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Rajasthan High Court · body

2011 DIGILAW 2144 (RAJ)

Radhey Shyam Sharma v. State of Rajasthan

2011-10-11

M.N.BHANDARI

body2011
Hon'ble BHANDARI, J.—The matter/s have come up on application for J vacation of stay order, however;, with the consent of learned counsel for both the parties, the matters are heard finally. 2. Learned counsel submits that petitioners are erstwhile employees of a private educational institution, which was taken over by the Government sometimes in the year 2009. As per the Rajasthan Civil Services (Appointment and Other Services Conditions of Employees of Private Institutions And Other Establishments Taken Over By The Government) Rules, 1977 (for short "the Rules of 1977"), the petitioners were given fresh appointments and benefit of past service has been denied for grant of selection scale pursuant to the Circular dated 25.01.1992. Similarly placed candidates have been allowed benefits of selection scale by counting their length of service from the date of their initial appointment in the private educational institution. The action of the respondents to deny similar benefit to the petitioners becomes discriminatory in nature, hence, the respondents may be commanded with the directions to award benefit of selection scale to the petitioners on completion of 9, 18 and 27 years of service by counting their length of service from initial date of appointment in the private educational institution. A reference of Rule 5(3) of the Rules of 1977 has been given to show that previous service is to be counted for the purpose of promotion and other benefits in service. The respondents have taken erroneous interpretation of Rule 5(3) of the Rules of 1977 and thereby denied the benefit of selection scale to the petitioners. 3. Learned counsel appearing for the State Government submits that Rule 5(3) of the Rules of 1977 is very clear in its term. Rule 5(2) of the Rules of 1977 provides that on taking over the private educational institution, a candidate would be treated as fresh recruitee and accordingly, as per Sub-rule 3 of Rule 5 of the Rules of 1977, he has not been made entitled for benefit of seniority by counting his past service, rather seniority is to be determined from the date of his recruitment in the government institution. No candidate has been given benefit of selection scale contrary to Rule 5 (2) and (3) of the Rules of 1977 and even if somebody has been given benefits contrary to the Rules, this Court may not perpetuate the illegality. 4. No candidate has been given benefit of selection scale contrary to Rule 5 (2) and (3) of the Rules of 1977 and even if somebody has been given benefits contrary to the Rules, this Court may not perpetuate the illegality. 4. I have considered the submissions made by learned counsel and scanned the matter carefully. 5. It is not in dispute that the private educational institution in which the petitioners were initially recruited, had been taken over by the government under the Rules of 1977 The petitioners were accordingly given fresh appointments. The only controversy is as to whether petitioners' past services should have been counted for determination of length of service for the purpose of grant of selection scale pursuant to the Circular dated 25.01.1992. For that purpose, Rule 5 of the Rules of 1977 is relevant, thus is quoted hereunder for ready reference: "5. The only controversy is as to whether petitioners' past services should have been counted for determination of length of service for the purpose of grant of selection scale pursuant to the Circular dated 25.01.1992. For that purpose, Rule 5 of the Rules of 1977 is relevant, thus is quoted hereunder for ready reference: "5. Taking over the private Institutions.-(1) In case the Government decides to take over a Private Institution along with its staff in public interest, it shall decide the equation of posts in such Institution and those existing under the Government and such of the staff as are willing to be absorbed in Government service who are serving or hold a lien in that Institution and subject to the availability of posts and vacancies in the Service they may be appointed on an equated or lower post as may be decided after being screened by a Committee which will be the same as the Departmental Promotion Committee constituted in the respective Service Rules for the post of concerned or if there is no such Committee, such Committee as may be appointed by the Government subject to the following conditions- (1) the employee of such Institution, who is a candidate for absorption in the Service, possesses the minimum qualifications as laid down in the Rules/Schedule for the post for which he is a candidate or possessed such qualifications as were prescribed by the Government for recruitment to corresponding posts when he was initially appointed to such posts; (2) the candidate is not less than 21 years of age and more than the normal age of superannuation prescribed for such post by the Government on the date the Private Institution is taken over by the Government; (3) the employee is physically fit and does not suffer from any of the disqualifications for recruitment contained in these Rules or in the respective Service Rules for the post concerned: Provided that after being taken over by Government, the number of candidates serving in Private Institution so selected for entry into Service, shall not be more than the number of posts sanctioned for that Private Institution by the competent authority unless the Government decides otherwise. (2) The person so selected shall be considered as fresh recruits to Government Service and the quota of a recruitment in the relevant service, if any, shall be determined after-absorbing such persons and they shall be appointed in the same capacity as in the Private Institution i.e. temporary, officiating, substantive, as the case may be, and the condition of probation and confirmation shall be deemed to have been waived in case of substantive or permanent officials. (3) The seniority of the persons selected as a result of taking over of Private Institution, shall be determined with reference to the year of taking over of such employees and they shall rank enblock junior to persons appointed by directed recruitment or by promotion if the post is required to be filled in by promotion only in the relevant category during the year of their appointment. The inter se seniority of such appointment in the same grade under such management/agency; i provided that any pre-determined seniority shall not be disturbed. The service rendered by the employees of the Private Institution on an equated post shall be counted as experience or service required for promotion or direct recruitment as the case may be." 6. Perusal of Sub-rule 2 of Rule 5 of the Rules of 1977 shows that the person so selected shall be considered as fresh recruits to the Government Service. Meaning thereby the appointment has been given to the person as a fresh recruits and not with continuity in service. 