Research › Search › Judgment

Rajasthan High Court · body

2002 DIGILAW 1771 (RAJ)

R. K. Pareek v. State of Rajasthan

2002-10-28

SHIV KUMAR SHARMA

body2002
JUDGMENT 1. - By this writ petition under Article 226 of the Constitution of India the petitioner seeks to set aside the direction of State of Rajasthan issued vide order dated September 1, 2001 (Schedule-C) and consequential order of the Rajasthan State Pollution Control Board, Jaipur (for short 'Board') dated October 5, 2001 with the further prayer that the petitioner be allowed to continue in the pay scale of 9000-14400 as fixed vide order dated March 31, 1998 with all consequential benefits. The petitioner has also claimed the benefit of revision of any scale made vide order dated August 21, 1996 and the corresponding fixation. 2. The petitioner was initially appointed in the office of the Board as Law Officer Gr.III on April 4, 1985 and was promoted on the post of Law Officer Gr.II vide order dated April 10, 1991 and confirmed on the said post vide order dated January 1, 1994 with effect from March 30, 1993. 3. The Board in its meeting held on November 30, 1995 placed an Agenda relating to revision of pay scale of Law Officer working in the Board and a decision was arrived at to upgrade the posts of Law Officers with effect from April 1, 1996. While taking the said decision of revision of pay scale, the justification for revision of pay scale along-with the work load of each Law Officer was also extensively examined by the Board. Thereafter in another meeting held on August 9, 1996, the Board in the presence of Deputy Secretary, Finance Department, Government of Rajasthan and Additional Secretary, Department of Environment took a unanimous decision to upgrade the pay scale of Law Officer with effect from April 1, 1986 and pursuant thereto an order dated August 21, 1996 was issued whereby the pay scale of Law Officers were upgraded. Accordingly the fixation were made and arrears were also paid and by the said revision, the pay scale of Law Officer Gr.II was revised from 2000-3200 to 2500-4250. 4. Accordingly the fixation were made and arrears were also paid and by the said revision, the pay scale of Law Officer Gr.II was revised from 2000-3200 to 2500-4250. 4. The State Government thereafter raised objection in regard to revision of pay scale of Law Officer and the Board vide letter dated June 24, 1998 gave justification with regard to revision of pay scale under the statutory power under Section 12(3)(A) of the Water (Prevention and Control of Pollution) Act, 1974 (for short 1974 Act') read with rule 7 of Rajasthan Water (Prevention & Control of Pollution) Rules, 1975 (for short 1975 Rules'). 5. The petitioner contended that Rajasthan Civil Services (Revised Pay Scales) Rules, 1998 (for short 1998 Rules') were made effective with effect from September 1, 1996 and the said revision of pay scale was dully accepted by the Board in the year 1998. The petitioner who was working as Law Officer in the pay scale of 2500-4250 was required to be fixed in the pay scale of 9000-14400 and he was accordingly fixed vide order dated March 31, 1998. After the fixation was made, the petitioner became entitled to get arrears as per fixation and at that stage the Board asked the petitioner to submit affidavit that if any over payment is made or incorrect fixation is made in the revised pay scale rules, 1998, the petitioner should undertake to refund the same. The petitioner gave undertaking accordingly. 6. The State Government vide letter dated September 1, 2001 directed the Board that the pay scale of Law Officer should be re-revised and recovery of arrears be affected. The Board proceeded in terms of the directions given by the State Government and took a decision for recovery Being aggrieved by the aforesaid action, the petitioner has instituted the instant writ petition. 7. The respondents submitted returns and prayed to dismiss the writ petition on the ground that Rule 36 of the Rajasthan State Pollution Control Board Employees Service Rules & Regulations 1993 (for short 1993 Rules') specifically provides that the scale of monthly pay of a person appointed to a post in the service, shall be such as may be admissible under the Rules referred to in rule 38 or as may be sanctioned by the Government/Board from time to time. Rule 38 of 1993 Rules provides Regulation of pay, leave, allowances and other facilities etc. Rule 38 of 1993 Rules provides Regulation of pay, leave, allowances and other facilities etc. The respondents further averred that the revision of pay scale of Law Officer of the Board can only be implemented when due and prior sanction of the State Government is taken. As the order dated August 21, 1996 of the Board was issued in violation of the above circulars of the State Government, the audit party during special audit for the years 1995-96 and 1996-97 of the Board took notice of the illegal revision of the pay scale of the Law Officers. The Department of the Finance of State Government thereafter examined the matter in the light of the audit objection and taking into consideration the reasons given by the Board, took decision that Law Officers of the Board should given the same pay scale as was given to State Government Law Officers and recovery should be effected for the excess amount paid pursuant to illegal revision of pay scales. 8. The petitioner submitted rejoinder to the reply reiterating the averments made in writ petition. 