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2015 DIGILAW 1073 (RAJ)

Murli Manohar Tripathi v. State of Rajasthan

2015-05-14

AJIT SINGH, ANUPINDER SINGH GREWAL

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JUDGMENT : Anupinder Singh Grewal, J. The appellant has challenged the order of the learned Single Judge dated 13.10.2014 whereby the writ petition preferred by respondents challenging the order of Rajasthan Civil Services Appellate Tribunal dated 24.09.2012 has been allowed. 2. The appellant has sought grant of selection grades on completion of 9, 18 and 27 years of service w.e.f. 04.09.1993. The appellant had initially joined as Constable with Rajasthan Police on 22.09.1989. He is, thereafter, stated to have applied for selection to the post of Stenographer Grade-II (Hindi) in the office of District & Sessions Judge, Rajsamand. Vide order dated 01.09.1993 the appellant was appointed to the post of Stenographer Grade-II (Hindi) in the office of District & Sessions Judge, Rajsamand and he joined as such on 04.09.1993. Subsequently, in response to advertisement for the post of Stenographer in the office of settlement department he applied for recruitment through Rajasthan Public Service Commission and on being declared successful was issued appointment letter on 15.03.1997 and he joined as such on 01.04.1997. 3. The learned counsel for the appellant has submitted that the appellant is eligible for grant of selection grade w.e.f. 04.09.1993 whereon he assumed charge of the post of stenographer in the office of District and Sessions Judge, Rajsamand as he had been appointed after having been duly selected. 4. The learned counsel for the appellant has further submitted that the judgment of the learned Single Judge deserves to be set aside as he was eligible for grant of selection grade w.e.f. 04.09.1993. He has also submitted that the reliance of the learned Single Judge on the judgment of the Hon'ble Supreme Court in the case of State of Rajasthan & Ors. v. Jagdish Narain Chaturvedi reported as (2009) 12 SCC 49 is misplaced as it was not applicable to the case of appellant as it pertains to the case of daily employees and untrained teachers who had been granted selection grade from the date of initial appointment although there was requirement of the passing proficiency test before regularization. 5. We have heard the learned counsel for the appellant and perused the record. 6. A bare perusal of the appointment letter of the appellant dated 01.09.1993 to the post of Stenographer (Hindi) in the office of District & Sessions Judge, Rajsamand reveals that the appointment was on purely temporary basis for a period of six months. 5. We have heard the learned counsel for the appellant and perused the record. 6. A bare perusal of the appointment letter of the appellant dated 01.09.1993 to the post of Stenographer (Hindi) in the office of District & Sessions Judge, Rajsamand reveals that the appointment was on purely temporary basis for a period of six months. It is further specified therein that in case of availability of regular post the appellant shall have to qualify the examination conducted by the RPSC and that he will be on probation for a period of two years thereafter. Relevant extract of the appointment order dated 01.09.1993 is reproduced hereunder:- ^^bl U;k; {ks= esa fgUnh vk'kqfyfid xzsM f}rh; dh izfr;ksxh ijh{kk vk;ksftr dh ftlesa Jh eqjyh euksgj f=ikBh lQy gq,A vr% bUgsa iw.kZr;k vLFkkbZ :i ls Ng% ekg ds fy, vk'kqfyfid xzsM f}rh; osru J`a[kyk 1400&1600 ds vUrxZr fuEukuqlkj fu;qDr fd;s tkrs gSA vk'kkFkhZ dks in LFkkbZ gksus ij Hkh fu;ekuqlkj yksd lsok vk;ksx dh vk'kqfyfi ijh{kk mRrhZ.k djuk gksxkA 2 o"kZ dk ifjoh{kk dky gksxkA uofu;qDr vk'kkFkhZ lh/ks gh vius in dk dk;ZHkkj xzg.k djsaxsA ljIyl deZpkjh ds miyC/k gksus ij ;k in ds de gksus ij fcuk fdlh uksfVl ds rqjUr izHkko ls fu;qfDr lekIr dh tkosxhA^^ 7. Therefore, in terms of order dated 01.09.1993 the appointment of the appellant cannot in any manner be construed as regular so as to make him eligible for grant of selection grade. Had the appointment being regular there would not have been no occasion to stipulate that in the event of regular post he shall have to qualify the examination conducted by the RPSC. It is also apparent from the appointment order that there was no regular post when the appellant was appointed and, therefore, this period could not be counted towards grant of selection grade. 