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Rajasthan High Court · body

2011 DIGILAW 2588 (RAJ)

Ram Kumar Meena v. State

2011-11-25

M.N.BHANDARI

body2011
Hon'ble BHANDARI, J.—Since controversy involved in these writ petitions is same, thus heard and decided by this common order. 2. By these writ petitions, a challenge has been made to the order dated 23.9.201 whereby after withdrawing benefit of 3rd ACP, a direction has been issued for re-fixation. 3. It is stated that after appointment of the petitioners on the post of Class-IV employee, promotion was given on the post of L.D.C. followed by further promotion to the post of U.D.C. The benefit of one selection scales was given thereafter. The petitioners were further given benefit of 3rd ACP vide order dated 13.1.2009 at Annexure-1. They were served with a show cause notice as to why benefit of 3rd ACP may not be withdrawn with consequence of recovery for which separate proceedings would be initiated. A reply to the said show cause notice was given indicating that as per the circular dated 17.2.1998 and the subsequent circular dated 31.12.2009, petitioners are entitled to 3rd ACP, as benefit aforesaid has to be given by treating them to be appointee on the post of L.D.C. The respondents, however, failed to consider the circulars and passed the impugned order. 4. I have considered the submissions made and perused the record carefully. 5. A bare perusal of the show cause notice indicates that the petitioners were initially appointed as Class-IV employee. They were then given promotion to the post of L.D.C. followed by further promotion to the post of U.D.C. After two promotions, petitioners were extended benefit of selection scale. In the aforesaid manner, petitioners could get 3rd financial upgradation during their service tenure. The benefit of one more ACP was given vide order at Annexure-1, which seems to be apparently in violation of the Rajasthan Civil Services (Revised Pay) Rules, 2008 (for short 'the Rules of 2008') more specifically Rule 19(4). For ready reference aforesaid Rule - 19 of the Rules of 2008 is quoted hereunder:- "19. Scheme of Assured Career Progression - In lieu of selection grades, the scheme of Assured Career Progression (ACP) with three financial upgradations shall be allowed as under:- (1) The scheme will be available to all posts in class IV, ministerial, subordinate services and those holding isolated posts and drawing pay in the Rajasthan Civil services (Revised Pay) Rules, 2008 upto grade pay of Rs.4200 excluding State services. (2) Benefit of any fixation available at the time of normal promotion shall be allowed at the time of financial upgradations under the scheme. Thus, an increase of 3% of sum of pay in the running pay band and grade pay shall be available as financial upgradation under the scheme. (3) The grade pay shall change at the time of financial upgradation under this scheme. The grade pay given at the time of financial upgradation under ACPs will be the immediate next higher grade pay in the hierarchy of Running Pay Bands and grade pay being prescribed. Thus, grade pay at the time of financial upgradation under ACPs can, in certain cases where regular promotion is not between two successive grades, be different than what is available at the time of regular promotion. In such cases, the higher grade pay attached to the next promotion post in the hierarchy of the concerned cadre/ organization will be given only at the time of regular promotion. (4) Financial upgradation under the scheme will be available whenever a person has spent (9 years) continuous regular service in the same grade pay. However, not more than three financial upgradations shall be given in the entire career. (5) Existing Government servants who have already availed benefit of three selection grades will not be eligible for the grant of ACP. Those Government servants who have availed benefit of one selection grade/one promotion will be eligible for second and third ACP on completion of 18 and 27 years of regular service, respectively. Similarly those Government servants who have availed benefit of two selection grades/two promotions/one promotion and one selection grade, as the case may be, will be eligible for third ACP on completion of 27 years of regular service. (6) The authority competent to make appointment on the post held by the Government servant shall be competent to grade ACP. (7) In the case of Government servants who become eligible for ACP on completion of requisite period of service while drawing pay in the Grade Pay of Rs.4800/-in the running pay band PB-2 '9300-34800' shall be granted ACP in the grade pay of Rs.5400/- in the running pay band PB-2 '9300-34800'. 6. Perusal of sub-rule (4) shows that financial upgradation would be available to an employee whenever he spent 9 years continuous regular service in the same grade pay. 6. Perusal of sub-rule (4) shows that financial upgradation would be available to an employee whenever he spent 9 years continuous regular service in the same grade pay. However, restriction is on more than three financial upgradations. Accordingly, one is entitled to the benefit of maximum three financial upgradation. For proper appreciation, it would be necessary to go into the background of the system to provide three selection scales on completion of nine, eighteen and twenty seven years of years. A circular was issued by the State of Rajasthan on 25.1.1992 indicating that if an employee is not granted three promotions during service tenure then he/she would be entitled to three selection scales on completion of 9, 18 and 27 years of service. The said circular was then superseded by the circular dated 17.2.1998. Now, it is regulated by the Rules of 2008. The object to provides three selection scales was to remove stagnation in the service, if one is not getting three promotions during his service career. Accordingly, if an employee is given one promotion, he becomes entitled to the benefit of two selection scales. In the same way, one is granted benefit of two promotions, he becomes entitled to the benefit of one selection scale and if an employee is given three promotions during the service tenure, he is not entitled to the benefit of any selection scale. 