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2015 DIGILAW 1524 (RAJ)

SULTAN SINGH v. STATE OF RAJASTHAN

2015-08-14

AJIT SINGH, SUNIL AMBWANI

body2015
JUDGMENT : 1. We have heard Mr. Sultan Singh, appellant, appearing in person. Mr. J.M. Saxena, Additional Advocate General appears for the State of Rajasthan. 2. These two cross appeals arise out of the judgment of learned Single Judge, dated 06.02.2014, passed in S.B. Civil Review Petition No.100/2013, filed against the order dated 18.03.2013, by which the writ petition being S.B. Civil Writ Petition No.2916/2002, filed by the appellant/petitioner was allowed, with consequential benefits of Selection Scale and Super Time Scale, as a consequence of judgment of this Court in S.B. Civil Writ Petition No.1103/1991, dated 28.03.2000, in which a direction was issued to expunge the adverse remarks recorded in the petitioner's APAR for the year 1984-85. Vide order dated 01.01.2001 of the Department of Personnel, the adverse remarks in the APAR of the petitioner were expunged. The actual benefits were however directed to be given from 28.09.2000. The appellant/petitioner filed S.B. Civil Review Petition No.100/2013 in S.B. Civil Writ Petition No.2916/2002, which was allowed by learned Single Judge vide order dated 06.02.2014, giving the benefit of Selection Scale RPS and Super Time Scale RPS with effect from 28.03.2000, the date on which the earlier writ petition was allowed. 3. The State of Rajasthan has filed D.B. Civil Special Appeal(W) No.1531/2014, to set aside the order of learned Single Judge, granting relief of Selection Scale and Super Time Scale with effect from 28.03.2000, on the ground that since Shri Sultan Singh, the petitioner in the writ petition, had not worked on the post, he was not entitled to the Selection Scale and Super Time Scale in RPS, with effect from any date prior to the dates when these benefits were actually given to him on 27.03.2004 and 31.03.2009 respectively. 4. Brief facts, giving rise to the writ petition, are that the appellant/petitioner was posted in the Rajasthan Police Service at Barmer. On 31.10.1985, he was conveyed with adverse remarks given by the Superintendent of Police for the year 1984-85. On 21.04.1986, he submitted a representation to the Government against the APAR, which remained unattended for a period of four years, in between which his juniors were promoted. His representation against the adverse entries was rejected on 01.06.1990, without giving him an opportunity of personal hearing. On 21.04.1986, he submitted a representation to the Government against the APAR, which remained unattended for a period of four years, in between which his juniors were promoted. His representation against the adverse entries was rejected on 01.06.1990, without giving him an opportunity of personal hearing. The petitioner filed S.B. Civil Writ Petition No.1103/1991 in this Court, which also remained pending upto 28.03.2000, in between which the petitioner was promoted on considering his last seven years APARs', which were good. His juniors however were further promoted to Indian Police Service cadre, ignoring the petitioner's claim over them in the Selection Board of 1997. 5. On 28.03.2000, the writ petition filed by the petitioner i.e. S.B. Civil Writ Petition No.1103/1991, was allowed with direction to expunge the adverse remarks made in the APAR of the petitioner. The order was actually carried out by the Department of Personnel on 01.01.2001, and the adverse entries made in the APAR of the year 198485, were expunged. The petitioner made a representation on 08.01.2001, to consider his case for promotion to the post of Selection Scale RPS against the vacancies of the year 1985-86 by convening a review DPC. His representation continued to remain pending for almost two years, during which the petitioner retired on 30.04.2002, on attaining the age of superannuation of 58 years. 6. The petitioner filed S.B. Civil Writ Petition No.2916/2002, with a prayer to allow him the benefits of Selection Scale RPS and the Super Time Scale RPS from the date, when he was entitled, namely 01.04.1986 and 01.04.1999 respectively, when the vacancies were made available for him. 7. During the pendency of the writ petition, the petitioner was granted Selection Scale on 27.03.2004 against the vacancies of the year 1985-86, and thereafter Super Time Scale RPS on 31.03.2009 against the vacancies of the year 1998-99, on the recommendations made by the review DPC. 8. Learned Single Judge accepted the submission of the petitioner vide his judgment dated 28.03.2000, that he was entitled to get the consequential benefits, but allowed him the promotional benefits on the post of Selection Scale RPS and Super Time Scale RPS only with effect from 28.09.2000. A review petition was filed by the petitioner, which was allowed by this Court on 06.02.2014, giving him the benefits with effect from 28.03.2000, the date given in the judgment dated 06.02.2014 in S.B. Civil Review Petition No.100/2013. 9. A review petition was filed by the petitioner, which was allowed by this Court on 06.02.2014, giving him the benefits with effect from 28.03.2000, the date given in the judgment dated 06.02.2014 in S.B. Civil Review Petition No.100/2013. 9. It is submitted by the appellant, appearing in person, that he had filed a representation against the adverse remarks made in his APAR for the year 1984-85 on 21.04.1986, which remained pending for more than four years. A writ petition being S.B. Civil Writ Petition No.1103/1991 was filed by him, which was allowed by this Court on 28.03.2000, directing the respondents to expunge the adverse remarks. The order in compliance to the judgment was made and the directions were carried out only on 01.01.2001 by the Department of Personnel, Government of Rajasthan. The vacancies of the year 1985-86 for Selection Scale RPS and the vacancies of the year 1998-99 for Super Time Scale RPS were available, when he attained the eligibility on 01.04.1986 and 01.04.1999 respectively. His juniors were promoted on these dates, causing serious and invidious discrimination to him. 10. The appellant has relied on the judgments of the Hon'ble Supreme Court in R.K. Singh Vs. State of U.P., 1991 Suppl. (2) SCC 126; State of U.P. Vs. Mahesh Narayan, (2013) 4 SCC 169 ; State of U.P. Vs. K.L. Sehgal, (2005) 12 SCC 193; State of U.P. Vs. Maqbool Ahmad, (2006) 7 SCC 521 ; Union of India Vs. Anil Kumar Sarkar, (2013) 4 SCC 161 , and State of U.P. Vs. Arvind Kumar Shrivastava, (2015) 1 SCC 347 , in submitting that identically situated persons should be treated alike. After the adverse remarks were expunged, no adverse material remained on record to discriminate him with others for grant of Super Time and Selection Scale with identically situate persons. 