K. Nagamani vs Managing Director, A.P. Vikalangula Co-op. Corpn. and Another

B.S. Raikote, J.—Heard.

This writ petition is filed for a writ of Mandamus or any other appropriate writ declaring the proceedings No. E1/15925/95/Court/D-87 dated 16-5-1996 of the first respondent as arbitrary and illegal and violative of the principles of natural justice.

In the affidavit filed in support of the writ petition, petitioner contended that vide proceedings Rc. No. 23/85-86 dated 4-10-1985, he was selected and appointed as Watchman on daily wage basis. Vide subsequent proceedings Rs. No. EE1/C36/TCPC ANR/D-7220 dated 22-4-1987, he was given consolidated pay of Rs. 400/- per month. Later, vide proceedings Rc. No. EE 18/88/D 4407 dated 29-3-1988, his pay scale was fixed at Rs. 740/- to Rs. 1150/- in the post of Watchman. Thereafter, vide proceedings Rc. No. 513/86/A2 dated 1-8-1988, he was transferred and posted as Helper on the existing pay and allowances in Caliper Centre, Anantapur, which was to be started shortly and vide proceedings Rc. No. 863/89/Al dated 23-1-1990, his probation as Helper was declared with effect from 28-2-1989. When the things stood thus, the Managing Director vide his letter dated 30-11-1990 (but wrongly typed as 30-1-1990 at material page No. 7) requested the Additional Director, Anantapur to convert the post of the petitioner to one as Helper (Technical), since he was doing technical work in the Caliper Centre and further recommended for the pay scale of Helper (Technical) at Rs. 780/- to Rs. 1,275/-. The District Manager, Andhra Pradesh Vikalangula Co-op. Corpn. Training-cum-Production Centre, Anantaput also made a similar recommendation for promotion of the petitioner as Technician (Orthos). Thereafter, the District Manager of the Corporation vide his proceedings Rc. No. 645/90/A dated 6-12-1990 changed the designation of the petitioner as Helper (Technical) and fixed his minimum pay scale at Rs. 780/- to Rs. 1,275/- with effect from 1-12-1990 and accordingly orders were issued. Thereafter, the petitioner made a representation for fixation of his pay scale at Rs. 1,010/- to Rs. 1,800/- on the ground that other Helpers (Technical) were given the said pay scale. But the same was not considered. In those circumstances, he filed a writ petition before this Court in W.P.No.15925 /1995. This Court vide its judgment and order dated 9-10-1995 disposed of the writ petition, with a direction to the respondents to dispose of the representation made by the petitioner requesting for the pay scale at Rs. 1,010/- to Rs. 1,800/-. It appears that for non-compliance of the direction of this Court, the petitioner filed a contempt case before this Court and thereafter, the impugned proceedings dated 16-5-1996 are issued stating that the proceedings Rc. No. 645/90/Adated 6-12-1990 issued by the District Manager are cancelled, on the ground that his appointment as Helper was not approved by the Board and the request of the petitioner for regular pay scale as Helper (Technical) was rejected and the petitioner was directed to continue as Night Watchman on the regular pay scale of Rs. 740/- to Rs. 1,150/-. It is in these circumstances, being aggrieved by the order of the 1st respondent dated 16-5-1996, the petitioner has filed this writ petition before this Court.

