1/12 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- SPL. APPL. WRIT No. 522 of 1998 VIJAY PAT V/S R.S.E.B. & ANR Mr. Rajesh Joshi, for the appellant / petitioner Mr. LM Lodha, for the respondents. Date of Order : 4.12.2007 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI MUNISHWAR NATH BHANDARI,J. ORDER ----- Heard the learned counsel for the parties. This appeal has been filed to challenge the judgment dated 13.4.1998 dismissing the appellant's writ petition. The facts of the case are that the petitioner filed the present writ petition which is a second round of litigation, rather if the contempt proceedings are considered, a third round, on 19.2.1995 praying for direction to the respondents to appoint the petitioner on the post of Junior Engineer II w.e.f. 20.1.1984, to fix the pay of the petitioner in appropriate scale of pay from the date of termination of service till the date of 2/12 reinstatement along with arrears as a consequence and as an alternative to appoint the petitioner on the post of Sub Station Supervisor-II from the date of initial appointment or at least from 20.1.1984 with all consequential benefits. The factual averments are that the petitioner was initially working as work-charged Supervisor in Mahi Bajaj Irrigation Project at Banswara, he was appointed as work- charges supervisor in the Rajasthan State Electricity Board vide order dated 21.12.1981 (Annex.1). This appointment was for a period of three months on consolidated salary of 779.50 and further conveyance was subject to satisfactory service. During this period, however petitioner's services were terminated vide order dated 15.5.1982. Against this termination order, the petitioner filed the writ petition before this Court being S.B.Civil Writ Petition No. 1067/1982 which came to be allowed vide judgment dated 18.2.1993 and termination order was quashed. The operative part of the order has been quoted by the petitioner in Para 6 of the writ petition reads as under: “In the result, I allow this writ petition, set aside the termination order dated 15.5.82 Ex.3 and direct the respondents to reinstate the petitioner on the post which he was holding and give him all back wages. The respondents shall however be at liberty to take necessary action against the alleged misconducts of the petitioner in accordance with the provisions of the Regulations, 1975.” 3/12 It is alleged that in compliance of the order, when the petitioner was not taken back on duty he filed Contempt Petition No. 124/1993 thereafter taken on duty on 22.6.93 and was paid arrears of salary on the basis of last pay drawn at the time of termination. The contempt petition was therefore, dismissed on account of order having been complied with. Another contempt petition was filed as his pay was not fixed nor consequential benefit was granted. This contempt petition was disposed of vide order dated 13.5.1994 finding that no deliberate disobedience was made out and it was observed that if the petitioner has not been absorbed as Assistant Engineer and has not been given a regular scale of pay, he should seek his legal remedy by way of filing a separate writ petition. The petitioner has alleged that accordingly, he submitted representations then ultimately an order dated 31.1.1995 (Annex.9) was issued appointing the petitioner as Sub Station Supervisor Gr.II in the pay scale of 1200-2050 with immediate effect. It is averred that thus, the petitioner was not given appointment on the post of Junior Engineer but was given appointment on lower post though the other persons who were appointed along with the petitioner detailed in Para 12 have been appointed on the post of Junior Engineer Gr.II vide order dated 20.1.1984 (Annex.10). With these facts, reliefs have been claimed as above inter alia on the ground that all the persons who 4/12 have been appointed as worked charged Supervisors constituted one class and out of that class, the petitioner has been picked up for giving appointment on the post of Junior Engineer Gr.II. It is alleged that the petitioner should have been given appropriate regular pay scale from the date of termination till reinstatement as revised from time to time and other ground given is that the petitioner has been given appointment as Supervisor Gr.II which has been made operative from 31.1.1995. A reply to this writ petition has been filed contesting the writ petition. It is inter alia pleaded therein that the petitioner has not given the date of his appointment in Mahi Bajaj Project, however, he has resigned from there and during his tenure there at Distribution Sub Division Mahi, he was suspended vide order dated 1.1.1981 on the allegation of theft of work material and remained under suspension upto 19.11.1981. The petitioner was appointed as work-charged Supervisor in the office of Asstt.Engineer (Store PH-I) Headquarter at Ratlam and resignation was accepted on 5.1.1982 conditionally and it is pleaded that Board issued instructions to the concerning authority to examine the decision of that Court dated 18.2.1993 and then referring the order passed in the second contempt petition, it is contended that it was observed that since there was no specific order for giving consequential benefits to the petitioner in the order dated 5/12 18.2.2003, it cannot be contended that the relief with consequential benefits was implicit in the said order, then it is pleaded