Rajasthan High Court - Jodhpur
R.S.R.T.C., Parivahan Marg, Jaipur vs Narendra Nath Pareek on 16 March, 2009
Author: Govind Mathur
Bench: Govind Mathur
1
S.B.CIVIL WRIT PETITION NO.2172/2008
R.S.R.T.C. & Ors.
v.
Narendra Nath Pareek & Anr.
Date of Order :: 16th March, 2009
HON'BLE MR.JUSTICE GOVIND MATHUR
Mr. V.K.Vyas, for the petitioners.
Mr. B.K.Vyas, for the respondent-workman.
....
This petition came up for orders on an application preferred under Article 226(3) of the Constitution of India for vacation of the interim
order dated 25.8.2008, however, with consent of the parties, the matter is heard finally.
The Rajasthan State Road Transport Corporation by this petition for writ has given challenge to the award dated 27.4.2005, passed by
Labour Court, Bikaner in Industrial Dispute No.8/2000. In brief, facts of the case are that the respondent workman, after his selection, remained as trainee Lower Division Clerk from 12.8.1975 to 12.2.1976 at State Transport Training Institute, Jaipur. The Principal of the institute aforesaid, while relieving the respondent workman from the institute on 12.2.1976, recommended to Depot Manager, Rajasthan State Road Transport Corporation, Bikaner for employing him as Lower Division Clerk. The Depot Manager, in his turn, informed the respondent workman that due to non availability of the post of Lower 2 Division Clerk, an appointment can be accorded to him as Conductor. The respondent workman accepted the offer so made and joined duties as Conductor on 16.2.1976 reserving a right to be employed as Lower Division Clerk on availability of the vacancy. Though the respondent workman joined duties as Conductor, however, his services were utilised by the employer Corporation as Lower Division Clerk and by an order dated 7.11.1977 an appointment was given to him on regular basis as Lower Division Clerk. In pursuant thereto the respondent workman joined service on the post of Lower Division Clerk on the same day. A seniority list of Lower Division Clerks working with the petitioner Corporation was declared on 28.2.1981 wherein certain persons employed on 8.4.1976 were shown senior than the respondent workman in the cadre of Lower Division Clerk. The respondent workman objected the same but of no consequence, hence he raised an industrial dispute, that was referred by the appropriate government for its adjudication to Labour Court, Bikaner under a notification dated 20.7.1999, in following terms:-
"क क पबधक (पश सन) व मख पबधक र जस न
रज प पररवहन ननगम कमश: ज पर व ब क नर द र
प शममक श नर# दन प र%क क& द(न क 8-4-76 स
कननष म*पपक प( पर नन क न करन उच/त एवम व2ध
ह3? द( नह% त& शममक ककस र हत एव र मश क& प प
करन क अचधक र% ह3?"
3
The Labour Court, after considering entire material available on record, reached at the conclusion that the selection of the workman was made for appointment to the post of Lower Division Clerk and only as a temporary measure appointment was given to him as Conductor. A regular appointment was given to him as Lower Division Clerk on 7.11.1977, however, during the period from 16.2.1976 to 7.11.1977, though the workman was designated as Conductor but his services were utilised as Lower Division Clerk. The Labour Court further held that a vacancy occurred in the cadre of Lower Division Clerk on 8.4.1976 and that should have been given to the respondent workman by employing him as Lower Division Clerk w.e.f. 8.4.1976. Accordingly, a direction was given to the employer that appointment be accorded to the workman as Lower Division Clerk w.e.f. 8.4.1976 and all benefits flowing as a consequent to appointment in the manner aforesaid be given to him.
The contention of counsel for the petitioners is that the Labour Court erred while giving direction for giving appointment to the respondent workman w.e.f. 8.4.1976 as the workman accepted appointment to the post of Conductor and he remained as such upto 7.11.1977, therefore, there is no question and occasion to employ him as Lower Division Clerk w.e.f. 8.4.1976. Counsel for the petitioners has also placed 4 reliance upon a Division Bench judgment of this Court in DBSpecial Appeal (Writ) No.55/2004, R.S.R.T.C., Jaipur v. Bal Mukund Sharma & Ors., decided on 3.4.2008, wherein a view was taken that the cadre of Conductors and Lower Division Clerks are two separate cadres and the persons employed as Conductors and subsequently taken in the cadre of Lower Division Clerks are having no right to get their service as Conductor reckoned for the purpose of grant of selection grade.
Heard counsel for the parties and examined the record available.
It is not in dispute that the respondent workman was selected for appointment as Lower Division Clerk and, therefore, a training for the post aforesaid was imparted to him at State Transport Training Institute, Jaipur from 12.8.1975 to 12.2.1976. On 12.2.1976 the workman was relieved to report with Depot Manager, Rajasthan State Road Transport Corporation, Bikaner, however, due to non availability of the post, appointment was given to him as Conductor. While joining duties as Conductor on 16.2.1976, the workman reserved his right to be employed as Lower Division Clerk on availability of vacancy. The petitioner employer by an order dated 7.11.1977 accorded appointed to the respondent workman as Lower Division Clerk. Prior to such appointment the 5 petitioner employer on 8.4.1976 employed one other person as Lower Division Clerk, as such a post of Lower Division Clerk was available with them on 8.4.1976. No reason is given by the petitioner Corporation as to why the post aforesaid was not filled up by giving appointment to the respondent workman as Lower Division Clerk, though he was in queue for such appointment after acquiring necessary training. Learned Labour Court looking to the factual position aforesaid held the workman entitled to be employed as Lower Division Clerk w.e.f. 8.4.1976.
So far as Division Bench judgment of this Court in RSRTC v. Bal Mukund Sharma & Ors. (supra) is concerned, that is having no application in present controversy. In the case aforesaid certain persons working as Conductors with the Corporation were recruited as Lower Division Clerks by an independent process of selection and they claimed for inclusion of the period relating to services rendered by them as Conductors while reckoning their term of services for grant of selection grades. The Division Bench held that the cadre of Conductors and Lower Division Clerks are two separate cadres and being recruited as a consequent to an independent process of selection for the post of Lower Division Clerks, the petitioners in those cases, were not entitled to get the services rendered as Conductors included to determine their rights for grant of selection grades. On the other 6 hand, instant one is a case where a workman was selected for appointment as Lower Division Clerk but appointment was given to him as Conductor. Despite making appointment to the post of Conductor, his services were utilised as Lower Division Clerk and the same stood regularised w.e.f. 7.11.1977. During the period concerned a vacancy became available on 8.4.1976 but that was not given to the respondent workman but to somebody else. In the factual background above, the petitioners case is having no resemblance with the issue adjudicated by the Division Bench in the case of RSRTC v. Bal Mukund Sharma & Ors. (supra).
In the case in hand, the petitioner employer selected the respondent workman for appointment as Lower Division Clerk but due to non availability of post, employed him as Conductor. The workman was subsequently appointed as Lower Division Clerk as a consequent to same process of selection. While continuing the workman as Conductor, a post became available, but that was not given to him without any just reason. As a matter of fact that post should have been given to the respondent workman on 8.4.1976, the day on which a person other than him was appointed against that vacancy. No reason is advanced even before this Court for not appointing the respondent workman against that vacancy on 8.4.1976. 7
For the reasons whatever stated above, I do not find any wrong with the award impugned that may warrant interference by this Court under Articles 226 and 227 of the Constitution of India. Thus, the petitioner for writ is dismissed.
( GOVIND MATHUR ),J.
kkm/ps.