11. We find that the latest judgment of the Apex Court in Prabhu Dayal Khandelwal Vs. Chairman, U.P.S.C. and Ors., [Civil Appeal Nos.8006-8007/2003), decided on 23.07.2015, is applicable to the facts of the present case, inasmuch as in para 10 of the judgment, Hon'ble the Supreme Court held, that where a person is entitled to promotion, he shall be promoted to that post with effect the date of his entitlement. Para 9 and 10 of the judgment are quoted as below:- “9. Para 9 and 10 of the judgment are quoted as below:- “9. In the above view of the matter, we are satisfied that the Respondents ought to be directed to reconsider the claim of promotion of the Appellant, to the post of Chief Commissioner of Income Tax, for the vacancies which arose during the years 2000-2001 and 2001-2002 on the basis of the communicated reports for the years 1997-98 and 1999-2000, within a period of three months from today. Ordered accordingly.. 10. In case the Appellant is found to be entitled for promotion to the post of Chief Commissioner of Income Tax, he shall be promoted to the said post, with effect from the date of his entitlement. In such an eventuality, he shall also be entitled to all arrears of salary, as would have been payable to him, if he had been promoted as Chief Commissioner of Income Tax at the right time. Simultaneously, he would be entitled to revision of his retiral benefits.” 12. In the present case, it is not denied that the adverse entries of the year 1984-85 were expunged, in pursuance to an order passed by this Court on 28.03.2000, in S.B. Civil Writ Petition No.1103/1991, which came into effect on 01.01.2001, vide order of the Department of Personnel, Government of Rajasthan. The appellant was, thus, entitled to the Selection Scale RPS and Super Time Scale RPS, on attaining the eligibility and in vacancies which were available on the dates when his juniors were promoted i.e. on 01.04.1986 and 01.04.1999. He was wrongly allowed the Selection Scale and Super Time Scale on 27.03.2004 and 31.03.2009 respectively. Learned Single Judge also erred in law in allowing him the benefits with effect from 28.03.2000, the date when the writ petition was allowed by this Court. After the adverse entries were expunged, the petitioner was entitled to Selection Scale and Super Time Scale RPS when he was entitled, and that the actual benefits should be given to him. 13. Learned Additional Advocate General, appearing for the State of Rajasthan has relied on the judgment of the Hon'ble Supreme Court in Shiv Prasad Sharma Vs. Rajasthan Co-operative Dairy Federation, Jaipur & Anr., RLW 2012(4) Raj. 3380, in which a Division Bench of this Court, relied on the judgment of the Supreme Court in Union of India & Another Vs. 13. Learned Additional Advocate General, appearing for the State of Rajasthan has relied on the judgment of the Hon'ble Supreme Court in Shiv Prasad Sharma Vs. Rajasthan Co-operative Dairy Federation, Jaipur & Anr., RLW 2012(4) Raj. 3380, in which a Division Bench of this Court, relied on the judgment of the Supreme Court in Union of India & Another Vs. Tarsem Lal & Others, AIR 2007 SC 259 , and while dealing with the case of a person who lost the promotion on account of administrative error, held that he was not entitled to the arrears as he did not actually shoulder the duties and responsibilities of the higher post. 14. The grant of Selection Scale and Super Time Scale does not require a person to be promoted to any higher post to shoulder the duties and responsibilities of any promotional post. The Selection Scale and the Super Time Scale are allowed while serving on the same post. The denial of the Selection Scale and Super Time Scale with effect from the date when the appellant became eligible and his juniors were promoted, would entitle him, after the basis of the denial of promotion vide adverse entries for the year 1984-85 were expunged, with effect from the same date, when he became eligible to the Selection Scale and the Super Time Scale RPS. 15. The Selection Scale and the Super Time Scale are essentially a sanction of the higher scale of pay in the same category of posts. It is sanctioned with the object of providing incentive to the employees having no outlets, or very limited outlets of promotion to a higher post. It carries a higher scale of pay even though there are no change of duties, as held by the Hon'ble Supreme Court in Lalit Mohan Deb And Others Vs. Union of India And Others, (1973) 3 SCC 862 . 16. Consequently, D.B. Special Appeal(W) No.545/2014, filed by the appellant, is allowed. The judgment of learned Single Judge is modified to the effect that the appellant will be entitled to the Selection Scale with effect 01.04.1986, and the Super Time Scale with effect from 01.04.1999. The respondents will work out the actual benefits, and pay the entire arrears to the appellant within a period of three months, from the date a certified copy of the judgment is produced before them. The respondents will work out the actual benefits, and pay the entire arrears to the appellant within a period of three months, from the date a certified copy of the judgment is produced before them. The appellant will also be entitled to 9% per annum interest, which he would have earned from any Nationalised Bank, if the amount was deposited by him. The interest will be paid along with the arrears, within the same period. 17. D.B. Civil Special Appeal(W) No.1531/2014, filed by the State of Rajasthan, is dismissed. 18. A copy of the judgment will be placed in the connected file.