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Rajasthan High Court · body

2008 DIGILAW 2104 (RAJ)

Fateh Singh v. State of Rajasthan

2008-09-08

GOPAL KRISHAN VYAS

body2008
Honble VYAS, J.—In this writ petition, the petitioner has prayed for direction to the respondents to declare that the petitioner is entitled to get the amount of all the retiral benefits of pension, gratuity, commutation, State Insurance and G.P.F. Etc. for the entire period of service from 02.02.1970 to 30.11.2004 without any deduction and objection, calculated immediately on his retirement on 30.11.2004 on the basis of the last pay drawn. It is further prayed that the respondents may be directed to pay withheld amount towards gratuity and the amount of commutation etc. with arrears arising out of retiral benefits and interest @ 12% on the benefits from the date they became payable till the date of actual payment. (2). Brief facts of the case are that initially the petitioner was appointed on 02.02.1970 as Police Constable in the R.A.C., 6th Battalion. Later on, after adjudging the suitability of the petitioner for the post of Constable Driver, he was selected and given posting on the post of Constable Driver. While the petitioner was working in the R.A.C. 3rd Battalion as Constable Driver, he was transferred to Rajasthan State Motor Garage, Jaipur as Driver on 09.09.1989 by the Director General, Rajasthan Police, Jaipur and was posted under the control of Superintendent of Motor Garage, Jodhpur where he was confirmed as Driver by the Controller, Rajasthan State Motor Garage, Jaipur on 19.11.1999. The petitioner took voluntary retirement with effect from 30.11.2004 while working on the post of Driver. (3). The case of the petitioner is that neither any inquiry was pending against him under CCA Rules nor any inquiry was contemplated against him during his service tenure. Initially he worked in the R.A.C. on the post of Constable Driver and, thereafter, upon transfer to the State Motor Garage on the post of Driver, he worked till 30.11.2004 in the State Motor Garage Department. Therefore, the respondents were to grant him all retiral benefits as per the services rendered by him in the R.A.C. and State Motor Garage Department on the post of Driver. (4). The contention of the petitioner is that he has furnished all the relevant proformas for granting him pension and completed all formalities as required under the law and his case was sent to the Joint Director, Pension Department, Jodhpur for necessary action vide Annex.-P/7. (4). The contention of the petitioner is that he has furnished all the relevant proformas for granting him pension and completed all formalities as required under the law and his case was sent to the Joint Director, Pension Department, Jodhpur for necessary action vide Annex.-P/7. Similarly, for the finalization of the GPF and State Insurance claims, letter was written on 27.11.2004 to the Dy. Director, State Insurance & G.P.F. Department, Jodhpur; but, only provisional pension was allowed to the petitioner vide PPO No.402047 (R) and gratuity vide letter No.404121 (R) on 07.05.2005. The case of the petitioner is that the respondents are not finalizing his matter with regard to his entitlement of pensionary benefit, so also, other retiral benefits, therefore, he has filed this writ petition under Article 226 of the Constitution of India. (5). In the writ petition, notice was issued to the respondents and, thereafter, reply has been filed by the respondents in this case. (6). In the reply, respondents No.1 to 3 did not dispute para 1 to 7 of the writ petition; but, with regard to para 8, it is submitted that the pension case of the petitioner was sent to the Pension Department on 27.11.2004 but the same was returned with certain objections on 18.12.2004; and, thereafter, the respondent No.3 sent back the pension case of the petitioner to the Pension Department after removing the objections raised by the Pension Department. Again, vide letter dated 18.01.2005, the Joint Director, Pension Department sent back the pension case of the petitioner with an objection that on 03.09.1989 the petitioner was getting pay scale of Rs.760-1350 but how he has been granted the pay scale of Rs.880-1680 upon his transfer. The said objection too was replied by the respondent No.3 vide letter dated 21.02.2005 and the matter was sent to the Joint Director, Pension. (7). It is further stated vide para 8 of the reply filed by respondents No.1 to 3 that the Joint Director, Pension vide letter dated 04.05.2005 asked the Administrative Department to seek instructions from the Finance Department, on which vide letter dated 09.05.2005, the pension case of