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Rajasthan High Court · body

2014 DIGILAW 1643 (RAJ)

Jitendra Kumar Saxena v. State of Rajasthan

2014-10-09

MOHAMMAD RAFIQ

body2014
JUDGMENT : This writ petition has been filed by petitioner Jitendra Kumar Saxena challenging the order dated 07.06.2006 issued by the respondent by which he was denied the pay protection and seeking direction to the respondent to fix the initial basic pay of the petitioner at Rs.6950/- in the pay scale of Rs.6500-200-10500 with effect from 27.12.1999 the date on which he joined the post of Assistant Commercial Taxes Officer (for short, 'the ACTO'), and further to grant him annual grade increments accordingly. Prayer has also been made to pay arrears thereof with interest at the rate of 24% per annum. The petitioner was initially appointed on the post of Junior Engineer (Degree Holder) in the Public Health and Engineering Department vide order dated 02.11.1994. His appointment was made on ad hoc on temporary basis for a period of three months or till regularly selected candidates became available, whichever is earlier. His appointment was described as Junior Engineer degree holder (Mechanical) in the pay scale of rs.1400-40-1600-50-2300-60-2600. Since he petitioner and other candidates were degree holders, their salary was fixed at a higher initial basic pay of Rs.1850/- as they were given ten increments in the said pay scale. It was made clear in the office order dated 02.11.1994 that they will also be paid the dearness allowances and other applicable allowances as per Rules of the State Government in this regard. Shri Pradeep Choudhary, learned counsel for the petitioner, argued that while the petitioner was working as Junior Engineer with the PHED, he applied for permission to appear in the Rajasthan Administrative Services examination. He was allowed by the department to appear therein and 'no objection certificate' to this effect was issued by the Chief Engineer (Rural), PHED, Government of Rajasthan, Jaipur. After qualifying the RAS examination, the petitioner was appointed as Assistant Commercial Taxes Officer vide order dated 22.12.1999, in the Rajasthan Commercial Taxation Services. The petitioner was relieved by PHED to join training for the new post. Along-with the relieving order, the petitioner was also given the last pay certificate (for short, 'LPC') for the month of December, 1999. From the LPC of the petitioner for the month of December, 1999, it is evident that at the time of relieving, his basic salary was Rs.6950/- per month in the pay scale of Rs.5000-150-8000. Along-with the relieving order, the petitioner was also given the last pay certificate (for short, 'LPC') for the month of December, 1999. From the LPC of the petitioner for the month of December, 1999, it is evident that at the time of relieving, his basic salary was Rs.6950/- per month in the pay scale of Rs.5000-150-8000. According to Shri Pradeep Choudhary, learned counsel for the petitioner, the petitioner was entitled to protection of his pay in new appointment on the post of ACTO. He was rather illegally fixed at Rs.6500/- at minimum of the pay scale of Rs.6500-200-10500 from the date of his joining in the Rajasthan Commercial Taxation Services on 27.12.1999 as ACTO and an order to this effect was issued on 16.01.2002 by the Deputy Commissioner (Administration), Headquarters, Commercial Taxation Department, Government of Rajasthan, Jaipur. The petitioner submitted number of representations to the Department and also to the Government. Last such representation was submitted on 12.05.2005, but nothing was done in the matter. The petitioner later came to know that the respondent department had earlier protected the pay/salary of one similarly situated person, namely, Shri Hari Singh Charan, who was also working as Junior Engineer in Public Works Department. His basic pay in the Public Works Department was at Rs.2150/- when he joined as ACTO in the Commercial Taxation Department. After his joining as ACTO, his basic pay was fixed at Rs.2150/- (which he was receiving in his previous department on the post of J.En.) in the pay scale of Rs.2000-60-2300-75-3200-100-3500 as per the provisions of Rule 26(1)(b)(ii) of the Rajasthan Service Rules, 1958 (for short, 'the Rules of 1958'), and an order dated 20.07.1994 to this effect was issued by the Deputy Commissioner (Administration), headquarters, Commercial Taxation Department, Government of Rajasthan, Jaipur. In the order dated 20.07.1994 it was clearly mentioned that since there is no equal stage available in the same time scale in the pay scale of ACTO, therefore his basic salary was fixed at next below stage of Rs.2120/- and differential