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2005 DIGILAW 1226 (RAJ)

Rasal Kanwar v. State of Rajasthan

2005-04-26

RAJESH BALIA

body2005
Judgment Rajesh Balia, J.-Heard learned Counsel for the parties. 2. The case is on illustration of the apathy with which low paid employee of the State has been treated in the matter of his retiral benefits and sought to be denied retiral benefits on very hyper technical ground as will be revealed from the facts to be noticed hereinafter. 3. The undisputed facts which emerge from the material placed before the Court are that the petitioner, since deceased, after passing metric examination, had joined as Second Lieutenant in Idar Sir Pratap Infantry on 20.12.1947 and he remained in that service until 16.08.1955 when his services were retrenched on account of the merger of the Infantry into Indian Army. At the time of his retrenchment from the aforesaid service, the petitioner was drawing the basic salary of Rs. 225/-. 4. The then State of Rajasthan taking into consideration the past services rendered by the Ex-serviceman of different Indian States framed a scheme for their absorption in State services. 5. In furtherance of said scheme, the retrenched ex-serviceman, the petitioner, was sent for absorption to R.A.C. Initially the petitioner was appointed as Physical Training Instructor Gr. III, on 23.08.1958. On absorption to said post, he was initially fixed in the pay scale of Rs. 50-80. 6. The petitioner made a representation vide his letter dated 26.09.1989 that the pay scale applied to the Physical Training Instructor at the date of his appointment was Rs. 60-130 and he ought to have been fixed in that pay scale. He also made a prayer that his fixation should be at the maximum of the pay of the pay scale applicable to post on which he was appointed by absorption because he was drawing Rs. 225/-at the time of his retrenchment. This request was in terms of the Government order dated 06.05.1954 Annexure 21, his pay was protected, subject to maximum of pay scale of the post in which incumbent was absorbed. 7. By letter dated 24.09.1969, the Inspector of the schools recommended the case of the petitioner for fixing him in the corresponding pay scale w.e.f. 22.08.1958. As per the recommendation of the Inspector of the school, the pay scale applicable to the post at the time of appointment was Rs. 60/-to 130/-and the petitioner was recommended for the annual increments applicable. By letter dated 24.09.1969, the Inspector of the schools recommended the case of the petitioner for fixing him in the corresponding pay scale w.e.f. 22.08.1958. As per the recommendation of the Inspector of the school, the pay scale applicable to the post at the time of appointment was Rs. 60/-to 130/-and the petitioner was recommended for the annual increments applicable. Vide letter dated 05.01.1971 (Annexure 2), the Director, Primary and Secondary Education, Rajasthan recommended the case of the petitioner to the Government for sanctioning the fixation of his pay at the maximum of pay scale Rs. 60-130/-plus personal pay of the difference between the maximum pay of the grade and the last pay of military service w.e.f. 23.08.1958. 8. The further inquiry was directed as per documents submitted by the petitioner with regard to his retiral benefits, if any, received by him from the defence department at the time of discharge. He was, therefore, asked to furnish the record about the service, so that his matter can be finalized. The petitioner submitted a copy of certificate (Annexure 4) dated 15.06.1955 issued by the officiating GIC referring that the petitioner was paid Rs. 225/-as Second Lieutenant. One months gratuity paid to him has since been recovered and no retiral benefits have been given to him. The certificate from Officer-in-charge Records, Nasirabad issued on 010.1962 was also submitted verifying from the records that the petitioner has not been paid gratuity and pension from the military services. Thus, full information was received vide order dated 12.04.1972 issued by the Director, Primary and Secondary Education, Rajasthan, Bikaner. The said letter reads thus:- “No. EDB/Estt/F-3/13332/176/70 12.04.1972 Dated Sub:-Fixation of pay and allowance appropriate to pay scales to Shri Sayar Singh. Ref :-Your No. GRSS/GRG/Fix/ F-15/71-72, dated 111.1972. According to F.D. Memo No. F.11(11)F.1154, dated 06.05.1954 the pay of the individuals (J.C.Os) have been allowed to be fixed in the U.P.S. A a stage equal to their Army Pay in respect of their substantive Army Status (or if there is no equivalent