7. If the case in hand is looked into, petitioners have already been given benefit of two promotions and counting their services after promotion to the post of LDC, the benefit of one more selection scale was given. In the light of the aforesaid, if relevant paras of the circular dated 17.2.1998 and the circular dated 31.12.2009 as referred by learned counsel for petitioners is looked into then further benefit of selection scale does not exist. Para 3 of the circular dated 17.2.1998 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 regular appointment in the existing cadre/service in accordance with the provisions contained in the relevant recruitment rules. Para 3 of the circular dated 17.2.1998 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 regular appointment in the existing cadre/service in accordance with the provisions contained in the relevant recruitment rules. The period during which a Government servant remained/remains on extra ordinary leave with or without medical certificate shall also be counted for reckoning the period of service for grant of selection grade; Provided that if an employees 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 other cadre, service from the date of later appointment shall be taken into consideration for the purpose of grant of selection grade; 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 recruitment rules, is promoted to a post in some other cadre, then in such a case service from the date of promotion shall be taken into consideration for the purpose of grant of selection grade; Provided also that in 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 regular 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 also that in 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 regular appointment on the same post in accordance with the provisions contained in the relevant recruitment rules. The term 'same post' for the purpose shall mean post carrying the same designation and pay scale. 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." Para 15 of the circular dated 31.12.2009 is also quoted hereunder for ready reference:- "15. Existing Government servants who have already availed benefit of three selection grades under order dated 25.1.1992 and subsequent order dated 17.2.1998 will not be eligible for grant of ACP. Those Government servants who have availed benefit of one selection grade/one promotion under the orders dated 25.1.1992 and 17.2.1998 will be eligible for second and third ACP on completion of 18 and 27 years of regular service, respectively. Similarly those Government servants, who have availed benefit of two selection grades/two promotions/one promotion and one selection grade under the orders dated 25.1.1992 and 17.2.1998, as the case may be, will be eligible for third ACP on completion of 27 years of regular service. See illustration No.1, 2, and 3". 8. Perusal of proviso (ii) to Para 3 of the Circular dated 17.2.1998 provides that if one is appointed in particular cadre/service and thereupon promoted in some other cadre, then his service for the purpose of selection scale would be counted from the date of promotion. See illustration No.1, 2, and 3". 8. Perusal of proviso (ii) to Para 3 of the Circular dated 17.2.1998 provides that if one is appointed in particular cadre/service and thereupon promoted in some other cadre, then his service for the purpose of selection scale would be counted from the date of promotion. Para 15 of the circular dated 31.12.2009 further clarifies that if a person has already been extended benefit of three selection scales/promotions then he would not be entitled to any benefit and in the same way if an employee has been given benefit of one selection scale/promotion then he would be eligible to second and third ACP and in the same way further illustration has been given in para 15 of the circular dated 31.12.2009. 9. In view of the aforesaid and applying Proviso (ii) to Para 3 of the circular dated 17.2.1998, petitioners have been given two promotions, thus entitled to the benefit of third selection, which has already been given. For the aforesaid purpose, period is to be counted from the date of his promotion to the post of LDC inasmuch as petitioner's initial appointment was as Class-IV employee and on promotion to the post of LDC, his cadre was changed from Class-VI to Class-Ill. Petitioner was given one selection scale, thus was not entitled to further benefit of selection scale/ACP but department committed illegality by granting benefit of one ACP vide order at Annexure-1. In the manner aforesaid, petitioner could get four financial upgradation during his service tenure which otherwise goes contrary to Rule 19(4) of the Rules of 2008. In the background aforesaid, there is no illegality in passing the impugned order withdrawing of benefit of one ACP. Accordingly, no interference is required to be caused in the impugned order. This is more so when no direction has been issued to recover the amount already paid to the petitioner though show cause notice indicates that if ACP is withdrawn, consequence will follow. Since direction for recovery has not been issued, it would be pre-mature for this Court to direct the respondents not to recover the amount. However, it goes without saying that benefit of ACP vide order dated 31.1.2009 was given to petitioners without his misrepresentation or fraud rather it was on account of default of respondents themselves. 10. Since direction for recovery has not been issued, it would be pre-mature for this Court to direct the respondents not to recover the amount. However, it goes without saying that benefit of ACP vide order dated 31.1.2009 was given to petitioners without his misrepresentation or fraud rather it was on account of default of respondents themselves. 10. In the background aforesaid, it is expected from the respondents not to effect the recovery from petitioners pursuant to the impugned order as benefit of third ACP was given on account of their own default. It is keeping in mind that there is no misrepresentation or fraud on the part of petitioners to get the ACP pursuant to the order issued by respondents themselves on 31.1.2009. Aforesaid observations have been made to avoid any litigation on the issue of recovery and thereby respondents are expected not to effect recovery keeping in mind the judgment of the Hon'ble Apex Court in the case of Syed Abdul Qadir and others Versus State of Bihar and others reported in (2009) 3 SCC 475 . Therein Hon'ble Apex Court held, as under: "57. This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowance if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of particular interpretation of rule/order, which is subsequently found to be erroneous. 58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram vs. State of Haryana, Shyam Babu Verma vs. Union of India, Union of India vs. M. Bhaskar, V. Gangaram vs. Director, Col. See Sahib Ram vs. State of Haryana, Shyam Babu Verma vs. Union of India, Union of India vs. M. Bhaskar, V. Gangaram vs. Director, Col. B.J. Akkara (Retd.) vs. Govt. of India, Purshootam Lal Das vs. State of Bihar, Punjab National Bank vs. Manjeet Singh and Bihar SEB vs. Bijay Bhadur. 59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter-affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made." 11. With the aforesaid observations and directions, these writ petitions so as the stay applications are disposed of.