1 D.B. CIVIL SPECIAL APPEAL (WRIT) NO. 166/2004 OM PRAKASH VS. RSRTC & ORS. D.B. CIVIL SPECIAL APPEAL (WRIT) NO. 543/2004 BABULAL SHARMA VS. RSRTC & ORS. DATE OF ORDER : 08.09.2005. HON'BLE MR. RAJESH BALIA,J. HON'BLE MR. R.S. CHAUHAN, J. Mr. R.S. Saluja for the appellant. Mr. Sangeet Lodha for the respondents. Heard learned counsel for the parties. These two special appeals raise a common issue about the postings of Booking Clerks at the Bus Stands managed by the Rajasthan State Roadways Transport Corporation (RSRTC). The dispute raised in these two appeals is in respect of two separate petitioners, though the controversy is not first of its kind and there are chain of decisions earlier thereto dwelling on the same controversy. As the reply has been submitted by the Corporation only in S.B. Civil Writ Petition No.2679/2004 (decided on 20.7.2004), out of which D.B. Civil Special Appeal No.543/2004 has arisen, we may first notice the facts 2 whose averments have been made in the Writ Petition No.2679/2004. Facts about D.B. Special Appeal (Writ) No. 543/2004 (S.B. Civil Writ Petition No. 2679/20004 Babulal Sharma vs. State & ors.) The petitioner was appointed as a Conductor under the Corporation on 1.4.77 in the regular pay scale. Until 1984-85, he worked as Conductor on different routes. Under Service Regulation Chapter 20, was included a post by nomenclature “Adda Conductor” (Parichalak) which name was re-designated as Booking Clerk. The Nomenclature was changed by the Board vide Circular dated 13th March, 1980 which was issued in pursuance of Resolution of the Board dated 16.4.79 affirming the settlements arrived at between different Unions working amongst the different Departments of the Corporation. In respect of the Charter on 21.2.1979 minutes were drawn on 22.2.1979. The said Circular dated 13.3.80 has been placed on record as Annexure R/1. The significant conditions of Annexure R/1 were firstly that apart from changing the Nomenclature of post 3 of “Adda Conductor” to the Booking Clerk, it was envisaged that a State Level Seniority list shall be prepared of all the Conductors working under the Corporation and they shall be appointed in order of their seniority as Booking Clerks. It was given out that no new posts shall be created. As a matter of fact, the post of Booking Clerk which was earlier post of Ministerial Staff be treated as a dying cadre in other words new recruitment to the original post of Booking Clerk was stopped and in its place the need of filling up the post of Booking Clerks at various Bus stands was to be fulfilled by manning the post from amongst senior conductors on the post of Booking Clerk in order of their seniority. It was also envisaged in the Order dated 13.3.1980 that those conductors who were not interested to discharge the duties or the responsibilities of Booking Clerk, they may continue to work as Conductors, but they will be deprived of promotion in future. Another Circular dated 15.12.80 (Annexure R/2) was issued as a policy matter by the Corporation in pursuance of the settlement arrived at between the workmen and the employer through a committee constituted in terms of settlement dated 21.2.79. Thereafter, the embargo on promotion that “unless a 4 Conductor is appointed and discharging his duties of Booking Clerk”, was removed. These conditions were reiterated in later Circular dated 21.8.81 (Annexure R/3). The embargo against the promotion on “Adda Conductor” was removed by Circular dated 24.10.91 (Annexure R/4). These Circulars clearly gave out that primarily it was the necessity of the Corporation to fill up the post of Booking Clerks from amongst the Senior Conductors who are brought on the post of Booking Clerk, which otherwise could not be filled by Booking Clerks cadre, which had been declared as dying cadre. This also cannot be disputed and denied that for advance booking of tickets for bus journey and booking of seats at Bus Stand itself, there has to be some man at the Booking Counter. It is not the case of the Corporation that there is no advance booking of seats for any journey or that all tickets are required to be issued by the Conductor to passengers on Board only. Therefore, this alternative arrangement was necessity of the Corporation, which brought about change in the policy that instead of having a direct recruitment to the post of Booking Clerk as a part of Ministerial Staff of the Corporation as it was earlier, it came to be filled up 5 from amongst Conductors in order of their Seniority. To call it otherwise, it was a parity of giving Senior Conductors an office parity to discharge the work of Booking Clerk at Bus Stand. Bus Stand is colloquially known as “Bus Adda”. That explains earlier nomenclature of “Adda