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2005 DIGILAW 3306 (RAJ)

Naveen Kumar Mahamwal v. Rajasthan High Court

2005-12-15

KRISHAN KUMAR ACHARYA, S.N.JHA

body2005
Judgment 1. By this writ petition, the petitioner, a member of the Rajasthan Judicial Services, since retired, seeks direction upon the respondent i.e., the Rajasthan High Court to grant commuted leave on medical ground from 210.1989 to 210.1989 and to accept the option form submitted by the petitioner in the matter of pay scale with effect from 012.1986 with all consequential benefits. 2. As regards the first relief regarding grant of commuted leave on medical ground, the relevant facts are these: 3. The petitioner was transferred from the post of Judicial Magistrate, Ajmer to Dholpur. He has not disclosed the date of order; it is however said that he was relieved from Ajmer on 110.1989. He submitted joining on 210.1998. Ten days joining time had expired in the meantime on 210.1989. According to the petitioner, on 110.1989 he had met an accident. On 011.1989, he applied for extension of joining time in terms of Rule 5(5) read with Rule 9 of the Rajasthan Civil Services (Joining Time) Rules, 1981. On 211.1989, he was asked to apply for extra ordinary leave. On 012.1989, the petitioner submitted application for commuted leave on medical ground. The application was rejected and on 02.03.1990 he was again asked to apply for extra ordinary leave. 4. The provisions relating to joining time are contained in Rule 5 of the Rajasthan Civil Services (Joining Time) Rules, 1981. It is not in dispute that the joining time commences from the date of relinquishment of charge of the old post. Under Sub-rule (5), joining time can be extended subject to certain limits mentioned in Sub-rule (4) where the joining is not possible due to disruption of transport because of strike or natural calamities. 5. The case of the petitioner apparently does not fall within the framework of Sub-rule (5) of Rule 5 and that is why understandably, he submitted a fresh application for grant of commuted leave on medical ground. But in the absence of any provision relating to grant of commuted leave on medical ground, that could not be allowed either and the application was rightly rejected and he was asked to apply for extra ordinary leave. 6. But in the absence of any provision relating to grant of commuted leave on medical ground, that could not be allowed either and the application was rightly rejected and he was asked to apply for extra ordinary leave. 6. It is relevant to mention here that in terms of Rule 8 of the said rules, if the Government servant does not join his duties within the joining time, he is not only not entitled to pay after end of the joining time, the period of absence from duty after the expiry of joining time amounts to interruption in the service involving forfeiture of post service unless, on satisfactory reasons being furnished such absence is regularised by grant of extension in the normal period of joining time under the Rules in the circumstances narrated in Rule 5(5) or is commuted into extraordinary leave by the competent authority. 7. In view of the provisions of Rule 8, the petitioner was rightly asked to apply for extraordinary leave. The direction apparently was in favour of the petitioner. It is plain that if the period of absence is not regularised, the person exposes himself to the consequences envisaged in Rule 8. We are not able to appreciate as to why the petitioner should make any grievance of the direction to apply for extraordinary leave. In the circumstances, the desired relief in the matter of leave cannot be granted to him. 8. As regards the other relief relating to acceptance of opinion for the pay scale, the facts are that the Rajasthan Civil Service (Revised Pay Scales) Rules, 1987, published in the Official Gazette on 02.02.1987, came into force with effect from 01.09.1986. Rule 9 of the said Rules contained an option clause, in terms of which the Government servant could opt for the existing scale. The rule stipulated that if he does not opt, the new scales would be applicable to him. Rule 10 laid down the manner of exercise of option. It provided that within two months of publications of the Rules in the Official Gazette, the option as envisaged in Rule 9 should reach the authority specified in Sub-rule (2)(Kha). A longer period was provided for the employees who were on extraordinary leave or serving on deputation or in foreign service, etc. 9. It provided that within two months of publications of the Rules in the Official Gazette, the option as envisaged in Rule 9 should reach the authority specified in Sub-rule (2)(Kha). A longer period was provided for the employees who were on extraordinary leave or serving on deputation or in foreign service, etc. 9. The case of the petitioner is that he was abroad on leave from 10.1985 and on return submitted his joining on 12.1986. Later he joined duties at Shahpura on 04.04.1987. Thereafter, on 6.4.1987, he opted for the new pay scale with effects from 012.1986 i.e., from the date of his joining. He claimed to have submitted the option in the prescribed format to Late Ganesh Chandra Saxena, Distraict Judge, Jaipur District on 06.04.1987, in the words of the petitioner, while he was passing through Shahpura on his way to kotputli and in turn the District Judge gave it to his Steno Kunj Bihari Sharma." 10. The case of the petitioner has been controverted by the High Court in its reply. According to the High Court, he submitted his option only on 20.06.1987. To substantiate its case, the High Court has stated in the reply that in his letter dated 13.05.1987 vide Annexure R/2, the petitioner had stated that he will submit his option after his leave case for the period 010.1985 to 12.1986 is decided. It would follow that the petitioner had not submitted the option at least up to 13.05.1987. It is relevant to mention here that Shri Ganesh Chandra Saxena died before the writ petition was filed and, therefore, the Court was in no position to verify the fact from him. No doubt the petitioner filed an affidavit purposed to have been affirmed by Kunj Bihari Lal Sharma on 23.03.1990 after three years, but in the circumstances of the case, it is difficult to place reliance on the same. 11. Having considered the matter, we are satisfied that the petitioner did not submit his option in terms of Rule 10 of the Revised Pay Rules within the stipulated period. As a matter of fact, in view of Sub-rule 2 (kha) of Rule 10, the petitioner was required to submit his option in the prescribed format in the High Court and not to the District Judge. As a matter of fact, in view of Sub-rule 2 (kha) of Rule 10, the petitioner was required to submit his option in the prescribed format in the High Court and not to the District Judge. Having not submitted his option within the stipulated period in terms of Rule 9 of the Revised Pay Rules, the petitioner became automatically entitled to the revised pay scale and he cannot make any grievance of the pay scales at a later stage. Accordance to petitioner, by reason of the new revised pay rules/scales, he is recurring loss of Rs. 220 + Dearness Allowances per month but if that is so, he has to thank himself . In these premises, we do not think any direction can be issued to accept his option or to fix his pay applying the existing pay rules/ scales. 12. In the result, we hold that the petitioner is not entitled for the relief s claimed by him in this writ petition. The writ petition is accordingly dismissed but without any order as to costs.