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2002 DIGILAW 636 (RAJ)

Sobhag Chand Mathur v. State of Rajasthan

2002-03-21

M.R.CALLA, SHASHI KANT SHARMA

body2002
JUDGMENT 1. - Eight writ petitions were decided by the learned Single Judge on 16th February, 1996. These three appeals directed against the aforesaid judgment dated 16th February, 1996 arise out of the writ petitions Nos. 2314/83, 2315/83 & 2136/83 as had been filed by Sobhag Chand Mathur, Shyam Sundar Sharma and Ghanshyam Upadhyay respectively. Wheras all these three appeals are directed against the common judgment and order and involved common question based on identical facts, we propose to decide all these three appeals by a common judgment and order as under: 2. The appellants herein were working as Wool Graders in the pay scale of Rs. 130-300 with special pay of Rs. 20/- in the Sheep & Wool Department with effect from 7.2.1996. They were later on confirmed and after their confirmation they were declared surplus to the requirement of Sheep & Wool Department vide order dated 4.1.73 as the posts of Wool Graders stood abolished. At the time, when they were declared surplus, they were drawing basic pay Rs. 170/- in the pay scale of Rs. 130-300 and Rs. 20/- as special pay. All these three appellants were then absorbed in the Food Department as Enforcement Inspectors vide order dated 29th March, 1973 with effect from 21st March, 1973. At that time, pay scale of the post of Enforcement Inspector was Rs. 150-330. On absorption, their pay was fixed by order dated 16th August, 1973 with effect from 22nd March 1973 at basic pay Of Rs. 174/k and Rs. 116/- as personal pay. In this order dated 16th August 1973, It was specifically mentioned that these employees had drawn special pay for a period of two years In the Sheep & Wool Department and therefore they were entitled to the personal pay as mentioned against each of their names In accordance with Rule 20-B of Rajasthan Services Rules. This personal pay shall be adjusted against future Increment and next increment date would' be counted from the date of taking charge of this department after one year as an absorbed employee as is mentioned In Rule 31 of RSR. It may be mentioned that in this order dated 16th August, 1973, there was no mention of the order of Finance Department (Ex Rules) which was Issued on 30th November, 1962 and In which reference for the purpose of fixing pay was made to rule 26-B of RSR. It may be mentioned that in this order dated 16th August, 1973, there was no mention of the order of Finance Department (Ex Rules) which was Issued on 30th November, 1962 and In which reference for the purpose of fixing pay was made to rule 26-B of RSR. However, an order was issued on 27th May, 1977 stating therein that earlier orders with regard to fixation of pay of these employees under rule 26-B of RSR had been Issued but In accordance with the opinion received from the Finance Department, their fixation was wrong and therefore the same is set aside and fixation of these employees were revised with reference to Finance Department order and now fixed at the basic pay of Rs. 166/- with personal pay of Rs. 4/-. Thus, they were put to a loss of Rs. 20/- per month in the matter of fixation of pay. The relevant portion of the order of Finance Department dated 30th Nov 1962 is as under: GOVERNMENT OF RAJASTHAN FINANCE DEPARTMENT (EX RULES) No.F.1(77)FD(A)/Rules/62 dated 30th Nov. 1962 Sub:- Regulation of pay and allowances etc. of the employees rendered surplus as a result of economy measures. As a result of economy measures a large number of Government servants have been declared surplus. Following clarifications are issued in regard to regulation of pay, travelling allowance and other allowances etc. of such employees.The matter has been examined and Governor has been pleased to order that: (1) .......................... (2) the surplus employees shall draw pay and special pay which they were drawing immediately before they were declared surplus. (3) .......................... (4) .......................... - (5) .......................... (6) The pay of an employee on absorption shall be regularated In accordance with provisions contained in Rule 26 (a) (ii) of the Rajasthan Service Rules (Amended). The pay and allowances of surplus employees shall however be debited to Account Head mentioned in GAD Order No. E1 (13) 1 /GA/C/62 dated 12.6.1962. SD/- (R.D. Thaper) Finance SecretaryThe contents of order of Finance Department dated 22nd January 1963 are reproduced as under: GOVERNMENT OF RAJASTHAN FINANCE DEPARTMENT (EXPENDITURE RULES) No.F.1(77)/FD (A) Rules/62 dated 22.1.1963 Sub:- Regulation of pay and allowance etc. of employees rendered surplus as a result of economy measures. In this department order of even no. SD/- (R.D. Thaper) Finance SecretaryThe contents of order of Finance Department dated 22nd January 1963 are reproduced as under: GOVERNMENT OF RAJASTHAN FINANCE DEPARTMENT (EXPENDITURE RULES) No.F.1(77)/FD (A) Rules/62 dated 22.1.1963 Sub:- Regulation of pay and allowance etc. of employees rendered surplus as a result of economy measures. In this department order of even no. dated 30.11.1962 (are 2 (6) may be substitute by the following: "(6) the employees on absorption in the new post shall be fixed at the stage of the time scale equal to the last drawn by him (excluding special pay, if any) in the post from which he was rendered surplus, or if there is no such stage, in the stage next below that pay plus personal pay equal to difference. The increment in the pay scale of the new post shall be allowed on the date he would drawn his increment had he continued. SD/- R.P. THAPER, Finance Secretary to Govt. 3. The employees-appellants represented against the order dated 27.5.1977 and they were informed vide letter dated 22nd July, 1981 by the Additional Food Commissioner that according to the opinion of Finance Department