1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R Rajasthan Ministerial Vs. State of Rajasthan & Ors. Service Association (S.B. Civil Writ Petition No.773/1995) Dated : 04.03.2008 HON'BLE MR. JUSTICE SANGEET LODHA Mr. M.R. Singhvi, for the petitioner. Mr. Rishi Vaishnav, Deputy Government Counsel, for the respondents. BY THE COURT : In this writ petition, the petitioner has assailed validity of order dated 5.12.94 issued by Chief Engineer, Indira Gandhi Canal Project, Bikaner, whereby in pursuance of decision of the Department of Finance, Government of Rajasthan dated 17.12.93, it has been directed that the work charge employees, who stand absorbed on the post of LDC prior to the date of their exercise of option under the Rajasthan Work Charged Employee Revised Pay Scale Rules, 1989 ( sic 1990 in short 'the Rules of 1990' hereinafter), the option exercised by them would stand terminated from the date of their absorption on the post of 2 LDC and their pay shall be first fixed under the Rules of 1990 and thereafter their pay shall be fixed on the post on which they have been absorbed. Briefly stated the relevant facts are that the Rajasthan (Revised Pay Scale) Rules, 1987 (in short 'the Rules of 1987' hereinafter) were made applicable w.e.f. 21.5.87. The members of the petitioner's association who were drawing pay in the existing pay scale 490-840 (no.7) became entitled for fixation of their pay in the revised pay scale (no.7) 880-1680. The details of fixation of the pay at the different stages in the revised pay scale no.7 were set out in table no.7 appended to the Rules of 1987. In note no.1 appended below the table no.7, it was specifically mentioned that an existing work charge employee shall, on fixation of his pay at or on reaching subsequently at the stage of 955/- and 1225/- have his pay fixed at the stage of 1120/- and 1400/- respectively on the date of his next annual increment. The Work Charge Employees New Pay Scale Rules, 1990 provides for option to elect existing pay scale. The term existing pay scale has been defined in Clause 1 which reads as under : 3 “In these orders unless there is anything repugnant in the subject or context : (i) Existing pay scale means the scale of pay applicable to a work charged employee but for coming into effect of these orders in respect of a post held by him on the 1st Sept., 1988 on semi permanent or permanent basis. Explanation :- In case of a work charged employee drawing pay on 31.8.1988 in a scale other than the Revised Pay Scale Rules, 1987 as amended from time to time his fixation of pay in the R.P.S. Rules, 1990 shall be made only after his pay has first been fixed in the R.P.S. Rules, 1987 as amended from time to time in respect of post held by him on 31.8.1988.” The Rule 10(i) of the Rules of 199o provides that the revised pay scale shown in Appendix I shall apply to every work charge employee provided that the existing work charge employee may elect to continue to draw pay in existing pay scale till the date on which he earns his next or any subsequent increment in the existing pay scale or until he vacates his post or ceases to draw pay in the time scale of pay. Clause (vi) of Rule 10 of the Rules of 1990 provides 4 that option once exercised shall be final. On coming into force of the Rules of 1990, the members of the petitioner's association named in the Schedule A, annexed with the writ petition were called upon to exercised their option with regard to the Rules of 1990, accordingly, each one of them had given the date of his exercise of the option under the Rules of 1990. It is stated that a different date was chosen by each employee in order to avail the benefit of jump available to them in their existing pay scale at Rs.955/- and 1225/-. In the meantime, Rajasthan Subordinate Offices Ministerial Stafff Rules, 1957 were amended and provision came to be made that 50% of the existing vacancies of the LDC shall be filled in from amongst the work charge employees who are eligible for appointment on the post of LDC. All the incumbents named in the Schedule A being eligible for appointment on the post of LDC were absorbed on the said post vide orders dated 10.7.90 and 19.11.90. On being absorbed as aforesaid on the post of LDC the fixation of all the persons named in Schedule A were made in the pay scale admissible to the post of LDC while giving the benefit of jump available to them in their existing pay 5 scale under the Work Charge Employees Pay Scale Rules, 1987. The grievance of the persons named in the schedule- A whose cause is being espoused by the petitioner Association is that all of a sudden vide communication dated 5.12.94 issued by the Chief Engineer, IGNP, Bikaner in compliance of the directions issued by the Department of Finance, Government of Rajasthan vide communication dated 17.12.93, it has been directed that the work charge employees, who stand absorbed on the post of LDC prior to the date of their exercise of option under the Rules of 1990, the option exercised by them under the Rules of 1990, would stand terminated from the date of their absorption on the post of LDC and their pay shall be first fixed under the Rules of 1990 and thereafter their pay shall be fixed on the post on which they have been absorbed i.e. LDC. It is contended by the learned counsel that the persons named in the schedule-A working as work charged employees had exercised their option in terms of the Rules of 1990, which has become final in terms of Clause (vi) of Rule 10 of the Rules of 1990, cannot be permitted to be 6 cancelled for the reasons set out in the communication dated 19.1.94 issued in terms of directions issued by the Department of Finance vide communication dated 17.12.93. That apart, learned counsel submitted that if the option exercised by the persons named in the Schedule-A is permitted to be cancelled and they are fixed in the pay scale admissible to the post of LDC straight away without giving benefit of jump available to them under their existing pay scale under the Rules of 1987, then, their pay shall stand substantially reduced. The learned counsel urged that neither the option exercised by the persons named in the Schedule-A can be cancelled unilaterally nor their pay can be refixed, withdrawing the benefit of jump without giving an opportunity of hearing. Admittedly, the orders impugned providing that the option exercised by the employees to opt Work Charge Pay Scale Rules, 1990, would stand terminated from date of their absorption on the post of LDC and they shall be first fixed under the Work Charge Pay Scale Rules, 1990, with reference to the pay which they were drawing immediately before their absorption on the post of LDC and thereafter they shall be fixed on the post on which they have been 7 absorbed, have been issued by the respondents without giving any opportunity of hearing to the persons named in the Schedule A annexed to the writ petition and their likes. It is not in dispute that on account of fixation of the pay in the aforesaid manner will result in denial of benefit of jump to the employees named in the Schedule A in their existing pay scale under the Rules of 1987 and consequently their pay is bound to be reduced substantially and that apart, the excess amount paid to them on account of fixation of their pay taking into account the benefit of jump has also been ordered to be recovered. It is settled law that any order having evil and civil consequences cannot be passed without giving an opportunity of hearing to the persons affected. Therefore, the order impugned passed by the respondents adversely affecting the rights of the employees named in the Schedule A to the writ petition is ex facie violative of principle of natural justice. In the result, the writ petition succeeds, it is hereby allowed. The orders impugned dated 5.12.94(Annexure-4) and 17.12.93 are quashed. The respondents are directed to pass an appropriate speaking order afresh, after giving an opportunity of hearing to the employees affected named 8 in the Schedule A to the writ petition. No order as to costs. (SANGEET LODHA),J.