stage, at the stage next below plus personal pay equal to difference). In case Army Pay happens to exceed the civil scale, the pay on fixation in such scale will be limited to the maximum and no personal pay will be allowed on account of the difference. In case Army Pay happens to exceed the civil scale, the pay on fixation in such scale will be limited to the maximum and no personal pay will be allowed on account of the difference. The above treatment would be allowed in case in which no pension has been drawn by the Army. Where a military pension is availed of , the pension will continue to be drawn while the civil employ and appointment will be given at minimum of the scale. Where gratuity has been drawn and the Govt. Agrees to services being allowed to count on refund of gratuity to the State, the treatment contemplated above is to be allowed. In the light of the above mentioned provisions, the previous pay drawn by you can only be protected in case you did not avail any mustering out benefits from the Defence service, otherwise the pay is to be fixed at the minimum of the pay scale. Since, the military documents are Silent Govt. have required the case until you get the necessary clarification from the military authorities regarding payment of mustering out benefits after you return from defence services. Sd/ Director, Primary & Secondary Education, Rajasthan, Bikaner.” 9. Thereafter, in continuation of the aforesaid letter, the Director, Primary and Secondary Education, Rajasthan, Bikaner submitted requisite documents before the Government and requested to issue necessary sanction. 10. This led to issuance of order Annexure 9 dated 07.09.1972 conveying sanction of the Government to allow Rs. 80/-per month, the maximum of the scale of pay Rs. 50-4-80 to Shri Sayar Singh w.e.f. the date of appointment as P.T.I. i.e., 23.08.1958 which reads as under:- “Copy of letter No. F.19(6) Edu/67/71, dated 11/17.08.1972 from Shri S.N. Purohit, Asstt. Secretary to Government, Government of Rajasthan Education (Gr. II) Department to the Director, Primary and Secondary Education Rajasthan, Bikaner. Sub:-Fixation of pay and allowing appropriate pay scale to Shri Sayar Singh, provisionally retrenched from armed force. Ref :-Your letter No. DB/Estt/F.3/13358/Spl/70/dated 28.06.1972. I am directed to convey sanction of the Government to allow Rs. 80/-p.m. The maximum of the scale of pay Rs. 50-4-80, to Shri Sayar Singh P.T.I. with effect from the date of his appointment as P.T.I., i.e., 23.08.1958. This issues with the concurrence of the Finance Department vide their I.D. No. 3141, dated 21.08.1971. 11. I am directed to convey sanction of the Government to allow Rs. 80/-p.m. The maximum of the scale of pay Rs. 50-4-80, to Shri Sayar Singh P.T.I. with effect from the date of his appointment as P.T.I., i.e., 23.08.1958. This issues with the concurrence of the Finance Department vide their I.D. No. 3141, dated 21.08.1971. 11. On receipt of this letter, the petitioner again made a representation Annexure 10 inviting the attention of the respondents that the pay scale applicable to the post was Rs. 60 to 130 and not Rs. 50 to 80 and, therefore, he was to be fixed at Rs. 130 on the very same basis at the maximum pay scale of Rs. 60 to 130. He pointed out that the pay scale for P.T.I. from 23.08.1958 to 31.03.1966 was Rs. 60-130/-from 01.04.1966, it was revised to Rs. 120/-to Rs. 225/-and from 01.09.1968 it was revised to Rs. 160/-to Rs. 350/-. 12. By letter dated 10.07.1974, the District Education Officer recommended the fixation of the petitioner in the pay scale of Rs. 60 to 130. By letter dated 17.03.1979, the order was issued to fix the petitioner in the pay scale of Rs. 60 to 130 w.e.f. his initial date of appointment i.e., 23.08.1958. 13. Ordinarily, with the issue of above letter about the fixation of the petitioner in pay scale of Rs. 60/-to 130/-, the petitioner should have been fixed at the highest of pay scale of Rs. 60/-to Rs. 130/-in terms of order Annexure 9 dated 07.09.1972, in view of the decision taken that he is entitled to be fixed at the highest of the pay scale, as he had not received any retiral benefits from the defence service and the order was clear, it give rise to no doubt. 14. The petitioner made a representation vide Annexure 13 that he may be fixed at the maximum of pay scale at Rs. 130 in view of the decision already taken in terms of the Government order dated 06.05.1954. By that the time, the petitioner has retired from service w.e.f. 31.07.1983. 15. 