9. It is contended by Mr. Ajay Rastogi, learned counsel appearing for the petitioner, that as per scheme of 1974 Act, the State Government is only competent to issue direction in terms of Section 18, which relates to performance and function under the Act. The directions issued by Government asking the Board to re-revise pay scale of Law Officers vide order dated September 1, 2001 are beyond its competence and in no manner can be considered in consonance of Section 18 of 1974 Act. It is further contended that without affording any opportunity of hearing to the petitioner his pay scale has been revised detriment to his interest and the act of the respondents is against the principles of natural justice. The petitioner was fixed in the revised pay scale from 2000-3200 to 2500-4250 and corresponding revision was made in the pay scale of 6500-10500 with effect from April 1, 1996 vide order dated October 5, 2001. After making fixation the respondent has started to make recovery due to petitioner from September 1, 2001 at the rate of Rs. 1900/- per months. After making fixation the respondent has started to make recovery due to petitioner from September 1, 2001 at the rate of Rs. 1900/- per months. It is next contended that the Board is statutory authority and independent autonomy and the State Government has no right to control the service conditions of employees which are governed under Section 12(3A) of 1974 Act read with Rule 36 and 38 of 1975 Rules. 10. Per contra, Mr. Ajeet Bhandari and Mr. Akhil Simlote, learned counsel appearing for the respondents urged that in view of the Section 12 (3A) of the 1974 Act, the method of recruitment and the terms and conditions of Service (including the scales of pay) of the officers (other than the member secretary) and other employees of the Board may be determined undoubtedly by the Board under the Regulation made by the Board but no Regulation shall take effect in view of proviso (b) unless it is approved by the State Government. In view of this provision the Board could not have implemented the decision to revise the pay scale without seeking approval of the State Government. 11. I have reflected over the rival submission. 12. In order to resolve the controversy it is necessary to consider the relevant statutory provisions, Section 12(3A) of 1974 Act provides thus:- "The method of recruitment and the terms and conditions of Service (including the scale of pay) of the officers (other than the member Secretary) and other employees of the Central Board or a State Board shall be such as may be determined by regulations made by the Central Board or, as the case may be, by the State Board, provided that no regulation made under this sub-section shall take effect unless:- (a) in the case of a regulation made by the Central Board, it is approved by the Central Government, and (b) in the case of a regulation made by a State Board, it is approved by the State Government." Rules 36 and 33 read as under:- "36. Scale of Pay:-The scale of monthly pay of a person appointed to a post in the service, shall be such as may be admissible under the Rules referred to in rule 38 or as may be sanctioned by the Government/Board from time to time. "38. Regulation of Pay, Leave, Allowances and other facilities etc. Scale of Pay:-The scale of monthly pay of a person appointed to a post in the service, shall be such as may be admissible under the Rules referred to in rule 38 or as may be sanctioned by the Government/Board from time to time. "38. Regulation of Pay, Leave, Allowances and other facilities etc. - Except as provided in these rules, the pay, allowances, leave and other facilities and conditions of service of the members of the service shall be decided by the Board from time to time." 13. A careful reading of the provision contained in Section 12(3A) of 1974 Act goes to show that although the Board can decide the method of recruitment and the terms and conditions of service of its officers and frame regulation in this regard but such regulation can be effective only after it gets approval of the State Government. Undoubtedly under Rule 36 of 1993 rules, the Board and State Government both have given powers to sanction the scale of monthly pay and under Rule 38 of 1993 Rules the Board can exclusively decide the regulation of pay, leave, allowances and other facilities etc., but these rules cannot override the mandate of Section 12 (3A) of 1974 Act, 1993 Rules that have been framed in exercise of powers conferred under sub-section 3A of Section 12 of the 1974 Act, can not be inconsistent to the mandate of 1974 Act. Rules 36 and 38 of 1993 Rules are evidently inconsistent to proviso (b) of sub-section 3(A) of Section 12 of 1974 Act. Proviso (b) of sub-rule 3A of Section 12 specifically provides that the regulation made in regard to scales of pay of officers of the Board shall take effect only after approval of the State Government and it was incumbent on the Board to seek approval of the State Government before implementing its decision regarding revision of pay scale of its Law Officers. The Rules which provide exclusive power to the Board to take decision in the matter of pay scale to its employees are violative of Section 12 (3A) of 1974 Act. 14. In so far as the argument in regard to principles of Audi Alteram Partem is concerned. The Rules which provide exclusive power to the Board to take decision in the matter of pay scale to its employees are violative of Section 12 (3A) of 1974 Act. 14. In so far as the argument in regard to principles of Audi Alteram Partem is concerned. I am of the view that since the petitioner, while accepting the amount under revision of pay scale, had furnished undertaking to refund the excess amount, he was not entitled to opportunity of hearing. 15. For the reasons aforementioned I do not find any merit in the writ petition. It stands dismissed accordingly, without any order as to costs.Writ Petition Dismissed. *******