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2005 DIGILAW 2548 (RAJ)

Bhairu Ratan v. Rajasthan Krishi Vishva Vidhyalaya

2005-09-21

MANAK MOHTA, RAJESH BALIA

body2005
Honble BALIA, J.–These appeals are founded on common ground about computation of services rendered by the appellants in all these cases under the Rajasthan Agricultural University on temporary basis from the date of entering into service against regular posts, on which posts they continued to serve until they were appointed substantively by holding a screening test after the decision of this Court in Dilip Bhatnagar & 6 Ors. vs. Rajasthan Agriculture University, Bikaner, 1994 (3) WLC 42. (2). The Government of Rajasthan had issued the order dated 25.1.92 in respect of the Rajasthan State Employees in class IV and Ministerial and Subordinate services providing the amelioration of service conditions of stagnated employees who have not received any promotion for a span of 9 years in each of 9, 18 and 27 years respectively for the purpose of granting them first, second or third selection scale. In the said order, selection pay scale has been envisioned to be granted without giving actual promotion to the next higher post. (3). By Resolution dated 12/13.03.1992 Rajasthan Agricultural University adopted the order No. F 20(1) FD Gr. II/42 Jaipur dated Jan. 25, 1992 of the Government of Rajasthan providing selection scale after completion of 9, 18 and 27 years of continuous service in the various departments mutatis mutandis. The order was issued on the approval of the Honble Vice Chancellor. (4). It has been a contentious issue between the State and its employees in respect of the order dated 25.1.92 whether the period of 9, 18 and 27 years of continuous service is to be computed w.e.f. first entry into the service notwithstanding that it was not an appointment substantively but was permissible appointment on temporary or ad hoc basis under the Rules. The employees were contending that period of 9, 18 and 27 years must commence for the purpose of extending the benefit of 9, 18 and 27 years schemes w.e.f. their initial entry into the service, even temporary. On the other hand, the State Government has taken the stand that the period of service of 9, 18 and 27 years be computed w.e.f. the regular substantive appointment. It is in the backdrop of this controversy, the present appeals have arisen. (5). On the other hand, the State Government has taken the stand that the period of service of 9, 18 and 27 years be computed w.e.f. the regular substantive appointment. It is in the backdrop of this controversy, the present appeals have arisen. (5). The employees of the University, who were also alleged to have entitled for the benefits flowing from the Government order dated 25.1.92 adopted by it vide Resolution were first subjected to the same controversy. (6). However, when the Rajasthan State Services Appellate Tribunal held in Chhagan Lal vs. Govt. of Raj., decided on 15.9.2000, University issued a notification dated 29.6.2001/12.1.2001 after resolution in its meeting held on 11.5.2001 which read as under:– ``The benefit of the selection scale on completion of 9, 18 and 27 years be allowed to the non-teaching staff as per the decision of the Rajasthan Civil Seva Appeal Abhikran dated 15.9.2000 in case of Sh. Chhagan Lal vs. Govt. of Raj., by counting their service from the date of their entrance in the service (whether it is a regular or adhoc, stop gap arrangement, temporary etc.). Further resolved that benefit be given only after the funds are specially received from the Government for this purpose. (7). Pursuant to this direction, the petitioner appellants were given the benefit of selection scale by computing their period of service w.e.f. 11.7.1990. However, the Government vide its letter dated 8.08.2002 while matter was pending consideration before Full Bench raised objection to inclusion of period of service rendered on ad hoc/temporary basis in 9, 18 and 27 years. In furtherance of this order, the University vide its order dated 26/30.05.2003 issued a notification by referring to the Government letter dated 8.08.2002 that in pursuance of the aforesaid, the Board of Management resolved that University will follow the guidelines issued by the Government of Rajasthan for not computing the ad hoc appointment period and granting selection scale by counting the period of ad hoc appointment. In future also, the ad hoc period would be deemed to be not counted while granting selection scale. In this notification, the University reiterated the stand taken on 8.8.2002 vide letter No. F 3(2) Agri/Gr.2/02. (8). In future also, the ad hoc period would be deemed to be not counted while granting selection scale. In this notification, the University reiterated the stand taken on 