannot be withdrawn without giving opportunity of hearing to the concerned employee and as such the said benefit is required to be continued.

4 Against the aforesaid argument, it is argued by the learned Government Pleader, Shri A.D.Oza, that there is no settlement arrived at between the petitioner and the State Government by which any work-charge status is conferred on the petitioners by the State Government. Mr Oza has also further argued that the so called instructions given by the Section Officer are also not based on any settlement and the said Section Officer has ignored the subsequent Government Circular dated 31.3.1989, by which the work-charge benefits are withdrawn. Mr Oza has relied upon the Government Resolution dated 5.1.1990 to substantiate his say by which the earlier G.R. dated 4.7.1973 was withdrawn. Mr Oza has therefore submitted that it seems that without verification of the various Government Resolutions and without considering the matter properly in a negligent manner the concerned Section Officer seems to have issued the instructions to the Executive Engineers and it was incumbent upon the State Government to withdraw the said benefits.

5 However, at this stage Mr Sompura, learned advocate for the petitioners, has requested the Court to allow him to withdraw this petition in order to make a suitable representation to the State Government. Mr Sompura states that the petitioners will make such representation latest by 30th November 2001 and in such representation the petitioners will highlight their grievances. The petitioners are accordingly permitted to make a representation to the State Government highlighting their grievances. After receiving such representation the State may dispose of the same as early as possible, preferably within two months from the date of receipt of such representation in accordance with law without being influenced by any of the observations made by this Court in this order. The State Government may give opportunity of personal hearing to the concerned employee or to the Union, which is representing the cause of such employees. It is clarified that the petitioners may represent their case either themselves or through union. The State may also afford a personal hearing either to the Union or to the concerned employee and thereafter take a decision on merits. If any hearing is given to the Union, it will not be obligatory on the part of the State Government to give hearing to the concerned employee.

6 It is clarified that it will be open to the State Government to take action against the erring officer who is responsible for giving such reckless instructions to the Executive Engineers as in view of the aforesaid reckless action of the concerned officer the State exchequer has suffered.

7 It is clarified that this Court has not expressed any view on the merits of the case one way or the other. If the decision of the State Government is against the petitioner, the petitioners will be at liberty to challenge the same in accordance with law. 8 In view of what is stated, nothing further is required to be done in the matter and accordingly this group of petitions is disposed of. Notice is discharged in each of the matters. Interim relief, if any, shall stand vacated.

In view of above orders passed by this Court, State Government was directed to take decision in response to representation which will be made by petitioners to State Government and thereafter,decision has been taken by State Government on 29.1.2002 through its Addl. Secretary R&B Department wherein after considering representation,it has been informed that in view of conferment of benefits vide Resolution dated 17.10.88,Government has cancelled GR dated 4.7.1973 to see that any anomaly is not created or arising. It has also been stated that from 31.3.1989, Government has imposed absolute ban on conversion of daily wagers into Work Charge and labourers are getting benefits as per Resolution dated 17.10.88 and Government has implemented judgment in SCA No. 4462 of 1987 and 600 of 1988 on a condition not to be cited as precedent. Said decision is challenged in present both petitions by petitioner union with further prayer to confer benefit of Work Charged employee which has already been extended in favour of members of petitioner union as per GR dated 4.7.1973 prior to cancellation of it by GR dated 5.1.1990, with effect from 27th December, 1999. Petitioners have also submitted that such benefits which were already extended in favour of members of petitioner union be considered as legal, valid and just and, therefore, no interference is called to revert members of petitioner union from Work Charged employees to daily rated employees. In both matters, short question to be considered by this Court is as under:

Benefit has been extended in favour of members of petitioner union after deliberation made by officer concerned from Roads and Buildings Department page 73 and 74 in department's note dated 1st December, 1999 prepared by Superintending Engineer wherein in respect to 22 workmen, wireman helpers, after considering GR dated 4.7.1973 and also considering GR dated 5.1.1990, it has been recommended that these 22 wireman helpers those who are working and satisfying all requirements to have five years continuous service and qualification in post of wireman helper including educational qualification and each wireman helper has been satisfying aforesaid requirement prior to issuance of resolution dated 5.1.1990 cancelling GR dated 4.7.1973. These 22 work charged helpers were qulified to get benefit of work charged employees as per GR dated 4.7.1973 prior to issuance of GR dated

5.1.1990. According to GR dated 4.7.1973, if any daily wager employee has completed continuous five years service, then, such daily wager is entitled to be taken up in the establishment of Work Charged employee. Accordingly, recommendation has been made in favour of 22 employees, those who are concerned in petition while relying upon letter dated 6.11.1999 to convert these employees those who have satisfied requirement of GR dated 4.7.1973 prior to issuance of GR dated 5.1.1990. Therefore, on the basis of aforesaid recommendation made by Superintending Engineer page 73 and 74, details of 22 daily wager wiremen helpers were submitted to Department means higher authority and that has been considered by higher authority which is at page 63, order dated 6.11.1999 passed by Under Secretary, R&B Department, Gandhinagar addressed to Superintending Engineer, Patnagar Yojna Circle, Gandhinagar on the subject of absorption of Rojamdar Wiremen Helpers in the establishment of Work Charge wherein it has been informed to Superintending Engineer, Patnagar Yojna Circle, Gandhinagar that if the persons are satisfying requirement mentioned in GR dated 4.7.1973 prior to issuance of GR dated 5.1.1990, then, Superintending Engineer is competent to initiate the proceeding in accordance with GR dated 4.7.1973. It was also stated in said letter dated 6.11.1999 page 63 that rojamdars having eligibility as per Resolution dated 4.7.1973 prior to issuance of Resolution dated 5.1.1990 alone are entitled for such benefit of GR dated 4.7.1973. Therefore, request was made to pass orders for Work Charge in this regard. One letter dated 28.6.1999 has been addressed by Executive Engineer, Patnagar Yojna Circle NO.3 Gandhinagar to Superintending Engineer which is at page 64 wherein recommendation was made in respect of 22 employees for giving them benefit of Work Charge employees. That was considered by Superintending Engineer and, thereafter, it was referred to Under Secretary, R. & B. Department.

So, this correspondent would suggest that case of 22 employees was thoroughly examined by three Officers, Executive Engineer, Superintending Engineer and then Under Secretary, R&B Department. And thereafter, decision has been taken with due application of mind while keeping in mind GR dated 5.1.1990 that this resolution is not made applicable to these 22 employees because they were completing five years continuous service and possessed necessary educational qualification prior to issuance of GR dated 5.1.1990, therefore, it cannot be considered to be a mistake as alleged by respondents in their affidavit in reply. A clear deliberation with application of mind is suggested in aforesaid correspondence and on that basis, effective decision has been taken and thereafter, benefit of Work Charged employee has been extended in favour of 22 employees with effect from 27th December, 1999 and, therefore, considering it, contention raised by learned AGP Mr. AL Sharma on behalf of respondent State Authority that it was a mistake on part of State Government cannot be accepted because documents produced by petitioner on record as aforesaid suggest otherwise.

Similar correspondence has been produced on record and on the basis of that record, conscious decision has been taken by State Government while extending benefit as work charged employee in favour of Room Attendants in respect to Special Civil Application No. 1682 of 2002 which is at page 55 of rejoinder where details of room attendant has been discussed and recommendation has been made to Superintending Engineer and thereafter, such benefit has been extended by Under Secretary, R&B Department by letter dated 4.11.1999 addressed to Superintending Engineer, Patnagar Yojna Circle, Gandhinagar. Said room attendants were working as daily wagers since number of years but benefit of GR dated 4.7.1973 was not extended in their favour due to some administrative reasons, object of GR dated 4.7.1973 was not implemented in favour of those Room Attendants and, thereafter, entire record including year-wise presence of each room attendant has been considered and for that, Superintending Engineer is competent authority to extend benefit as Work Charge employee in favour of room attendant. That aspect has been considered by this court similar to earlier petition of wiremen helpers and on that basis, similarly, contention raised by learned AGP Mr. AL Sharma on behalf of respondent State Authority that these benefits were granted wrongly or by mistake in favour of members of petitioner union cannot be accepted.