the petitioner was sent to the Controller, Rajasthan State Motor Garage, Jaipur for necessary action. Thereafter vide letter dated 29.04.2006 the necessary remarks were sent to the Pension Department. Thereafter vide letter dated 29.04.2006 the necessary remarks were sent to the Pension Department. The Joint Director, Pension Department vide letter dated 05.08.2006 sent back the pension case of the petitioner for financial sanction and now the financial sanction is being sought. Thereby meaning that the State Motor Garage Department, from where the petitioner voluntarily retired from service, sent the pension case of the petitioner to the Pension Department but the same was pending due to objections raised by the Pension Department. (8). By way of additional submission set out in the reply, filed by respondent No.4, it has been stated as follows : “In addition to the reply submitted here in above it is most respectfully submitted that petitioner Fateh Singh was appointed in the RAC on 2.02.1970. The pay scale of Constable in year 1986 was 760- 1350 and as such the petitioner was drawing the pay scale of Rs.760-1350 thereafter on his own request petitioner was transferred in the Motor Garage Section of the post of Driver. That though the pay scale of M.T. Driver in year 1986 under revise pay scale was 880-1640 but the pay scale was not available to the constable of RAC who voluntarily sought transfer of their post of M.T. Driver because under the Rajasthan Civil Services revised pay scale Rule 1987, Rule 5(1). The benefit of revised pay scale was admissible under the existing pay scale to the existing government servant and as per to provisions 5(ii) of Rules 1987 the petitioner did not fall in definition of existing Govt. servant as such he was not entitled to pay jump from 760-1360 to pay scale of 880-1640 because the petitioner was transferred to M.T. Driver post on his own request when the error was detected by the respondent department and same was corrected as per law and it was decided that though the petitioner shall not be entitled for benefit of pay jump however amount paid in excess in account of wrong fixation was decided to not to be recovered and hence petitioner has been rightly granted pension of Rs.3450 on the basis of last amended pay of Rs.4600/- hence no fault lies in the humble respondent.” (9). Thus, as per the respondent, due to wrong fixation of pay the petitioner was granted pay of Rs.5200/- whereas last pay at the time of retirement was less than Rs.5200/-, therefore, since the dispute regarding pay fixation was under scrutiny and under consideration with the Pension Department, therefore, time was consumed; and, as such provisional pension was allowed to the petitioner on the basis of last pay of Rs.4600/-. The case of the respondents is, therefore, that due to non-grant of the benefit of jump the fixation was made by the Pension Department in which time was consumed. (10). The petitioner has, however, controverted the above facts in the rejoinder filed by him. It is pointed out by the petitioner that contents of para 8 of the reply are not proper and, in fact, the pay of the petitioner was fixed at Rs.1200/- per month with effect from 27.11.1989, keeping the date of next increment as 27.11.1990. In the Revised Pay Scales Rules 1989, the pay of the petitioner was fixed in the scale of 950-1680 vide fixation order dated 14.03.1990 issued by the competent authority and, on the basis of fixation so made the petitioner was paid his salary every month. The pay-scales were further revised under the Revised Pay Scales Rules with effect from 01.09.1996 and, therefore, on the basis of last pay of Rs.5200/-, vide Annex.-P/2, pension of Rs.3900/- per month has been sanctioned. The petitioner has contended in the rejoinder that admittedly no notice was issued to the petitioner during the entire period of service and there is no misrepresentation or fault on the part of the petitioner. Orders issued prejudicial to the interest of the petitioner, therefore, deserve to be quashed and set aside. (11). This writ petition is pending since 2006 for finalization of pension benefits of the petitioner. On 30.07.2008, learned Government Counsel was directed to file reply and apprise this Court with regard to the stand of Motor Garage Department for extending benefits to the petitioner which is objected by the Pension Department. On 28.05.2008, when this case was listed in the Court, the entire service record of the petitioner was submitted for perusal. On 30.07.2008, learned Government Counsel was directed to file reply and apprise this Court with regard to the stand of Motor Garage Department for extending benefits to