Conductors”. It was in this scenario, the petitioner came to be posted as Booking Clerk. From 1984-85, the appellant-petitioner was appointed as Booking Clerk which was a post encadred under the Conductor Staff and since then he was continuing working as Booking Clerk until by order dated 29.6.2004, which has been passed purportedly in compliance of the directions issued by Corporation on 2.7.2003 directing the petitioner that with immediate effect he be reverted to the post of conductor on route. This led to filing of S.B. Civil Writ Petition No.2679/2004. (DB Special Appeal (Writ) No. 543/04). The petitioner has referred to in his petition two decisions of the Rajasthan High Court, one a Single Bench decision in Rajasthan State Roadways Employees 6 Union (AITUC) & others vs. Rajasthan State Road Transport Corporation & others reported in 2002(2) WLC (Rajasthan) page 166 and second in Bhagwan Singh & 5 others vs. RSRTC and another reported in 2002(1) WLC (Rajasthan) page 554, in which certain directions were issued by the Court to deal with the controversy arising out of reversion of the Booking Clerk (Formerly known as “Adda Clerks”) in the background noticed above. For regulating the circumstances in which incumbents were brought as Booking Clerk who were reverted back to be posted as conductor. Adverting to the reply submitted by the respondents, it is also apposite to notice that a conductor on route is required to have a license of conductor and is also required to carry with him a Conductor's badge under the Motor Vehicles Act. Keeping in view this requirement for a Conductor on route, the Corporation by another order has directed that the conductors who are posted as Booking Clerks shall not be required to get their Conductor's license renewed, nor they will be required to carry Conductor's badge. The primary contention of the petitioner, apart 7 from the aforesaid background emerging from the pleadings and the proceedings, which we shall presently refer to, was founded on the basis that the impugned order is contrary and in violation of the terms and conditions imposed by this Court by the aforesaid two decisions referred to in the memo of petition in dealing with the situation where a Senior most conductor amongst the persons who have been posted from the post of Conductor to the post of Booking Clerks, if there are surplus Booking Clerks, the junior most conductor posted as a Booking Clerk, can be reverted back to be posted as a conductor in the first instance. While the facts noticed by us above, including the existence of two judgments, are not a matter of contentions between the parties, the principal burden of the reply is that the petitioner was not initially appointed on the post of Booking Clerk and there is no post with the nomenclature of the Booking Clerk in the Schedule-I to the Rajasthan State Transport Employees Service Regulations, 1965 and, therefore, it is absolutely incorrect to state that the petitioner was ever absorbed on the post of Booking Clerk. However, the fact is not disputed that under the Heading Traffic Staff, post of “Adda Conductor”, which post 8 is re-designated as “Booking Clerk” in the circumstances noticed above, and Conductor are mentioned and exists which carry same pay scale. Apparently, the reply is contradictory in terms which denies the existence of the post of Booking Clerk under the Regulation and on the other hand, it admits in re-nomenclature of post of Adda Clerk as Booking Clerk. However, we can say that the post of Booking Clerk was existed in original in Ministerial Clerical cadre and amongst Traffic Cadre existed a post of “Adda Conductor”. “Adda Conductor's” posts under the Traffic Staff was re- designated as Booking Clerk as aforesaid, and was envisaged to be manned from amongst conductors in order of their seniority. It is difficult to understand the argument that merely because change of nomenclature by which the post of Booking Clerk was filled up under the new arrangement, could effect the existence of post of Booking Clerk. To run the booking counters for the public traveling at the Bus Stands, cannot be said to be a non-existing post. It is not difficult to envision issuance of tickets at booking windows by a person, in whatever manner may be he designated. 