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2014 DIGILAW 184 (RAJ)

Shri Kishan Sharma v. State of Rajasthan

2014-01-13

P.K.LOHRA

body2014
JUDGMENT 1. - By the instant writ petition, the petitioner has challenged the action of the respondents, whereby the second selection grade granted to the petitioner, vide order dated 14th September, 1994, is sought to be withdrawn precisely on the anvil of it being in contravention of Clause 13 of the Notification of the State Government dated 25th January, 1992, whereby selection grades were prescribed for the employees in the cadre of Class IV, subordinate and ministerial services. 2. That apart, for assailing the impugned action of the respondents, the petitioner has also taken shelter of Clause (3) of the order/circular dated 4th December, 1996, whereby it is prescribed by the State Government that if an incumbent has not availed his second or third promotion, then his second and third selection grades are liable to be withdrawn. 3. The facts necessary for the purpose of this writ petition are that the petitioner, at the threshold of his service career, was appointed as Teacher Grade-III on 16th August, 1960 and thereafter he has availed the promotion in the cadre of Teacher Grade-II in the year 1981. In the year 1992, a notification was issued by the State Government on 25th January, 1992, whereby selection grades were prescribed in the form of relief to the employees in the cadre of Class-IV, subordinate and ministerial services, who were facing stagnation in their service careers in want of proper outlets of promotion. As per the Circular, three selection grades were prescribed with the stipulation that the first selection grade shall be granted on completion of 9 years' services followed by second selection grade on completion of 18 years of services and third selection grade on completion of 27 years of services. As transpired from the pleadings, while working as Teacher Grade-III, the petitioner was further promoted to the post of Lecturer (School) Education and an order to this effect came into offing on 23rd November, 1996. On receipt of the promotion order, the petitioner immediately submitted an application before the competent authority showing his inclination not to avail the promotion. An application to this effect was submitted by the petitioner before the Director (Education) on 24th November, 1996, which was further followed by yet another application dated 29th November, 1996. On receipt of the promotion order, the petitioner immediately submitted an application before the competent authority showing his inclination not to avail the promotion. An application to this effect was submitted by the petitioner before the Director (Education) on 24th November, 1996, which was further followed by yet another application dated 29th November, 1996. While acting on application/representation of the petitioner, the District Education Officer (Boys), Chittorgarh addressed a communication to the Headmaster, Government Senior Secondary School, Kesunda, under whom the petitioner was working, to relieve him latest by 7th September, 1996. Precisely, the grievance of the petitioner is that although the promotion was accorded to him on 23rd November, 1996 and immediately he has applied for foregoing the said promotion, the respondents have acted to his detriment by taking a decision to withdraw the second selection grade granted to him, solely on the ground that he has not availed the second promotion. While laying stress on the Circular dated 4th December, 1996, the petitioner has pleaded that, as a matter of fact, he has declined to avail the promotion before issuance of that circular, and therefore, the rigor of that circular cannot be applied to deprive him from his right to claim his salary in the second/third selection grade. That apart, he has also questioned the action of the respondents on the anvil of it being violative of principles of natural justice, as before taking the impugned action no notice inspiring the action was given to him. 4. E-converso, the respondents in their reply have submitted that in fact the application to fore-go his second promotion was submitted by the petitioner on 17th December, 1996 i.e., after issuance of the circular dated 4th December, 1996, and therefore, while applying the said circular, the respondents have rightly decided to rescind the second and third selection grades granted to the petitioner. 5. It is also transpired during the course of arguments that after foregoing the second promotion when the opportunity came across the petitioner again he has availed the second promotion w.e.f., 10th December, 1998. 6. 5. It is also transpired during the course of arguments that after foregoing the second promotion when the opportunity came across the petitioner again he has availed the second promotion w.e.f., 10th December, 1998. 6. Having heard the learned counsel for the parties and perused the materials on record, in my considered opinion, the petitioner has shown his inclination not to avail second promotion as early as on 29th November, 1996, which is clearly evident from the letter dated 4th December, 1996, which was addressed by the District Education Officer (Boys) Chittorgarh to the Headmaster of the institution, where the petitioner was working. Thus, the petitioner has foregone his promotion before issuance of the circular dated 4th December, 1996. The third clause of the circular envisaged with clarity and precision that circular is to be applied prospectively and not to be given retrospective effect. In the third clause, it is also clarified that if an incumbent has been offered second or third promotion for the second time and he has availed the same then it will not entail cancellation of the second/third selection grade as the case may be. The complete text of Clause (3) is reproduced as under:- The Governor is further pleased to order that the Government servant who had forgone the second or third promotion before issue of this order and is drawing pay either in the second or third selection grade the benefit of second and/third selection grade, as the case may be shall not be withdrawn and in case such a Government servant is again offered promotion after issue of this order, the benefit of second and third selection grade shall be withdrawn from the date he refuses to accept the promotion. The pay of such an employee shall be refixed either in pay scale of the first promotion post or in the first selection grade or in pay scale of the second promotion post at the stage he would have drawn had he not been granted second and/third selection grade(s) as the case may be. 7. The pay of such an employee shall be refixed either in pay scale of the first promotion post or in the first selection grade or in pay scale of the second promotion post at the stage he would have drawn had he not been granted second and/third selection grade(s) as the case may be. 7. On meaningful consideration of the Circular dated 25th January, 1992 and Circular dated 4th December, 1996, there remains no quarrel that foregoing promotion before the issuance of the circular dated 4th December,1996 cannot come in the way of an incumbent to avail the benefit of second and third selection grades, as the case may be, nor in such an eventuality it shall entail cancellation of second or third selection grades, as the case may be. That apart, it is crystal clear that the petitioner was not afforded any opportunity of being heard before taking a decision to his detriment about cancellation of the grant of selection grades to him. The action of the respondents is, therefore, in clear negation of the principle of audi alteram partem. 8. Normally, in such events Court can remand the matter back to the authorities, but looking to the peculiar facts that petition is pending before this Court since 2001 and the petitioner is senior citizen having attained the age of more then 74 years, I deem it just and appropriate to decide this writ petition on merits. 9. In the backdrop of facts and circumstances of the instant case, the lis, which has cropped up between the rival parties lies in a very narrow compass inasmuch as the second promotion was offered to the petitioner in the year 1996 i.e., on 23.11.1996 and he declined to avail the same on 24/29.11.1996 and when the second offer was given he has availed the promotion and joined his duties on the promotional post w.e.f. 10.12.1998. So, there is hardly a difference of two years. Moreover, the affirmative action of the petitioner in foregoing his second promotion is anterior to the notification dated 4th December, 1996, and therefore, the provisions contained therein for rescinding of second/third selection grade cannot be pressed into service vis-a-vis the petitioner. 10. So, there is hardly a difference of two years. Moreover, the affirmative action of the petitioner in foregoing his second promotion is anterior to the notification dated 4th December, 1996, and therefore, the provisions contained therein for rescinding of second/third selection grade cannot be pressed into service vis-a-vis the petitioner. 10. In this view of the matter, I deem it just and appropriate to accept this petition and direct the respondents to treat that the petitioner has been rightly granted the second selection grade on completion of 18 years of services and any decision to his detriment is hereby annulled. The respondents are directed to take appropriate steps for release of revised retiral benefits to the petitioner as if no decision for withdrawal of second selection grade is taken against him. Requisite exercise in this behalf be undertaken by the respondents within three months from today.Petition allowed. *******