Latoba Bandu vs Deputy Development Commissioner ...
2003 Latest Caselaw 1205 Bom

JUDGMENT

R.M. Lodha, J.

1. These two appeals arise out of the common judgment dated February 28, 1996 delivered by the learned single Judge in two writ petitions being Writ Petition Nos. 2389 of 1989 and 2319 of 1989. Accordingly, we have heard both the appeals together and dispose these appeals by this judgment.

2. Appeal No. 458 of 1996 arises out of Writ Petition No. 2319 of 1989 filed by Latoba Bandu and Appeal No. 459 of 1996 arises out of Writ Petition No. 2389 of 1989 filed by Ramfer Sitaladin Yadav. For the sake of convenience, we intend to refer the Appellants-original Petitioners as the employees. The employees admittedly were engaged as Mazdoor on the daily rated establishment of the Respondents in the year 1973. On completion of five years of service, they were brought on regular establishment as Pump Attendant in the pay scale of Rs. 205 - Rs. 355. By the order dated May 9, 1989 the employees in place of Pump Attendant were converted as Mazdoor in the pay scale of Rs. 200 - Rs. 280. It was this order which was challenged by the employees in the two Writ Petitions afore-referred. In response to the writ petitions, the Respondents filed reply affidavits through the Executive Engineer, Agriculture Construction Division No. 1. The Respondents in the reply affidavit admitted that the employees were recruited as Mazdoors on the daily rated establishment in the year 1973 and they were performing the duties of pump operator in the capacity of Mazdoors. By the order dated April 4, 1981 effective from March 1, 1981 the employees were brought on regular establishment as Pump Attendants. However, it is submitted by the Respondents that bringing the employees on regular establishment as Pump Attendants was an act of error as under the Kalelkar Settlement Award they could have been brought on converted/regular establishment in the post in which they were working on daily rated establishment. By the impugned order the said mistake has been corrected. It is submitted in the reply affidavit that the error came to the notice of the Respondents when some other senior mazdoors made representation. It is also submitted that for the appointment on the post of Pump Attendants the necessary qualification is that the candidate had passed the S.S.C. Examination and had passed I.T.I. Course of Wireman or had working knowledge of pump of three years. The Respondents thus set up the case that the employees were not eligible to be appointed as Pump Attendants and could not be given pay scale of Rs. 205 - Rs. 355.

3. The learned single Judge was persuaded by the stand set up by the Respondents and was of the view that it was by mistake that the Respondents treated the employees as Pump Attendants and paid them higher salary for almost eight years in the pay scale of Rs. 205 - Rs. 355. The learned single Judge also observed that the employees had not passed S.S.C. and therefore did not possess requisite qualification for appointment as Pump Attendants. In the backdrop of this finding, the learned single Judge directed the Respondents to calculate the seniority of the employees as a Mazdoor/Pump Operator in the Pay Scale of Rs. 200 - Rs. 280 and applying the Rules to consider the employees as Mazdoor/Pump Operators in temporary capacity on March 1, 1981 and to confer permanency as Mazdoor/Pump Operators. The learned single Judge clarified that if the current policy permits further promotion to the employees, that may be, considered. Aggrieved by the judgment of the learned single Judge dated February 29, 1996 these two appeals have been filed.

4. There is no dispute on facts that the employees were recruited in the daily rated establishment in the year 1973. It is also not in dispute that by the order dated April 4, 1981 effective from March 1, 1981 the employees were brought on regular establishment and appointed as Pump Attendants in the pay scale of Rs. 205 - Rs. 355. It is also an admitted position that until the order dated May 9, 1989 came to be issued by Respondents converting the employees from the post of Pump Attendants to Mazdoor in the lower pay scale of Rs. 200 - Rs. 280, the employees continuously for more then eight years worked as Pump Attendants and paid in the scale of Rs. 205 - Rs. 355. Though in the order dated May 9, 1989 it is stated that the employees are converted from the post of Pump Attendants to Mazdoor, the fact is by the order dated May 9, 1989 the employees have been reverted from the post of Pump Attendants to Mazdoor. Not only the employees have been reverted from the post of Pump Attendants to mazdoor but also their pay scale had been reduced from Rs. 205 - Rs. 355 to Rs. 200 - Rs. 280. We are afraid such an order of reversion that entails in civil consequences could not be sustained being violative of fundamental principles of natural justice. It is the case of the Respondents that they came to know of wrongful promotion of the employees from Mazdoor to Pump Attendants on the representation made by some senior Mazdoors in the month of August, 1988. It shocks us that before acting on such representation no notice was given to the employees who had had been holding the post of Pump Attendants and working as such for more than eight years. The employees ought to have been noticed if there was any mistake in their appointment as Pump Attendants in the year 1981 so that they could have responded to that notice and satisfied the Authority that there was no such mistake. The employees who had been working as Pump Attendants in the pay scale of Rs. 205 - Rs. 355 could not have been reverted one fine morning on the purported ground of mistake having said to have occurred while promoting the employees to the post of Pump Attendants. The order dated May 9, 1989 is in effect an order of reversion which could not have been issued as has been done in violation of the principles of natural justice. By no stretch of imagination the order dated May 9, 1989 could be sustained and the learned single Judge ought to have set aside the same. As already noted above by us on the purported ground of mistake the legitimacy could not be given to the order dated May 9, 1989 which apparently is bad in law being in contravention of the principles of natural justice. Incidently, we may note that all throughout right from March 1, 1981 for more than two decades now the employees have been working as Pump Attendants and it would not be in the interest of justice to set the clock back by permitting the Respondents to go into the question whether at the time of bringing the employees to regular establishment they were rightly appointed as Pump Attendants or not.

5. We, accordingly, allow both the appeals and set aside the order of the learned single Judge dated February 29, 1996. The order dated May 9, 1989 has to be declared ab initio void and is accordingly quashed and set aside. The Writ Petitions filed by the employees being Writ Petition Nos. 2319 of 1989 and 2389 of 1989 stand allowed in terms of prayer Clauses (a) and (b) thereof.

6. No costs.