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2003 DIGILAW 1164 (RAJ)

Ghanshyam Dass v. State of Rajasthan

2003-08-19

RAJESH BALIA, SUNIL KUMAR GARG

body2003
JUDGMENT 1. - We have heard the learned counsel for the parties.This appeal is directed against the Judgment dated 24.4.2000 by which the claim of the petitioner-appellant to give the benefit of Rule 26-A of the Rajasthan Service Rules has been denied to him inter alia on the ground that though the benefit of Rule 26-A being already given to the candidates cannot be recovered but no benefit can be given, to those candidates who will avail the benefit in future for fixation of pay under Rule 26-A, notwithstanding amendment in the said rules. 2. The case of the petitioner is that he has been clearly entitled to the to benefit of Rule 26A. Further, he stated that some persons junior to the petitioner have been appointed by promotion to the post of Head Master/Principal from the post of Lecturer on 3.9.1990, whereas the petitioner has been promoted to the post of Head Master of Secondary School vide Order dated 15.9.1990 only, after he brought this fact to the authorities. However, he was not promoted w.e.f. the date, the person junior to him was promoted. 3. Further case of the petitioner is that amongst persons who have been promoted from the post of Lecturer to the post of Head Master on 3.9.1990, persons junior to him have been considered and appointed by 1 giving the benefit of Rule 26-A and, therefore, his case ought to be considered for promotion w.e.f. the date, the persons junior to him were promoted i.e. on 3.9.1990 and consequently he is entitled to grant the benefit of Rule 26-A as on the date the persons junior to him have been promoted to s the post of Head Master On this premise, he has claimed that his date of promotion be dated back to the date of 3.9.1990 and it is on this premise he has claimed that he is entitled to Rule 26-A of R.S.R., 1951. 4. This fact has not been denied that person appointed prior to 5.9.1990, including person appointed on 3.9.1990 have been allowed the to benefit of fixation on promotion in terms of Rule 26-A of R.S.R. 5. This plea of the petitioner was not accepted by the respondents inter alia on the ground that the benefit of Rule 26-A has not been given to the persons who have been promoted after 6.9.1990. This plea of the petitioner was not accepted by the respondents inter alia on the ground that the benefit of Rule 26-A has not been given to the persons who have been promoted after 6.9.1990. Thereafter, those who have been promoted prior to 6.9.1990 only are eligible to the benefit of Rule 26-A. This position has been created as a result of retrospective amendment made in the Rules by amendment notified on 6.9.1990 only, albeit w.e.f, 1.9.1988. By this amendment, the post of Head Master and Lecturer has been equated. The amendment has since been challenged by a writ petition and its validity has been upheld by this Court is also not now in dispute. 6. In this connection, the learned counsel for the petitioner-appellant craw our attention to a judgment of Division Bench of this Court rendered in D.B. Civil Writ Petition No. 5690/91 ["Rajasthan Shiksha Seva Perished v. State of Rajasthan and others"] decided on 7.10.1991 . 7. The learned Single Judge has dismissed the writ petition primarily on the ground that the petitioner has been promoted on the post of Head Master from the post of Lecturer on 152.1990 only, and, therefore, because of the amendment in the Rules w.e.f. 6.9.1990 and validity of which has been upheld by this Court, the petitioner is not entitled to the benefit of Rule 26-A of Rajasthan Service Rules' 1951 for Nation after promotion. 8. While the learned Single Judge noticed the contention of the petitioner that "had he been promoted on his turn prior to 6.9.1990, he would have been entitled to the benefit of provisions of Rule 26-A", in terms but the learned Single Judge has not examined the prayer of the petitioner that as persons junior to him have been promoted on 3.9.1990 prior to him and he has been given promotion on 15.9.1990 only after drawing attention of the authorities that notwithstanding he being senior placed at SI. No. 1057, the promotions have been granted to the candidates having their seniority at Item No. 1201, therefore, his promotion ought to have been w.e.f. from the date, any person junior to him has been promoted. Without considering this prayer of the petitioner, the