1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. C. Writ Petition No. 957/1997. (Mahesh Kumar Swami Vs. RSRTC & Ors.) Date of Order: 30/03/2010. HON'BLE MR. MOHAMMAD RAFIQ,J. Mr. SP Sharma, for the petitioner. Smt. Sumati Bishnoi, for the respondents. This writ petition has been filed by the petitioner aggrieved by the orders dated 24.10.96 and 17.12.96 by which his earlier pay fixation order dated 13.3.96 was cancelled and his pay was refixed at Rs. 1430/- as on 14.1.96. The contention of the learned counsel for the petitioner is that as per the option earlier exercised by the petitioner in terms of the Revised Pay Scale Rules, 1986 the petitioner had opted for revised pay scale at the stage of Rs. 535/-, the pay scale which he drew on the post of Conductor. Accordingly, the pay fixation order was passed by the respondent Department on 13.3.96 fixing his pay at Rs. 1520/- on 14.1.92, 1550/- on 14.1.93, 1550/- on 14.1.94 and 1610/- on 14.1.95. The learned counsel submitted that the petitioner was in service of the respondents since 1975 2 when he was initially appointed as Conductor vide order dated 9.1.1975 and thereafter, on regular post on 16.2.1976. He was removed from service in disciplinary proceedings which order he challenged before the civil court by filing a civil suit which was decreed vide judgment dated 2.6.86 with a direction to the respondents to reinstate him in service with all consequential benefits. His pay fixation was not done for quite a long time and he was not granted the benefit of annual grade increments despite rejoining the services. However, the respondents appointed the petitioner on the post of LDC by order dated 2.11.88 treating as if it was a probation appointment. The petitioner protested and ultimately, an order was passed by the Executive Manager (Admn.), Jaipur on 10.3.92 by which the revised pay fixation of the petitioner was made starting from 10.1.78 onwards treating him in continuous service and it was as a result thereof, that the petitioner became entitled to be paid much higher pay at Rs. 1610/- as on 14.1.95 as against Rs. 1400/- only, which the respondents unilaterally refixed by order dated 17.12.1996. This was wholly illegal. The learned counsel submitted that although in so far as the actual benefits 3 are concerned, they were denied to him and for which an industrial dispute was raised at the instance of the petitioner wherein the Industrial Tribunal has held that the petitioner would be entitled only for actual benefits from the date of passing typing test as on 15.3.95 onwards, but that issue, the petitioner is not agitating in the present petition. He is aggrieved mainly by change of his pay fixation unilaterally and without providing him an opportunity of hearing. The petitioner is also entitled to be paid the benefit of selection scale on completion of 9, 18 and 27 years which has not been done by the respondents because the respondents have not granted the said benefit to such conductors who some time get posted as Booking Clerks and vice versa. This was because the pay scale of both the posts are similar. The respondents opposed the writ petition and submitted that since the petitioner accepted his appointment as LDC and rather at his own request, was appointed as LDC by order dated 2.11.88, it was a fresh appointment and that his earlier working on the post of Conductor would be relevant for pay fixation in the revised pay scale rules. The option 4 exercised by the petitioner for switching over to the new revised pay scale rules from Rs. 535/- while working on the post of Conductor was erroneously accepted. The impugned orders were passed rectifying this mistake and therefore, no opportunity of hearing was necessary. The petitioner could not be granted the benefit of selection scale while counting the period of service rendered on the post of Conductor because his appointment was in any case made afresh on 2.11.88 when he was appointed on the post of LDC. Having heard the learned counsel for the parties and perused the material on record, I find that the respondents indeed accepted the petitioner to be in their continuous service from the date of his appointment as LDC which is identical post. The order dated 10.3.92 giving him the benefit of revised pay scale / pay fixation was accepted from Rs. 325/- to withdraw as Conductor. The contention that it was a fresh appointment, and therefore, all his previous services would be ignored, cannot be accepted because the order dated 2.11.88, and also condition No.6 provides that the petitioner would be granted pay protection. In other words, if the salary is higher 5 than the prescribed pay scale drawn by the petitioner on that date, he would be entitled to pay protection. The petitioner has specifically averred this fact which has not been denied by the respondents that civil court while, setting aside the order of removal, directed reinstatement with consequential benefits and the respondents themselves granted the benefit of selection scale to such of the conductors from the date of initial appointment who were earlier discharging the duties of conductor. The respondents cannot be now allowed to contend that the appointment of the petitioner be taken as a fresh appointment for all purposes. Mere fact that the petitioner was