Specific contention was raised by learned AGP Mr. Sharma that after 5.1.1990, no such benefit can be extended because at that occasion, GR dated 4th July, 1973 was already cancelled by State Government. This contention cannot be accepted in light of fact that case of daily wager those who are concerned in both petitions have been considered by respondents on the basis of GR dated 4.7.1973 because all of them were satisfying each and every requirement of GR dated 4.7.1973 prior to issuance of GR dated 5.1.1990. So, at the relevant time prior to issuance of GR dated 5.1.1990, due to administrative reason, though each daily wager were entitled to benefit as Work Charged Employee, even though such benefit was not extended in their favour and that aspect has been subsequently considered with conscious decision by department after considering year-wise presence along with length of service and completion of 240 days' continuous service and educational qualification and thereafter, specific conscious decision was taken with due application of mind and, therefore, such contention raised by learned A.G.P. Mr. Sharma cannot be accepted and same is, therefore, rejected. It is necessary to consider GR dated 5.1.1990 which is annexed at Page 19 to Special Civil Application NO. 1681 of 2002. I have considered and perused aforesaid resolution dated 5.1.1990. Said Resolution dated 5.1.1990 is not having any retrospective effect. Said GR dated 5.1.1990 is not cancelling or setting aside GR dated 4.7.1973 with retrospective effect but it has set aside Resolution dated 4.7.1973 on the date on which it was notified, means 5.1.1990. Even in affidavit in reply filed by respondents, it is not case of respondents that GR dated 5.1.1990 is having retrospective effect. Therefore, if daily wagers appointed prior to 5.1.1990 were satisfying requirement as provided in GR dated 4.7.1973 prior to 5.1.1990 and their case has been considered while keeping in mind knowledge of GR dated 5.1.1990 and conscious decision has been taken by department that these daily wager employees have satisfied all requirement of GR dated 4.7.1973 prior to cancellation of said GR by subsequent GR dated 5.1.1990, then, they are entitled for benefit of Work Charged employee as per GR dated 4.7.1973.Even it is not case of respondent authority that members of petitioner union in both petitions were not satisfying requirement as per GR dated 4th July, 1973 prior to issuance of GR dated 5.1.1990. Therefore, according to my opinion, benefit which has been extended in favour of Room Attendant as well as Wiremen Helpers with effect from 27th December, 1999 cannot be considered to be a mistake or illegal or contrary to GR dated 5.1.1990. Cases of members of petitioner union in both petition are not covered by subsequent resolution dated 5.1.1990 and said resolution dated 5.1.1990 would not come in the way of members of petitioner union in both petitions for granting benefit of Work Charged employee in their favour as per GR dated 4th July, 1973.

Therefore, decision which has been taken by State Government which is under challenge in present petitions is required to be quashed and set aside and petitioners' status and benefit attached to it cannot be altered or changed now by respondent State Authority because of GR dated 5.1.1990. Benefit as work charge employees in favour of 22 daily wagers and 18 room attendant now cannot be withdrawn by respondent authority and it also cannot be cancelled by State Government by relying upon GR dated 5.1.1990 because case of present members of petitioner union is not covered by GR dated 5.1.1990 and this resolution would not come in way of petitioners for granting benefits as Work Charged Employees in favour of members of petitioner union in respect to both petitions, as referred to above.

