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2015 DIGILAW 483 (RAJ)

State of Rajasthan v. Mahipal Singh

2015-02-23

PRAKASH GUPTA, SUNIL AMBWANI

body2015
Judgment 1. We have heard Shri S.K. Gupta, learned Additional Advocate General appearing for the State-appellants as well as Shri S.K. Saxena with Shri Ashish Saxena, appearing for the appellant in Special Appeal No. 1793/2014 and for respondents in Special Appeal Nos. 1179/2014, 1180/2014, 1363/2014, 1378/2014. 2. The delay, in filing the Special Appeals by the State of Rajasthan, has been sufficiently explained, and is accordingly condoned. The delay condonation applications are allowed, and the matter was heard on merits. 3. All the four writ petitioners, who are respondents in the Special Appeals filed by the State of Rajasthan, were appointed as a Literate Attendants in a hospital attached to the Medical College in the State of Rajasthan in the year 1993. The State Government issued Circular dated 29.10.1985 providing for channel of promotion on the post of Laboratory Technician, working under the collegiate branch, to be filed up 50% by direct recruitment and 50% by promotion with 5 years experience on the post of Literate Attendant. In the Circular issued by the State Government, it was stated in second paragraph that the provision of promotion will be incorporated in the Rajasthan Medical and Health Subordinate Service (collegiate branch) Rules, 1962, which is under consideration. 4. The writ petitioners namely, Mahipal Singh, Mahesh Chand Rastogi, Rupesh Kumar and Ravi Shanker Solanki were promoted on the post of Laboratory Technician, as they were eligible, and had 5 years experience in the year 2001 against the vacancies in the pay scale of Rs.3050-4590. One Mool Chand was also promoted on the post of Laboratory Technical pursuant to the Circular dated 29.10.1985. 5. By a Circular dated 15.02.2003, the Circular dated 29.10.1985 was allegedly rescinded, and it was provided that in future, no employee of the medical collegiate branch will be promoted on the post of Laboratory Technician, merely on the basis of 5 years experience, unless he had undergone 9 months training of the Laboratory Technician in the institutions imparting such training till framing of the collegiate branch Rules, and until then the appointments/promotions will be considered as per Rajasthan Medical and Health Subordinate Service Rules, 1965 (for short, 'Rules of 1965'). 6. The writ petitions, filed by the petitioners, were dismissed on the ground of alternative remedy. The Rajasthan Civil Services Appellate Tribunal dismissed the Appeals by common order dated 13.04.2011, given rise to the writ petitions. 7. 6. The writ petitions, filed by the petitioners, were dismissed on the ground of alternative remedy. The Rajasthan Civil Services Appellate Tribunal dismissed the Appeals by common order dated 13.04.2011, given rise to the writ petitions. 7. Learned Single Judge did not accept the arguments advanced by learned Deputy Government Counsel appearing for the State-respondents, that the posts of Laboratory Technician in the medical colleges were not governed by any Rules, and that the statutory Rules were made by insertion of item 8 in the schedule of the Rules applicable to collegiate branch only in the year 2012 by the Rajasthan Subordinate Service (Recruitment and Other Service Conditions) (Amendment) Rules, 2012 (for short, 'Rules of 2012'), providing for promotion on the post of Laboratory Technician, 85% by direct recruitment and 15% by promotion with 5 years experience. The submission made by learned Deputy Government Counsel, that the service conditions of the petitioner including their seniority and promotion, were governed by the Rules of 1965, was not accepted. 8. Learned Single Judge held that the executive instructions dated 29.10.1985 could be issued, as there were no Rules applicable to the petitioners serving in the collegiate branch of the Medical and Health Services. In absence of any statutory Rules, the executive instructions could be issued. The amendment made in the Rules of 2012 subsequently filled in the vacumm by making statutory Rules providing promotion on the post of Laboratory Technician, with 5 years experience. 9. Learned Single Judge allowed the writ petitions, and while setting aside the orders dated 13.04.2011 and 01.06.2011 passed by the Tribunal, directions were issued to grant benefit of pay scale of Rs.4000-100-6000 (Pay Scale No.9) of the post of Laboratory Technician with effect from 25.06.1998, the date on which Mool Chand s/o Shri Bhanwar Lal was given the said benefit with all the consequential benefits. 