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2005 DIGILAW 1878 (RAJ)

Pukha Ram v. State of Rajasthan

2005-07-22

GOPAL KRISHAN VYAS

body2005
Judgment Gopal Krishan Vyas, J.-By way of filing the present writ petition, the petitioner has impugned order (Anneuxre-6) whereby deduction has been effected from the gratuity amount of the petitioner and it has been prayed that the order Annexure-6 may be quashed with all consequential reliefs which have effect on Annexure-7 and Anneuxure-8, with cost. 2. Briefly stated, the relevant facts of the case are that the petitioner retired from service on attaining the age of superannuation while he was working under the control of the respondents as Head Master with effect from 31.08.1997. There was no enquiry against him. At the time of superannuation he was drawing the basic-pay of Rs. 3,050/-per month. It has been submitted that in August, 1997 fresh fixation was made and pay of the petitioner was reduced from Rs. 3,050/-to Rs.2,975/-and recovery of a sum of Rs. 17,196/-was ordered to be made from the amount of gratuity of the petitioner. The said amount was recovered from petitioners gratuity amount accordingly. 3. It has been submitted that as per Rule 170 of the RSR, losses can be recovered from the pension in case such decision is taken upon a departmental enquiry; but, there is no provision for deduction of lump-sum amount from the gratuity and, therefore, such deduction is void and without jurisdiction. 4. Upon notice, the respondents filed their reply and raised a preliminary objection that the petition is not maintainable inasmuch as alternate remedy of appeal before the Civil Services Appellate Tribunal is available to the petitioner. The respondent State has submitted that the petitioner was initially appointed on 07.08.1959 as an untrained Teacher and he was not possessing the requisite training qualification at the time of entry into the service. Since, the petitioner was untrained he was appointed on fixed salary. It is submitted that the petitioner obtained degree of B.Ed. in the year 1966 and, therefore, his appointment as Teacher was regularised with effect from 21.06.1966 and his pay was fixed in regular pay-scale. It has been submitted by the respondents in the reply that for the purpose of granting selection-grade in accordance with Government order dated 25.01.1992, by an inadvertent mistake, the petitioners service was counted from the date of his initial appointment whereas his service was to be counted from 21.06.1966 for the purpose. It has been submitted by the respondents in the reply that for the purpose of granting selection-grade in accordance with Government order dated 25.01.1992, by an inadvertent mistake, the petitioners service was counted from the date of his initial appointment whereas his service was to be counted from 21.06.1966 for the purpose. Therefore re-fixation was made in accordance with the order issued by the Government dated 27.07.1995 which resulted in recovery of the excess amount being effected from the petitioners gratuity amount. 5. I have heard learned Counsel for the parties and perused the material on record. 6. Without going into the controversy whether lump-sum deduction could be effected from the amount of gratuity or not, it may be noted that the very basis of the re-fixation itself is erroneous and contrary to adjudication of the issue by this Court. The respondents are taking shelter of the Government order dated 27.07.1995, an order which was later on withdrawn by the Government. In S.B. CivilWrit Petition No. 4269/2002, Gordhan Prasad Joshi vs. State of Rajasthan & Anr., and 9 other writ petitions, decided on 08.04.2003, it is categorically ordered by this Court that for the purpose of granting selection grade, the incumbents period of service has to be reckoned from the date of entry into the service irrespective of the fact whether at that time the petitioner was trained or not. In the case of Pushpalata Thada & Ors. vs. State of Rajasthan, 2001 (2) WLC 560, the Division Bench of this Court held that for the purpose of granting selection grade to a teacher, the date of initial entry into service shall be taken into account irrespective of the fact that the teacher was untrained at that time and acquired the training qualification subsequently. 7. In Gordhan Prasad Joshi case (Supra), the State Government frankly admitted the position and, therefore, this Court observed as under: “Learned Additional Advocate General submits that the said order dated 27th July, 1995 has been withdrawn by order dated 29th March, 2003, therefore, the stand of the State is now clear, which according to learned Additional Advocate General is that the employees are entitled for the selection grade by counting period from the date of their initial appointment on completion of 9, 18 and 27 years of service. Since, the order dated 27th July, 1995 itself has been quashed by this Court and now withdrawn, therefore, there arises no question of withdrawing of the selection grade already granted and there arises no question of recovery of the amount paid to the employees.” 8. Recently, the Full Bench of this Court, while answering reference in D.B. Civil Special Appeal No. 58 of 2004, State of Rajasthan & Ors. vs. Farooq Ahmed, reported in 2005 (1) WLC 1, held that where a person is appointed on ad hoc/temporary basis in accordance with the rules and in time scale, the period of services rendered by him/her, before his/her regularisation, should be counted for the purpose of grant of selection grade on completion of 9, 18 and 27 years of service, as the case may be. 9. In the instant case, the petitioner at the time of his initial appointment was of course not trained and acquired the B.Ed. degree to training subsequently but indisputably his appointment was not de hors the rules. In this view of the matter, when recovery itself is illegal being effected in pursuance of an order which was quashed by this Court in Pushplata Thadas case (Supra), and subsequently withdrawn by the Government and contrary to the principle laid down by this Court as aforenoted, the impugned order deserves to be quashed. 10. Consequently, the writ petition is allowed. Impugned order (Annexure-6) whereby recovery by deduction of amount from the petitioners gratuity has been effected is quashed and set aside with consequential benefits to the petitioner. The selection grade granted to the petitioner on the basis of counting the period of service from the date of initial entry into the service is held good in law and, accordingly, the respondents are directed to compute pension of the petitioner on the basis of last pay drawn and issue revised P.P.O. Any recovery by way of deduction from the gratuity amount of the petitioner if already made, the amount shall be refunded to the petitioner. The respondents are directed to complete the entire exercise within a period of three months from the date of this order, failing which interest at the rate of 9% per annum shall accrue to the petitioner on the amount for delayed period. Such interest, if any, shall be recovered from the erring authority. 11. There shall, however, be no order as to cost.