Recently in case of State of Orissa and others versus Saroj Kumr Jena, (2011(2) Supreme Court Cases 794, respondent was appointed as lower division clerk on 18.8.1995. He was promoted from time to time. His pay was not fixed as he had not passed accounts examination as per 1999 Orissa Rules. Whether 1999 Orissa Rules can be made applicable to him or not for fixation of pay scale, that aspect has been examined by apex court. Relevant discussion made by apex court in para 5,6,7,8, 9 and 10 is quoted as under:

5. Mrs. Kirti Renu Mishra, learned counsel appearing for the appellants, has submitted that the respondent did not fulfill the requisite qualification as per the Rules 1999. For this reason, the High Court was not justified for granting the said relief.

According to Mrs. Mishra, no new post could have been created without the prior approval of the appellant No.2. In the instant case, as no post had been sanctioned, the appointment of the respondent is totally illegal and thus, the impugned judgment and order is liable to be set aside.

6. On the contrary, Shri V.S. Raju,learned counsel appearing for the respondent, has opposed the appeal contending that the High Court has disposed of the writ petition following its earlier judgment in Rajendra Prasad Singh v. State of Orissa, 93 (2002) CLT 346 and in view of the statement made by the State counsel that the matter was squarely covered by the said judgment. Thus, the appeal lacks merit and is liable to be dismissed.

7. We have considered the rival submissions made by learned counsel for the parties and perused the record.

8. Admittedly, the Rules 1999 could not be made applicable with retrospective effect and in case the respondent had been appointed and promoted further to the posts of UDC and Head Clerk and those promotions have been duly approved by the appellant No.2, no fault can be found with the impugned judgment and order. We also find no force in the submission made by Mrs. Mishra that the respondent could not be appointed as no sanctioned post was available and prior approval had not been taken from the appellant No.2 for making the appointment of the respondent. Thus, he stood appointed to a non existing post. The Circular issued by the Education & Youth Services Department, Government of Orissa, dated 27.5.1978 contained a clause as under:

"* * * Prior concurrence of Govt. should be obtained for increase in seats and opening of new subjects and creation of new posts."

(Emphasis added)

9. The Letter dated 6.11.1990 granting approval by the appellant No.2 reads as under:

"In pursuance of G.O. No.46209/H, and No.46210/H dated 18.1.85 approval is hereby accorded provisionally to appoint and adjustment of Sri Saroj Kumar Jena, L.D.C., Mahanga Puspagiri Mahavidyalaya, Erakana, Dist. Cuttack with effect from 1.3.90 against the vacancy, caused due to resignation tendered by Sri Khageswar Pradhan on 28.2.90.Sri Jena shall be entitled to draw 1/3rd grant with effect from 1.3.90 to 31.5.90 and 2/3rd grant with effect from 1.6.90 in the scale of Rs.780-1160/-.The post L.D.C. has been admitted to 1/3rd grant in aid from 1.6.88." (Emphasis added)

10. It is evident from the aforesaid letter of approval dated 6.11.1990 that the respondent had not been appointed on a non existing/non-sanctioned post. The post became vacant due to the resignation tendered by Sri Khageswar Pradhan on 28.2.1990. Therefore, the post was available and the provisions of the Circular dated 27.5.1978 could not be made applicable to the case at hand.

In view of above observations made by apex court in aforesaid decisions, facts of present case is almost covered by fact that GR dated 5.1.1990 is not applicable with retrospective effect as members of petitioner union in both petitions were appointed at prior point of time working as daily wager and they were satisfying all requirement of GR dated 4th July, 1973 much prior to issuance of GR dated 5.1.1990, therefore, they are entitled for benefit of Work Charged employees as per GR dated 4th July, 1973 which has rightly been granted by respondents in their favour. For that, no mistake has been committed by respondent State Authority, therefore, decision to withdraw or cancel such benefit as Work Charged employees is hereby quashed and set aside by this Court and it is held that benefit of Work Charged employee has been rightly granted in favour of members of petitioner union in both petitions by respondent authority as per GR dated 4th July, 1973 and for that, no error has been committed by State Authority which would give right to State Government to withdraw such benefit from members of petitioner union in both petitions.