10. It is submitted by learned Additional Advocate General that learned Single Judge fell into apparent error in holding that the Rules of 1965 were not applicable to the respondents (writ petitioners). He submits that the post of Laboratory Technicians were to be filed up 100% by direct recruitment, under Item No.4 of Group 'A'-VI Rules of 1965, which was amended in the year 1982. 11. We have examined the provisions of the Rules of 1965. He submits that the post of Laboratory Technicians were to be filed up 100% by direct recruitment, under Item No.4 of Group 'A'-VI Rules of 1965, which was amended in the year 1982. 11. We have examined the provisions of the Rules of 1965. The executive instructions issued by order dated 29.10.1985, and the provisions of the Rajasthan Subordinate Service (Recruitment and Other Service Conditions) Rules, 2011, in which the amendment was made in the year 2012, providing for 15% by promotion in the medical collegiate branch of the Medical Department. We do not find any error of law in the opinion of learned Single Judge, who had after examining both the Rules, found that the Rules of 1965 were not applicable to those employees, who were working in the services in collegiate branch. The State Government, in its order dated Circular dated 29.10.1985, was clear that the Rules of 1965 were not applicable to those employees, who were working in the hospitals attached to the medical colleges, and thus provided for 50% reservation for Laboratory Technician Training Courses for Class-IV employee i.e. Literate Attendant. A note was appended to the Circular dated 29.10.1985 that the avenues for promotion will be provided in the proposed Rules. 12. It is fairly well settled that where there are no statutory Rules, the executive instructions can fill the vacumm, and will continue to operate until the Rules are made. In the present case, the Rules applicable for promotions to Laboratory Technicians applicable to collegiate branch were amended in the year 2012 providing for a channel of promotion to the extent of 15% under the medical collegiate branch of the Medical Department. The petitioners in the writ petitions were, therefore, rightly promotion, and were entitled to the pay scale of Rs.4000-100-6000 (Pay Scale No.9), which was denied to them with effect from the date of their promotion. 13. We are informed that the error committed by learned Single Judge, in allowing the pay scale to the petitioners, in the writ petition with effect from 25.06.1998, when Mool Chand was promoted, was rectified, and that the Pay Scale No.9 was directed to be allowed to be given to them with effect from the date when they were promoted. 14. We are informed that the error committed by learned Single Judge, in allowing the pay scale to the petitioners, in the writ petition with effect from 25.06.1998, when Mool Chand was promoted, was rectified, and that the Pay Scale No.9 was directed to be allowed to be given to them with effect from the date when they were promoted. 14. In Special Appeal No.1793/2014, filed by Mahipal Singh, it is stated that since the Court has upheld the promotions, and has allowed the pay Scale No.9 with effect from the date of their promotion/appointment, for the order passed in the review petition, and for which he has already received the difference of pay, he is also entitled to interest on such difference of pay to be calculated with effect from the date when he was entitled to the promotions. 15. We find that only Mahipal Singh, who was the petitioner in Writ Petition No.12803/2011, has filed Special Appeal. 16. We are of the view that since learned Single Judge has allowed the pay scale of Rs.4000-100-6000 (Pay Scale No.9) for the post of Laboratory Technician to Shri Mahipal Singh with effect from the date, he was promoted/appointed he is also entitled to interest at the rate of 9% per annum on the arrears, which have been paid to him, and which were wrongly denied to him. The interest will be calculated and paid within a period of three months. 17. On the aforesaid discussion, the Special Appeals No. 1179/2014, 1180/2014, 1363/2014 & 1378/2014, filed by the State of Rajasthan, are dismissed, and the Special Appeal No.1793/2014, filed by Mahipal Singh, is allowed to the extent that the interest will be paid to him on the differential amount of the pay and allowances, which had already been received by him, at the simple rate of 9% per annum from the date, when he was promoted, and was entitled to the pay scale on the post, on which he was promoted. 18. A copy of this order will be placed in all connected files.