amount of Rs.30/-was paid as personal pay as per the Rules of 1958. In the order dated 20.07.1994 it was clearly mentioned that since there is no equal stage available in the same time scale in the pay scale of ACTO, therefore his basic salary was fixed at next below stage of Rs.2120/- and differential amount of Rs.30/-was paid as personal pay as per the Rules of 1958. Learned counsel for the petitioner argued that the appointment of the petitioner was made under Rule 27 of the Rajasthan Engineering Subordinate Service (Public Health Branch), Rules, 1967 (for short, 'the Rules of 1967'), which provides for urgent temporary appointment against a vacancy which cannot be filled in immediately either by the direct recruitment or by promotion under the Rules, by the Government or by the competent authority, as the case may be, on officiating capacity from amongst the persons eligible for such appointment by way of promotion or who are eligible for direct recruitment to service, where such direct recruitment has been provided under the provisions of the Rules of 1967. Appointment of the petitioner was although made on ad-hoc/temporary basis but following the regular procedure in accordance with the Rules. Learned counsel for the petitioner argued that apart from the fact that action of the respondents is illegal and contrary to Rule 26(1) (b)(ii) of the Rules of 1958, their action is thus also discriminatory in nature, in which the petitioner has not been accorded treatment similar to that accorded to Shri Hari Singh Charan, referred to above. Learned counsel in this connection has referred to Rule 26 and its various sub-Rules and clauses to make out the point. Entire procedure, which is required to be followed while making a regular appointment, was followed at the time of initial appointment of the petitioner. Even then the appointment was described as of urgent temporary nature. All eligible candidates were considered for appointment, which was made entirely on merit. The Junior Engineers, who were appointed along-with the petitioner in the PHED are still continuing and that indicates that they have been made permanent on their respective posts. The respondents have wrongly applied the provisions of Rule 26(1)(c)(i) of the Rules of 1958 in the case of the petitioner. His case is fully covered by the provisions of Rule 26(1)(b)(i) of the Rules of 1958. The respondents have wrongly applied the provisions of Rule 26(1)(c)(i) of the Rules of 1958 in the case of the petitioner. His case is fully covered by the provisions of Rule 26(1)(b)(i) of the Rules of 1958. Shri Archit Bohra, learned counsel for the respondents, opposed the writ petition and submitted that there was no case of discrimination inasmuch as Rule 26(1)(b)(i) of the Rules of 1958 would not be applicable to the case of the petitioner. The correct Rule that governs his case is Rule 26(1)(c)(i) of the Rules of 1958 because the appointment of the petitioner was temporary in nature. It is contended that even if certain benefits have wrongly been awarded to said Shri Hari Singh Charan, such would not entitle the petitioner to claim the same benefits as that would tantamount to perpetuating the illegality. Besides, the appointment of said Shri Hari Singh Charan was on temporary basis but was not on ad hoc basis as was the case with the petitioner, whose appointment was in PHED on ad hoc basis. Provisions of Rule 26 (1)(c)(i) of the Rules of 1958 were applicable in present context of the matter. Shri Pradeep Choudhary, learned counsel for the petitioner rejoined and submitted that while the petitioner was appointed on ad hoc on temporary basis and posted as J.En. in PHED, Shri Hari Singh Charan with whom the petitioner claimed parity was also appointed on temporary basis. However, the State Government, vide notification dated 02.07.2003 amended the Rules of 1967 providing that services of all the persons who were appointed on the post of J.En. on ad-hoc/urgent temporary basis till 31.03.1999, were regularized on the post of J.En. after screening. The services of some of the candidates who were appointed along-with the petitioner by order dated 02.11.1994, have also been regularized vide order dated 31.12.2003. It cannot therefore be said that earlier appointment of the petitioner is of no avail and his case is not covered under the provisions of Rule 26(1)(b) (ii) of the Rules of 1958. I have given my anxious consideration to rival submissions and perused the material on record. In order to appreciate the rival submissions, it would be apposite to reproduce relevant part of Rule 26 of the Rules of 1958, which reads as under:- “26. I have given my anxious consideration to rival submissions and