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2011 DIGILAW 331 (RAJ)

Devendra Kumar Garg v. State of Rajasthan

2011-02-11

GOVIND MATHUR

body2011
Hon'ble MATHUR, J.—By an order dated 18.7.1972, an appointment was given to the petitioner as Teacher with Panchayat Samiti, Sirohi. The services of the petitioner subsequent thereto were taken over in the Department of Education, Government of Rajasthan. The Deputy Director (Woman), Department of Education then by an order dated 29.5.1979 appointed the petitioner as Lower Division Clerk in the pay-scale of Rs. 355-570, purely on ad-hoc basis for a period of six months or till availability of selected incumbents, whichever is earlier. By an another order dated 8.10.1980, the petitioner then was repatriated to his original office in the capacity of a Teacher. The respondents made fixation of the petitioner's pay in the pay-scale relating to the post of Teacher and also allowed selection grades under the orders dated 9.6.1992, 30.7.1998 and 27.10.2005. On revision of pay-scales, a pay-scale of Rs. 5500-9000 was given to him, but that was withdrawn under an order dated 12.6.2008, and a fixation of the pay was made in the pay-scale of Rs. 5000-8000. This was done by treating the petitioner employed as Teacher under the order dated 8.10.1980. As per the respondents, the petitioner was employed as Lower Division Clerk and then as a Teacher, therefore, his services prior to appointment as Teacher could have not been taken into consideration, while making the fixation and also for the grant of selection grades. 2. Being aggrieved by the order dated 12.6.2008, the petitioner preferred an appeal before the Rajasthan Civil Services (Service Matters) Appellate Tribunal with assertion that he was in regular employment of the Department of Education since 1972 as Teacher, therefore, the selection grades granted to him by computing his services from the date of his initial appointment were in accordance with law and the order dt. 12.6.2008 treating his regular services only after repatriation is erroneous. Learned Tribunal by the judgment dated 21.10.2008 disposed of the appeal with the directions to the respondents to disposed of the representation, if any, submitted by the petitioner and further not to effect any recovery in pursuance of order dated 12.6.2008, till then. 3. 12.6.2008 treating his regular services only after repatriation is erroneous. Learned Tribunal by the judgment dated 21.10.2008 disposed of the appeal with the directions to the respondents to disposed of the representation, if any, submitted by the petitioner and further not to effect any recovery in pursuance of order dated 12.6.2008, till then. 3. The petitioner as a consequent to the directions given by the learned Tribunal submitted a representation to the Director (Education) on 20.9.2009, and that is yet not been disposed of, however, the amount said to be paid in excess has been recovered by the Director, Pension and Pensioners Welfare, Rajasthan, Jaipur at the time of retirement of the petitioner. Hence, this petition for writ, to challenge the recovery of the amount made from the ratiral dues. 4. It is submitted by learned counsel for the petitioner that though the representation submitted by the petitioner has yet not been disposed of by the competent authority, but the respondents have detained Rs. 1,51,069/- from the retiral benefits of the petitioner and that is in violation of the directions given by the Tribunal. It is also urged that the recovery sought to be made is contrary to the existing provisions as the fixation made was as per law. 5. No reply to the writ petition has been filed on behalf of the respondents. However, it is submitted that the petitioner at the first instance was employed as Teacher in the year 1972, but then he was selected as a Lower Division Clerk under an order dated 29.5.1979. Subsequent thereto, by order dated 8.10.2010, he was again employed as Teacher, therefore, his regular services as Teacher are required to be reckoned from 8.10.1980 only. As per learned counsel for the respondents, the fixation made by treating the petitioner in service since 1972 was erroneous, therefore, was rightly withdrawn and a sum of Rs. 1,51,069/- being paid in excess was rightly recovered. It is asserted that so far as order dated 21.10.2008 passed by the Tribunal is concerned, that was passed while the petitioner was in employment, therefore, that is having no consequence for the recovery made on his retirement. 6. Heard learned counsel for the parties and also considered the rival arguments. 7. 1,51,069/- being paid in excess was rightly recovered. It is asserted that so far as order dated 21.10.2008 passed by the Tribunal is concerned, that was passed while the petitioner was in employment, therefore, that is having no consequence for the recovery made on his retirement. 6. Heard learned counsel for the parties and also considered the rival arguments. 7. At the threshold, I would like to mention that as per Section 4 of the Rajasthan Civil Service (Service Matters) Appellate Tribunal Act, 1976 (for short 'the Act of 1976' hereinafter), the Tribunal is duty bound to hear an appeal against the order passed by any officer and authority on any service matters or matters effecting a Government servant in his personal capacity. The Tribunal is having power to confirm, vary or reverse the order against which the appeal is preferred or to remand the matter for fresh decision in accordance with the directions given by it. A detail procedure is prescribed under the Act of 1976 to adjudicate an appeal. The appeal under the Act of 1976 is a process for requesting a formal change or alteration to a decision taken by the administrative authorities. It is a right guaranteed to a Government servant by statute, thus, the appellate court i.e. a Tribunal cannot refuse to listen an appeal on merits. The Tribunal under the scheme of the Act of 1976 is required to re-examine all questions of fact and application of law thereto. The power to remand can also be exercised only after examining merits of the order under appeal. It is not open for the Tribunal to left the parties to get their cause adjudicated at administrative level by submission of representations. The shortcut mode, now a days, usually adopted by the Tribunal, relegating the parties again for getting their cause adjudicated by submitting represen-tation is absolutely against the intention, spirit and thrust of the Act of 1976. 