7. Sub-rule 3 of the Rule 5 of the Rules of 1977 further specifies that person shall be entitled for the benefit of i seniority from the date he given fresh appointment and accordingly, would be enblocked junior to the person appointed by direct recruitment or promotion during the year of their appointment. Sub-rule 3 of Rule 5 of the Rules of 1977 further provides that previous service would be taken into consideration for the purpose of experience or service required for promotion or direct recruitment. Thus, Sub-rule 3 of Rule 5 of the Rules of 1977 makes the thing very clear as to. for what purpose past services can be counted. If the proper interpretation of Rule is taken, it makes it clear that past services can be counted for experience of services required for promotion or direct recruitment and not for any other purpose. Thus, Sub-rule 3 of Rule 5 of the Rules of 1977 makes the thing very clear as to. for what purpose past services can be counted. If the proper interpretation of Rule is taken, it makes it clear that past services can be counted for experience of services required for promotion or direct recruitment and not for any other purpose. Counting experience for the purpose of promotion or recruitment experience of service does not mean that person is entitled for counting length of service for the purpose of selection scale as well. If the aforesaid interpretation is taken note of then those who are appointed by direct recruitment or promoted in the same year and reckoned to be senior to the petitioners, yet will get less salary to the petitioners. 8. When the previous service is not counted for the purpose of seniority, it cannot be counted for grant of selection scale in absence of a clear provision. Even if Circular dated 25.01.1992 is also looked into then period of service is to be counted from the date of appointment. Relevant part of clause 3 of the Scheme is quoted hereunder for ready reference: "3. Even if Circular dated 25.01.1992 is also looked into then period of service is to be counted from the date of appointment. Relevant part of clause 3 of the Scheme is quoted hereunder for ready reference: "3. The service of nine, eighteen or twenty seven years, as the case may be, shall be counted from the date of first appointment in the existing cadre/service in accordance with the provisions contained in the Recruitment Rules; Provided that if an employee subsequent to his first appointment to a post in a cadre/service, as a result of direct recruitment, is appointed to some other post in the same cadre or any other cadre, service from the date of later appointment shall be taken into consideration for the purpose of grant of Selection grades; Provided further that if an employee subsequent to his first appointment to a post in a cadre/service, in accordance with provisions contained in the relevant service rules, is promoted to a post in some other cadre, service from the date of such promotion shall be taken into consideration for the purpose of grant of the Selection grades; (Provided further that in the case of an employee who has been/is declared surplus and absorbed against a new post either in the same or another department excluding absorption on higher post, the service of nine, eighteen or twenty seven years, as the case may be, shall be counted for the purpose of grant of selection grade from the date of initial appointment in the Government service in accordance with the provisions contained in the relevant recruitment rules. As a result of counting of service rendered prior to absorption for grant of selection grade, if the pay of a junior Government servant happens to be more than the pay of his senior, no stepping up of pay of senior Government servant shall be permissible.) (Provided further that in the case of an employee who has been transferred from one department to another department or from one appointing authority to another appointing authority within the same department in public interest or at his own request or while serving in one department of the State Government is recruited directly in other department on the same post, the service of nine, eighteen or twenty seven years, as the case may be, shall be counted for the purpose of grant of selection grade from the date of initial appointment on the same post in accordance with the provisions contained in the relevant recruitment rules. As a result of counting of service rendered in previous department/under previous appointing authority for grant of selection grade, if the pay of a junior Government servant becomes more than the pay of his senior, no stepping up of pay of senior Government servant shall be permissible.)" 9. Perusal of clause 3 shows that 9,18 and 27 years of service shall be counted from the date of first appointment in the existing cadre/service. Since first appointment for petitioner in existing service and cadre is the date when he was appointed on taking over the institution by the Government, hence, even as per clause 3 of the Circular dated 25.01.1992, the period of past services in the private school cannot be counted for the purpose of determination of 9, 18 and 27 years of service. 10. In the light of the aforesaid, the petitioner is not entitled for the benefit of past services for the purpose of determination of total length of service for grant of benefit of selection scale. If the respondents have given such benefits to any other candidate/s then illegality committed by them cannot be perpetuated, however, respondents are directed to take note of the aforesaid and corrective measures may be taken so that nobody is extended benefit in violation of the rules. 11. In view of the aforesaid, I do not find any merit in the writ petition, hence, the same is dismissed. 11. In view of the aforesaid, I do not find any merit in the writ petition, hence, the same is dismissed. However, the petitioners having been advanced certain benefits and recovery thereupon has been stayed, the respondents are restrained to recover the amount from the petitioner as benefit was not advanced to them on account of misrepresentation or fraud but was at the instance of the respondents themselves. The recovery from the impugned order is accordingly set aside. This disposes of the application/s also.