petitioner was dismissed at admission stage only. 9. No. 1057, the promotions have been granted to the candidates having their seniority at Item No. 1201, therefore, his promotion ought to have been w.e.f. from the date, any person junior to him has been promoted. Without considering this prayer of the petitioner, the petitioner was dismissed at admission stage only. 9. We are of the opinion that while recording the fact about the petitioner's promotion w.e.f. 15.9.1990, the learned Single Judge has ignored the basic relief claimed by the petitioner which was as under:- "by issuing an appropriate writ, order of direction the non-petitioners may be directed to grant benefit of Rule 26-A of the Rajasthan Service Rules, 1951 to the petitioner with effect from 3.9.1990 with all consequential benefits." 10. This relief was not founded on the ground that he is entitled to Rule 26-A on the basis of his promotion w.e.f. 15.9.1990 but that was founded on he premise, as is apparent from his petition itself that the benefit of Rule 16-A has been denied to the petitioner only because person junior to him have been promoted prior to him w.e.f. 3.9.1990 and he has been promoted on 15.9.1990 after this fact was brought to the notice of the authorities. As per Government decision which has been placed on record as Annexure- 6. after the decision of this Court in D.B. Civil Writ Petition No. 5562/1990 decided on October 7, 1991 upholding the validity of the amendment in the Rules notified on 6.9.1990 and the Division Bench judgment of this Court in D.B. Civil Writ Petition No. 5690/1991 decided on 2.4.1992 holding that the benefit granted to the incumbents who are being promoted prior to the date of amendment notwithstanding it being retrospective, the same cannot be withdrawn. As per the said decision, the benefit of Rule 26-A and Rule 26 in the matter of fixation after promotion shall be available to the Lecturer who has been promoted to the post of Head Master, if their promotions have been made prior to 6.9.1990. It is on this premise., that if the persons junior to him have been promoted on 3.9.1990, then, he is entitled to the benefit of Rule 26-A and the date of his promotion may be anti-dated w.e.f. the date of persons junior to him have been promoted. After this relief is granted, the consequences of Government decision contained in Annex. 7 shall automatically flow. After this relief is granted, the consequences of Government decision contained in Annex. 7 shall automatically flow. Unfortunately, the learned Single Judge has not addressed to this aspect of the matter at all. 11. The clear averments made in the writ petition to this effect have not been considered by the learned Single Judge that promotions have been accorded on 3.9.1990 to the persons assigned seniority upto Sl. No. 1201, while the petitioner's name find place in the seniority list at SI. No. 1057 and when this fact was brought to the notice of the authorities, the petitioner was immediately promoted vide order dated 15.9.1990. If these facts are accepted, the petitioner-appellant's date of promotion cannot be later than the date on which persons junior to him had been promoted. If the persons promoted on 3.9.1990 had been given benefit of fixation under Rule 26-A, the petitioner cannot be denied the benefit of Rule 26-A for the mistake on the part of the authorities in not considering the petitioner's name for promotion along with persons junior to him who have been placed in the Promotion Order issued on 3.9.1990. Therefore, the petitioner is entitled to a direction that his date of promotion should be treated as 3.9.1990 as persons junior to him have been promoted with effect from that date. 12. In view of the aforesaid discussion, we allow the special appeal on merits, set aside the Judgment of learned Single Judge, and allow the writ petition filed by the petitioner. We direct the respondents to treat the date of promotion of the petitioner as 3.9.1990 i.e. with effect from the date persons junior to him have been given promotion and all the consequential benefits therefrom may be given to the petitioner. 13. We further direct the petitioner to make a representation to the respondents for extending consequential benefits to him within a period of three weeks and the respondents are directed to decide the same within a period of six weeks therefrom.There shall be no order as to costs.Appeal Allowed - Judgment of Single Judge Set Aside. *******