the fixation of pay as was made on 27.5.77 was correct and no amendment order was required to be passed and thereafter the appellants preferred appeals before the Rajasthan Civil Services Appellate Tribunal in September, 1981 and their appeals i.e. Appeal No. 654/81 filed by Sobhag Chand Mathur, Appeal No. 647/81 filed by Shyam Sunder Sharma and Appeal No. 664/81 filed by Ghanshyam Upadhyay were decided by a common judgment and order dated 19.2.1982. The Tribunal allowed their appeals and quashed the orders dated 27.5.77 and 22.7.81 to which we have already made a reference hereinabove. The Tribunal also directed the respondents to fix the pay of the appellants in accordance with the order dated 16.8.1973 and pass necessary orders in this regard within a period of two months. This order dated 19th February, 1982 as was passed by the Rajasthan Civil Services Appellate Tribunal was challenged by way of filing eight writ petition by the State before the Court and all these eight writ petitions were decided by a common judgment and order dated 16th February, 1996 whereby the writs filed by the State were allowed and the order passed by the Tribunal was quashed and set-aside. The present appellants were the respondents in the respective writ petitions. The present appellants were the respondents in the respective writ petitions. Aggrieved from the order dated 16.2.96, these three employees have filed the present appeals. 4. We have heard learned counsel for the appellants Mr. R.L. Jain.and learned counsel for the respondent Mr. Mahesh Gupta and have gone through the pleadings of the parties and the impugned order as has been passed by the Rajasthan Civil Services Appellate Tribunal as well as the order passed by the learned Single Judge. 5. Learned counsel for the appellants has argued that the order passed by the learned Single Judge suffers from an error apparent on the face of record inasmuch as while dealing with the challenge against the Tribunal's order, the learned Single Judge has observed that: "that special pay must have been granted for higher responsibility or specially arduous nature of duties under Rule 7(13)(a). Since no such document has been placed either before the Tribunal or even before this Court it cannot be considered that the special pay was for higher responsibilities or specially arduous nature of duties as contemplated under Rule 7(13) (a) of RSR." 6. Learned counsel for the appellants Mr. R.L. Jain has specifically invited our affention to the copy of document dated 22nd October, 1965 which has been placed on record as Annexure-1 before this Court and has pointed out that this document was already on record before the Tribunal as Annexure-1 to the appeal No. 654/81 coupled with following averments in para 3 of the appeal before the Tribunal which is as under: "That the Government of Rajasthan with prior sanction of His Excellency, the Governor of Rajasthan conveyed the sanction of the proposals regarding the pattern of Wool Graders and Marketing Centre. A copy of order dated 22.10.1965 is submitted herewith and marked Ex. 1. From this order it is clear that the post of Wool Grader was sanctioned with a special pay of Rs. 20/- per month in view of the arduous nature of duties. Vide the aforesaid order special cadre of wool grader in the grade of Rs. 130-300 was created in the Sheep and Wool Department." 7. 1. From this order it is clear that the post of Wool Grader was sanctioned with a special pay of Rs. 20/- per month in view of the arduous nature of duties. Vide the aforesaid order special cadre of wool grader in the grade of Rs. 130-300 was created in the Sheep and Wool Department." 7. Learned counsel for the appellant has further argued that it is a matter in which the fixation of pay was to be governed under rule 26-B of RSR and Finance Department orders of 1962-63 as have been issued prior to the Rajasthan Civil Services (Absorption of Surplus Personnel) Rules, 1969 were of little importance and could be made use of only if the matter is otherwise governed under rule 26-B of RSR. Mr. Mahesh Gupta has submitted that the order has been passed by the learned Single Judge on the basis of Finance department's order dated 22.1.1963. 8. We find that first of all it is rule 14 of the Rajasthan Civil Services (Absorption of Surplus Personnel) Rules, 1969 which provides for the regularisation of pay, increment, leave etc. The rule 14 of said rules is as under: 14. Regulation of pay, increment, leave etc. -The pay, increment, allowances and leave etc. of surplus employees during the period they remain surplus and on absorption shall be regulated by the provisions of the Rajasthan Service Rules and other relevant rules and orders issued from time to time" 9. A reading of Rule 14 makes it clear that on absorption the pay of surplus employees during the period they remain surplus is to be regulated by the provisions of RSR and other relevant rules and orders issued from time to time. 10. Naturally, we, therefore, have to go to provisions contained in RSR. A reading of Rule 14 makes it clear that on absorption the pay of surplus employees during the period they remain surplus is to be regulated by the provisions of RSR and other relevant rules and orders issued from time to time. 10. Naturally, we, therefore, have to go to provisions contained in RSR. So far as RSR is concerned, the pay itself has been defined in Rule 7(24) which reads as under: "7(24) Pay-means the amount drawn monthly by a Government servant as: (i) the pay, other than special pay or pay granted in view of his personal qualifications, which has been sanctioned for a post held by him substantively or in an officiating capacity, or to which he is entitled by reasons of his position in a cadre and (ii) special pay and personal pay, and (iii) any other emoluments which may be specially classed as pay by the Governor." Rule 26-B of RSR is as under "26-B Notwithstanding anything contained in these rules where a Government servant has drawn a special pay granted for higher responsibilities or specially arduous nature of duties under Rule 7(31) (a) continuously for a period of not less than two years and his pay, on promotion or appointment on or after 1.9.61 to a post carrying duties an responsibilities of greater importance than those attached to the post held by him, under the provisions of other rules in this chapter plus special pay attached to the higher post, if any, works out to less than the pay of the post held by him, the difference shall be allowed as personal pay to be absorbed in future increments." 