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2004 DIGILAW 1800 (RAJ)

Vishal Apurwa v. District & Sessions Judge

2004-12-16

SUNIL KUMAR GARG

body2004
Judgment S.K.Garg, J.- This writ petition under Article 226 of the Constitution of India has been filed by the petitioner against the respondents on 23.05.2003 with the prayer that by an appropriate writ, order or direction, the order dated 09.05.2003 (Annexure 6) passed by the respondent District and Sessions Judge, Sirohi by which services of the petitioner were not extended after 10.05.2003, be quashed and set aside and he may be allowed to continue in service on the post of Stenographer Gr. II (Hindi) in regular pay scale. 2. The case of the petitioner as put forward by him in this writ petition is as follows:-The respondent District and Sessions Judge, Sirohi through advertisement Annexure 1 dated 211.2001 invited applications for recruitment to the post of Stenographer Gr. II (Hindi) and in pursuance of the said advertisement Annexure 1, the petitioner applied for the post of Stenographer Gr. II (Hindi). Thereafter, he was called for written test, in which he appeared and passed the same. Thereafter, he was called for type test and he also passed the type test. Thereafter, the petitioner was called for interview and he appeared for interview and again short hand test was taken for three minutes. Thereafter, the petitioner was again called for efficiency test in which he appeared and he also passed that efficiency test. Thereafter, through order Annexure 5 dated 10.01.2003, the petitioner was given appointment on the post of Stenographer Gr. II. The further case of the petitioner is that he was given appointment against OBC quota and against a clear cut vacant post and he was selected after following due procedure for recruitment as provided under the Rajasthan Subordinate Courts Ministerial Establishment Rules, 1986 (hereinafter referred to as "the Rules of 1986") as amended in 1999. The further case of the petitioner is that a bare perusal of his appointment order Annexure 5 dated 10.01.2003 would reveal that the petitioner was appointed on the post of Stenographer Gr. II (Hindi) in regular pay scale of Rs. 5000-150-8000 for three months, but in that appointment order Annexure 5, it was also mentioned that the petitioner would get Rs. 5000/-p.m. as fixed salary. According to the petitioner, inspite of that, deductions of the Provident Fund Contribution, State Insurance and Group Insurance were made from the salary of the petitioner. II (Hindi) in regular pay scale of Rs. 5000-150-8000 for three months, but in that appointment order Annexure 5, it was also mentioned that the petitioner would get Rs. 5000/-p.m. as fixed salary. According to the petitioner, inspite of that, deductions of the Provident Fund Contribution, State Insurance and Group Insurance were made from the salary of the petitioner. The further case of the petitioner is that he was allowed to continue on the post of Stenographer Gr. II (Hindi) beyond the period of three months and his services were extended upto 10.05.2003, but surprisingly through order Annex.6 dated 09.05.2003, the services of the petitioner were not extended beyond 10.05.2003 and that order Annex. 6 dated 09.05.2003 has been challenged by the petitioner in this writ petition. A reply to the writ petition was filed by the respondent and it has been averred by the respondent that though the services of the petitioner were not extended beyond 10.05.2003 through impugned order Annexure 6 dated 09.05.2003, but the petitioner is still in service in view of the order dated 10.06.2003 passed by the Registrar, Rajasthan High Court, Jodhpur. Hence, no interference is called for and this writ petition deserves to be dismissed. A rejoinder to the reply of the respondent was filed by the petitioner and it has been further submitted by the petitioner that through order Annexure 9 dated 27.06.2003, he was again appointed on the post of Stenographer Gr. II (Hindi) on the same terms and conditions as mentioned in the initial appointment order Annexure 5 dated 10.01.2003. An additional affidavit was also submitted by the petitioner and now his main case is that though the petitioner was selected and appointed on the post of Stenographer Gr. II (Hindi), in pursuance of the advertisement Annexure 1 dated 211.2001, after following due procedure for recruitment as prescribed in the Rules of 1986 amended in 1999, but he was not given regular pay scale of Rs. 5000-150-8000 and on the contrary he was given fixed salary of Rs. 5000/-p.m. and this act on the part of the respondent is wholly arbitrary, illegal and violative of Articles 14, 21 and 300-A of the Constitution of India. 