1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :::: O R D E R (1) S.B. CIVIL WRIT PETITION NO.622/2003. Sampat Singh Vs. M.L.S. University & Anr. (2) S.B. CIVIL WRIT PETITION NO.617/2003 Promod Paliwal Vs. M.L.S. University & Anr. UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA. DATE OF ORDER :: 03rd November, 2006 PRESENT REPORTABLE HON'BLE SHRI JUSTICE MOHAMMAD RAFIQ Mr.Harish Purohit, Advocate for the petitioners. Mr.Jagdish Vyas, Advocate for respondents. BY THE COURT The petitioners have challenged the order dated 03rd February, 2003 whereby they have been absorbed 2 on the post of Lab Technician/Lab Assistant and have prayed for direction to the respondents to absorb them on the post equivalent to the post held by him prior to their being declared surplus. They have also prayed for further direction to the respondents to protect their present pay scale and grant them selection grade from the date they completed nine years. The back ground facts giving rise to these writ petitions are that petitioners were appointed as Junior Mechanic (Electrical) in the service of the respondents by order dated 29th December, 1986 in the pay scale of Rs.610-1090. They were later promoted to the post of Technical Assistant in the pay scale of Rs.2000-3200 by order dated 12th January, 1992. The pay scale of the petitioners when they filed these writ petitions was Rs.6500-10500. Suddenly, the respondents have passed an order on 03rd February, 2003 whereby they were informed that Academic Council of the University in its meeting dated 12th August, 2002 while accepting 3 recommendation of the Advisory Committee decided to close down the Workshop in U.S.I.C. and Geology Department in the Science College of the University. As a consequence of closer thereof, the employees working in the said Workshop would stand declared surplus. University Authorities therefore required the petitioners to submit their option for accepting the alternative post of Lab Assistant/Lab Technician on which their services would be absorbed within a period of 15 days. In the event of their accepting offer, their present pay and allowances would be protected. According to the petitioners, eight persons in all were declared surplus form the said workshop. While all others have been absorbed on the equivalent post held by them, but the petitioners have been singled out for being absorbed on the lower post. The petitioners then submitted representation to the respondents on 07th February, 2003 requesting that they should be absorbed on the equivalent post which is commensurate to their qualification. The Registrar of 4 the University again on 07th February, 2003 required the petitioners to positively give their option within stipulated time. It is in this back ground that the present writ petitions have been filed with the prayers extracted above. The respondents have contested the writ petitions and filed reply thereto. They have contended that the petitioners were promoted from the post of Junior Mechanic to the post of Technical Assistant in the grade of Rs.2000-3200 but such promotion was neither substantive nor permanent in nature and they could be posted to their substantive and original post as and when need arose. The post of Technical Assistant was abolished on account of the closer of the Workshop and all those working in that Workshop were declared surplus. It was therefore that an alternative employment on the post of Lab Assistant/Lab Technician was provided to the petitioners on which they were to be absorbed. The communication 5 requiring the petitioners to give their option also categorically stated that in the event of their not accepting the proposed absorption, they would be retired with compensatory pension. It was open to the petitioners to get relieved from service with compensatory pension. The respondents have submitted that although the pay scales for the post of Technical Assistant and Section Officer in the university are same but these posts are neither inter-changeable nor of technical nature. The post of Section Officer is a promotion post in the ministerial staff where the clerical staff rising from the post of LDC after gaining various promotions eventually is promoted to the post of Section Officer. A Technical Assistant cannot properly and efficiently discharge the duties and function on the post of Section Officer where he has to have experience of ministerial side while working on the various post such as LDC, UDC, Office Assistant etc. A meeting of the Advisory Committee of University was convened on 19th June, 2002 in which viability and 6 operation of USIC was discussed. It was unanimously recommended that this was a very little productive unit and it may be wound up and all employees be declared surplus. Thereafter Council of Deans in its meeting held on 24th June, 2002 approved recommendation of the Advisory Committee. Official decision was then taken by the Committee appointed by Advisory Committee of USIC in its meeting held on 16th December, 2002. Proceedings of all these meetings have been placed on record with the reply to the writ petition. The Committee in its meeting referred to above unanimously resolved to transfer the petitioner to the vacant post of Lab Assistant/Lab Technician. It is therefore prayed that the writ petition be dismissed. The petitioners have filed rejoinder to the writ petition in