Sudha Kumari vs Ircon International Ltd.

R.S. Mongia, J.—We have gone through the documents attached with the writ petition especially Annexures P5 and P5/A which are reproduced below:-

"Annexure P-5 :

Subject : Change of Category from Class IV to Class III Promotion as Clerk Smt. Sudha Kumari on Compassionate Grounds.

Application received from Sudha Kumari for promotion as Clerk is put up for consideration on Compassionate Grounds. The history of the employee is produced below :-

Smt. Sudha Kumari is the W/o Late Shri Bhumendu Sharma who was working as Supervisor under Sh. Sunestian, APM. While performing his duty on 1.4.1983, he met with an accident and died being run over by a passenger train at Asaoti Station.

Sh. Bhumendu Sharma was very devoted to his duties and his performance was always appreciated by his superiors.

Our worthy M.D. had approved the appointment of the wife of Late Sh. Bhumendu Sharma in scale 196-232. Now Smt. Sudha Kumari has submitted her application for promotion in Class-III (260-400) on the Compassionate Grounds which seems to be a genuine case as she has passed her high school. In token of that mark sheet is attached. In view of the above her case may kindly be sent to M.D. for approval to appoint her as a Clerk in Class-III cadre in scale Rs. 260-400.

Put-up for consideration please.

Sd/- 10.11.84 (V.P. Sarswat) SO/A./Cs/MTJ

Recommended for kind consideration.

Sd/- 10.11.84 Senior D.P.M.

In view of the Compassionate Grounds, she may be promoted in grade 260-400 as a Clerk provisionally. Her performance will be watched and Sr. D.P.M. will send a special report on her working after six months when her case for final promotion will be decided. Approved

Sd/- P.M. and S.E.

Sd/- 12.11.84 Managing Director"

"Annexure P/54 INDIAN RAILWAY CONSTRUCTION COMPANY LIMITED

(A Government of India Undertaking) (Railway Electrification Wing) Delhi Safdarjang Railway Station New Delhi 110021

OFFICE ORDER/438

Smt. Sudha Kumari who is working in scale of Rs. 196-232 is now promoted as Junior Clerk in the Grade of Rs. 260-400 with immediate effect on purely ad hoc basis on compassionate ground.

Sd/- Amar Singh Project Manager and Chief Engineer No. REP/ALD/4 (Pt. V) 709 Dated 13.11.84

Copy for information to :

Sr. Dy. P.M. IRCON/MTJ for information and requested to watch her performance and send special report on her working after completion of six months.

A.O. DSJ

S.O. MTJ

P/file of Sndha Kumari

PA to CE and PM

Smt. Sudha Kumari"

From the reading of the aforesaid orders copies an-nexurcs P-5 and P5/A, we find that the petitioner was in fact appointed/promoted as a Clerk on compassionate ground. It is not being disputed by the respondents that since the dale of passing of the order dated November 13, 1984, copy annexure P5/A till the date of the passing of the impugned order dated June 10, 1999, copy annexure P-13, which was passed as a sequel to the order dated June 2, 1999, copy annexure R-1, passed by the General Manager, the petitioner had been discharging the duties of clerk and also getting the pay in the pay scale admissible to a Clerk. The or- der dated June 2, 1999, copy annexure R-1, and order dated June 10, 1999, copy annexure P-13, are in the following terms :-

Annexure R-l

"IRON INTERNATIONAL LIMITED

(Civil, Mechanical, Electrical, Communications and Turnkey Contractors)

(A Govt. of India undertaking)

OFFICE ORDER#341/99

In partial modification to office order # 138/98 dated 29.5.1998 and office order # 340/98 dated 30.7.1998, Smt. Sudha Kumari, RE, appointed as ad hoc Khalasi is reverted with immediate effect and deputed to AKRE Saharanpur Project on the same post and pay scale.

Accordingly, she is directed to report to Joint General Manager/IRCON/AKRE Saharanpur for further orders immediately.

Her lien will be kept in the seniority list of the RE Project where she was initially appointed.

This has been issued with the approval of the competent authority.

Sd/- Hulas Singh Joint General Manager

IRCON/99/908/954 Dated 2.6.1999"

Annexure P-13

"IRCON INTERNATIONAL LIMITED

(A Govt. of India Undertaking)

31-B Preet Nagar, AmbalaCantt-133001 Office Order No. 69/99

Smt. Sudha Kumari, Khalasi, presently working as Clerk on ad hoc basis, who has reported at Ambala office on 9.6.1999 (A.N.), on having been relieved of her duty by Asstt. Manager/HRM, D.M.R Project (UP Sector) vide his Office order No. 20/99 dated 7/6/99, in terms of Corporate Office No. 341/99 dated 2.6.1999, is hereby posted on AKRE Project (Group 88) with headquarter at Ambala with the same grade and capacity with immediate effect.

Sd/- 10.6.1999 (Raju Subramanian)

Jt. General Manager

IRCON/AKRE Project

Ambala Cantt.

No. IRCON/AKRE/99/UMB/GR-88/HRM/411 Dated 10.6.99."

Learned counsel for the petitioner argued that once the petitioner was appointed as a Clerk vide order an-nexures P5 and P/5A, reproduced above, the question of reverting her on transfer did not arise. No doubt on administrative grounds the petitioner could be transferred from one place to another in accordance with taw, yet she is entitled to hold the same rank and status and draw the same pay which she was getting at the place she was transferred.

Learned counsel for the respondents on the other hand argued that in fact the petitioner was appointed as Class IV employee (Khalasi) and, therefore, she has no right to continue on the post of Clerk. Moreover, at the place where she has been transferred, there is no post of Clerk vacant.

After hearing learned counsel for the parties, we are of the view that as per the documents on the file the petitioner was appointed as a Clerk vide order dated 13.11.1984, copy Annexure P/5A which was a sequel to the orders issued by the Managing Director dated 12.11.1984, copy Annexure P5. The only rider put in was that the petitioner''s work was to be watched as a Clerk for a period of six months. Nothing is being suggested regarding the work and conduct of the petitioner having been deteriorated or was not satisfactory during six months. Tn fact as observed above, from the date of passing of orders Annexure P/5A, the petitioner has been working as a Cierk till the passing of the impugned order.

In other words, the petitioner had worked as Clerk for almost 15 years before passing of the impugned order. The petitioner cannot be reduced in rank (unless of course there is some enquiry etc. and after due enquiry she is to be reduced in rank). The petitioner would continue as a Clerk even at the place where she has been transferred and necessarily would get the pay as a Clerk. In case there is no post vacant of a Clerk at the place where she has been transferred, she may be adjusted at any other place where a post of Clerk is vacant.

For the foregoing reasons, we quash the order dated 2.6.1999, copy Annexure R1, and also the order dated 10.6.1999, copy Annexure P-13, and direct the respondents to adjust the petitioner as a Clerk and grant pay of Clerk to the petitioner. She would be entitled to the arrears of pay as well.

Before parting with the judgment we may observe here that we are not deciding in this case whether a writ petition would lie against the respondents or not, rather we are only presuming that it would lie.

Petition allowed..