8. The Tribunal in the instant matter should have examined merits of the issue agitated before it, instead of remanding the matter to the administrative authorities for adjudication. The Tribunal, as a matter of fact utterly failed to exercise its appellate authority and that has caused an unnecessary delay in adjudication of the matter and that has also prolonged agony of the petitioner. 9. The Tribunal, as a matter of fact utterly failed to exercise its appellate authority and that has caused an unnecessary delay in adjudication of the matter and that has also prolonged agony of the petitioner. 9. Having considered all the facts of the case and also the delay already caused in the matter, I deem it appropriate to examine merits of the case in this petition for writ itself. 10. On merits, precisely, the issue requires consideration is that whether the appointment of the petitioner as Lower Division Clerk under an order dated 29.5.1979 was a fresh appointment as Lower Division Clear, or that was only a stop gap arrangement. With the issue above, it is also required to be considered that whether the order Annex. 3, whereby the petitioner was repatriated to his parent office in capacity of the Teacher is a fresh appointment or in continuation of his earlier services, came into being under order dated 18.7.1972. 11. From perusal of the order dated 18.7.1972 (Annex. 1), it reveals that appointment was given to the petitioner as Teacher as a consequent to his regular selection and he was employed on probation for a term of two years. While working as Teacher, he was appointed purely on ad-hoc basis as Lower Division Clerk under the order dated 29.5.1979 (Annex. 2). Worthwhile to note that in the order dated 29.5.1979 itself the Deputy Director (Woman), Department of Education noticed that the petitioner was working in substantive capacity as Teacher in Panchayat Samiti, Sirohi. That fact clearly establishes that the appointment of the petitioner under the order dated 18.7.1972 was in substantive capacity, and then his services were utilised by the respondents as Lower Division Clerk purely on ad-hoc basis. By the order dated 8.10.1980 (Annex. 3), the Deputy Director (Woman), Department of Education, Jodhpur repatriated to the petitioner in his parent office. The recital of the order dated 8.10.1980 makes it crystal clear that the petitioner was not working as Lower Division Clerk as a consequent to his selection, but was working purely on ad hoc basis and only as an stop gap arrangement. The petitioner after getting relieved from the post of Lower Division Clerk in the office of Deputy District Education Officer (Woman), Sirohi joined duties as Teacher, and since then he was discharging the duties as such. The petitioner after getting relieved from the post of Lower Division Clerk in the office of Deputy District Education Officer (Woman), Sirohi joined duties as Teacher, and since then he was discharging the duties as such. The respondents looking to the factual background as narrated in preceding paras made fixation of the petitioner's pay and accordingly also allowed him the selection grades. On basis of some audit objection, de-fixation of the petitioner's pay was made and selection grades granted earlier were withdrawn. 12. The order dated 29.5.1979 by no stretch of imagination can be termed and treated as a fresh appointment on the post of Lower Division Clerk, and similarly the order dated 8.10.1980 also cannot be considered as an order giving appointment to the petitioner afresh as a Teacher. The petitioner, as a matter of fact, is in continuous employment, since the date of joining in pursuant to the order dated 18.7.1972. The period in between 29.5.1972 to 8.10.1980 is also a part of the same service and it in no manner breaks the service thread. In such circumstances, withdrawal of the selection grade and de-fixation of the petitioner's pay from the pay-scale of Rs. 5500-9000 is apparently erroneous. Accordingly, the order dated 12.6.2008 is bad. 13. For the reason given above, the petition for writ deserves acceptance, same is, therefore, allowed. The order dated 12.6.2008 (Annex. 14) passed by the District Education Officer (Elementary), Department of Education, Sirohi is quashed. The respondents are directed to make the fixation of the petitioner's pay afresh by restoring the orders those were quashed under the order dated 12.6.2008. The amount of Rs. 1,56,069/- withheld by the Directorate of Pension and Pensioners Welfare, Rajasthan, Jaipur under the PPO NO. 443714 (R)/GPO/CPO (Annex. 19) is also declared illegal. The respondents are also directed to release the amount withdraw under PPO within a period of two months from today. The petitioner is also entitled for interest on amount withheld @ 6.5% per annum. 14. The Registry is directed to send a certified copy of this order to the Rajasthan Civil Services Appellate Tribunal, Jaipur immediately. A copy of this order be also FAXED to the Tribunal. The Tribunal is directed not to dispose of the appeals ipse dixit by relegating the appellants before it to get their cause adjudicated by the administrative authorities by submitting representations. A copy of this order be also FAXED to the Tribunal. The Tribunal is directed not to dispose of the appeals ipse dixit by relegating the appellants before it to get their cause adjudicated by the administrative authorities by submitting representations. If any, such order henceforth is brought into notice of the Court, that shall be treated as contempt of the directions given by this Court.