1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.6830/2002. : : Kishori Lal Saini Vs. State of Rajasthan & Ors. : : Date of Order 6.3.2009 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Mr.Tanveer Ahmed for the petitioner. Mr. Zakir Hussain, Addl.Govt.Counsel for the State. Heard learned counsel for the parties. 2. This writ petition has been filed against the orders dated 5.8.2002, 19.8.2002, 2.9.2002 and 9.9.2002 by which petitioner has been reverted from the post of Driver to that of Lab Attendant and his pay fixation order has accordingly revised and in consequence thereof recovery of sum of 6177/- has been directed from him. 3. Learned counsel for the petitioner submitted that petitioner was initially appointed on the post of Lab Attendant on 1.11.1979 and he was made semi-permanent on that post by order dated 1.7.1982. Since petitioner was possessing driving license and was regularly driving the vehicle of the 2 respondent-department, the Executive Engineer, PWD, Kota by his order dated 30.10.1986 promoted him on the post of Driver in the pay scale of Rs.490-840/- on ad hoc basis for a period of six months. Subsequently considering the fact that he has been rendering satisfactory service as Driver, he was given semi-permanent status on the post of Driver Grade-II. However, when the case for grant of selection scale was forwarded to headquarter, the Chief Executive Engineer by his letter dated 5.8.2002 called for explanation of Additional Chief Engineer as to why petitioner was promoted on the post of Driver and granted benefits of selection scale in that post. It was directed that since promotion of petitioner was wrongly given, action should be taken to treat him as Lab Attendant and accordingly revise his selection scale and pay fixation. Another order was passed by Office of Chief Engineer dated 19.8.2002 to the same effect. The Additional Chief Engineer by his order dated 2.9.2002 cancelled appointment of petitioner as driver and directed that he shall be throughout treated as Lab Attendant and accordingly revised his pay fixation and withdrew benefit of selection scale, as a result of which recovery order dated 9.92002 was passed against him. 3 Learned counsel submitted that petitioner was initially appointed as Lab Attendant. Respondents started taking work of driver from him because he knew how to drive the vehicle. The post of driver, on which he was actually promoted, was work charged and, therefore, respondents vide order dated 30.10.1986 appointed him on that post and in view of his satisfactory service, made him semi-permanent. On that basis eventually, he became permanent and received the benefits. The respondents prior to passing impugned order did not provide him any opportunity of hearing and that impugned order has visited upon him devastating effect inasmuch as services rendered by him from 30.10.1986 for last 16 years has been completely lost and benefits withdrawn by him as driver have been completely taken away. The impugned orders, therefore, be quashed and set aside as being arbitrary and violative of Article 14 & 16 of Constitution of India. 3. Learned Additional Government Counsel opposed the writ petition and submitted that there was no regular post of driver in the department and promotion on such post was illegally granted to petitioner and, therefore, he could not be granted benefit of that post. Selection scale and pay 4 fixation was rightly directed to be revised so as to rectify mistake. It was argued that petitioner could not be made semi-permanent on both posts of Lab Assistant as well as the Driver even if both posts were under Work Charged Establishment Rules. It was contended that no opportunity of hearing was required to be provided to petitioner because respondents had merely by passing the aforesaid order sought to correct a mistake. 4. Having heard learned counsel for the parties and perused the material available on record, I find that if respondents on the basis of actual service rendered by petitioner as Driver decided to appoint him on that post on 30.10.1986 and made him semi-permanent on 20.3.1989 they could not after lapse of 16 years withdraw such appointment/promotion without providing him opportunity of hearing. The fact remains that post of Lab Attendant as well as the post of Driver are both covered by Work Charged Rules, 1964. Post of driver is included in Item No.47 in Schedule appended to Work Charged wherefrom source of recruitment is 50% by direct recruitment and 50% by promotion. Although, it is true that feeder cadre from which promotion could be made on the post of Driver is Helper 5 Garden-I, who are attached to the vehicle or working in the factories on the basis of practical knowledge of driving such persons could be promoted to the post of Driver, but nevertheless the fact remains that services from the petitioner despite being appointed Lab Attendant were taken as Driver and since he was found a prefect driver, he was not only promoted but also made semi-permanent. Deficiency, if there was any should be taken have been cured. The respondents did not provide any opportunity of hearing and without serving any notice, action was taken suddenly to revert the petitioner on the post of Lab Attendant, therefore , such action is liable to be held arbitrary, illegal and violative of Article 14 & 16 of Constitution of India. In the result, this writ petition is allowed. The impugned orders dated 5.8.2002, 19.8.2002, 2.9.2002 and 9.9.2002 are quashed and set aside. The petitioner is held entitled to all consequential benefits. (MOHAMMAD RAFIQ)J. A.Arora/- Item No.39.