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2015 DIGILAW 191 (RAJ)

Mahesh Chandra Tiwari v. State of Rajasthan

2015-01-21

SANDEEP MEHTA

body2015
JUDGMENT : (1) Heard learned counsel for the parties. (2) By way of the instant writ petition, the petitioner has challenged the action of the respondents in deferring grant of selection scale to him by 4 years as well as for directing the respondents to revise his pension case and to grant him arrears along with interest on the amount accrued in his favour. (3) Facts in brief are that the petitioner was appointed on the post of Patwari on 10.11.1971. He was declared permanent and was allotted regular pay scale with effect from 3.10.1972. The petitioner has claimed in the writ petition that from time to time, grade increments and other benefits were granted to him and after holding the post at numerous places, he superannuated on attaining age of retirement on 31.7.2008. The petitioner has further mentioned in the writ petition that 4 departmental enquiries were held against him during his service tenure. Two of the enquiries culminated in penalty of stoppage of two grade increments with cumulative effect and in the remaining two, he was punished by censure. For getting the benefit of Rajasthan Civil Services (Revised Pay Scales) Rules, 1989, he submitted an application to the respondents for grant of revised pay scales on 14.2.1990. The petitioner’s claim for grant of grade increments/revised pay scale was decided on 8.8.1995 and he was granted benefit of selection scales upon completion of 9, 18 & 27 years of service with a deferment of 4 years and thus, the second selection scale was given to the petitioner w.e.f. 2.3.1994, though he had completed 18 years of service in the year 1990. He was granted the benefit of third selection scale on 15.11.1998 upon completing 27 years of service. When the petitioner was about to attain the age of superannuation on 31.7.2008, an order Annex.P/5 dated 11.1.2008 was issued by the respondent department for completing the pension case of the petitioner. (4) In furtherance of the aforesaid order, the petitioner’s case for pension was processed and an office order Annex.P/6 dated 18.8.2008 was issued, as per which, the date of admissibility of selection scales to the petitioner was revised by ordering that the petitioner would be entitled to receive the benefit of 9-18 years selection scale w.e.f. 25.1.1998 and 27 years selection scale w.e.f. 3.10.1999. A further direction was given to effect recovery of the amount already paid to the petitioner due to wrong grant of selection scale to him from an earlier date. The petitioner has claimed that when he came to know about refixation and revision of his pay scale, he submitted a representation dated 26.9.2008 to the respondents clarifying his position. In continuation of the order Annex.P/6 dated 18.8.2008, the respondents passed another order dated 29.9.2008 Annex.P/8 and revised the dates on which the selection scales were admissible to the petitioner allegedly without providing him any opportunity of hearing and without considering his representation. It was mentioned in the order Annex.P/8 dated 29.9.2008 that the petitioner had been punished on 6 occasions in separate departmental proceedings ; on 4 occasions, he was punished with stoppage of grade increments and on 2 occasions, he was awarded censure and thus, the grant of selection scale to the petitioner had to be deferred accordingly. The revised dates on which the selections scales were admissible to the petitioner were fixed as below:- S.No. Selection Scale Sanctioned Date Deferred Date 1. 9 years 2.3.1994 25.1.1998 2. 18 years 2.3.1994 25.1.1998 3. 27 years 15.11.1998 3.10.1999 (5) The petitioner has further averred in the writ petition that his pension case was prepared on the basis of the order Annex.P/8 dated 29.9.2008 and a P.P.O. Annex.P/9 was issued to him. The petitioner has approached this Court assailing the validity and correctness of the order dated 29.9.2008 whereby the dates of admissibility of selection scales were revised and deferred. (6) Learned counsel for the petitioner submitted that the respondents were not justified in deferring the selection scales granted to the petitioner earlier. He contended that the petitioner’s case was considered for grant of selection scales under the prevalent Rules and circulars on 8.8.1995 and he was found entitled to receive the selection scale of 9-18 years w.e.f. 2.3.1994. Admittedly, this benefit was given to the petitioner upon completing 22 years of service i.e. with a deferment of 4 years. He contended that thus, for the reason of the 4 departmental punishments handed down to the petitioner, the selection scales admissible to him already stood deferred by 4 years as the first and second selection scales were granted to him w.e.f. 2.3.1994. He contended that thus, for the reason of the 4 departmental punishments handed down to the petitioner, the selection scales admissible to him already stood deferred by 4 years as the first and second selection scales were granted to him w.e.f. 2.3.1994. The revision of the date of grant of selection scales vide order dated 29.9.2008 is unjust because if the amended dates are considered in the light of the punishments imposed upon the petitioner, it would be evident that the selection scales were deferred by 8 years. He further submitted that the amount already paid to the petitioner while granting selection scale by order Annex.P/3 dated 8.8.1995 cannot be directed to be recovered. Thus, the recovery, which has been effected from the pensionary benefits of the petitioner, deserves to be restored and reimbursed. He, therefore, prayed that the writ petition deserves to be accepted and the action of the respondents in passing the order Annex.P/8 deferring the petitioner’s selection scales by 8 years deserves to be quashed. (7) Per contra, learned Dy. Govt. counsel referred to the reply