the petitioner which is objected by the Pension Department. On 28.05.2008, when this case was listed in the Court, the entire service record of the petitioner was submitted for perusal. After perusal of the record, the Pension Department was directed to scan the entire service record and take proper action for the purpose of fixation and grant of selection scale to the petitioner while considering the orders dated 23.01.1985, 01.09.1988 and 25.01.1992. On 07.07.2008, an additional affidavit was filed by the Pension Department. Thereafter, some time was sought by the counsel appearing on behalf of the State Motor Garage Department. (12). In the additional affidavit filed by the Pension Department in pursuance of the order passed by this Court, it is stated by the Pension Department that the petitioner was appointed in the R.A.C. on the post of Constable on 02.02.1970. In pursuance of Finance Department circular dated 23.01.1985, as per clause No.4, as petitioner was entitled to receive selection grade after completion of 15 years of service (but on 01.04.1984 petitioner was not having 15 years service). As per clause No.3, as per availability of the posts on 01.04.1984 the selection is being granted to 10% of the employees, however, the petitioner was appointed on 02.02.1970 and as per clause 3 petitioner was not having 15 years service on 01.04.1984 he was not competent to receive the benefit of selection scale under the circular dated 23.01.1985. Therefore, the petitioners pay was fixed in the pay scale of Rs.825-1350 under the Revised Pay Scales Rules 1989 and petitioner was fixed at Rs.1000/- on 01.09.1988. In pursuance of Finance Department circular dated 23.09.1989, petitioner was entitled for first selection grade after completion of 15 years on 01.09.1988 and as such the petitioner was granted the pay scale of Rs.950-1680 and as such from 01.09.1988 petitioner was granted the selection scale of Rs.950- 1680 and fixed at Rs.1010/-. Thereafter, on petitioners own desire petitioner was granted the post of Driver from 09.09.1989 and he was granted the pay scale of Rs.950-1680. Thereafter, in pursuance of Revised Pay Scales Rules 1998, the petitioner was granted pay scale of Rs.3050-4590 and he was fixed at Rs.3650/-. (13). Thereafter, on petitioners own desire petitioner was granted the post of Driver from 09.09.1989 and he was granted the pay scale of Rs.950-1680. Thereafter, in pursuance of Revised Pay Scales Rules 1998, the petitioner was granted pay scale of Rs.3050-4590 and he was fixed at Rs.3650/-. (13). The main contention of the Pension Department is that as per clause 3 of the Finance Department circular dated 25.01.1992, for grant of selection grade the service is to be reckoned from the first date of appointment in the existing cadre and service. The petitioner came to be appointed in the R.A.C. on the post of Constable and, thereafter, as per his own desire, he was transferred to the State Motor Garage Department on the post of Driver on 09.09.1989. As such from 09.09.1989, the service period for the first selection grade was to be reckoned and since the petitioner had not completed 9 years service as on 25.01.1992, he was not granted the selection grade. In pursuance of Government circular dated 17.02.1998, which came into effect on 01.09.1996, as per clause 2(1), the petitioners 9 years service was counted from 09.09.1989 and accordingly on 09.09.1998 petitioner was granted first selection grade in the pay scale of Rs.4000-6000 and petitioner was fixed at the minimum of the pay-scale with next increment falling on 09.09.1999. In that view of the matter, the petitioner drew last pay in the pay-scale of Rs.4000-6000 at Rs.4600/-; and, on that basis, the PPO was issued on 28.02.2007 and on the same day petitioners GPO and CPO were also issued. (14). Therefore, as per the respondents, there exists no good ground to interfere in the fixation so made because the petitioner was appointed on the post of Driver on 09.09.1989 and as such as per Rule 5(1) of the Rules of 1987 the petitioner does not come in the definition of existing employee in the Rajasthan State Motor Garage Department and as such petitioner was not entitled in pay scale of Rs.880-1640. (15). I have perused the entire pleadings and reply filed by the respondents. (16). From perusal of the record and reply filed by the respondents it emerges that only on two counts re-fixation was made by the Pension Department while treating the fixation so made by the State Motor Garage Department as erroneous. (17). (15). I have perused the entire pleadings and reply filed by the respondents. (16). From perusal of the record and reply filed by the respondents it