that the petitioner's request for fixation of regular pay scale was considered by the competent authority and accordingly, the petitioner was given appointment as Sub Station Supervisor Gr.II in the pay scale No.4 i.e. 1200-30-1650-40-2000-50-2050 as direct recruits and since the petitioner was eligible for the post of Junior Engineer and such recruitment, therefore, his case was not considered. The representations of the petitioner were decided finally in view of the fact that the petitioner has already been appointed as Sub-Station Supervisor. Then while replying the grounds, it was pleaded that the petitioner has deliberately not disclosed the facts about the persons originally appointed with him and later on appointed as J.En. inasmuch as certain posts were advertised for open selection and those persons applied for the post of J.En. and they were selected as direct recruits and were so appointed. However, the petitioner did not apply and did not face the selection, therefore, there is no question of giving appointment to the petitioner. It was thus, pleaded that the petitioner's case stand on different footing and there is no violation of Articles 14 and 16 of the Constitution of India. It was also pleaded that petitioner was given promotion on the next available channel as Sub-Station 6/12 Supervisor Gr.II. Thus, the writ petition was held to be baseless. Thereafter, rejoinder to the reply has been filed by the petitioner contending that the petitioner was initially appointed in Mahi Bajaj Project in irrigation department, but thereafter he resigned from the service and was appointed as Supervisor by the Chief Engineer Mahi Hydrolic vide order dated 21.12.1981 and therefore the contention about the suspension of the petitioner from 1.1.1981 to 19.11.1981 has not relevance in this case. It may be observed here that factum of the said suspension or the incident for which he was suspended have not been denied. Regarding enquiry it is pleaded that no decision on that enquiry has been taken till that date. Then giving rejoinder to para 8 of the reply it was pleaded that termination was set-aside with full back wages, therefore, it was incumbent upon the respondents to have abandoned the petitioner on the post of Junior Engineer w.e.f. 20.1.1984 and there is no justification for depriving the petitioner from the fixation of pay in the proper pay scale. Then controverting Para 9 of the reply, it is contended that the petitioner has been given appointment on the lower post of Supervisor Gr.II and that too w.e.f. 31.1.1995 though the judgment in earlier writ petition was rendered on 18.2.1995 and the petitioner has been given appointment as Sub- Station Supervisor w.e.f. 20.2.1995. The matter of 7/12 reinstatement has thus been delayed for two years and petitioner has been deprived of the appropriate regular pay scale from the date of termination till the date of reinstatement so also revision of pay scales. Then giving rejoinder to Para 11, it was reiterated that similarly situated persons who were appointed as Supervisors as work charged employees have been absorbed as Superintending Engineer Gr. II in the pay scale of 550-960 w.e.f. 20.1.1984, and therefore, if the petitioner services would not have been terminated, he would also have been appointed on the post of Junior Engineer Gr.II w.e.f. the said date with all consequential benefits. Thus, a ground of discrimination was reiterated. Similar plea is taken in Para 12 of the rejoinder and additionally, it was pleaded that he has been given the grade of 1200-2050 w.e.f. 20.2.1995. Then giving rejoinder to reply to ground No. (1), regarding advertisement, it was pleaded that all the persons were absorbed by the respondents on the post of Junior Engineer whereas the petitioner has been deprived of the benefit. It is significant to note that the factum of issuance of advertisement so also the factum of the other persons having been appointed consequent upon the advertisement has not been denied. In this sequence, Annex.10 dated 20.1.1984 shows that 16 persons were appointed in all but only 8 persons were appointed including the petitioner. 8/12 The learned Single Judge by the impugned order has noticed that Mr LM Lodha, learned counsel for the respondent has filed the advertisement and select list prepared by the Selection Committee comprising the then Chief Engineer, RSEB; Secretary and Professor of Electrical Engineer, and their selections were held from 9.1.84 to 13.1.1984 and it has been found that the persons were appointed by direct recruitment consequent upon the selection exercise undertaken pursuant to advertisement and were not absorbed. It was also noticed that learned counsel for the petitioner could not point out any provision regarding absorption. Thus, it was found that contention of the petitioner about other person being appointed / absorbed as Junior Engineer has no substance, then it was also submitted that in the earlier judgment, the termination order was set aside and the relief was granted only to the effect of backwages and no other consequential benefits. Therefore, the learned Single Judge did not find it possible to accept the contention about petitioners entitlement to consequential benefits once they were not granted in the earlier order and for that purpose, reliance was placed on couple of judgments of the Hon'ble Supreme Court. Thus, the contention