perused the material on record. In order to appreciate the rival submissions, it would be apposite to reproduce relevant part of Rule 26 of the Rules of 1958, which reads as under:- “26. (1) A Government servant already serving in one service, cadre or department who is appointed to another service, cadre or department by direct recruitment or special selection, (including transfer other than by deputation) cadre or department to another) and not by promotion according to service rules, shall have his initial pay fixed as follows:— Category Last pay on old post Initial pay on new post 1 2 3 3 (a) Substantive on a permanent post and not officiating on a higher post. (a) Persons in category (a) shall have pay fixed as in the manner stated below- (i) If the maximum of the scale of the new post is higher than the maximum of the old post, then pay shall be fixed at the stage of the time scale of the new post next above the last substantive pay in the old post. (ii) If the maximum of the scale of the new post is equal to the maximum of the old post, then pay shall be fixed at the stage of the time scale of the new post which is equal to his last substantive pay on the old post, or if there is no such stage, the stage next below that pay plus personal pay equal to the difference. (iii) If the maximum of the scale of the new post is lower than the maximum of the old post, than the pay shall fixed at the stage which he would have been entitled to as if the period of service rendered on the old post would have been counted as rendered against the new post, subject to the condition that the pay fixed shall be restricted to the pay last drawn in the old post. (iv) If minimum pay on the new post is higher than pay admissible under clause (i), (ii) & (iii) above, than minimum pay shall be allowed. (iv) If minimum pay on the new post is higher than pay admissible under clause (i), (ii) & (iii) above, than minimum pay shall be allowed. (b) (i) Substantive on a lower post but officiating on a higher permanent or temporary post in the same service, cadre or department provided that such officiation was in accordance with the provisions of Service Rules relating to promotion, promulgated under proviso to Article 309 of the Constitution. (ii) Temporary on a permanent or temporary post, provided that appointment was made by direct recruitment, promotion, special selection, Emergency recruitment or as a part of initial constitution of a service or cadre, in accordance with provision of the Service Rules relating to recruitment, promotion, and initial constitution promulgated under proviso to Article 309 of the Constitution. (iii) Temporary on a permanent or temporary post, provided that if there are no service rules promulgated under proviso to Article 309 of the Constitution and the post was within the purview of the R.P.S.C. appointment was made on the advice of the RPSC. (iv) Temporary on a permanent or temporary post, provided that appointment had been made in the process of absorption of persons declared 'surplus' due to abolition of posts, and that pay drawn on the abolished post was of the type described in paragraphs (a), (b) (i), (b) (ii) and (b) (iii) above. (b) Persons covered by any paragraph in category (b) shall have pay fixed in the manner stated below— (i) If minimum pay of the new post is equal or higher than the last pay in the old post other than that held substantively, then the minimum pay. (b) Persons covered by any paragraph in category (b) shall have pay fixed in the manner stated below— (i) If minimum pay of the new post is equal or higher than the last pay in the old post other than that held substantively, then the minimum pay. (ii) If minimum pay of the new post, is lower than last pay in the old post other than that held substantively, then pay shall be fixed at the stage of the time scale which is equal to his last pay in the old post or if there is no such stage, the stage next below that pay plus personal pay equal to the difference: Provided that if the maximum of the scale of the new post is lower than the maximum of the old post, than the pay shall be fixed at the stage which he would have been entitled to as if the period of service rendered on the old post would have been counted as rendered against the new post, subject to the condition that the pay so fixed shall be restricted to the pay last drawn in the old post. Provided further that if fixation of pay on the basis of pay admissible on substantive post in accordance with paragraph (a) (i) or (a) (ii) or (a) (iii) above is more advantageous, pay shall be fixed under the said clauses. (c) (i) Temporary on a permanent or temporary post having been appointed adhoc without following the