3. I have heard the learned Counsel for the petitioner and the learned Counsel for the respondent and gone through the materials available on record. 4. 5000/-p.m. and this act on the part of the respondent is wholly arbitrary, illegal and violative of Articles 14, 21 and 300-A of the Constitution of India. 3. I have heard the learned Counsel for the petitioner and the learned Counsel for the respondent and gone through the materials available on record. 4. There is no dispute on the point that through advertisement Annexure 1 dated 211.2001, the respondent District and Sessions Judge, Sirohi invited applications for recruitment to the post of Stenographer Gr. II and in pursuance of the said advertisement Annexure 1, the petitioner applied for the said post and he was called for written test, type test, short-hand test, interview and efficiency test and he passed all these tests and thereafter, he was appointed on the post of Stenographer Gr. II (Hindi) through appointment order Annexure 5 dated 10.01.2003. 5. A bare perusal of the appointment order of the petitioner dated 10.01.2003 (Annexure 5) reveals that the petitioner was appointed on the post of Stenographer Gr. II (Hindi) in pursuance of the advertisement Annexure 1 dated 211.2001, which was issued under the Rules of 1986 amended in 1996, in the pay scale of Rs. 5000-150-8000 and he was appointed for three months on probation, but in that appointment order Annexure 5, it was also mentioned that during the period of probation and till further orders, the petitioner would get Rs. 5000/-p.m. as fixed salary. 6. There is also no dispute on the point that through impugned order Annexure 6 dated 09.05.2003, the services of the petitioner were not extended beyond 10.05.2003, but through order Annexure 9 dated 27.06.2003, the petitioner was again appointed on the post of Stenographer Gr.II (Hindi) on the same terms and conditions as contained in initial appointment order Annexure 5 dated 10.01.2003. 7. Now since the petitioner is in service, therefore, initial prayer of the petitioner that the impugned order Annexure 6 dated 09.05.2003 by which the services of the petitioner were not extended beyond 10.05.2003 be quashed and set aside, has become redundant and the learned Counsel for the petitioner does not press it. 8. The next question for consideration is whether in the facts and circumstances just narrated above, when the petitioner was appointed on the post of Stenographer Gr. 8. The next question for consideration is whether in the facts and circumstances just narrated above, when the petitioner was appointed on the post of Stenographer Gr. II (Hindi), in pursuance of advertisement Annexure 1 dated 211.2001 and after following due procedure for recruitment as provided under the Rules of 1986 as amended in 1999, condition as mentioned in the appointment order dated 10.01.2003 (Annexrue 5) that the petitioner would get fixed salary of Rs. 5000/-p.m. can be justified or not or whether the petitioner is entitled to get regular pay scale of Rs. 5000-150-8000 meant for Stenographer Gr. II (Hindi) or not. 9. In the advertisement Annexure 1 dated 211.2001 as well as in the appointment order of the petitioner dated 10.01.2003 (Annexure 5), the pay scale of Rs. 5000-150-8000 for the post of Stenographer Gr.II (Hindi) has been specifically mentioned. 10. The pay of an employee is generally fixed with reference to a pay scale. Since public services comprise different grades in a hierarchical order, the applicable pay scales are also different for the different grades. 11. The pay of an employee does not remain static. This is almost an universal rule in public services. An employee starts with a particular pay (commonly known as initial pay); then journeys through periodical increases (commonly known as "increments") to reach the highest point that he is entitled to (commonly known as the "ceiling"). This is what a pay scale signifies. 10.12. In the present case, the pay scale for the post of Stenographer Gr. II as mentioned in the advertisement Annexure 1 dated 211.2001 as well as in the appointment order of the petitioner Annexure 5 dated 10.01.2003 is Rs. 5,000-150-8,000 meaning thereby the initial pay is Rs. 5,000/-, the increments are Rs. 150/-and the ceiling is Rs. 8,000/-. 