11. It is, therefore, clear that we have no other rules or orders. If the matter is not found to be governed by Rule 26-B of RSR and whereas it is found that in fact the Finance Department orders which had been issued in the year 1963 had virtually lost their importance after it was provided under Rule 14 of Rajasthan Civil Services (Absorption of Surplus Personnel) Rules, 1969, the question of fixation of pay on absorption is to be regulated under the RSR. Therefore, where RSR rules are silent, other rules as mentioned in rule 14 of RSR (Absorption of Surplus Personnel) Rules, 1969 may be considered but so far as facts of the present case are concerned, we are more convinced that Rule 26-B governs the case at hand. We also find that in fact document annexure 1 which was of 1965 was there on record before the Tribunal and therefore it could very clearly be made out as the basis for Wool Graders for special pay which was provided to these employees while they were working in Sheep and Wool Department, there was special pay for the arduous nature of duties in accordance with Rule 7(31) (a) of RSR and it is undisputed that they completed two years period of their working on the post of Wool Graders and that it was after 1.9.61 that they were declared surplus and sought to be absorbed,. Now, the question arises as to whether their absorption in the new department was an appointment after 1.9.61 and as to whether the post of Enforcement Inspector was a post carrying duties of higher responsibilities as compared to the post held by them earlier in the Sheep and Wool Department from 7.2.66. Whereas the pay scale of Enforcement Inspector was higher than the Wool Grader, it is clearly shown that the post of Enforcement Inspector was carrying duties of greater importance from the post held by them earlier. Thus, they had been fulfilling all the requirement and the ingredients as contemplated under Rule 26-B of RSR. Whereas the pay scale of Enforcement Inspector was higher than the Wool Grader, it is clearly shown that the post of Enforcement Inspector was carrying duties of greater importance from the post held by them earlier. Thus, they had been fulfilling all the requirement and the ingredients as contemplated under Rule 26-B of RSR. So far as, the word "appointment" as has been used in rule 26-B of RSR is concerned it may be made clear that this appointment also includes in itself the case of absorption and for that purpose reference has been rightly made by learned counsel for the appellants to Rule 2 in the first instance, of Rajasthan Civil Services (Absorption of Surplus Personnel) Rules, 1969 wherein in the very preamble of the rules for recruitment by absorption of surplus personnel to the civil services and posts in connection with the affairs of the State has been used again in rule 2 of the very rules of 1969 that notwithstanding anything contained any service rules or orders for the time being in force regulating the recruitment and conditions of service of persons appointed to the various services or posts in connection with the affairs of the State, surplus personnel shall be eligible for recruitment and appointment by absorption to such service or posts. Therefore, the appointment includes the appointment by absorption and it cannot be said that case of these employees was not converted under rule 26-B of RSR for the purpose of fixation on the post in the Food and Supply Department. Under rule 3 (1) "New Posts" means a post on which surplus employee is appointed by absorption under these rules. Therefore, we have no hesitation to hold that it is a case of appointment by absorption for the purpose of fixation of pay under rule 26-B of RSR and the same must govern the controversy which has been raised in these cases. 12. We, therefore, find on examination of the schemes of the rules in respect of surplus personnel and other relevant provisions of RSR as discussed above that the earlier rules with regard to the fixation of pay of these employees and the order dated 16th August, 1973 had been correctly passed as the subsequent order dated 27.5.77 was not only unwarranted but contrary to the rules. The order passed by Finance Department dated 27th May, 1977 could not be used for the purpose of reducing their pay which had already been fixed on 16.8.1973, Representation of these employees had wrongly been rejected on 22.7.1981. The Tribunal-has rightly allowed the appeals but the learned Single Judge erred in setting aside the order by the Tribunal allowing the petitions. We, therefore, set aside the order passed by the learned Single Judge and these appeals shall stand restored and the order which had been passed by the Tribunal is upheld and we hereby order that the question of fixation of pay of these three employees shall be governed on the basis of order dated 16th August, 1973. Accordingly, the impugned order passed by the learned Single Judge is set aside and all these three appeals are allowed. 13. Since this is an old matter, the respondents are expected to carry out the directions given by the Tribunal as early as possible but in no case, later than a period of three months from date of receipt of certified copy of this order. Parties of bear their own costs.Appeals allowed. *******