8.8.2002 vide letter No. F 3(2) Agri/Gr.2/02. (8). Apparently, the aforesaid chain of events reveal that what was being sought to be given effect to was the directives issued by the State Government, the order dated 25.1.92 concerning computation of 9, 18 and 27 years period for the purpose of extending the benefit of grant of selection scale first, second or third as the case may be or excluding the period of service as temporary or ad hoc notwithstanding that the appointment may be against regular vacancies after due selection and such temporary appointment is permissible under the Rules and when in furtherance of the order dated 26/30.5.2003, the recoveries were subjected to be made, the petitions were filed out of which these appeals have arisen. (9). The learned Single Judge by referring the leading judgment in the case of Bheru Ratan and Ors., decided on 31.10.2003 was of the opinion that in view of the Supreme Court decision in State of Haryana vs. Haryana Veterinary & AHTS Association & Anr., (2000) 8 SCC 4 , regular services cannot be equated as continued service and finding that the initial appointment was a regular appointment, the petitioners were not entitled to the benefit of computing 9, 18 and 27 years services w.e.f. their initial date of appointment. Consequently, the claim of the petitioner shall not be sustainable. The learned Single Judge also referred to undertaking given by the incumbent at the time of receiving the selection granted under the scheme that in case the Government does not approve the payments, they will return the amount. (10). We have heard the learned counsel for the parties and given careful consideration to the rival contentions as well as decision of this Court and have also considered the decision of the Supreme Court relied on by the learned Single Judge. (11). We are of the opinion that so far as the interpretation of the order dated 25.1.92 is concerned, the same is governed by three decisions of this Court; two by the Division Bench and one by the Full Bench which has interpreted the order of the Government dated 25.1.92 on its own strength and circumstances. (12). (11). We are of the opinion that so far as the interpretation of the order dated 25.1.92 is concerned, the same is governed by three decisions of this Court; two by the Division Bench and one by the Full Bench which has interpreted the order of the Government dated 25.1.92 on its own strength and circumstances. (12). The decision of this Court in Smt. Pusphalata Thada vs. State & Ors., 2001 (2) WLC (Raj.) 560 = (RLW 2001(3) Raj. 1555) came in the wake of recovery directed by State Government in the like circumstances in which the University has directed the recovery after selection grade were granted on completion of 9, 18 and 27 years in terms of the order dated 25.1.92 for computing the period from initial entry in the service irrespective of the nature of the service. The Court did not countenance the plea that the amount paid by grant of selection grade under the order dated 25.1.92 was by way of inadvertent clerical mistake which could be removed without notice. The Court also repelled the contention of the State that period of 9, 18, 27 years be computed w.e.f. the date of regular appointment on substantive basis only. Salient features of the scheme were noticed as under:– ``The Government of Rajasthan issued an order dated 25.1.1992 providing benefit of grant of selection grade for employee in Class-IV, Ministerial and Subordinate Services on completion of 9, 18 and 27 years of service in cases of government employee who are not granted one, two and three promotions during the aforesaid period respectively. According to the petitioner, a perusal of the order dated 25.1.1992 it is crystal clear that as per Clause-3 of the said order, all employees, irrespective of their nature of service who have rendered 9, 18 and 27 years of service, as the case may be, their total length of service shall be counted in their existing cadre/service for the purpose of grant of selection grade and there is no exception either way in the circular dated 25.1.1992 making out distinction between government employee among who it applicable. So far as the present matter is concerned, there is no exception either way making out distinction for grant of selection grade to trained or untrained teachers. So far as the present matter is concerned, there is no exception either way making out distinction for grant of selection grade to trained or untrained teachers. On the contrary, the circular contemplates one and only one stipulation which is to be considered that whosoever completed 9, 18 and 27 years of service, he or she became entitled to grant of selection grade as a matter of course. (13). A Division Bench of this Court in State & Ors. vs. Uma