113. Further, to be entitled to draw a particular pay scale, an employee must fulfill the eligibility conditions whether by way of qualification or otherwise. 114. In the present case, the petitioner was selected and appointed as Stenographer Gr. 5,000-150-8,000 meaning thereby the initial pay is Rs. 5,000/-, the increments are Rs. 150/-and the ceiling is Rs. 8,000/-. 113. Further, to be entitled to draw a particular pay scale, an employee must fulfill the eligibility conditions whether by way of qualification or otherwise. 114. In the present case, the petitioner was selected and appointed as Stenographer Gr. II (Hindi) through appointment order Annexure 5 dated 10.01.2003, in pursuance of advertisement Annexure 1 dated 211.2001 issued under the Rules of 1986 amended in 1999, after having passed the written test, type test, shorthand test, interview and efficiency test and thus, it can easily be concluded that his appointment was regular one and it was made after following due procedure of recruitment as prescribed under the Rules of 1986 amended in 1999. 115. Furthermore, the appointment of the petitioner could not be termed or regarded as contractual one because he was appointed and selected after having declared successful in the prescribed written test, type test, short-hand test and efficiency test and further, his appointment was regular one as it was made after following due selection process as prescribed with the Rules of 1986 amended in 1999. 116. The word "contract" means an enforceable covenant or agreement between two or more persons with a lawful consideration or cause. A deliberate engagement between competent parties, upon a legal consideration, to do or to abstain from doing some act. 17. Since, the petitioner was appointed in a regular manner after following due selection process as laid down in the Rules of 1986 as amended in 1999, therefore, his appointment cannot, by any stretch of imagination, be made to fill a purely stop gap of fortuitous vacuum. In other words, his appointment cannot be regarded or termed as contractual one. When he was not appointed on contractual basis, he cannot be paid fixed salary and he should be paid reegular salary in the pay scale of Rs. 5000-150-8000 with usual allowances as per rules as mentioned in the appointment order Anneexure 5 dated 10.01.2003 as well as in the advertisement Annexure 1 dated 211.2001. Non granting of regular pay scale with usual allowances to the petitioner would amount to arbitrary exercise on the part of the respondent and it would be hit by Articles 14 and 16 of the Constitution of India. Non granting of regular pay scale with usual allowances to the petitioner would amount to arbitrary exercise on the part of the respondent and it would be hit by Articles 14 and 16 of the Constitution of India. Had the appointment of the petitioner would have been on contract basis, the position would have been different one. 118. For the reasons stated above, it is held that the condition imposed in the appointment order of the petitioner Annexure 5 dated 10.01.2003 to the effect that the petitioner would get only fixed salary of Rs. 5000/-p.m. is wholly arbitrary, illegal and violative of Articles 14, 16 and 21 of the Constitution of India and thus, the same cannot be sustained and liable to be quashed and set aside and the petitioner is entitled to get salary in the regular pay scale of Rs. 5000-150-8000 with usual allowances as per rules as mentioned in the appointment order Annexure 5 dated 10.01.2003 as well as in the advertisement Annexure 1 dated 211.2001, from the date of his initial appointment and thus, this writ petition deserves to be allowed. 119. Accordingly, this writ petition filed by the petitioner is allowed and the condition imposed in the appointment order of the petitioner Annexure 5 dated 10.01.2003 to the effect that the petitioner would get only fixed salary of Rs. 5000/-p.m. is quashed and set aside and the respondent is directed to pay salary to the petitioner in the regular pay scale of Rs.5000-150-8000 with usual allowances as per rules as mentioned in the appointment order Annexure 5 dated 10.01.2003 as well as in the advertisement Annexure 1 dated 211.2001, from the date of his initial appointment. No order as to costs.