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Rajasthan High Court · body

2014 DIGILAW 2073 (RAJ)

Shantilal Sharma v. State of Rajasthan

2014-12-10

SANDEEP MEHTA

body2014
JUDGMENT : 1. By way of the instant writ petition, the petitioner has prayed for grant of benefit of selection scale to him from the date of regularisation in the cadre of Education Department vide order Annexure-4. 2. Facts in brief are that the petitioner was initially appointed on a fixed pay on work charged basis in Mahi Project, Banswara w.e.f. 1.12.1975 on the post of Store Munshi. Thereafter the services of the petitioner were declared to be semi permanent vide order dated 14.9.1979. The petitioner's services were ultimately declared to be permanent vide order Annexure-3 dated 15.4.1986. However, later on, as the work charged employees in the said project were declared surplus, the petitioner was absorbed in the Education Department vide order Annexure-4. The relevant portion of the order reads as below:- ^^Jheku laHkkxh; vk;qDr egksn;] mn;iqj ds vkns’k dzekad ,Q-3¼13½ LFkk@92@2617&20 fnukad 30-4-1992 ds )kjk lkekU; iz’kklu ¼xzqi&3½ foHkkx jktLFkku] t;iqj ds ifji= dzekad i-13¼15½ lk-iz-@3@83 fnukad 10-5-1991 )kjk iznr funsZ’kksa dh ikyuk esa odZpktZ vf/k’ks”k deZpkfj;ksa dk vkoaVu dfu”B fyfid in ij osru J`a[kyk 950&1680 ¼Ldsy ua- 6½ esa lek;kstu fd;s tkus gsrq bl dk;kZy; dks fd;k x;k gSA vLrq vkns’kksa dh ikyuk esa fuEufyf[kr odZpktZ vf/k’ks”k deZpkfj;ksa dk lek;kstu dfu”B fyfid in ij osru Ja`[kyk 950&1680 ¼Ldsy ua- 6½ esa ikrs osru ,oa fu;ekuqlkj vU; HkRrs ij fd;k tkdj bl foHkkx esa budk inLFkkiu buds uke ds lkeus vafdr dk;kZy;ksa esa fd;k tkrk gSA lEcaf/kr deZpkjh bl uke ds lkeus vafdr dk;kZy;ksa esa fd;k tkrk gSA lEcaf/kr deZpkjh bl foHkkx esa viuh mifLFkfr inLFkkiu LFkku ij fnukad 25-5-1992 rd ns nsosA bl frfFk rd viuh mifLFkfr ugha fn;s tkus ij ;g eku fy;k tkosxk fd lEcaf/kr odZpktZ vf/k’ks”k deZpkjh viuk lek;kstu bl foHkkx esa ugha pkgrk gS] ftlds vk/kkj ij rRlEca/kh lwpuk bl dk;kZy; ls lEHkkxh; vk;qDr egksn; mn;iqj dks izsf”kr dj nh tkosxhA budh ofj”Brk bl foHkkx esa d-fy- in ij dk;Zxzg.k djus dh frfFk ls fu;ekuqlkj ekU; gksxhA lEcaf/kr vf/kdkjh bUgsa M;wVh ij ysus ls iwoZ budh ;ksX;rk lEca/kh vfHkys[k dh iw.kZ tkap dj gh M;wVh ysosA foHkkxh; funsZ’kkuqlkj bUgsa bl in dh foHkkxh; ijh{kk mRrh.kZ djuk vko’;d gksxk] rHkh buds LFkkbZdj.k vkns’k vkfn tkjh fd;s tk;saxsA** (Emphasis supplied) 3. Vide order Annexure-5 dated 17.12.1997 the petitioner was granted benefit of two selection scales on 25.1.1992 and 28.5.1994 respectively treating his services to be regular w.e.f. 1.12.1975 i.e. the date of his initial appointment as a work charged employee in the Mahi Project. The mistake was noticed later on and vide order Annexure-7 a rectification was effected and the petitioner was directed to be granted selection scale w.e.f. 1.1.1998 and recovery was directed to be effected of the excess amount paid to him under the earlier order which the respondents claim was inadvertently passed. The petitioner has now approached this Court praying for an order/direction that the respondents be restrained from effecting any recovery of the amount already paid to him under order Annexure-5 and also to accord him the third selection scale upon completing 27 years of service. 4. Learned counsel submits that the action of the respondents in directing recovery of the amount paid to the petitioner by altering the year of his regularisation and granting first selection scale to him from 1.1.1998 is unjust and unreasonable. He submits that in view of the circular no. F.16(2)FD(Rules)/98 dated 29.6.2009, the respondents are not entitled to effect recovery of the amount already paid even if the selection scale was wrongly granted from an incorrect prior date and the pay has to be protected. He further submits that the order Annexure-7 whereby the petitioner has been directed to be paid the selection scale w.e.f. 1.1.1998 treating him to be a work charged employee is grossly illegal. He, therefore, prays that the writ petition deserves to be accepted. 5. Mrs. R.R.Kanwar, learned Government Counsel submits that the induction of the petitioner in the cadre of Education Department was subject to passing of requisite departmental test and thereafter only his services could be regularized. She, therefore, submits that the respondents were justified in passing the impugned order Annexure-7. 6. I have given my thoughtful consideration to the arguments and perused the material available on record. 