14. The petitioner made a representation vide Annexure 13 that he may be fixed at the maximum of pay scale at Rs. 130 in view of the decision already taken in terms of the Government order dated 06.05.1954. By that the time, the petitioner has retired from service w.e.f. 31.07.1983. 15. By letter dated 22.06.1985, the petitioner again issued a reminder to the request dated 112.1984 about his fixation at the maximum pay scale and not to make any recovery by treating him to be fixed at the minimum of pay scale pointing out that no payment has been made to him in pursuance of his fixation in higher pay scale since 110.1982. 16. Pursuant to this request, the District Education Officer vide letter dated 22.06.1985 sought instructions from the Government about the stage at which the petitioner is to be fixed in the pay scale of Rs. 60 to 130 but it appears that it has been mechanically replied to by the respondents that he is to be fixed at minimum of the pay scale at the time of his appointment, totally ignoring the fact that it was not a case of fresh appointment as such but the petitioner was appointed as PTI by way of absorption as an ex-service personnel, who was already drawing Rs. 225/-per month and fixation of pay of such absorbed ex-serviceman was to be made as per Government order dated 06.05.1954 (Exhibit 21). 17. Under the circumstances noticed above, the question of the petitioner’s fixation in the pay scale applicable to the post had already been decided earlier by allowing him to draw maximum of pay scale subject to the pay which he was drawing at the time of retirement. 18. This letter dated 212.1985 in response to letter dated 22.06.1985 from the District Education Officer was not addressed to the petitioner but was addressed to the District Education Officer. The District Education Officer in turn issued letter dated 24.01.1986. 9.19. However, it appears that on 24.01.1986, a letter was addressed by the Head Master, Government M.G. Senior Secondary School, Ajmer to the Head Master, Government Rajendra Secondary School, Ajmer informing him that the petitioner was entitled only to minimum of pay scale i.e., Rs. 60/-to Rs. 130/-w.e.f. 23.08.1958. In this letter, it was further stated that the petitioner has been fixed at Rs. 80/-in the pay scale of Rs. 50/-to Rs. 60/-to Rs. 130/-w.e.f. 23.08.1958. In this letter, it was further stated that the petitioner has been fixed at Rs. 80/-in the pay scale of Rs. 50/-to Rs. 80/-, which was incorrect and, therefore, the records may be corrected, re-fixation shall be made and the recovery may be effected from the petitioner. Copy of the letter was addressed to the petitioner against which he duly made a representation promptly vide Annexure17 dated 16.04.1986 clearly making out that he was entitled to be fixed at the maximum of pay scale in terms of the Government order dated 06.05.1954 and which issue has also been decided in his favour. That decision has not been recalled at any time. 10.20. The District Education Officer in his letter addressed to the Director, Primary and Middle Education invited his attention to the fact that the petitioner is entitled to be fixed at maximum of pay scale of Rs. 60-130 and recommended the case of the petitioner for review by the Government. 121. The petitioner made a further representation on 09.07.1986 for expediting the decision about the fixation on the maximum of pay scale and not effecting recovery. In respect of petitioner’s another grievance that services rendered by him in defence service may be counted in the qualifying service also received attention and enquiry in respect thereof was being made which is apparent from the Annexures A/25, A/26, A/27 and A/28. 122. Ultimately vide order dated 23.01.1992, it was communicated that the petitioner has been directed to be fixed at the minimum of pay scale vide order dated 212.1985 and he is entitled to receive only Rs. 60/-at the minimum of pay scale on 23.08.1958 and consequently, the recovery should be effected from his pension. This led to filing of this writ petition. 