8. Further, the learned Single Judge has rightly relied upon the judgment of the Hon'ble Supreme Court of India in the case of State of Rajasthan & Ors. v. Jagdish Narain Chaturvedi (supra) wherein it has been held that ad hoc or work charge service does not count for computing the period of service for grant of selection grade and it is only the service when an employee is borne on the cadre which counts for grant of selection grade or promotion. The relevant paras of the judgment of the Hon'ble Supreme Court are as under:- "17. The relevant paras of the judgment of the Hon'ble Supreme Court are as under:- "17. The present stand that the initial appointment was substantive appointment is contrary to the factual position because in each case the proficiency test was undertaken and the appointment letter shows that the appointment was till selected candidates join. Additionally, even if the proficiency test is passed the question of eligibility is of relevance, "when the vacancy occurs". So far as daily wage services are concerned there is no scale of pay and the lowest figure scale of pay has to be given. According to Fundamental Rule 9(4), "cadre" means the strength of a service or part of service sanctioned as a separate unit. [See Chakradhar Paswan (Dr.) v. State of Bihar.] 18. In order to become "a member of service" a candidate must satisfy four conditions, namely, (i) the appointment must be in a substantive capacity; (ii) to a post in the service i.e. in a substantive vacancy; (iii) made according to rules; (iv) within the quota prescribed for the source. Ad hoc appointment is always to a post but not to the cadre/service and is also not made in accordance with the provisions contained in the recruitment rules for regular appointment. Although the adjective "regular" was not used before the words "appointment in the existing cadre/service" in Para 3 of the G.O. dated 25-1-1992 which provided for selection pay scale the appointment mentioned there is obviously a need for regular appointment made in accordance with the Recruitment Rules. What was implicit in the said paragraph of the G.O. when it refers to appointment to a cadre/service has been made explicit by the clarification dated 3-4-1993 given in respect of Point 2. The same has been incorporated in Para 3 of the G.O. dated 17-2-1998. 20. The High Court failed to appreciate that the recruitment rules made a distinction between appointments made to the cadre/service in accordance with the relevant recruitment rules which are regular and appointments made dehors the regular recruitment rules which are ad hoc. 22. Apart from Haryana Veterinary case the position in law as stated in State of Punjab v. Ishar Singh and State of Punjab v. Gurdeep Kumar Uppal clearly lays down that while reckoning the required length of service the period of ad hoc service has to be excluded. 22. Apart from Haryana Veterinary case the position in law as stated in State of Punjab v. Ishar Singh and State of Punjab v. Gurdeep Kumar Uppal clearly lays down that while reckoning the required length of service the period of ad hoc service has to be excluded. It is relevant to note that the first selection scale of pay was excluded several years back on completion of 9 years of service subsequent to regularisation. After a long lapse of time i.e. after nearly 8 years it was not open to be canvassed that the second selection scale of pay ought to be granted after the employees concerned having put in 18 years of service from the date of ad hoc appointment." It is, thus, patent that this judgment is squarely applicable to the case of the appellant. 9. Moreover, there is no basis in the submission of the counsel for the appellant that the District & Sessions Judge vide letter dated 01.06.2005 had stated that the appointment of the appellant in 1993 was made on regular basis and hence it is to be treated as regular. In the wake of the terms and conditions set out in the appointment letter, this letter which is only a communication between two departments cannot be relied upon. 10. Therefore, the appellant has not been able to make out any case warranting interference with the well reasoned order of the learned Single Judge, which under the facts and circumstances is perfectly justifiable and in accordance with law. Resultantly, the appeal is dismissed with no order as to costs. Appeal Dismissed.