In Union of India & Ors. Versus Jagdish Pandey & Ors., 2010(6) SCALE page 651, Apex Court has considered unilateral withdrawal of pay scale which was legitimate right of an employee and it was held that except for valid and proper reasons, it cannot be varied. Relevant observations made by apex court in paragraph 8 of judgment are quoted as under:

8. The respondents in the present appeal had challenged the validity of the above order before the Tribunal on various grounds including that they have always been placed at parity with the goods driver, they have been given similar scales and there was no reason, whatsoever, for altering the pay scale to the prejudice of the respondents, which was in force for a considerable time. It will be useful for us to notice the findings recorded by the Tribunal. In paragraph 8 of its judgment the Tribunal noticed that both the parties have not placed on record any material to indicate as to what was the pay scale provided for the TWDs pursuant to the various Pay Commission Reports. The Tribunal specifically noticed and recorded the finding that for the last 40 years, i.e. right from 1959 the respondents were being paid the same pay scale as goods drivers. There was no disparity of pay scales between TWDs and goods drivers after Union of India and Railways had accepted recommendations of the IInd, IIIrd, IVth and even of Vth Pay Commissions. The Tribunal also specifically noticed vague denials of the Union of India and that such denials were hardly substantiated by any cogent material. Reliance was placed upon the judgment of the Calcutta High Court in relation to the grant of running allowance. In that Writ Petition, the only dispute raised by the parties related to the grant of running allowance and the Union of India did not raise the issue of disparity in pay scale. This order of the High Court had attained finality. We have already referred to the findings recorded by the Tribunal where it is specifically noticed that after acceptance of Vth Pay Commission Report by the Government, TWDs were given the salary in the pay scale of Rs.

5000-8000 w.e.f. 1.1.1996 and in the letter dated 15.4.1993 the concerned authorities noticed the disparity created even between the TWDs i.e. in Sealdah division out of 32 TWDs, 24 were getting pay scale of Rs. 1350-2200 (unrevised) and remaining 8 were getting the pay scale of Rs. 1320-2040 and it directed a uniform pay scale of Rs.1350-2200 should be given to all the TWDs. Another reason that weighed with the Tribunal was that no material has been produced to show as to what were the reasons or material on the basis of which the authorities had decided to discontinue the pay scale of Rs. 1350-2200 to these respondents. The above reasoning and discussion in the order of the Tribunal clearly shows that the action on the face of it was arbitrary. This order of the Tribunal was confirmed by the High Court and the respondents made no effort to place anything on record to show that they were different and distinct classes and were entitled to receive different pay scales. Even in the order dated 9th August, 2002 the Tribunal specifically noticed that it was not even averted that eligibility criteria for the post of TWDs was different than that for the goods driver and their duties were substantially different. In other words, either before the Tribunal or before the High Court the Union of India never pleaded the essential basis for justifying payment of different pay scales to two categories of drivers i.e. TWDs on the one hand and goods train drivers on the other. There has to be a substantial difference in method of recruitment, eligibility, duties and responsibilities before substantial disparity in scale can be justified. As far as recording of finding of facts is concerned, factual disputes can hardly be raised before this Court and in any case for the first time. Despite this the Union of India has failed to place any material to substantiate its decision before the Forum/Courts. The judgment of the Calcutta High Court, in relation to running allowances, has attained finality. At that time no other issue was raised by Union of India that they are different and distinct posts with different pay scales and as such identical running allowances could not be paid. In fact, the judgment of the Calcutta High Court has duly been implemented now for years together without objection. Not only this, same pay scale as that of the goods train driver has been paid to these respondents for years and there appears to be no justification on record for unilateral withdrawal of such a scale. Pay scale is a legitimate right of an employee and except for valid and proper reasons it cannot be varied, that only in accordance with law. None of these justifiable reasons exist in the present case. The impugned order itself does not give any reason. The expression `erroneously used in the order can hardly justify withdrawal of such an existing right.

