Full Judgment
10. 01.2013 PRESENT HON'BLE MR. JUSTICE GOVIND MATHUR Mr. Akhilesh Rajpurohit for the petitioners Mr. Vimal Mathur for the respondents BY THE COURT : By an order dated 29.08.1980, the Governor of Rajasthan granted sanction for creation of two divisions and nine sub-divisions of Public Health Engineering Department with necessary supporting staff including the posts of Foreman Grade-I, Senior Driller, Driller, Compressor cum Machine Operator, Assistant Driller, Mechanic Grade-I, Electrician Grade-I, Driver, Lower Division Clerk cum Time Keeper, Mechanic Grade-II, Welder, Fitter-II, Mason, Blacksmith, Helper and Helper cum Cleaner. As a consequent to the process of selection conducted to fill up the posts aforesaid appointments were accorded to the petitioners as (2) Compressor Driver vide order dated 03.09.1981 passed by the Executive Engineer, Drilling and Handpump Division, Public Health Engineering Department, Jodhpur. It is relevant to mention here that no post in the name of Compressor Driver was sanctioned under the order dated 29.08.1980, though a post of Compressor cum Machine Operator was shown therein. The executive Engineer Drilling and Handpump, Public Health Engineering Department, Jodhpur vide communication dated 27.07.1983 made a recommendation for regularization of the petitioners' services as Compressor cum Machine Operator in view of the fact that no bar was there for making appointments on technical posts. Subsequent thereto under an order dated 18.12.1991, the Government of Rajasthan changed nomenclature of the post of Compressor cum Machine Operator as Boring operator. An order dated 14.02.1996 then was passed by the Additional Chief Engineer, Public Health Engineering Department, Drilling Region, Jaipur absorbing the petitioners in regular cadre with effect from 01.04.1985 with the designation of Compressor Driver, however, vide the corrigendum dated 08.07.2002, they came to be regularized in service from the date of their initial appointment, i.e. 03.09.1981. Suffice to note that under an (3) order dated 14.02.1996, it was made clear that on being taken on regular cadre, the services and other service conditions of the petitioners shall be governed under the Rajasthan Engineering Subordinate (Public Health Branch) Rules, 1967 (for short, 'the Rules of 1967'). The Executive Engineer, Public Health Engineering Department, Drilling Division, Jaipur vide the order dated 31.05.2003 designated the petitioners as Boring Operator from the date of their initial appointment. It is relevant to notice here that at the time of appointment the petitioners were designated as Compressor Driver, but no post in this name was sanctioned by the Governor under the document dated 29.08.1980, though a post in the name of Compressor cum Machine Operator was created therein. It is also important to notice that even under the Rules of 1967, no post in the name of Compressor Driver was existing. A tentative seniority list of the Boring Operators working with the Public Health Engineering Department was notified, wherein also the names of the petitioners were included and the tentative seniority list came to be finalized under an office order dated 08.08.2008 and in this final seniority list also, the petitioners were shown as Boring Operators. (4) The order impugned dated 17.08.2010 then was passed by the Deputy Secretary (Second) to the Government of Rajasthan, Department of Public Health and Engineering directing the Chief Engineer (Administration), Department of Public Health and Engineering to post the petitioners as Compressor Drivers instead of Boring Operators. A direction was also given to recover from the petitioner's the amount said to be paid in excess by treating them Boring Operator. Aggrieved by the order dated 17.08.2010, this petition for writ is preferred. It is submitted by learned counsel for the petitioners that under the order dated 29.08.1980, no post in the name of Compressor Driver was created, though a post of Compressor cum Machine Operator was there. The post of Compressor Driver was also not available under the Rules of 1967, as such, the appointment of the petitioners under the order Annex.1 dated 03.09.1981 was made only against and on the post of Compressor cum Machine Operator, that was subsequently named as Boring Operator, therefore, the order impugned directing the Chief Engineer to appoint the petitioners as Compressor Driver is erroneous. Per contra, as per the reply preferred by the respondents, appointment was given to the petitioners under (5) the order dated 03.09.1981 on work-charge basis as Compressor Driver for a period of three months, thus, their absorption on the post of Boring Operator was contrary to the rules. The relevant averments made in the reply submitted on behalf of the respondents is as under :- 3. In reply to Para 3 of the writ petition it is submitted that the petitioner was initially appointed vide order NO. 3693 Dt. 03.09.1981 on work charged basis on the post of Compressor Driver for a period of three months commencing from the date of his joining.
13. In reply to Para 13 of the writ petition it is submitted that the promotion of the petitioners on the post of Boring Operator was contrary to the rules. A correction was therefore made has to be corrected rather than to perpetuate. Heard learned counsel for the parties. It is not in dispute that by the order dated 29.08.1980, several cadre posts were created including the post of Compressor cum Machine Operator. The respondents employed the petitioners as Compressor Driver, though no such post was created under the order dated 29.08.1980. The respondents subsequently designated the petitioners as Boring Operator, in view of the fact that the post of Compressor cum Machine Operator was re-named as Boring Operator. This fact in addition to the fact that no post of Compressor Driver was existing in the Rules of 1967 and also under the order dated 29.08.1980, is sufficient to establish (6) that the petitioners, as a matter of fact, were employed as Compressor cum Machine Operator and not Compressor Driver. The respondents, if were of the view that the appointment was not given to the petitioners on the post of Compressor cum Machine Operator but to the post of Compressor Driver, then it was obligatory for them to satisfy the court that any such post was existing in the department. Learned counsel for the respondents failed to point out any such post under the Rules of 1967, under the order dated 24.08.1980 or even under the Workcharge Rules of 1964. In view of the factual position noticed above, I am having no hesitation in holding that the petitioners were employed with the respondents only in the capacity of Compressor cum Machine Operator, as such, they were rightly designated as Boring Operator vide order dated 31.05.2003. The order impugned dated 17.08.2010, thus, is bad on its face. The writ petition, therefore, deserves acceptance. Accordingly, the same is allowed. The order dated 17.08.2010 is declared illegal, hence quashed. No order as to costs. [GOVIND MATHUR],J.
Pramod