Vidhya Prakash Johri vs Rajasthan State Mineral Development Corporation

K.C. Agarwal, C.J.—This appeal has been preferred against the judgment of a learned Single Judge dismissing the writ petition of the appellant on the ground that neither was the petitioner discriminated nor was any illegality committed in his posting as Senior Mining Engineer. The learned Single Judge held that the petitioner was appointed as General Manager (Operations) in the service of Rajasthan State Tungsten Development Corporation Ltd. (in short RSTDC). This concern was different than Rajasthan State Mineral Development Corporation (in short RSMDC). The assets of RSTDC were transferred to Hindustan Zinc Limited, Udaipur and such RSTDC is no longer in existence.

The argument of the appellant was that whereas S.K. Patni and D.P. Khandelwal, who were working in RSMDC had been absorbed on higher post than what the appellant had been brought in, therefore, there was discrimination in between him and those two persons. He alleged that those two persons were junior to him.

No doubt, S.K. Patni and D.P. Khandelwal had been absorbed on. higher post after their repatriation from RSTDC to RSMDC, but their posts and departments were different than what the appellant held. The appellant was Senior Mining Engineer and after repatriation he was posted as Project Manager, whereas D.P. Khandelwal was working as Deputy Manager (Finance) in RSMDC and after repatriation he was posted as Manager (Finance) on officiating basis. The appellant urged that D.P. Khandelwal was posted as Manager (Finance) although there was no such post in the service of RSMDC at that time. That may be correct, but the post on which he had been absorbed was created before his repatriation. Creation of the post given to him has not been alleged to benefit D.P. Khandelwal.

Similarly, the appellant asserted that he had been discriminated, inasmuch as, S.K. Patnl although working as manager (P & C) in RSMDC, he was transferred in the same capacity to RSTDC. Later on, he was redesignated as Senior Manager (P & D) in the service of RSTDC in a higher pay scale. S.K. Patni was brought back in RSMDC in the year 1991 and was posted in officiating capacity as Senior Manager (P & D) in RSMDC. His case is also distinguishable with that of the appellant as was the case of D.P. Khandelwal.

The appellant was Senior Mining Manager on being brought back. He was given the post of Project Manager, Granite Project, Jalore. He was holding the post of General Manager (Operations) in RSTDC in the pay scale of 4500-5700 and now he had been posted as Project Manager (Senior Mining Manager) in the pay scale of Rs. 3700-5000. The maximum of the pay scale of Project Manager was less than the minimum of the pay scale of General Manager (Operations), but that was an incidence of service. The branch to which the appellant had been absorbed, there was no post of General Manager (Operations) or Deputy General Manager. In that event, the repatriation of the appellant as Project Manager (Senior Mining Engineer) in the pay scale of Rs. 3700-5000 could not be considered as illegal. Prior to his posting in RSTDC, the appellant was holding the same post of Senior Mining Engineer. On repatriation he did not lose anything and got back the post of Senior Mining Engineer from which he had been lifted.

The order of the Rajasthan State Mineral Development Corporation Ltd., Jaipur posting the appellant as Project Manager from RSTDC is being quoted below:

Consequent upon repatriation of Shri V.P. Johari, Sr. Mining Engineer (Project Manager) from R.S.T.D.C. shir Johari is directed to report for duty to the Chief Engineer at Udyog Bhawan Office, Jaipur.

Shri Johari is directed to ensure handing over of charge and winding up of Tungsten matters by 14.6.1991.

This bears the approval of Chairman and Mg. Director.

Sd/p

(N.D. Khanna)

Chief (Persl. & Admn.)

The assertion of the appellant that as he was General Manager (Operations) in RSTDC, he should have been posted in the capacity on repatriation has been replied by the respondent in para 10 of the counter affidavit, which read as under:

It is also submitted that the appointment of the petitioner as officiating General Manager (Operations) by the RSTDC was a matter entirely concerned with the requirements of RSTDC and the respondent-Corporation RSMDC had no concern whatsoever as to what post was created and assigned to the petitioner by the RSTDC or in what name or names the post available in RSTDC was designated or redesignated.

To us it appears the creation of a post and its abolition is a matter of administrative exigency & that no right is accrued on the basis of such a creation. The appeallnt''s working as General Manager (Operations) in RSTDC was internal matter connected with the affairs of that Corporation. After taking over the services of the appellant, it was to be decided by RSMDC on which post the appellant would be absorbed. In para 12 of the counter affidavit, it has been stated that there was no post of General Manager (Operations) in RSMDC. That being so, the allegation regarding the approval by RSMDC by appointing the appellant to that post was meaningless. From para-14 of the counter affidavit, it appears that consequent upon the appellant having been left with no job in RSTDC, he reported to RSMDC and the order dated 11.6.1991 was issued directing him to report for duty to the Chief Mining Engineer.

Relying on Clause 5 of the terms and conditions of the appointment order on the post of Senior Mining Engineer (which is now known as Project Manager), the appellant urged that his posting in RSTDC was not on deputation, hence, he could not be posted as Project Manager on repatriation. He contended that he was regularly promoted on the post of General Manager (Operations) in RSTDC and, as such, promotion could not be taken away without any departmental proceedings in accordance with the rules. This assertion of the appellant has been denied in the counter affidavit by saying that the appellant was never promoted to the post of General Manager (Operations) in RSMDC nor was any such post available. Hence, his claim that on repatriation, he was entitled to be absorbed on the post of General Manager (Operations) was unfounded. We also find substance in the submission of the respondent that the services of the appellant could be transferred to the subsidiary company as per the service conditions and there is no question of appellant''s desire or choice. Furthermore, he did not object to that and accepted the replacement of the service to the subsidiary company. Hence, he could not make the same as a ground for his promotion or creation of a new post.

The appellant further relied on a decision of the Allahabad High Court in Vishwa Nath Rai v. CIO Mahmoorganj 1992 1 C.S.J. 5. Having no bearing, this decision is of no assistance to the appellant. The petitioner of that case joined as a Constable in U.P. Police and was, thereafter, sent on deputation to the Central Intelligence. This was treated as promotion, but after he came back after 19 years he was again asked to join as a Constable. This asking him to join as Constable was chellenged by him and the learned Judge held that all those 19 years in which he worked in the Central Intelligence could not be ignored. Firstly, this is a case of Article 311(2) of the Constitution which does not apply to the appellant, inasmuch as, he was not a civil servant. Secondly, the decision is distinguishable on facts, since the appellant had been given the benefit of his tenure of service in RSTDC on repatriation.

The appellant urged that whereas S.K. Patni and D.P. Khandelwal had been promoted, but the appellant was not given that benefit and as such, the action of the Coporation was invalid. We have noted above that the appellant was working in the same capacity when he was brought after repatriation. Whether the repatriation was transfer or not is not a question of any consequence in the instant case. The appellant held different post in a different capacity than what that S.K. Patni and D.P. Khandelwal held. Those departments have higher posts whereas the department of the appellant did not have any higher post than to which he had been brought after repatriation. He could not, therefore, lawfully compare himself with those persons and make a complaint of discrimination. Since the facts in details have already been mentioned in the judgment of the learned Single Judge, we have purposely not considered to repeat the same.

The appellant has failed to meet his burden of justifying the in-equalities. The action of the respondent does not have taint of arbitrariness or discrimination.

In the result, the appeal fails and is dismissed.