7. It is not in dispute that the order Annexure-4 is clear to the effect that the petitioner was inducted in the cadre of the Education Department w.e.f. 7.5.1992. She, therefore, submits that the respondents were justified in passing the impugned order Annexure-7. 6. I have given my thoughtful consideration to the arguments and perused the material available on record. 7. It is not in dispute that the order Annexure-4 is clear to the effect that the petitioner was inducted in the cadre of the Education Department w.e.f. 7.5.1992. The argument advanced by the learned Government Counsel on the basis of the terms and conditions of the order Annexure-4 that the regularisation of the petitioner was subject to passing of departmental examination is not tenable on the face of the record. The relevant portion of the order Annexure-4, which has been underlined supra, reads that the fixation of the petitioner shall be subject to passing the departmental examination. The order is absolutely silent about regularisation. It is not the case of the respondents in reply that any order of so called regularisation in pursuance to the petitioner passing the departmental examination was ever passed. Be that as it may. The fact remains that when the petitioner was inducted in the Education Department, he was not a work charged employee as his services were already made permanent in Mahi Project way back w.e.f. 1.12.1985. He was declared surplus and was thereafter absorbed in the Education Department vide Annexure-4. The order Annexure4 speaks that the petitioner has been absorbed in the Department as a regular employee. Thus, the petitioner became entitled to be granted selection scale from the date of his absorption in the Education Department. Consequently, the order Annexure-7 whereby it has been directed that the petitioner is entitled to receive the benefits of the first selection scale only w.e.f. 1.1.1998 being a work charged employee is totally unjust and cannot be sustained. By order Annex.5, the petitioner had been given benefit of selection w.e.f. 25.1.1992. The State Government issued a circular on 29.6.2009 to resolve the disputes arising in cases where the selection scales granted from an earlier dates were withdrawn in light of the judgment rendered by the Hon'ble Supreme Court in State of Rajasthan & Ors. Vs. Jagdish Narain Chaturvedi reported in (2009)12 SCC-49. The State Government issued a circular on 29.6.2009 to resolve the disputes arising in cases where the selection scales granted from an earlier dates were withdrawn in light of the judgment rendered by the Hon'ble Supreme Court in State of Rajasthan & Ors. Vs. Jagdish Narain Chaturvedi reported in (2009)12 SCC-49. The relevant part of the circular reads as under:- “..The excess payment drawn by the concerned employees due to grant of selection grades to them by counting the service rendered before regular appointment in the cadre / service in accordance with the provisions contained in the relevant recruitment rules shall, however, not be recovered for the period up to 30.06.2009 only. From 01.07.2009, the payment of pay and allowances shall be made on the basis of revised rates of pay as per this order.” 8. As has been discussed above, the petitioner was absorbed in the Education Department on regular pay scale w.e.f. 7.5.1992 and thus, he became entitled to be considered for grant of selection scale from that date itself. Even if any inadvertent benefit of grant of selection scale and payment of the amount therein has been made to the petitioner from an earlier date, the respondents are not entitled to recover the same in light of the above circular. The petitioner's case stands on even a better footing because he was already rendering regular services in the Mahi Project, Banswara from 1986 onwards. His services were transferred to the Education Department only because the persons working in the Mahi Project became surplus. Thus, even when the petitioner's services were inducted in the Education Department, he was a regular employee of the State Government. 9. In this view of the matter, the writ petition deserves to be and is hereby allowed. It is hereby directed that the petitioner shall be entitled to selection scale treating his services regularised in Education Department w.e.f. 7.5.1992. The excess payment drawn by the petitioner due to inadvertent grant of selection scale by counting his service before entering into regular pay scale of the Education Department shall not be recovered in the light of circular dated 29.6.2009 (supra) issued by the Government of Rajasthan. 10. No order as to costs.