The learned Counsel for the petitioner submitted that the impugned order is an order of reversion, reverting the petitioner from the post of Helper to Watchman and this has been done without any notice and opportunity to him. Secondly he contended that the petitioner''s representation, for which there was a direction of this Court in W.P. No. 15925/1995, was a representation for higher pay scale meant for the post of Helper (Technical) and instead of considering the said representation, the 1st respondent should not have reverted the petitioner to the post of Watchman. Thirdly he contended that at any rate, the petitioner was working as Helper from the year 1990 and if petitioner did not possess the requisite qualification, he should not have been appointed as Helper (Technical) by respondent No. 2. Even otherwise, as on the date he was appointed as Helper, no rules were framed prescribing any technical qualifications, and on the ground that the petitioner did not possess the technical qualification as per 1990 Circular, the pay scale cannot be refused, nor the petitioner can be reverted back. In support of his contentions, he relied upon the judgment of the Supreme Court reported in Dr. M.S. Mudhol v. Shri S.D. Halegkar 1993 (4) SLR 364(SC) . On the other hand, the Counsel appearing for the respondents contended that the petitioner was appointed only as a Watchman, but so far as the post of Helper is concerned, there were no posts in the respondent-Corporation and in those circumstances, he was reverted back to the post of Watchman. He further submitted that the petitioner did not have necessary requisite qualifications for the post of Helper, nor his appointment was approved by the Board and as such the pay scale meant for the post of Helper cannot be given to the petitioner. He relied upon the judgments of the Supreme Court reported in Union of India v. Makhan Chandra Roy 1997 (2) SLJ 19 SC; Ashwani Kumar v. State of Bihar 1997 (1) SLJ 280SC; Dr. Arundhati Ajit Pargaonkar v. State of Maharastra 1995 (1) SLJ 98 SC; State of U.P. v. U.P. Madhyamik Shiksha Parishad Shramik Sangh 1996 (1) SLJ 77 SC and Dr. Surinder Singh Jamwal v. The State of Jammu & Kashmir 1996 (2) SLJ 240 SC , contending that petitioner cannot be given pay scale meant for the Helper (Technical) on the basis of equal pay for equal work, nor he is entitled for any regularisation on a post which never existed. He further submitted that when the appointment of the petitioner as Helper was not legal, there was no necessity of issuing any separate show-cause notice, since the impugned order is passed while considering his representation for higher pay scale. On these grounds, he requested this Court to dismiss the writ petition.

From the facts narrated above and also from the contentions advanced on both sides, I find that, there are few admitted facts. It is admitted that the petitioner was appointed as a Watchman after due selection, earlier on daily wages and later with consolidated pay at Rs. 400/- per month and he was given regular pay scale i.e. Rs. 740/- to Rs. 1,150/- vide proceedings dated 29-3-1988. Of course, the said proceedings further stated that the continuance of the said scale, would be subject to ratification by the Board of Directors of the Corporation and subject to exemption from the Government regarding recruitment through Employment Exchange etc. Whatever it may be, one thing is certain that the respondent-Corporation does not dispute that petitioner was appointed on regular post as Watchman vide proceedings dated 29-3-1988 and by the impugned order, It is also an admitted fact that vide proceedings dated 1-8-1988, the petitioner was transferred and posted as Helper on the existing pay scale and allowances in the Caliper Centre, and vide proceedings dated 23-1-1990, his probation as Helper was declared to have satisfactorily completed with effect from 28-2-1989. It is also not disputed that the Managing Director of the Corporation vide his letter dated 30-11-1990 recommended for the conversion of the petitioner''s post to the post of Helper (Technical) with pay scale at Rs. 780/- to Rs. 1,275/-, since the petitioner was doing technical work in the Caliper Centre. Consequently, the District Manager also recommended for the same vide his proceedings dated 27-11-1990. From this it is clear that the post of the petitioner as Watchman was converted to that of Helper (Technical) on the basis of the recommendations made by the Managing Director, who is admittedly a superior officer to the District Manager. In this view of the matter, the contention of the learned Counsel for the respondents that the District Manager had no power or authority to appoint the petitioner as Helper cannot be accepted, since the post of the petitioner was converted to that of Helper (Technical) in the pay scale of Rs. 780/- to Rs. 1,275/- with the recommendations of the Managing Director only. In this view of the matter, whether the District Manager, Anantapur was delegated with the powers of the Managing Director or not would be only academic. The fact remains that the designation of the petitioner was changed as Helper (Technical) with pay scale of Rs. 780/- to Rs. 1,275/- with effect from 1-12-1990 under proceedings dated 6-12-1990 and since then, the petitioner has been in the post of Helper (Technical) in the respondent-Corporation and he was being given the said scale for all these years. But the grievance of the petitioner is that the pay scale meant for the Helper (Technical) is Rs. 1,010/- to Rs. 1,800/- in view of the recommendations made by the Pay Revision Commission, 1986 and vide G.O.Ms. No. 172, Social Welfare (G1) Department dated 7-7-1987, the said recommendations of the Pay Revision Commission, 1986 were made applicable to the Corporation and on this basis, the petitioner is entitled to pay scale at Rs. 1,010/- to Rs. 1,800/-. The Counsel appearing for the petitioner also submitted that other persons who are working in the post of Helper (Technical) are drawing pay scale at Rs. 1,010/- to Rs. 1,800/- and the petitioner is also entitled to the same pay scale and to deny the same would be contrary to Article 14 of the Constitution of India.