9 Be that as it may, that dispute is not really the bone of contention. The bone of contention is findings by the learned Single Judge that the post of Booking Clerk and Conductor as is now in existence are interchangeable post in the same pay scale and transfer from one duty to another duty namely from the booking window to the on route conductor is not a transfer; nor it affects the rights of the petitioner ever adversely in the matter of promotion or in the service conditions; or no injury is caused to the petitioner which warrants interference. The second burden of the respondents' reply is that after giving some details about the background in which the settlement arrived at in the Circular dated 13.3.1980, which has been referred to above, is that in pursuance of requirement of preparing a seniority list of conductors, Adda Clerk/Booking Clerk's seniority was also prepared and Adda Clerk appointed up to 31.12.1975 only, which accounted for 1998 were included in the said list. No one appointed after 31.12.75 has been included in the seniority list. The seniority list was prepared vide order dated 21.8.1981. It has also been brought on record by the respondents that 540 conductors have been retained as Booking Clerk on various Bus Stands or Booking 10 Windows in the State. Reference was also made to the Circular dated 17.7.99 (Annexure R/5) stating that 540 conductors are discharging office duties which is affecting the conduction of the vehicles on the routes and, therefore, directions were issued that leaving aside (i) the conductors who are working as Booking Clerk under the directions of the Court, (ii) the conductors who are physically handicapped or (iii) who has obtained interim orders from the Court, may only be appointed/retained in office duties and lady conductors may be appointed only on enquiry windows and not in the office. Rest all may be redeployed as conductors. Yet another Circular issued on 18.9.2000 (Annexure R/6) referring to the decision of Single Bench decision in S.B.Civil Writ Petition No.5737/96, appeal against which was dismissed on 18.9.98, opined that in terms of the aforesaid judgment, the Corporation has right to take the work of conductors from the persons appointed as Booking Clerk, therefore, the Corporation is free to redeploy the Booking Clerk working on various booking windows as conductors. In other words by this order, the Corporation issued instructions not to deploy the conductors as Booking Clerk and those who are already 11 deployed should be withdrawn except those who are working under the orders of the Courts or physically handicapped or lady conductors. Finally a Circular was issued on 02.7.2003 (Annexure R/7) whereby the Chief Managers of various depots of the Corporation have been directed that only the conductors appointed up to 31.12.75 should be kept on the post of Booking Clerk and all the conductors who are appointed on or after 1.1.76, if they are working on the post of Booking Clerk, may be removed immediately and they may be sent on the route to discharge the duties of the Conductor. In special circumstances, if the work of booking clerks required to be taken from the conductors, then the same may not be taken except with the prior permission of the Head Quarter and the intention was also given out to make appropriate application in pending cases for vacating the interim orders at various stages of pending litigation. On these premises, about the Division Bench decision issuing directions in this regard in Bhagwan Singh's case referred to in the petition, it has been stated in return that the Division Bench in Bhagwan Singh's case 12 (supra) has not taken notice of the judgment of the learned Single Judge in S.B. Civil Writ Petition No.5737/96 decided on 3.8.98 Surendra Singh Chauhan vs. RSRTC and others. In other words, the reply conveys that in the opinion of the Corporation, since the Division Bench in Bhagwan Singh's case having been founded without noticing the earlier decisions in Special Appeal No.755/98 affirming the judgment of the learned Single Judge in S.B. Civil Writ Petition No.5737/96 decided on 3.8.98 in Surendra Singh Chauhan's case, directions issued by the Court are not binding on the Corporation and it may not be binding precedent, without expressing in so many words. FACTS ABOUT OM PRAKASH (DB CIVIL SPECIAL APPEAL (WRIT) NO. 166/04 (SB CW NO. 4067/2004). We may now notice the facts of D.B. Civil Special Appeal No.166/2004 arising out of the judgment dated 25.2.2003 passed by learned Single Judge in S.B. Civil Writ Petition No.4067/2002. In this case, the petitioner Om Prakash was appointed on the post of Conductor under the Corporation w.e.f. 1.1.80 and he was working on the Booking Office since 15.10.88. He was 13 transferred to Manpur Booking Window vide order dated 7.2.2002. Thereafter, vide order dated 23.8.2002, the petitioner was ordered to be posted on route for operation of booking window Manpur, which according to the petitioner was contrary to the Circular dated 10.5.96 issued by the Corporation, and contrary to prevailing policy that the senior conductors are to be posted at booking windows and junior conductors are to be posted on the route. Namely the