Shankar Agarwal & Ors., D.B. Special Appeal (W) No. 1142/2002, decided on 3.1.2003 had again occasion to consider the scope and ambit of order dated 25.1.92 in relation to the computation of period of 9, 18 and 27 years for the purpose of grant of selection scale. The Division Bench has taken notice of Supreme Court decision in Haryana Veterinary & AHTSs case (supra), and held that the period of ad hoc service should be counted for the purpose of granting selection scale in terms of the order dated 25.1.92. The Division Bench in Uma Shankar Agarwals case (supra), also held that the scheme of the Haryana Rules which was quite distinct and different from the scheme of Rajasthan. Therefore, the decision of the Supreme Court in Haryana AHTSs case does not govern the interpretation of order issued on 25.1.92. (14). Similar view was expressed by another Division Bench of this Court in D.B. Civil Review Pet. No. 3/2003 decided on 27.08.2003 which had arisen out of its Bench decision in D.B. Civil Special Appeal No. 141/2002 State of Raj. vs. Sunder Lal Paliwal & Anr. (15). The facts of Sunder Lal Paliwals case (supra), are quite akin to the facts of the present case. In the aforesaid case, the incumbents were appointed as LDC in 1985 on different dates under the Collector, Udaipur. The appointments were made on the basis of list of candidates made available to the Collector by Employment Exchange and Social Welfare Department, Udaipur and after the candidates have been subjected to typing test and interview before their appointments, the appointments were made against the existing vacancies of LDC. However the appointments were made as the daily rated workers at the rate of 15/- per day. However the appointments were made as the daily rated workers at the rate of 15/- per day. As the incumbents were not paid the full remuneration of the posts in the pay scale applicable to the post, a writ petition was filed before this Court which was decided by Division Bench on 11.5.88. The Court found in that decision that the appellants who have been appointed after regular process of selection and discharging the duties of regular posts of LDCs, it is not just and equitable that they be paid Rs. 15/- per day. The action was found to be arbitrary and contrary to the principle of ``equal pay for equal work. The Court reiterated that the petitioners (LDCs) be fixed in the regular pay scale of LDC w.e.f the date the writ petition was filed in the Court i.e., 13.11.87. Thereafter the pay scales were fixed. Later on in compliance of the aforesaid directions, those persons, who passed proficiency test, their services were regularised. (16). With this background, when the order dated 25.1.92 came into force, the said LDCs contended that they should be given benefit of 9, 18 and 27 years w.e.f. the date they were appointed in the year 1985 and the Government having not responded to this demand, they approached Rajasthan Civil Services Appellate Tribunal. (17). The Tribunal relying on the decision of this Court in Pusphalata Thadas case (supra), allowed the appeals by directing that the period of 9 years is to be computed w.e.f. 13.8.87, the date from which they were fixed in the regular pay scale. The order of the Tribunal was made the subject matter of writ petition before this Court. The writ petition was dismissed by the learned Single Judge following the number of earlier decisions including Pusphalata Thadas case in which the earlier judgments holding that the orders recalling the benefit of selection scale on completion of 9 years w.e.f. initial date of appointment was quashed and consequently the recoveries of amount may be refunded. The order of learned Single Judge was affirmed by the Division Bench without going into details, following the decision in Pusphalata Thadas case (supra). (18). The order of learned Single Judge was affirmed by the Division Bench without going into details, following the decision in Pusphalata Thadas case (supra). (18). However, the review of the said order was sought by the State Government by placing reliance on State of Haryana Veterinary & AHTSs case (supra), saying that in view of the aforesaid judgment, the entire services rendered prior to regularisation of the services of the incumbents could not be counted for the purpose of giving effect to the order dated 25.1.92. The Division Bench of this Court did not sustain the contention of the State Government on this count. It found that the issue before the Supreme Court arose out of Haryana Service of Engineer Class to Public Irrigation Branch, 1970 which had different requisites for grant of selection scale. Haryana Rules envisaged that selection scale is to be granted after prescribed period of `regular service. It is interpreting those Rules, the Supreme Court found