In view of above decision, contention raised by respondent State Government that benefit of Work Charged employee was erroneously extended in favour of members of petitioner union in both petitions cannot be accepted. For that, no any material has been placed on record by respondent State Government and such stand of mistake, taken by respondents can hardly justify decision of withdrawal of such benefit being existing right already accrued in favour of work charged employee and, therefore, aforesaid decision squarely covers issue which has been raised in present petition. In facts of present case, stand taken by respondent State Government that benefit of work charged employee has been erroneously extended by State in favour of members of petitioner union as per GR dated 4.7.1973, for such contention, except bare words, no material has been placed on record by respondents to show how decision conferring benefit of work charge employee upon members of petitioner union is erroneous or taken by mistake and, therefore, that contention raised by learned AGP Mr. AL Sharma is rejected.

Accordingly, prayers made in both petitions, paragraph 16(A), (B),(C) and (D) are granted and it is hereby declared that GR dated 5th January, 1990 is not having any retrospective effect but it is having only prospective effect and, therefore, members of petitioner union in both petitions are entitled for benefit of GR dated 4th July, 1973 which benefit was rightly granted in their favour and GR dated 5th January, 1990 is not applicable to facts of this case and, therefore, order dated 29th January, 2002 rejecting representation made by petitioner union in both petitions is also hereby quashed and set aside. Rule is accordingly made absolute in both petitions with no order as to costs.

Learned Advocate Mr. KB Pujara for petitioner has submitted that benefit as per recommendations made by 5th and 6th Pay Commission are not extended in favour of members of petitioner union only because of pendency of these petitions before this Court and, therefore, now some suitable directions may be issued to respondents, so, they can extend all such benefits in favour of members of petitioner union in both petitions.

Considering submissions made by both learned advocates, and also considering that now both petitions are allowed by this court and contentions raised by respondents have been rejected by this court and benefit as work charge employee has already accrued in favour of members of petitioner union in both petitions and also considering fact that such benefit has been confirmed by this court and it has been held that such benefit has been rightly granted by respondent State Government in favour of members of petitioner union in both petitions, therefore members of petitioner union in both petitions are entitled for consequential benefit as per recommendations made by 5th and 6th Pay Commission and, therefore, it is directed to respondents to extend all benefits available to 22 and 18 employees, members of petitioner union in both petitions as per recommendations made by 5th and 6th Pay Commission as early as possible, within period of four months from date of receiving copy of present order.

2. The above judgment was challenged by way of filing L.P.A. No.1730/2011 with C.A. No.11663/2011. In the said appeal, the following order came to be passed on 14.11.2011, which is reproduced here under;

Admit.

Pleadings to be completed by the parties before 31.01.2012. Appeal is fixed for hearing on 06.02.2012.

ORDER IN CIVIL APPLICATION NO. 11663 OF 2011

1. Rule.

Mr. K.B. Pujara, learned advocate appearing for the respondents waives service of notice of rule.

2. Heard learned advocates for the parties. Stay of the execution, operation and implementation of the order dated 25.04.2011 passed by learned Single Judge in Special Civil Application No. 1682 of 2002 is granted on condition that the applicants deposit the amount of difference of pay as per the directions issued by the learned Single Judge in the impugned order before this Court within a period of six weeks from today.

3. On the deposit being made, the same shall be invested by the Registry of this Court in the name of the Registry of this Court by way of a fixed deposit with a nationalised bank for a period of one year. The said deposit, on maturity, shall be renewed by one year at a time without any further orders in this regard till the final disposal of the appeal. The interest accruing on the said deposit shall be paid to the respondents-original petitioners. The principal amount on maturity shall be paid to the party which succeeds in the appeal.

4. Rule is made absolute accordingly with no order as to costs.

3. In that view of the matter, the present petitions will also be governed by the order passed in the above matters. Consequently, the petitioners herein shall also be given the same treatment, which has been given by the Division Bench in the above matter. Both petitions stand disposed of accordingly. Rule is made absolute to the above extent with no order as to costs.

(K.S.JHAVERI, J.) PRAVIN Page 33 of 33

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