filed by the respondents and contended that selection scales to the petitioner were granted inadvertently from a prior date due to a bonafide mistake. The Government has powers to rectify the mistake thus committed. Thus, she contended that the order Annex.8 whereby the bonafide error committed earlier was rectified, does not call for interference by this Court. Referring to ground (c) of the writ petition, she contended that the petitioner was punished with stoppage of two grade increments twice in two different enquiries and twice, punishment of censure was imposed on him and thus, the selection scales were rightly deferred by the impugned order. She, therefore, prayed that the writ petition deserves to be dismissed. (8) Heard and considered the arguments advanced at the Bar and perused the material available on the record. (9) First of all, it may be noted that the order Annex.8 refers to 4 punishments of stoppage of grade increments and 2 punishments of censure imposed on the petitioner. Clause 7 of the order issued by the State Government dated 25.1.1992 under which the stagnation benefits/ selection scales were initially applied, reads as below :- “7. Selection Grades in term of this order shall be granted only to those employees whose record of service is satisfactory. Clause 7 of the order issued by the State Government dated 25.1.1992 under which the stagnation benefits/ selection scales were initially applied, reads as below :- “7. Selection Grades in term of this order shall be granted only to those employees whose record of service is satisfactory. The record of service which makes one eligible for promotion on the basis of seniority shall be considered to be satisfactory for the purpose of grant of the Selection Grade.” (10) Thus, the aforesaid clause of the State Government’s order whereby the selections scales were made admissible to the employees in Class-IV, Ministerial and Subordinate Services of the State Government, prescribes that the record of service which makes one eligible for promotion on the basis of seniority shall be considered to be satisfactory for the purpose of grant of the Selection Grade. The effect of one penalty stoppage of grade increments makes an employee liable to be deferred from promotion by one year. Thus, as, the petitioner admittedly was inflicted upon two penalties of stoppage of grade increments with cumulative effect, his case had to be considered for promotion, it would be deferred by 2 years. Likewise for 2 penalties of censure, the petitioner in case of being considered for promotion would have to wait for 2 years before the benefit could be given to him. Thus, by the total effect of four department punishments imposed on the petitioner, the selections scales admissible to him were to be deferred by a total of 4 years. Since the petitioner was taken in regular services on 3.10.1972, he was entitled to receive 9-18 years selection scale w.e.f. 3.10.1990. The respondents initially whilst granting selection scale to the petitioner vide order Annex.P/3 granted him the benefit of 9-18 years selection scale w.e.f. 2.3.1994 i.e. with a deferment for a period of 4 years. In column no.5 of the order Annex.P/3, it is specifically mentioned that the employee had completed 22 years in service. Thus, by the very effect of the said order, the benefit of selection scales granted to the petitioner already stood deferred by 4 years. Thereafter, whilst passing the order Annex.P/8, the date of grant of selection scale to the petitioner was modified and he was held entitled to receive 9-18 years selection scale w.e.f. 25.1.1998 and 27 years selection scale w.e.f. 3.10.1999. Thereafter, whilst passing the order Annex.P/8, the date of grant of selection scale to the petitioner was modified and he was held entitled to receive 9-18 years selection scale w.e.f. 25.1.1998 and 27 years selection scale w.e.f. 3.10.1999. In effect, this works out to a total deferment of 8 years. In the opinion of this Court, the manner in which the respondents dealt with the case of the petitioner while passing the rectification order Annex.P/8 is highly unjust and illegal and also suffers from arbitrariness and non-application of mind. While passing the order Annex.P/8, the fact that the petitioner had already been handed down by a deferment of 4 years in grant of selection scales while passing the order Annex.P/3 was not even taken into account. (11) Thus, it is evident that the order Annex.P/8 whereby the selection scales granted to the petitioner by the earlier order Annex.P/3 upon completing 9/18 years of service was deferred to 25.1.1998 is grossly unjust. The respondents considered the punishments imposed on the petitioner as a total of 6 punishments whereas the fact remains that only 4 departmental enquiries were conducted against the petitioner and he was punished in all four of them. Thus, the selection scales admissible to the petitioner could only have been deferred for a period of 4 years. Instead, by effect of the order Annex.P/8, the selection scales admissible to the petitioner were deferred for a period of 8 years. Thus, the impugned order is grossly unjust and arbitrary and has to be set aside. (12) As a consequence of the above discussion, the instant writ petition deserves to be and is hereby allowed. The order Annex.P/8 whereby the selection scales admissible to the petitioner upon completing 9-18 years service were deferred by 8 years is hereby quashed and set aside and the order Annex.P/3 whereby the selection scales was accorded to the petitioner with a deferment of 4 years is restored. The respondents shall grant all consequential benefits flowing as a result of the above order to the petitioner within a period of two months from the date of receipt of certified copy of this order. Further, if any recovery has been effected from the petitioner pursuant to the order Annex.P/8, the same shall be reimbursed forthwith to him. (13) No order as to costs.