that for grant of selection scale, the services rendered prior to regular recruitment under the service Rules cannot be counted. Review petition was, therefore, rejected. (19). After these decisions, it appears that a Division Bench at Jaipur in D.B.C. Special Appeal No. 58/2004 was of the opinion that in view of the decision of the Supreme Court in Haryana Veterinary AHTSs case (supra), the question ``whether the period of ad hoc service rendered by an employee should be calculated for the purpose of granting selection scale on completion of 9, 18 and 27 years of service or whether such service rendered prior to the date of regular appointment should not be counted ? was referred to a Larger Bench. (20). The Full Bench of this Court considered this issue in the State of Rajasthan & Ors. vs. Farooq Ahmed & 59 Ors., 2005 (1) WLC, 1 = (RLW 2005(1) Raj. 565 (FB)and sustained the law laid down by this Court in Uma Shankar Agarwals case (supra), and distinguished the decision of the Supreme Court on the same lines on which it was distinguished by the Division Bench in Surendra Lals case. (21). The Court noticed the facts on which the ratio was founded as under: ``It is significant to note that the respondents were appointed to a particular post, which carried a time scale & pay. They were granted increments from time to time. (21). The Court noticed the facts on which the ratio was founded as under: ``It is significant to note that the respondents were appointed to a particular post, which carried a time scale & pay. They were granted increments from time to time. This being so, there is no reason why their services on ad hoc/temporary basis, which were in conformity with the rules should not be counted for the purpose of grant of Selection Grade, after they were confirmed in the service. (22). The Court concluded after considering several precedence of this Court as well as of the Supreme Court on rival contentions that where a person is appointed on ad hoc basis in accordance with the Rules, the long time adhoc services rendered by him/her until her regularisation should be counted for the purpose of grant of regular scale on completion of 9, 18 and 27 years of service, as the case may be. (23). In view of aforesaid catena of decisions considering the Haryana Veterinary AITHs case (supra), vis-a-vis the scheme of order dated 25.1.92 clearly finding out distinction between the scheme of Haryana Rules and the order granting 9, 18 and 27 years selection grade issued by the Rajasthan State holding that the ratio of Haryana case is not applicable for interpretation of the order dated 25.1.92. (24). There is hardly any error in striking out a different note. In fact, it appears that number of Division Bench decisions to which we have referred, all judgments rendered by this Court and binding on learned Single Judge had not been brought to the notice of the learned Single Judge. (25). As the judgment under appeal is solely founded by applying the ratio in Haryana Veterinary AITHs case (supra), which has been held to be not governing the facts of order dated 25.1.1992 and is contrary to the Bench decisions and a Full Bench of this Court, the same cannot be sustained. (26). The learned counsel for the respondents has also urged that the petitioners having not challenged the seniority position, their service period prior to the date w.e.f. which seniority has been granted cannot be counted for the purpose of grant of benefit of selection scale under the aforesaid scheme. (26). The learned counsel for the respondents has also urged that the petitioners having not challenged the seniority position, their service period prior to the date w.e.f. which seniority has been granted cannot be counted for the purpose of grant of benefit of selection scale under the aforesaid scheme. He also pointed out that the appointment having been made initially on ad hoc temporary basis and once the services were counted for seniority w.e.f. from the date after regular selection; their past services before regularisation cannot be taken into account. He urged that the termination orders though had been set aside by this Court, their appointments must be deemed to have been made only on their clearing the screening test. (27). The factual position in this regard as per learned counsel appears from the earlier decision of this Court in Dilip Bhatnagars case (supra). The matter in Dilip Bhatnagar and group of cases was concerned with ad hoc temporary appointment like the present petitioner/appellants, in the Rajasthan Agricultural University, Bikaner and the present litigation is only a sequel to that. In the said case, the petitioners were appointed as LDC by the respondent University on temporary ad hoc basis on fixed remunerative basis initially without holding a regular