was also found to be barred by principle of constructive res judicata and the writ petition was dismissed. Assailing the impugned judgment, the very same contentions were raised to the effect that vide Annex.1, eight persons were 9/12 appointed and the petitioner alone was terminated whose termination has been set aside by the impugned judgment dated 18.2.93, still he was not reinstated and during the interregnum period, vide Annex.10 dated 20.1.1984, other 7 persons were absorbed on the post of Junior Engineer Gr.II and since the post of work-charged supervisor had come to be abolished, the petitioner should also have been meted with like treatment as given to other 7 persons and since they were absorbed w.e.f. 20.1.1984, the obvious consequence of the order of setting aside termination was that the petitioner was also required to be absorbed as Junior Engineer Gr.II w.e.f. 20.1.1984 and was required to be accordingly appropriately fixed in the pay scale with consequent revision of pay scales. On the other hand, the learned counsel for the respondent has supported the impugned judgment. During the course of submissions, we specifically put question to the learned counsel for the petitioner as to whether the advertisement that was issued was confined with candidates who are already in service of the Board and was not an advertisement inviting candidates to apply from open market to which the learned counsel very fairly submitted that the advertisement was open one and was not confined to in service candidates only. It was also admitted that in response to the advertisement, the 10/12 petitioner did not apply and it was then submitted that as a matter of fact, the advertisement and selection was only farce as no advertisement was taken and interview was open and mere formality and the persons were appointed. In our view, even a look at the rejoinder makes it clear that this is not a plea ever taken by the petitioner about the selection exercise being done pursuant to the advertisement in accordance with law much less it is a different story that their selection exercise is not a subject matter of challenge in this litigation. Thus, coupled with the fact that as appears from Annex.10 finding thereby as a matter of fact that 16 candidates were appointed on proration for a period of two years which included the persons named in Annex.1. Obviously, since the petitioner admittedly did not apply, there was no question or occasion for his being considered for appointment in pursuance of the advertisement. Maybe that the petitioner's termination was superseded at that time, but then that puts the petitioner on the pedestal lower down one of a candidate from the open market, and therefore, the petitioner notwithstanding not terminated given, very well applied and stand in the cue and claim consideration. That being so, the controversy might require some different context. In that view of the matter, the whole edifice built on the foundation of a story of absorption of other persons appointed vide Annex.1, vide Annex.10 falls flirt. 11/12 Then, comes the question as to what relief, the petitioner is entitled for ? A look at the earlier judgment dated 18.2.1993 shows that termination order dated 15.5.82 was set aside and the respondents were directed to be reinstated “on the post which he was holding” and “give him all backwages”. With this, respondents however given a prayer of the petitioner in accordance with Regulation 75, such things stand, maybe for whatever reason, the fact remains that no action has been taken by the respondents in accordance with provisions of Regulation of 1975 be that as it may. As noticed above, the only relief that was given to the petitioner in the judgment dated 18.2.1993 was that the termination order was set aside, the respondents were directed to reinstate the petitioner on the post which he was holding and was also to get all backwages. Admittedly, vide Annex.1, the petitioner was only appointed as workcharged Supervisor on the consolidated salary of 779.50. In that view of the matter, in view of the consistent law laid down by the Hon'ble Supreme Court in various judgments, including that the petitioner was simply entitled to be reinstated on the post of work- charged Supervisor and at a consolidated monthly salary of 779.50 ipso facto, consequent upon setting aside the termination order, the petitioner does not become entitle 12/12 to all other reliefs as claimed like fixation in the appropriate pay scale, confirmation or regularisation or the benefit of revision of pay scales from time to time. In that view of the matter, it cannot be said that since the post of work-charged Supervisor was belonged to the petitioner and he became entitled to be appointed / absorbed on the post of Junior Engineer Gr.II or on any other post. It is a different story that the respondents have already given appointment to the petitioner on the post vide order Annex.9 in the pay scale of Rs. 1200-2050. In our view, the petitioner cannot be said to be entitled for any more relief in this writ petition and consequently, it cannot be said that the learned Single Judge has committed any error in passing the impugned order dismissing the writ petition. The net result of the aforesaid discussion is that we do not find any force in this appeal and the same is dismissed. ( MUNISHWAR NATH BHANDARI ),J. ( N P GUPTA ),J. gandhi/-