policy has been envisaged firstly by Circular dated 13.3.80 and continued vide Circular dated 10.5.96. The petitioner in this case pointed out that at least four persons junior to him namely (1) Nisar Mohammed (2) Dilip Baroth, (3) Mahender Singh and (4) Mahesh Soni were retained as Booking Clerk and has not been asked to go on field. He has challenged the said re- deployment as Conductor on route against the policy of posting senior conductors at the booking windows and only the junior conductors on route. No reply was filed in the writ petition. However, the learned Single Judge vide judgment under appeal held that the petitioner is not adversely affected and there being no statutory right according to which he was required to be continued as Booking Clerk, the 14 petition was dismissed. However, the respondent was directed to consider the representation/legal notice within a period of two weeks from the date of filing the certified copy of the order about re-considering his case i.e. his transfer on personal reasons pointed out by him. It appears that none of the chain of the judgments which we shall presently notice, and which were very much in existence to be referred to at the relevant time before the learned Single Judge have not been brought to the notice of the Court in either case. In S.B. Civil Writ Petition Nos. 1837/88 Mohan Lal Sharma & 3 ors. vs. The Rajasthan State Road Transport Corporation and another, the issue was first considered by a learned Single Judge. . This was a case in which the petitioner and three others were appointed as conductors in the year 1975. The aforesaid judgment is referred in four separate writ petitions, in which the petitioners were appointed as conductors in the year 1975. After referring to the chain of events relying on the settlement arrived at between the parties on 21.2.79 which was approved by the Board of 15 Directors of the Corporation vide resolution dated 16.4.79, the Court noticed that in pursuance of the policy, a state wise seniority list of the conductors was prepared, both the petitioners were earlier assigned the duties of Booking Clerks notwithstanding their appointments as conductors and they continued to work as Booking Clerks in pursuance of the Circular issued by the Corporation. The Court also noticed that since their appointments were made as Booking Clerk, they did not get their license renewed as per the Rules and they did not have in present time valid license under the Motor Vehicle Act, such license must subsist till they hold the posts of Conductor. The petitioners have stated that they did not get their licenses renewed after their posting as Booking Clerks. In first two cases such renewal was not got done for last six years and in other two cases for over four years. In these circumstances, when on 2.6.88, the Depot Manager, Jaipur (West) issued order and directed the petitioners to report for duty as conductors, it was challenged. The plea of Corporation that cadre of Conductors and Booking Clerks is common and do not exist independently was negatived by the Court. The Court said after noticing the reply submitted in writ petition filed by 16 Shiv Dayal and another that “although pay scales of the two posts are identical, their duties are vastly different and that procedure prescribed is to be followed for conversion of a Conductor to a Booking Clerk. In the face of averments made in the reply, it is not possible to accept the submissions made by the learned counsel for the respondents that cadre of Conductors and Booking Clerks is common. This conclusion is fortified by the fact that the Corporation itself issued circular in the year 1982 and called for option from the existing Conductors to be posted as Booking Clerks. If there had been a common cadre of Conductors and Booking Clerks with interchangeability in their postings, there was no occasion for the Corporation to have invited options from existing Conductors to be posted as Booking Clerks. If the cadre was common, it was open to the Corporation to post a Conductor as a Booking Clerk and vice-versa. Another important factor which makes the two cadres distinguished and independent, is that a person holding the post of Conductor is required to possess a license under the Motor Vehicle Act and such license must subsist till he holds the post of Conductor. All the petitioners have stated that they did not get their licenses renewed after their posting as Booking Clerks. In first two cases such renewal was not got 17 done for six years and in other two cases for over four years. Their statement has not been controverted by the respondents. If the petitioners did not hold a valid license to act as Conductors, they were liable to be prosecuted if they were