123. The order Annexure R/1 by which the petitioner was directed to be fixed at the minimum of pay scale is cryptic order which reads as under:- “jktLFkku ljdkj f’k{kk {xzqi&3} foHkkx Øek f’k{kk@4@71 }19{61++++++-d&,Qa t;ijq] 23 fnlEcj] 1985 ftyk f k{kk vf /kdkjh {Nk= laLFkk, }sa vtesjA fo"k; %&Jh kk;j flag] kkf’k jkmekfo egkRek xka/kh] vtesj ds osru fu/kkZfjr djus ,oa vf/kd Hkqxrku olwyh djus ds laca/k esa! lUnHkZ %&vkidk i= Øekad ftf’kv {Nk= @ys[kk&2@Qq&os fLFk@85&86 fnukad 22061985 egksn;] mijksDr fo"k;kUrxZr funsZ’kkuqlkj ys[k gS fd Jh kk;j flawg dks 60&130 osrueku dk U;ure osru :i;s 60@& gh ns; gSA mDr lUnfHkZr i= }kjk izkIr vfHkys[k i= ds lkFk ykSVkdj ys[k gS fd Jh flag ls olwyh dh dk;Zokgh dh tk;A iq layXu %& ls&2 O;iq&1 Hkonh; {y{e.k HkHHkk.kh} lgk;d kklu lfpo" 24. In the reply submitted by the respondents, nothing has been stated on merit of the contention that under the decision taken by the respondent-State the petitioner is entitled to be fixed at the maximum of pay scale applicable to the post in view of its order dated 06.05.1954 and he was erroneously placed and that needs to be reviewed. The reply reveals its pleas that the petitioner ought to have approached the Rajasthan Civil Service Appellate Tribunal or that he has challenged the order dated 23.01.1992 but the petition suffers from latches and he has not challenged the order dated 212.1985. 25. I have noticed above that the order dated 212.1985 was never communicated to the petitioner. When the effect of order was communicated, it was promptly protested by the petitioner before the competent authority for correctly fixing his pay and the persons who were dealing with application promptly recommended the petitioner’s case drawing attention of the Government about the validity of the petitioner’s claim for fixation at maximum of pay scale applicable to P.T.I. from time to time. Still in the order dated 23.01.1992, no such submission about the fact that why the State Government has retraced step from fixing him at the maximum of pay scale applicable to the post on the basis of which decision, the petitioner was initially allowed to draw at the maximum pay scale of Rs. 50-80 erroneously assuming it to be applicable to the post of Physical Instructor Gr. III. When in fact, pay scale applicable to the post of PTI on relevant date was Rs. 60-130/-, which fact was never in dispute. 26. It is to ponder if the petitioner was entitled to be fixed at the maximum pay scale in terms of the order dated 07.09.1972 and which fact has not been disputed and denied by the respondents in their reply, on what basis the petitioner could be denied the fixation at the maximum of pay scale of Rs. 26. It is to ponder if the petitioner was entitled to be fixed at the maximum pay scale in terms of the order dated 07.09.1972 and which fact has not been disputed and denied by the respondents in their reply, on what basis the petitioner could be denied the fixation at the maximum of pay scale of Rs. 60-130 w.e.f. 23.08.1958 applicable to the post of P.T.I. when decision to fix the petitioner on maximum of pay scale was in consonance with the Government order dated 06.05.1954 and which has never been withdrawn. 27. From the facts it is also apparent that before fixing the petitioner at the minimum of pay scale by reducing his salary from the maximum of his pay scale, the petitioner was never offered any opportunity. As a matter of fact, after the petitioner was fixed at the maximum of pay scale in the pay scale of Rs. 50-80/-, determining the petitioner’s pay at Rs. 60/-in the pay scale of Rs. 60-130/-amounts to reduction of his salary which could not have been done without affording him an opportunity of hearing as it resulted in civil consequences. 28. Apart from it, it also resulted in denial of the benefit to which he was found to be eligible in the previous orders. The order fixing the petitioner at Rs. 60/-, in my opinion, could not have been sustained on its face value and it was the obligation of the respondent as a welfare State when the matter was brought to its notice to have corrected the error without indulging into raising preliminary objection as to filing an appeal as an alternative remedy, which in the facts and circumstances of the case cannot come in the way of exercise of extra ordinary jurisdiction of this Court to remedy the manifest injustice done to the petitioner. 29. The fact that the petitioner has not made specific mention to set aside the order dated 212.1985 also cannot be held against him because all the facts have been pleaded and after recommendation was made by the District Education Officer for putting in abeyance the order dated 212.1985, it has clearly been asked by the petitioner that he ought to have been fixed at the maximum of pay scale at Rs. 130 in the pay sclae of Rs. 60-130/-w.e.f. 23.08.1958 with all consequential benefits. 130 in the pay sclae of Rs. 60-130/-w.e.f. 23.08.1958 with all consequential benefits. It includes all the releifs which the petitioner was entitled in terms of his claim. 