selection. It was directed by the Court that the petitioners in all the writ petitions who are working on adhoc/temporary/casual basis since their appointment shall continue to remain in service until regularly selected candidates are appointed against the vacancies; and the petitioners shall be fixed in the regular pay scale applicable to LDC of the respondent University w.e.f. July 21, 1990, when the first of the aforesaid writ petition was filed in this Court, and arrears, if any, as a result of such fixation were to the paid within two months from today. (28). So far as the orders of termination were concerned, the Court noticed that the issue does not survive as the orders were not given effect to and it observed that in case any of the petitioners failed to get himself selected in the regular selection or clear the job test, if any, held in pursuance of the aforesaid directions, his services are liable to be terminated in accordance with law. (29). (29). Thus, the position that emerge is that though initially selection was not regular by the directions of the Court, the petitioners were put in the time scale of a w.e.f. 21.07.1990 it is w.e.f. that date, the petitioners appointment were initially granted the benefit of selection grade by computing the period of 9, 18 and 27 years. According to the Full Bench of this Court such employees who have been placed on the regular pay scale and drawing regular pay scale are entitled to continue the period w.e.f. the date they placed in the regular pay scale with regular increments and in such a case, so far as the seniority is concerned, the Full Bench has clearly explained that the grant of selection scale and fixation of seniority are two different matter and are not dependent on each other. The Court opined: ``The question of determination of seniority and the question of granting Selection Grade in the light of the notifications issued by the Government of Rajasthan from time to time are two different matters. The Government being conscious of the fact that the services rendered on ad hoc basis do not count for determining seniority of an employee, clarified the position by incorporating Clause 9 in the orders dated January 25, 1992 and February 17, 1998. (30). Hence the seniority position acquired by the petitioners vis-a-vis the employees who were appointed on regular basis earlier to them, does not affect the question of grant of selection scale. It may be noticed at this juncture that the grant of selection scale does not automatically place an incumbent as a person promoted to the next higher post. The grant of selection grade is not equivalent to the grant of promotion. Therefore, the consideration of seniority and their consideration for promotion on the basis of seniority or other method by which the promotions are governed does not affect the question of grant of selection scale which is primarily concerned with ameliorating the conditions of service for those who are stagnated in services for a long time. (31). Therefore, the consideration of seniority and their consideration for promotion on the basis of seniority or other method by which the promotions are governed does not affect the question of grant of selection scale which is primarily concerned with ameliorating the conditions of service for those who are stagnated in services for a long time. (31). Since from the facts it is clear that all the petitioners were placed in the regular pay scale w.e.f. 11.7.90 and were given regular annual increments in the said time scale of pay since that date, in pursuance of resolution adopting order dated 25.1.92 in March, 1992 by the University has not been disputed by the University, the interpretation of the scheme dated 25.1.92 vis-a-vis employees of the University cannot be differed than what has been construed by this Court. The same interpretation should prevail for computing the period of service for the purpose of grant of selection grade in pursuance of the order dated 25.1.92 by the University in March, 1992 as noticed by us above and cannot have a different meaning than what is meant for the Government employees by the order dated 25.1.92. (32). Apparently, these aspects have not been brought to the notice of the learned Single Judge, and therefore, have not been considered by him which makes the judgment under appeal unsustainable. (33). As a result, the appeals are allowed. The judgment under appeal in each case is set aside, the writ petitions are also allowed and the orders of withdrawing the grant of selection scale by computing 9 years service w.e.f. 5.07.1990 is quashed and consequently, recoveries order to be effected against the petitioners are also set aside. In case any recovery has already been made, the amount may be refunded. (34). No order as to costs.