treated as part of the cadre of Conductors and could be posted by the Corporation as Conductors according to Corporation's sweet will. I am not prepared to accept submission of the respondent Corporation and its authorities that the petitioners are to blame themselves if they did not get their licenses of Conductor renewed. It is not possible to comprehend that a public authority like the Corporation would allow in its service those Conductors who do not hold valid license. All this goes to show that the petitioners had become member of the cadre of Booking Clerks.” On this premise, the Court held that “once the petitioners stood absorbed as Booking Clerks and they have become member of the cadre of Booking Clerks, the Corporation could not have transferred/posted them as Conductors except with their consent. Transfer of an employee outside his cadre indirectly results in termination of his service in the existing cadre and that cannot be done 18 unilaterally by the employer. This principle has been enunciated in State of Rajasthan vs. Kailash Chandra Jain and others 1972 WLN 533. It is thus held that the transfer/posting of the petitioners as Conductor is without jurisdiction and is arbitrary.” Thus, the transfer was held to be not maintainable and the posting as Booking Clerk, appointed to the different cadre, notwithstanding in the same pay scale, was also set aside. In yet two S.B. decisions of this Court in S.B. Civil Writ Petition No.4122/2000 (Radhey Shyam Sharma and others Vs. RSRTC), S.B. Civil Writ Petition No.3126/91 (Mohan Lal Soni Vs. RSRTC and others) did not consider the post of Booking Clerk to be a different cadre post. However, the other two learned Single Judges still found that the petitioner in each case was entitled to relief because of the settlement arrived at between the petitioners' Union and the Corporation by its own actions and omissions in making the appointment to the post of Adda Clerk, re-designated to Booking Clerk was not a post of direct recruitment from the open market, but from the 19 appointment amongst senior most Conductors and Booking Clerk and therefore, the petitioners were held entitled to relief to continue on the post so long as no person junior to him has been left out, if he was otherwise senior and willing to serve as Booking Clerk. Then matter was considered by Division Bench in Bhagwan Singh & 5 ors. vs. RSRTC and Another. reported in 2002(1) WLC page 554 wherein all the aforesaid decisions were referred to and though the Court was of the opinion that primarily because of the fact that the post of Booking Clerks was to be filled in by the direct recruitments under the Subordinate Ministerial Services and under the direct staff cadre, but under the Traffic staff cadre, Adda Conductors were considered as two posts carrying the same pay scale and appointment to the Conductor / Adda Conductor as well as the Booking Clerk was 100% by direct recruitment in all cases where conductors claiming to be continued as Booking Clerk. Those who had been given the duties of “Adda Conductor” were held to be not part of two different independent cadres. The Division Bench in Bhagwan Singh's case 20 (supra) found that the post of Adda Conductors are falling within different name on the basis of the nature of work carried out by them. However, in the end result, the Division Bench also referred to the settlement entered into between the parties and respondents Corporation on 22.3.79 under which it was agreed that the nomenclature of “Adda Clerk” shall be changed as “Booking Clerk” and directed the respondent Corporation to prepare a seniority list of Conductors and according to depot-wise seniority they shall be posted on the post of Booking Clerk. It has been specifically mentioned that “the post of Booking Clerk is not a new creation but only a change of nomenclature from the post of “Adda Conductor” to Booking Clerk. The employees who have been posted on the post of Booking Clerk i.e. the old post of “Adda Conductor” shall only be entitled for promotion. The Conductors who are not willing discharge to work of the post of Booking Clerk, although senior, may remain on the post of Conductor but they shall not be entitled for further promotion. The conductors, who want to be posted as per their seniority on the post of Booking Clerk, shall submit their option to that effect in a prescribed option form. The matter regarding giving of additional allowance for working on the post of Booking Clerk is under 21 consideration. The option form which has been supplied to the Conductors shows that if the option is not exercised within the time stipulated then it shall be deemed that, according to the seniority of Conductor, they are willing to be posted on the