emerges that only on two counts re-fixation was made by the Pension Department while treating the fixation so made by the State Motor Garage Department as erroneous. (17). As per the Pension Department, on transfer in the State Motor Garage Department on the post of Driver on 09.09.1989 from the post of Constable, the petitioner was given appointment on the post of Driver, as per his request, meaning thereby, the petitioner was not entitled to get any benefit for the post of Driver prior to his appointment as Driver on 09,09.1989 his own request. Therefore, objection of the Pension Department is that as per Revised Pay Scale Rules 1987 the petitioner was not existing employee of the State Motor Garage Department, therefore, he was not entitled for the benefit of jump. Secondly, the petitioner was appointed in the State Motor Garage Department on the post of Driver on his own request and, accordingly, as per clause 3 of the Finance Department circular dated 25.01.1992, for grant of selection grade the service is to be reckoned from the date of first appointment in the existing cadre and service, therefore, when the petitioner was appointed on the post of Driver on 09.09.1989 then his services were to be counted from the date of appointment in the existing cadre and service for the grant of selection grade and, therefore, the petitioner was wrongly granted the benefit of selection scale contrary to clause 3 of the notification dated 25.01.1992. (18). In my opinion, the objection upon which the Pension Department has refused to accept the fixation of the petitioner made by the State Motor Garage Department is not tenable because it is nowhere disputed by the respondents that the petitioner was initially appointed in service on 02.02.1970 on the post of Constable in R.A.C. It is also not disputed by the respondents that the petitioners services were transferred from the R.A.C. to the Rajasthan State Motor Garage Department on 09.09.1989 on the post of Driver; however, the only dispute is with regard to the date from which service period is to be reckoned for the purpose of granting the benefit of jump as well as benefit of selection scale as per notification dated 25.01.1992. (19). (19). In this connection, upon perusal of the counter additional affidavit filed by the petitioner and order dated 09.09.1989 it is revealed that the petitioner was relieved from the post of Constable Driver to join as Driver in the State Motor Garage Department. It is specifically mentioned in the order dated 09.09.1989 that the petitioner who is working on the post of Constable Driver, on his own request, is transferred to the State Motor Garage Department; meaning thereby, the Pension Department has wrongly treated the petitioner as Constable in the R.A.C. whereas, in fact, the petitioner was Constable Driver in the R.A.C. For the said purpose, the petitioner has brought to the notice of this Court that after his appointment on the post of Constable in the year 1980, his suitability was adjudged for appointment on the post of Constable Driver and, along with him as many as 10 persons were considered by the Commandant 8th Battalion, R.A.C. and he was found suitable for appointment on the post of Constable Driver, therefore, vide order dated 23.01.1980 he was found suitable and appointed on the vacant post of Constable Driver though he was working as such since earlier. (20). In my opinion, when the suitability of the petitioner was adjudged on the post of Constable Driver and while in the R.A.C. working on the post of Driver, upon his request, he was transferred to the State Motor Garage Department on the post of Driver, then, the objection of the Pension Department for treating the petitioner on the post of Constable is not tenable. During the course of arguments, with a view to substantiating his plea, the petitioner produced document dated 23.01.1980 issued by the Commandant for the perusal of the Court which is as follows : ^^dekUMsUV] vkBoha cVkfy;u vkj-,-lh- ¼vkbZ-vkj-½ vxjrYyk] f=iqjk osLV Øekad----3¼3½ vkj,lh&8@QkslZ@77&80@307&319 fnukad 23 tuojh] 80 dk;kZy; vknsk Jheku~ iqfyl mi egkfujh{kd vkj-,-lh- tks/kiqj ds dk;kZy; vknsk Øekad 5462&67 fnukad 25-10-79 dh vuqikyuk esa bl ;qfuV ds 15 dkfuLVscy MªkbZojksa ds fjDr inksa dh iwfrZ gsrq fu;ekuqlkj bl dk;kZy; ds vknsk Øekad 262&65 fnukad 18-1-80 ds rgr fuEu vf/kdkfj;ksa ds cksMZ dk xBu fd;k x;k%& ¼1½ Jh guqeku izlkn] dekUMsUV &v/;{k ¼2½ Jh ,e-,- cM+kSyk] lgk;d dekUMsUV&lnL ¼3½ Jh gqdeflag ,l-Vh-vks- &lnL mDr cksMZ }kjk fnukad 18-1-80 ls 22-1-80 rd fu/kkZfjr fu;ekuqlkj ,e-Vh-VsLV esa cSBus ;ksX; dkfuLVscyksa dk ,e-Vh- VsLV fy;k x;k bl VsLV esa fuEufyf[kr nl dkfuLVscy lfEefyr gqos ftuds ikl muds