procedure laid down in the Service Rules promulgated under proviso to Article 309 of the Constitution, or the Rajasthan Public Service Commission (Limitation of Functions) Regulation and Government instructions issued thereon. (ii) Temporary on a permanent or temporary post, having been appointed in the process of absorption of person declared ‘surplus’ due to abolition of post but pay drawn on the abolished post was not of the type described in paragraphs (a), (b) (i),(b)(ii) and (b) (iii) above. (iii) Temporary on a permanent or temporary post, appointment to which is not regulated by any Service Rules promulgated under proviso to Article 309 of the Constitution and which is also not within the purview of the Rajasthan Public Service Commission. (iv) Temporary on a permanent or temporary post other than of the type described in paragraphs (i) to (iii) above. (iv) Temporary on a permanent or temporary post other than of the type described in paragraphs (i) to (iii) above. (c) Persons covered by any paragraphs in category (c) shall have pay fixed in the manner stated below:— Minimum of the scale or at such higher stage as may be approved by the Government on the recommendation of the Rajasthan Public Service Commission or if the post is outside the purview of the Rajasthan Public Service Commission, on the recommendation of the selecting authority. Provided that during probation training period the provisions of this rule shall not be applicable. The probationer-trainee shall be allowed pay in his / her own pay scale of the previous post or fixed remuneration as per provisions of Rule 24. After successful completion of probation training his/ her pay shall be fixed under the provisions of this rule." (2) Pay for the purpose of sub-rule (1) shall mean substantive pay, officiating pay and pay on temporary post and shall not include special pay. (3) When appointment to the new post is made at the request of the Government servant under Rule 20(a) or Rule 215(b) and the maximum pay in the time scale of new post is lower than his last pay in the old post, he will draw that maximum of new post as initial pay, (4) (a) In respect of a Government servant whose initial pay is fixed under paragraph (a) (ii), (a) (iii) and (b) (ii) of sub-rule (1) of this rule, the service rendered on his previous post since drawal of last increment shall be counted for purposes of grant of increment in the new post. Exception.- If a Government servant in service as probationer/on probation is appointed to new post before completion of the prescribed period of probation satisfactorily, the period of service rendered on old post shall not be counted for this purpose on the new post. Exception.- If a Government servant in service as probationer/on probation is appointed to new post before completion of the prescribed period of probation satisfactorily, the period of service rendered on old post shall not be counted for this purpose on the new post. (b) In cases other than (a) above, next date of increment shall be allowed on completion of the full requisite qualifying service counting for increment under Rule 31 of Rajasthan Service Rules.” Rule 26 of the Rules of 1958, on which the petitioner relies, inter alia provides that a Government servant already serving in one service, cadre or department, who is appointed to another service, cadre or Department by direct recruitment or special selection, (including transfer other than by deputation) from one service, cadre or Department to another and not by promotion according to service Rules, shall have his initial pay fixed as per the prescription made under the said Rule 26(1)(b)(ii) deals with the cases of temporary appointment on a permanent or temporary post and stipulates that if the appointment was made by direct recruitment, promotion, special selection, emergency recruitment or as a part of initial constitution of a service or cadre, in accordance with the provisions of the Services Rules relating to recruitment, promotion, and initial constitution promulgated under proviso to Article 309 of the Constitution, such employee shall be fixed (i) if minimum pay of the new post, is lower than last pay in the old post other than that held substantively, then pay shall be fixed at the stage of the time scale, which is equal to his last pay in the old post or if there is no such stage, the stage next below that pay plus personal pay equal to the difference, and (ii) if the maximum pay of the individual post is lower than the last pay in the old post, other than that held substantively then pay shall be fixed at the stage of time scale of the new post which is equal to his last substantive pay on the old post, and if there is no such