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2015 DIGILAW 65 (RAJ)

Dharam Pal Singh v. State of Rajasthan

2015-01-08

SANDEEP MEHTA

body2015
JUDGMENT 1. - Instant writ petition has been preferred by the petitioner praying for the following reliefs "(i) by an appropriate order or direction, the respondents may also be directed to grant benefit of selection grades on the post of Patwari on completion of 27 years service while taking into account the service tenure from initial appointment and they may be directed to grant all the consequential benefits flowing from the grant of selection grades on the post of Patwari within time bound direction. (ii) In the alternative, by an appropriate writ, order or direction, if this Hon'ble Court feel it necessary that the order dated 21.10.99 is to be quashed, then same may kindly be quashed." 2. Facts in brief are that the petitioner was appointed as a Patwari in the Colonisation Department in pay scale of Rs. 65-110 vide order Annexure-1 dated 31.6.1967. 3. The petitioner in order to buttress the relief sought in the writ petition has relied upon the scheme introduced by the State Government in order to avoid financial stagnation in relation to the cadres where promotional avenues are not available. The State Government formulated a scheme in 1992 for giving benefit of selection scales to such employees on completing 9, 18 and 27 years of service. The petitioner claims that he was appointed as Patwari by regular section process at the time when passing of Patwar Exam was not prescribed and as such he is entitled to grant of selection scale treating him to be in regular service from the date of his initial induction in service. A copy of the order Annexure-2 has been placed on record, as per which the petitioner was given benefit of selection scale from 1.2.1994 by treating him to be in regular service of the Department w.e.f. 1.2.1967. 4. The petitioner has further claimed in the writ petition that he sought voluntary retirement from service on 30.6.2000. The prayer for voluntary retirement was accepted and the petitioner was retired voluntarily vide order Annexure-4 dated 23.5.2000. It is further the petitioner's case, that an order Annexure-3 dated 21.10.1999 was served on him conveying that the selection scale was admissible to him from the date he passed the Patwar examination and which was the actual date of his being regularised in service. It is further the petitioner's case, that an order Annexure-3 dated 21.10.1999 was served on him conveying that the selection scale was admissible to him from the date he passed the Patwar examination and which was the actual date of his being regularised in service. Subsequent to his retirement, the petitioner was issued another communication dated 27.7.2000 Annexure-5 stipulating that the third selection scale shall be admissible to him on 27.3.2000 treating him to be regularised in service on 27.3.1973 i.e. the date on which he passed the Patwar Exam. 5. Pursuant to the rectification orders Annexure-3 dated 21.10.1999 and Annexure-5 dated 27.7.2000, the respondent department sought to recover the excess amount paid to the petitioner due to inadvertent grant of selection scale by counting his temporary service from his retiral benefits. He submitted a representation praying for rectification of the mistake because the benefit of selection scale already granted to the petitioner had been withdrawn and deferred on the basis of a misconception. 6. Upon not receiving any response to the representation, the petitioner has approached this Court seeking a direction that the respondents be restrained from effecting the recovery of the benefits already given to him while according selection scale from the date of his initial appointment. 7. The respondents have filed a reply to the writ petition claiming that the petitioners' initial appointment was on adhoc basis. The petitioner's service was regularised only after passing the Patwar Exam in the year 1973 and as such he was rightly treated in regular service w.e.f. the said date. The earlier grant of selection scale to the petitioner vide order Annexpre-2 dated 2.7.1994 by treating him to be in regular service w.e.f. 1.2.1967 was"tased on an inadvertent mistake. When the mistake came to light, the State Government reviewed the cases of the petitioner and numerous other employees who has been given selection scale by counting them in service in reference to the date of their adhoc appointments instead of regular service and a decision was taken to rectify the date of wrong grant of selection scale to such state employees. 8. Counsel for the petitioner placed reliance on circulars no. F.16(2)FD(Rules)/98 dated 29.6.2009 and no. 8. Counsel for the petitioner placed reliance on circulars no. F.16(2)FD(Rules)/98 dated 29.6.2009 and no. F.16(2)FD(Rules)/98 dated 20.8.2010 issued by the State Govt, and contended that the amount already paid has been protected in the cases where rectification has been carried out in cases of inadvertent grant of selection scales to the employees in reference to the date of their adhoc appointment. He contended that the circular of 2010 specifically prohibits review and reopening of cases of those State employees who retired prior to 29.6.2009. Learned counsel for the petitioner urged that as the petitioner retired way back on 30.6.2000 and consequently, in view of the circular dated 20.8.2010, the State Government is not entitled to review and reopen his case and the benefit of the circulars deserves to be granted to the petitioner. He submitted that the recovery which has already been effected from the petitioner's retrial benefits deserves to be reimbursed to him. He, therefore, prays that the writ petition be accepted in the above i terms. 