granted actual benefits on raising an industrial dispute and was denied actual benefits for the period from 2.11.88 till 15.3.95 when he qualified the typing test and was only granted notional benefits of increment during the intervening period, were reasons not to accept the plea of the petitioner. In so far as the present matter is concerned, the actual benefits for the said period was only one of the components of the actual dispute which may be decided against the petitioner, but then 6 here in the present case, I find that the respondents have not granted higher scale of pay accepting his option at the stage of Rs. 535/- on the post of Conductor and unilaterally withdrew that order and that too, without providing hearing to the petitioner or without serving him any notice. The contention of the respondents that the appointment of the petitioner on the post of LDC was made afresh also cannot be accepted because so far as the question of pay fixation is concerned, the respondents unilaterally revised the pay fixation without providing any opportunity of hearing to the petitioner and in doing so, they also completely ignored the earlier period of service rendered by him as Conductor. Coming now to the question of grant of selection scale, I find that the respondent Corporation has adopted the Government circular dated 25.1.92 and it is in accordance with the provisions contained in that circular that the grant or otherwise of the selection scale on completion of 9, 18 and 27 years of service would be governed. It is a fact that the petitioner was offerred appointment afresh when he requested for appointment as LDC, through appointent by order dated 2.11.88. It is also a 7 fact that a condition was imposed in that order that if the petitioner fails to quality the typing test within a period of one year, he would will be entitled for grade increment only after he is able to qualify the typing test within a period of one year. It is only when the petitioner qualified the typing test on 15.3.95 that the respondents started making him payment in the annual increments however, for the earlier period i.e. from the date of his appointment on the post of Conductor till 15.3.95, the petitioner was only granted the notional benefits. The industrial dispute was raised at the instance of the petitioner wherein he claimed actual benefits and said issue has been decided against him by award of the Industrial Tribunal, Bikaner. A perusal of the aforesaid award goes to show that the petitioner was given number of chances to appear in the typing test yet he did not clear. The permission to appear in latter test, but eventually he appeared in such typing test and was declared successful.The petitioner having accepted the appointment on the post of LDC on his own request and rather requested for change in the cadre, continued on LDC, cannot be permitted to question the correctness of his appointment as LDC whereas, although, of 8 course, he granted pay protection. In so far as his earlier salary is concerned, it was protected as he appeared by way of change of the cadre. This is a significant development attracting proviso (i) to clause 3 which inter alia provides that service of 9, 18 or 27 years, as the case may be, shall be counted from the date of first appointment in the existing cadre/ service in accordance with the provisions contained in the Recruitment Rules provided that if an employee subsequent to his first appointment to a post in a cadre/ service, as a result of direct recruitment, is appointed to some other post in the same cadre or any other cadre, service from the date of latter appointment shall be taken into consideration for the purpose of grant of selection Grade. The example given by the petitioner of those who were posted some time Conductors and some other time as Booking Clerks and vice versa, may not, therefore, be relevant for deciding the present writ petition. Here, there was a specific condition in the appointment order of the petitioner for passing typing test within one year and granting relaxation of further one year. This order was passed on his own request because he wanted change of cadre from Conductor to 9 LDC. The petitioner himself in Para 4 of the writ petition submitted that the respondents invited option forms for all in service personnels who were graduates for being posted as LDC for which vacancies were published. The petitioner also applied because he was duly qualified and was therefore appointed along with other 202 persons by order dated 2.11.88. It is therefore clear that the change in the cadre was result of petitioner's application submitted to the respondents, and therefore, as per proviso to clause 3, of the circular dated 25.1.92, the services of the petitioner shall be liable to be taken into consideration only from the date of later appointment i.e., the fresh appointment on the post of LDC by order dated 15.3.95. In the result, this writ petition is partly allowed. The impugned orders dated 24.10.96 and order dated 17.12.96 are quashed and set aside and the petitioner is held entitled to the benefits of the pay fixation and revision of pay scale flowing from the order dated 13.3.96 (Annex.4). Rest of the prayer of the petitioner, however is rejected. (MOHAMMAD RAFIQ),J. Gandhi/-P.A. Item no. 16