stage, the stage next below that pay plus personal pay equal to the difference. It is this provisions which actually was applied by the respondents themselves when one Hari Singh Charan, appointed on temporary basis as Junior Engineer with the PHED, was appointed on the post of ACTO. It is this provisions which actually was applied by the respondents themselves when one Hari Singh Charan, appointed on temporary basis as Junior Engineer with the PHED, was appointed on the post of ACTO. In his case, the basic pay that he was receiving in the PHED at the time of appointment on the post of ACTO, was Rs.2150/-. The minimum pay payable on the post of ACTO was Rs.2000/-in the pay scale of 2000-3500. On his joining as ACTO, he was fixed at basic pay of Rs.2150/- in the pay scale of Rs.2000-60-2300-75-3200-100-3500. Since there was no equal stage available in the time scale of the post of ACTO, the basic pay of Shri Hari Singh Charan was fixed at next below stage available of Rs.2120/-and differential amount of Rs.30/- was given as his personal pay. The respondents have opposed the claim of the petitioner by relying on Rule 26(1)(c)(i) of the Rules of 1958, which inter alia deals with the cases of those appointed on 'temporary on a permanent or temporary post having been appointed ad hoc without following the procedure laid down in the service Rules promulgated under the proviso to Article 309 of the Constitution. The respondents have justified applicability o that part of the Rule by contending that appointment of the petitioner was made “without following the procedure laid down in the service Rules promulgated under the proviso to Article 309 of the Constitution”. Rule 27 of the Rules of 1967, inter alia, provides that a vacancy in the service which cannot be filled in immediately either by direct recruitment or by promotion under the rules may be filled in by the Government or by the Appointing Authority competent to make appointments as the case may be, by appointing in an officiating capacity thereto an officer eligible for appointment to the post by promotion or by appointing temporarily thereto a person eligible for direct recruitment to the Service, where such direct recruitment has been provided under the provisions of these Rules. Proviso to the said Rule stipulates that such an appointment will not be continued beyond a period of one year without referring the case to the Commission for concurrence, where such concurrence is necessary, and shall be terminated immediately on its refusal to concur. Proviso to the said Rule stipulates that such an appointment will not be continued beyond a period of one year without referring the case to the Commission for concurrence, where such concurrence is necessary, and shall be terminated immediately on its refusal to concur. Contention of learned counsel for respondent that the appointment of the petitioner was not made in accordance with the procedure prescribed in the Rules of 1967, therefore, cannot be countenanced because the Rules of 1967 very much envisage the appointment on ad hoc/urgent temporary basis. Moreover, though the appointment of the petitioner and others along-with him was prescribed as ad-hoc on temporary basis and was initially for a period of three months but the appointment of all of them was continued from time to time, and eventually, as asserted by the petitioner and not disputed by the respondents, the appointments of all others, appointed along-with the petitioner, were regularized by amending the Rules of 1967 vide notification dated 02.07.2003, which provided for screening of all those who were appointed on ad-hoc/urgent temporary basis on the post of Junior Engineer till 31.03.1999. This clearly shows that such appointees were continued in service for more than 15 years and their services were finally regularized. There is therefore no reason even otherwise not to provide pay protection to the petitioner. In the result, the writ petition is allowed. The order dated 07.06.2006 (Annexure-10) is quashed and set aside. The respondents are directed to fix the initial basic pay of the petitioner at Rs.6950/-with effect from 27.12.1999, the date when he joined on the post of ACTO in the Commercial Taxes Department, in the pay scale of Rs.6500-200-10500, if that stage was available in the said pay scale, and if that stage was not available, then by fixing him at the stage next below in the said pay scale and grant the differential amount of basic pay as his personal pay and pay him all consequential benefits together with interest at the rate of 6% per annum. Compliance of the judgment be made within three months from the date copy of this judgment is produced before the respondents.