9. Learned A.G.C. arguing for the respondent state submitted that the petitioner's case was also reviewed in pursuance of the aforesaid policy decision of the State Government and thereafter the date on which selection 5 scale was earlier granted to the petitioner vide order Annex-2 in reference to his initial induction in service on adhoc basis was rectified by the orders Annex. 3 and Annex. 5 and he was held entitled to receive selection scale with reference to the date his services were regularised after passing Patwar Examination. He, relied on the decision of Hon'ble Supreme Court in the case of State of Rajasthan & Ors. v. Jagdish Narain Chaturvedi reported in (2009) 12 SCC-49 and submitted that there is no merit in the claim of the petitioner and the writ petition is liable to be dismissed. I have given thoughtful consideration to the arguments advanced at the bar and have gone through the material available on record. 10. The decision taken by the State Government to review the case of the employees who had been earlier granted selection scale inadvertently by counting their service from the date of their initial adhoc appointment is in consonance with the Hon'ble Supreme Court's judgment in the case of State of Rajasthan & Ors. v. Jagdish Narain Chaturvedi (supra) and cannot be 2 called into question. v. Jagdish Narain Chaturvedi (supra) and cannot be 2 called into question. However, while passing the order dated 29.6.2009 for reviewing such cases, the State Government also adopted the following policy decision "It is, therefore, enjoined upon all the authorities competent to sanction selection grades that in cases where selection grades have been granted 2 to the State employees by counting the service rendered before regular appointment in cadre/service in accordance with the provisions contained in the relevant recruitment rules i.e. ad-hoc service/work-charged service/daily wages etc. may be reviewed. Such employees may be granted selection grades by counting the service rendered by them : only after regular appointment in the cadre/service in accordance with the provisions contained in the relevant recruitment rules. A copy of the judgment dated 08.05.2009 of the Hon'ble Supreme Court is enclosed. All such cases may be reviewed and decided by 31st of July, 2009 positively and compliance report should be conveyed to the 3 Administrative Department latest ,by 10th of August, 2009. The Administrative Department shall ensure that compliance of the aforesaid orders is made in time by all the appointing authorities under them. In case of non compliance of these orders, Administrative Department may take action against the defaulting authorities 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 upto 30.6.2009 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." (emphasis supplied) 11. Subsequent to the aforesaid circular, the State Government issued another circular no. F.16(2)FD(Rules)/98 dated 20.8.2010 taking following policy decision:- "The cases of grant of selection grade decided subsequent to order of even number dated 29.6.2009 may be reviewed and revised in accordance with the provisions of this order. Similarly pension cases of Government servants, finalised after re-fixation of pay under order 29.6.2009, may also be reviewed and revised. However cases of persons who retired prior to 29.6.2009 would not be re-opened." (emphasis supplied) 12. The payment already made to the petitioner who had admittedly retired before 2009 is protected by the afore quoted stipulation in the order o dated. 29.6.2009 13. However cases of persons who retired prior to 29.6.2009 would not be re-opened." (emphasis supplied) 12. The payment already made to the petitioner who had admittedly retired before 2009 is protected by the afore quoted stipulation in the order o dated. 29.6.2009 13. In view of the circular dated 26.8.2010, the case of the petitioner who admittedly retired much prior to 29.6.2009 cannot be reopened. 14. As a consequence, the writ petition is disposed of in the following terms (i) Now, the respondents shall not be entitled to effect recovery from the petitioner of the amount which has been paid to him under order Annexure-2 dated 2.7.1994 treating him to be in regular service w.e.f. 1.2.1967. The order Annexure-3 dated 21.10.1999 directing recovery is hereby quashed and set aside qua the petitioner to the extent recovery of o the amount has been directed to be made from his emoluments. The petitioner shall be entitled to the benefit of the circulars dated 29.6.2009 and 20.8.2010 and his case will not be reopened. (ii) If the recovery has already been effected, the petitioner shall be reimbursed with the same within a period of two months from the date of :5 this order. No order as to costs.Writ Petition Disposed of as above. *******