30. Even otherwise the interest of justice required that relief be appropriately moulded to give relief to the petitioner to which he is entitled and a cause of substantial justice cannot be allowed to parish on mere technicalities. The Court in extra-ordinary jurisdiction is empowered to mould the relief appropriately. The action of the respondents by passing the order dated 212.1985 without considering their own orders dated 06.05.1954 and 07.09.1972 fixing the petitioner at maximum of pay scale though erroneously considered the pay scale of Rs. 50-80/-, to be pay scale applicable to the post of PTI when indisputably it was Rs. 60-130/-and reducing the pay of the petitioner to Rs. 60/-at the minimum of pay scale, without affording him any opportunity of hearing, renders the order dated 212.1985 void ab initio and liable to be ignored and also subsequent orders founded on it to be invalid. 1.31. Accordingly, the order dated 212.1985, Annexure R/1 and subsequent orders reiterating the same culminating in impugned order dated 21.1992 are quashed. It is declared that the petitioner is entitled to be fixed at Rs. 130/-at the maximum of pay scale Rs. 60-130 applicable to P.T.I. w.e.f. from his initial absorption on the post on 23.08.1958 and to correspondingly make his fixation in revised pay scales from time to time applicable to the post until he retired. Consequently, his retiral benefits are also to be re-determined on that premises. Since, the petitioner has continuously discharged his duties as P.T.I. until his retirement, and post retirement, no duties are to be discharged, the arrears of emoluments lawfully payable to the petitioner, also cannot be denied to him on the basis of no work no wages. 2.32. Coming to another prayer of the petitioner that services rendered by him in the military has to be counted for the purpose of computing qualifying service for determination of pension. Attention has been invited to Rule 175 of the RSR as it existed at the time the petitioner reitred, which reads thus:- “175. 2.32. Coming to another prayer of the petitioner that services rendered by him in the military has to be counted for the purpose of computing qualifying service for determination of pension. Attention has been invited to Rule 175 of the RSR as it existed at the time the petitioner reitred, which reads thus:- “175. Counting of Military service for pension under Civil Rules.-(a) Service rendered after attaining the age of 20 years which is pensionable under military rules but which terminates before a pension has been earned in respect of it, may, at the discretion of Government be allowed to count, when followed by service qualifying for pension under Civil Rules as part of such service, provided that any bonus or gratuity received in lieu of pension on, or since, discharge from military service shall be refunded in such number of monthly installments, not normally exceeding 36 and beginning from such date, as in each case Government may decide. (b) Servicepensionable under military rules which does not terminate before a pension has been earned in respect of it shall not be allowed to count for pension under Civil Rules. (c) Counting War Service for Civil pension.-[XXX] (d) [XXX]” 1.33. The respondents’ plea is that it is in the discretion of the Government to include in the computation of the military service followed with the civil service as qualifying service for pension only if the incumbent has earned pension in military service. Since, petitioner did not have pensionable service with military, no mandamus or writ could be issued if the respondent has not exercised discretion. 2.34. This contention also does not appear to be correct. A bare perusal of the Rule shows that it envisages two conditions; first condition is that where a person who rendered services after attaining the age of 20 years but whose services come to an end before he has earned his pension that period of service can be counted for the purpose of qualifying service and where in such event the military service is followed with civil services carrying pension, the services rendered in the military is to be computed as qualifying service provided that any bonus given in lieu of pension on discharge from military service is refunded. Clause (b) of the Rule 175 further envisages that in case the services of the incumbent under military does not terminate before he has earned pension in respect thereof then the said services cannot be computed as a qualifying service for the purpose of determining pension on retirement of the civil post followed with the termination of military services. 