uke ds lEeq[k vafdrkuqlkj MªkbZfoax ykbZlsal Hkh gS] ;s leLr dkfuLVscy VsLV esa mRrh.kZ ?kksf"kr gqos gS blfy, bUgsa rqjUr izHkko ls dkfuLVscy MªkbZojksa ds fjDr inksa ij ,e-Vh- kk[kk esa inLFkkfir fd;k tkrk gS ,oa bUgsa rqjUr izHkko ls 70@& izfrekg ,e-Vh- HkRrk Lohd`r fd;k tkrk gSA fuEufyf[kr dkfuLVscyksa esa ls tks dkfuLVscy lfoZl dEifu;ksa ds gS muds LFkkukUrj.k Hkh rqjUr izHkko ls gSMDokVZj dEiuh esa fd;s tkrs gS%& Ø-la- cSt ua- uke dEiuh ykbZlsal 1- 758 Jh ewyflag gSMDokVj gSoh 2- 188 Jh ctjax flag gSMDokVj gSoh 3- 671 Jh Qrsgflag ^^,Q** gSoh 4- 605 Jh vkse izdkk ^^bZ** gSoh 5- 352 Jh fot; jk?konkl gSMDokVj gSoh 6- 205 Jh ekyeflag ^^ch** gSoh 7- 603 Jh fjM+eyjke ^^bZ** ykbZV 8- 630 Jh dqekjdkark jatu ^^bZ** ykbZV 9- 628 Jh c`tfcgkjh yky gSMDokVj gSoh 10- 792 Jh Hkaojflag gSMDokVj gSoh vknsk iaftdk o) gksA vknsk iaftdk Øekad %& 38 fnukad 23 tuojh] 80 ,l-Mh- ¼guqeku izlkn½ dekUMsUV izfrfyfi%& 1- Jheku iqfyl mi egkfujh{kd vkj-,-lh- tks/kiqj 342001 dh lsok esa mDr VsLV dk ifj.kke lwph lfgr izsf"kr dj okLrs vuqeksnukFkZ Hksth tkrh gSA 2- leLr lgk;d dekUMsUV 3- dEiuh dekUMj ^^gSMDokVj** dEiuh 4- DokVj ekLVj 5- ;qfuV ys[kk kk[kk 6- lqcsnkj ,MT;qVsUV 7- b-vks-ch-@eksVj ifjogu vf/kdkjh@futh i=koyh lacaf/kr deZpkjhA dekUMsUV vkBoha cVkfy;u vkj-,-lh- ¼vkbZ-vkj-½** (21). The above order was taken on record. The above order was taken on record. It clearly speaks that at the time of transfer from the R.A.C. the petitioner was working on the post of Constable Driver and as such he was in the existing cadre of Driver in the year 1987 when the benefit of jump was allowed. Therefore, objection of the Pension Department with regard to grant of jump to the petitioner by the Pension Department is baseless and arbitrary. The State Motor Garage Department has rightly considered the petitioner absorbed on the post of Driver on his own request, therefore, the first objection raised by the Pension Department that the petitioner was Constable in the R.A.C. and transferred on the post of Driver, therefore, he was not entitled to be treated as existing employee for the purpose of grant of jump is without any substance. The petitioner was rightly granted the said benefit of jump. (22). With regard to counting the service period for the purpose of extending the benefit of selection scale although it is mentioned in para 3 of the notification dated 25.01.1992 that at the time of granting selection scale the service period shall be counted from the date of appointment in the existing cadre, obviously the petitioner was working on the post of Constable Driver in the R.A.C. and was absorbed on transfer on the post of Driver in the State Motor Garage Department, then, it is not open to the Pension Department to say that the petitioners services for the purpose of selection scale is to be counted from the date of transfer in the existing cadre of Driver. The petitioner was already in the existing cadre of Driver since 1980, therefore, his service period was to be reckoned from the date of initial appointment for the grant of selection scale because the petitioner was working substantively on the post of Constable Driver in the R.A.C. In this view of the matter, the objections raised by the Pension Department with regard to counting the service period of the petitioner from the date of transfer in the Motor Garage Department is also contrary to his service record and illegal. (23). As a result of the above discussion and conclusion arrived at, this writ petition is allowed. (23). As a result of the above discussion and conclusion arrived at, this writ petition is allowed. The respondents are directed to treat the petitioner as having been appointed as Constable Driver on 23.01.1980 in the R.A.C. and, therefore, upon his transfer to the State Motor Garage Department, he shall be treated to be in the existing cadre of Driver for the purpose of grant of jump as well as for the purpose of granting selection scale the service period shall be counted accordingly; and, while doing so, all the benefits taken away upon the objections raised by the Pension Department shall be restored and the petitioners pension case shall be reviewed in the light of the conclusion arrived at in this judgment. While granting the benefit of jump and selection scale, the petitioners pension case shall be revised accordingly. The objections raised by the Pension Department are hereby declared illegal. The petitioner shall be paid interest at the rate of 9% per annum upon the revised pensionary and other retiral benefits. The entire exercise shall be completed within a period of three months from the date of production of certified copy of this judgment/order. (24). No order as to costs.