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Judgment
Rameshwar Singh Malik, J.—Present writ petition is directed against the three orders of even date, i.e. 19.1.1999 (Annexures P-7 to P-9) as well as subsequent order dated 21.1.1999 (Annexure P-10), whereby two reversion orders were passed against the petitioner and his seniority was re-fixed, withdrawing the benefit of temporary service, which had earlier been counted for the purpose of seniority. Notice of motion was issued and pursuant thereto, respondents filed their written statement.
Learned counsel for the petitioner submits that petitioner initially joined the service on 3.9.1970 on temporary basis pursuant to the appointment order Annexure P-1. He further submits that Bhawani Shankar and others filed civil suit impleading petitioner as defendant No. 6, however, his seniority was not challenged in that civil suit. Plaintiffs of the civil suit were finally treated to be senior than the petitioner. Since there were good number of posts available, petitioner did not think it appropriate to challenge the civil suit decree, because he was not apprehending any adverse orders. He would next contend that respondent authorities proceeded on a factually incorrect and legally misconceived approach, while passing the impugned orders Annexure P-7 to P-10, which were arbitrary and discriminatory as well. He refers to the specific averments taken in para 4 and 13 of the writ petition, which have not been properly replied by the respondent, ''that similarly situated persons were granted the benefit of temporary service whereas the same benefit was denied to the petitioner''. He also submits that before passing the second reversion order Annexure P-10, not even a show cause notice was issued to the petitioner, thus, respondents glaringly violated the basic principles of natural justice. He concluded by submitting that since the petitioner and his co-employees had already stood retired from service, nobody is going to be adversely affected if the impugned orders are set aside and petitioner is granted the consequential service benefits. In support of his contentions, learned counsel for the petitioner relies on a judgment of this Court in Vishan Dass Bhutani v. The Haryana State Electricity Board, 1993(1) S.C.T. 86 : 1993 (1) RSJ 527. Finally, he prays for setting aside the impugned orders, by allowing the present writ petition.
Per contra, learned counsel for the respondents submits that the respondent authorities were duty bound to ensure the meticulous compliance of the civil court decree, which had become final against the petitioner. He further submits that the impugned orders were nothing but a direct consequence of compliance of civil court decree. As far as granting of benefit of temporary service for the purpose of seniority to other similarly situated persons was concerned, he submits that no such benefit was granted to any similarly situated co-employee of the petitioner. As far as factual aspect of the impugned orders referring to the dates from 1.11.1967 to 30.6.1972 was concerned, he submits that it would not advance the case of the petitioner. He prays for dismissal of the writ petition.
Having heard the learned counsel for the parties at considerable length, after careful perusal of the record of the case and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that in the given fact situation of the present case, instant writ petition deserves to be allowed. To say so, reasons are more than one, which are being recorded hereinafter.
It is a matter of record and not in dispute that petitioner joined the service on temporary basis in compliance of the order dated 3.9.1970 (Annexure P-1). It was not an ad hoc appointment. So far as civil court decree is concerned, it is not the pleaded or argued case on behalf of the respondents that any direction was issued against the petitioner for his reversion. It is also neither pleaded nor argued case on behalf of the respondents that because of non availability of sufficient number of posts, petitioner had to be reverted.
Under these circumstances, contention raised by the learned counsel for the petitioner that the posts were available and it was not necessary to revert the petitioner, deserves acceptance. Even if said Bhawani Shankar and others-plaintiffs of the civil suit were to be granted seniority over and above the petitioner, that would not necessarily mean that reversion of the petitioner was bound to follow. It is so said, because reversion and promotion were two independent and distinct aspects. Promotion as well as reversion of the petitioner would not be dependent only on seniority. There would be other relevant factors as well.
When a pointed question was put to the learned counsel for the respondents in this regard, that when sufficient number of posts were there, then why petitioner was reverted, he had no answer and rightly so, because it was a matter of record. Respondents kept conveniently silent in their written statement. Having said that, this Court feels no hesitation to conclude that the impugned orders were based on factually incorrect and legally misconceived approach and the same cannot be sustained.
It is also not in dispute that before passing the second reversion order, no show cause notice was issued to the petitioner. Thus, the respondent authorities glaringly violated the basic principles of natural justice as well. In this view of the matter, it is unhesitatingly held that respondents have violated the golden rule of Audi Alteram Partem, because of which the impugned reversion orders cannot be sustained.
A bare combined reading of the impugned orders would show that the respondent authorities proceeded on a factually incorrect approach, while referring to the period from 1.11.1967 to 30.6.1972, which has nothing to do with the facts of the present case. Petitioner initially joined his service in the month of September, 1970 and his services were regularised as Assistant Lineman on 22.1.1971. Thus, it becomes crystal clear that respondent authorities were under factually wrong impression, while passing the impugned orders and the same cannot be sustained, for this reason also.
As per the appointment order Annexure P-1, petitioner was appointed on temporary basis. Thus, his initial appointed was not on ad hoc basis. His temporary service was followed by regular service. Temporary service was only of about four months. In such a situation, temporary service was rightly counted for the purpose of seniority. Similar issue fell for consideration before this Court in Vishan Dass Bhutani''s case (supra). Relevant observations made in para 5 of the judgment, read as under:--
"From the appointment letter, it is apparent that the petitioner was appointed on officiating temporary basis and not on ad hoc basis. There is a difference in ad hoc service and temporary service. Apart from that, I find that a similarly situated person like Varinder Singh Rawat was treated differently inasmuch as even his entire ad hoc service was concerned for purposes of seniority. The plea of the respondent that Shri Rawat was given the benefit of the ad hoc service by virtue of some policy decision would rather strengthen the case of the petitioner. Even in 1979, under same policy decision of the Board, the ad hoc service was to be counted for purposes of seniority. The petitioner who had joined on temporary basis in the year 1964 could not be denied the same benefit of counting his temporary service for purpose of seniority."
No other argument was raised.
Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that since the impugned orders have been found to be patently illegal, the same cannot be sustained and are hereby set aside.
Petitioner is held entitled for consequential service benefits. Respondents are directed to do the needful within a period of two months from the date of receipt of a certified copy of this order. In case the needful is not done within stipulated period of two months, petitioner will be entitled for the arrears alongwith interest @ 12% from the date it became due till the date of actual payment. Resultantly, with the abovesaid observations made and directions issued, instant writ petition stands allowed, however, with no order as to costs.