3.35. Apparently, this rule makes is abundantly clear that if the military service come to close after earning the pension, in no event such services is to be counted as a qualifying service for the purpose of employment on the civil post following it even by surrendering pension or gratuity. But where the petitioner’s services with military is terminated before pension is earned, his services with military are to be computed as qualifying service for pension, if it is followed with pensionable civil service. The service on pensionable post does not go unremunerated in retirement. The only condition is that if gratuity is paid for the service rendered in military, it has to be returned. If the gratuity has not been returned, the double advantage cannot be taken. On facts noticed above, the petitioner since deceased was entitled to include period of service rendered by him in defence services in computing his qualifying service on the pensionable civil post on which his appointment followed as he did not have served for period which could have qualified him for pension as ex-serviceman and he had returned gratuity received by him. 4.36. The discretion which vests in the State Government under Rule 175 of RSR is coupled with a duty that whenever condition for exercise of such discretion is shown to exist, it has to be exercised for the purpose it is vested in it. The discretion vested under Rule 175 is not dependent on whim or caprice of a monarch but is to be exercised in the realm of rule of law where the power and duty go hand in hand and cannot be seen in isolation. 5.37. The discretion vested under Rule 175 is not dependent on whim or caprice of a monarch but is to be exercised in the realm of rule of law where the power and duty go hand in hand and cannot be seen in isolation. 5.37. The petitioner, is therefore, entitled to mandamus on both counts namely that he is entitled to claim computation of his past military service as a qualifying service from which he has retired on his appointment on pensionable civil post on which he was appointed following the discharge from military service under the scheme framed by the State and in terms of the Government order dated 09.05.1954, the petitioner is entitled to be fixed at the maximum of Rs. 60-130/-pay scale which was applicable to the post to which he was appointed in 1958 but was less than last pay drawn in the military service. The decision to which effect has also been taken by the State Government while considering that his appointment was in pay scale of Rs. 50-80 as he fulfilled the condition for being fixed at the maximum of pay scale subject to limit of his last drawn pay. 6.38. Accordingly, the writ petition is allowed, the petitioner’s pay shall be fixed w.e.f. 23.05.1958 by fixing at the maximum of pay scale Rs. 60-130 in terms of Government order dated 06.05.1954 and accordingly, his fixation has to be made in the revised pay scale from time to time as became applicable to the post until he retired and consequently, his retiral benefits are also to be computed according to last drawn pay so determined. It is further directed that for the purpose of retiral benefits, the petitioner’s qualifying service shall include the service rendered by him in the military in terms of Rule 175. 7.39. Consequently, the petitioner’s family pension after his death to which the widow or other members of the family at the time of death were entitled shall also be re-fixed. 8.40. All the arrears arising from the aforesaid directions shall be paid to the petitioner within a period of 4 months from the date of service of writ or production of the certified copy of this order whichever is earlier. 8.40. All the arrears arising from the aforesaid directions shall be paid to the petitioner within a period of 4 months from the date of service of writ or production of the certified copy of this order whichever is earlier. As the petitioner has suffered loss on account of total non-application of mind to the facts of the petitioner’s case by ignoring of its own earlier order and also ignoring Government directions dated 06.05.1954 in this regard, it is a fit case that the respondents may be directed to pay interest at the rate of 12% with effect from the date of filing the writ petition on the amount of arrears that become payable on that date and arrears for subsequent period shall carry interest at the same rate from the date such amount becomes due until the date of order. From the date of order on all arrears interest shall be payable at 9% per annum. 9.41. The petitioner shall get costs of the writ petition which is quantified at Rs. 5,000/-(Rupees five thousand only).