which they have reiterated that their promotion on the post of Technical Assistant vide order dated 12th January, 1992 was not made on temporary basis. This according to them was promotion on 7 substantive basis and the order of promotion nowhere mentioned that this was on ad hoc/temporary basis. The petitioners have placed on record orders passed in the case of other employees wherein they were promoted on ad hoc basis. It has been submitted that in the final report of the Committee recommendation was made that surplus staff of UCSI be transferred to vacant post having the same grade (present pay scale) as that of substantive post held by them availing the benefit of grant of selection grades on completion of 9, 18 and 27 years of service. Since the petitioners were holding the post of Technical Assistant, they were entitled to be absorbed on the post of same grade. So far as Sarva Shri Tara Chand, Roop Singh and Gopal are concerned, they have accepted the lower post because they were working on the post of Technical Assistant on ad hoc basis and therefore their substantive post of appointment was on the lower post but Sarva Shri Anil Sharma, Kaloo Lal and R.D. Mathur who were holding such higher post on substantive 8 basis have been absorbed on the post of same status. I have heard Mr.Harish Purohit, learned counsel for the petitioners and Mr.Jagdish Vyas, learned counsel for the respondents and perused the record. Shri Harish Purohit, learned counsel for the petitioners argued that the sole ground on which the respondents refused to absorb the petitioners on the equivalent post was that the petitioners' promotion on the post of Technical Assistant was made on ad hoc/temporary basis which is factually incorrect. The petitioners were appointed on substantive and regular basis. He has invited attention of the Court to an additional affidavit filed by the petitioner Promod Paliwal enclosing therewith the copy of the letter dated 16th December, 1991 addressed by the Registrar of the University to Head of the Department of Geology informing that two posts of Technical Assistants are to be filled in by promotion from amongst the existing in- 9 service candidates of the University. Another letter dated 01st January, 1992 issued by the Registrar has been placed on record whereby the aforesaid Head of Department was conveyed the decision of the Vice Chancellor regarding constitution of a Screening Committee to look into the eligibility of in-service candidates for promotion to the post of Technical Assistant. Shri Purohit argued that it was on the basis of recommendation of such Committee that promotion of the petitioners were made and this was borne out form the order of promotion dated 12th January, 1992 endorsement No.8 of which makes it clear that this order was issued pursuant to UO note No.51 dated 11th January, 1992. He argued that absorption of service of an employee is required to be made even otherwise on an equivalent post and when all others who were appointed on substantive basis have been absorbed on equivalent post, there was no reason why the petitioners could not be absorbed on the equivalent post of Section Officer which were available with the 10 respondent-University. Shri Purohit laid much emphasis on the argument that initial recommendation of the Committee which in its guidelines No.2 had decided that a service staff of the USIC and Geology workshop may be transferred to vacant post of STS having same grade (present pay scale) as that of substantive post held by them. Action of the respondents in not absorbing the petitioners on equivalent post is clearly discriminatory inasmuch as violative of Article 14 and 16 of the Constitution of India. He therefore prayed that the writ petition be allowed. On the other hand Shri Jagdish Vays learned counsel for the respondents argued that the petitioners were also holding the post of Technical Assistant but when they were asked, they exercised the option for absorption on the post of Lab Assistant/Lab Technician. The University could offer to them only such posts 11 which are available with them. So far as the post of Section Officer is concerned, Shri Jagdish Vyas argued that this is an important post on ministerial side whereas the petitioners come from technical side. The post of Section Officer is required to be manned by a person having experience of working for a long period of time on ministerial side in clerical cadre such as the post of LDC and UDC etc. He argued that so far as the pay protection is concerned, the University has already provided that the protection of not only pay but also allowances and therefore there would be no monitory loss to the petitioners. He argued that petitioners had no compulsion to work on the post of Technical Assistant. If they wanted, they could opt for the alternative given to them for retirement with compensatory pension. However, the petitioners were absorbed only when they gave their option. Having given option now, they cannot be permitted to challenge the same particularly when they did not accept the alternative offer. So far as the 12 recommendation of the final committee is concerned, he argued that the recommendation of the committee has to be read in its entirety. Although in guideline No.2 the committee recommended that surplus staff may be transferred to vacant post having the same grade but at the same time also indicated for absorption in the same pay scale. When pay of the petitioners has been protected, no grievance can be raised by them. The petitioners have no legal right to insist on being absorbed on an equivalent post, when no equivalent post is available with the University. He therefore prayed that the writ petition be dismissed. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the record. One of the prayers which the petitioners made in the petition was that respondents be directed to protect his present pay scale of the petitioners and 13 fixation of the petitioners may be maintained in the pay scale presently applicable to him. In ground (c) of the writ petitions, it is the contended as under:- “(c) That without prejudice to above, the petitioner submits that the University has protected the pay of the petitioner but not pay scale of the petitioner. The petitioner, at present, is working in the pay scale of Rs.6500- 10500. The post of Lab. Technician/Lab. Assistant is in the pay scale of Rs.5000- 8500. The respondent-University is required to protect the pay scale of the petitioner in the event they wanted to absorb the petitioner on a lower post. It is further submitted that the petitioner is also entitled for selection grades and, therefore, there is no reason for not protecting the present pay scale of the petitioner.” In response to the aforesaid plea of the petitioners, the respondents have came out with a categorical stand that the pay and allowances which the petitioners were receiving on the earlier post have been protected and all those benefits would continue to be available to them and the petitioners will get their 14 ''annual grade increments' on the original/equivalent substantive post. It has also been contended that the petitioners will also get the benefit of pay scale on completion of 9,18 and 27years of service on his substantive post as per service rules. This however would not amount to protecting his pay scale in the absence of availability of such posts in technical cadre. With this stand of the respondents, the grievance of the petitioners stands substantially redressed. Adverting now to the question of their insistence for absorption on the equivalent post, it should be noted that while the petitioners were serving in the technical cadre, only available equivalent post of Section Officer is in the ministerial side where person having experience of working on the post of LDC and thereafter UDC in course of time gain promotion to become Section Officer. By virtue of their experience on the ministerial side, their services can be better utilized on the post of Section Officer. Experience of 15 the petitioners who have been throughout working on the technical side could be of no utility if they were absorbed on the post of Section Officer. When the petitioners have been absorbed on the post of Technical Assistant with protection of pay and allowances etc. and continue to be entitled to benefit of selection scale as if they were still working on the original substantive post, the action of the respondents in not absorbing them on the post of Section Officer cannot be described as illegal. It cannot be held that their action in not absorbing them on the post of Section Officer was not based on any reason and logic. The recommendation of the final committee also in guideline No.2 which has been so heavily relied upon by the petitioners cannot be read any isolation of the recommendations contained in subsequent part of that report. In guide-line No.2 the committee recommended that surplus staff may be transferred to vacant post having same grade and in the bracket indicating immediately thereafter as in the present pay scale. 16 This very report also contains the unanimous recommendation with regard to individuals who were rendered surplus from USIC as to on which post they should be absorbed and such recommendations were made not just for two of the petitioners but also eight other employees who have all accepted the offer given by the University on the post suggested by the said committee. Even if the petitioners contention that they were substantively holding the post of Technical Assistant is accepted, the fact remains that all others who were holding such post have also been absorbed on the post of Lab Technician/Lab Assistant, the petitioners too would have to work on that post because that is the only post available with the respondents in technical cadre. The petitioners could if they wanted, opt to go out from service on retirement with compensatory pension. The letter of option dated 03rd February, 2003 was quite specific in this respect and clearly informed that in case they did not want to be absorbed on the proposed post, they will be retired 17 from service with compensatory pension. But petitioners instead of electing to accept retirement with compensatory pension, gave their option for absorption on the lower post. Having done so, they are now estopped from challenging such condition of the offer of absorption when the respondents acting upon their acceptance of offer have absorbed them on the post of Technical Assistant and that too with the protection of pay and allowances. In view of the aforesaid discussion, I do not find any merit in the present petitions. The petitions therefore fail and are accordingly dismissed with no order as to costs. [MOHAMMAD RAFIQ],J. A.K. Chouhan/-