Learned Counsel for the petitioner contended that the impugned order of reversion is without any notice and opportunity to him. Alternatively he submitted that assuming that the petitioner did not possess the requisite qualification for promotion as Helper, the respondents cannot revert him after 9 years. In support of his contention, he relied upon the judgment of the Supreme Court in Bhagwati Prasad Vs. Delhi State Mineral Development Corporation, .

On the other hand, learned Counsel for the respondents submitted that there were no posts of Helpers and therefore he could not be regularised in the post of Helper. In support of his contention, he relied upon the judgments of the Supreme Court in State of H.P. through the Secretary, Agriculture to Government of H.P. v. Nodha Ram 1996 (1) SLJ 24 SC; Santosh Kumar Verma v. State of Bihar 1997 (1) SLJ 403 SC and Union of India and Anr. v. Moti Lal and Ors. 1996 (1) SLJ 369 SC. He also further contended that for the purpose of such reversion, no show-cause notice was required, and for this proposition, he relied upon a judgment of the Supreme Court in Punjab State Electricity Board and Anr. v. Baldev Singh 1999 (1) SLJ 96 SC.

I have gone through all the judgments. From going through the judgment of the supreme Court in Bhagwati Prasad''s case (7 supra) I find that the Supreme Court held that whenever a person is appointed even without requisite qualification and after gaining sufficient experience and after many years of service, his confirmation cannot be refused on the ground that he did not possess the requisite qualification. The Supreme Court has held as under:

"..........Practical experience would always aid the person to effectively discharge the duties and is a sure guide to assess the suitability. The initial minimum educational qualification prescribed for the different posts is undoubtedly a factor to be reckoned with, but it is so at the time of the initial entry into the service. Once the appointments were made as daily rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualifications. In our view, three years'' experience, ignoring artificial break in service for short period/ periods created by the respondent, in the circumstances would be sufficient for confirmation. If there is a gap of more than three months between the period of termination and reappointment that period may be excluded in the computation of the three years period."

In the other judgment of the Supreme Court in M.S. Mudhol v. S.D. Halegkar (supra) cited by the learned Counsel for the petitioner, the Supreme Court held that for no fault of the person, who was appointed without necessary qualification if continued to hold the said post for the last 12 years, it would be inequitable to disturb him from the post of Principal, on the ground that he did not possess any necessary qualification and experience. Having regard to the above law declared by the Supreme Court, it is clear that the pay scale meant for Helper cannot be refused nor the petitioner could be reverted back on the ground that the appointment of the petitioner about 9 years back was made without necessary qualification. Even otherwise the impugned order of reversion is also passed without notice to the petitioner. Hence, the impugned order cannot be sustained.

Learned Counsel for the respondent relied upon number of judgments of the Supreme Court which I have referred to above. In all the cases in which the Supreme Court held that a person cannot claim regularisation on the basis of an appointment which itself was irregular. The Supreme Court also held that the employees who were appointed on daily wages could not be entitled for regularisation. I have read all these judgments. I find that these judgments do not apply to the facts of this case. Even the latest judgment cited by the learned Counsel for the petitioner in Punjab State Electricity Board v. Baldev Singh (supra) was a case in which there was ad hoc promotion. The Supreme Court held that his reversion ordered by the higher authorities was not punitive and the question of giving any opportunity did not arise. But in the instant case, the petitioner was appointed as Watchman and the post of Watchman was upgraded to the post of Helper (Technical). It was done on the recommendations of the Joint Director. Hence, it was not an ad hoc arrangement. It is not the case of the respondents that this matter was placed before the Board and the Board has rejected it. Their simple case is that the appointment of the petitioner was not approved by the Board but it is not their case that the case of the petitioner was rejected at any point of time by the Board. For the aforesaid reasons, I think that the impugned order is liable to be set aside. Regarding the actual pay scale to which the petitioner is entitled, I think that the petitioner is entitled to the pay scale of Helper (Technical) to which he was appointed vide proceeding of the second respondent in Rc. No. 645/90/A dated 6-12-90. Therefore, I pass the following order as under:

The writ petition is allowed. The impugned order is set aside. The respondents are directed to pay the petitioner the salary prescribed for Helper (Technical) from the date he was promoted as Helper (Technical) but the petitioner would be entitled to arrears only for three years preceding the date of filing of this writ petition. No costs.