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2018 DIGILAW 351 (RAJ)

Nemi Chand v. State of Rajasthan

2018-01-29

ARUN BHANSALI

body2018
JUDGMENT : Arun Bhansali, J. 1. The present writ petition has been filed by the petitioner aggrieved against the order dated 10.6.2013 (Annex.5) and communication dated 15.2.2017 (Annex.12) issued by the respondents and seeking further direction to the respondents that the petitioner is entitled for First Selection Grade on complete of 9 years of service in the pay scale of Rs. 975-1720/- and in other consecutive pay scales on completion of 18 and 27 years of service. 2. The petitioner was appointed as Carpenter under the provisions of Rajasthan Jail Subordinate Service Rules, 1976 in the pay scale of Rs. 420-740/-, which was revised to Rs. 950-1680/-. 3. It is, inter alia, indicated in the writ petition that the post of Carpenter as well as promotional post of Vocational Teacher carries the same pay scale i.e. Rs. 950-1680/-. On completion of 9 years of service, the petitioner was granted benefit of First Selection Grade by order dated 20.7.1993; as the promotional post of Vocational Teacher carries the same pay scale as that of the feeder post, the fixation on grant of selection grade was made on the next promotional post carrying pay scale of Rs. 975-1720/-. 4. Where after the impugned order 10.6.2013 (Annex.5) was issued by the Additional Director (Jail), Rajasthan Jaipur, inter alia, indicating that the petitioner should have been accorded First Selection Grade in the pay scale of Rs. 950-1680/- and where after, the order impugned dated 15.2.2017 (Annex.12) was issued ordering for recovery of a sum of Rs. 2,76,533/- from the petitioner. 5. Feeling aggrieved, the present writ petition has been filed by the petitioner. 6. It is, inter alia, submitted by learned counsel for the petitioner that the petitioner has rightly been accorded the pay scale of Rs. 975-1720/- as First Selection Grade, inasmuch as, the pay of petitioner as Carpenter was equivalent to the promotional post of Vocational Teacher i.e. both were in the pay scale of Rs. 950-1680/- and, therefore, the petitioner was entitled to grant of First Selection Grade in the pay scale of Rs. 975-1720/-. 7. Further submissions have been made that the issue is no more res integra as this Court in Sohanlal Mathur v. State of Rajasthan & Ors. : S.B. Civil Writ Petition No. 3631/2008, decided on 17.11.2008 in a similar nature controversy following the judgment in the case of Sharvan Kumar v. State of Rajasthan & Ors. 975-1720/-. 7. Further submissions have been made that the issue is no more res integra as this Court in Sohanlal Mathur v. State of Rajasthan & Ors. : S.B. Civil Writ Petition No. 3631/2008, decided on 17.11.2008 in a similar nature controversy following the judgment in the case of Sharvan Kumar v. State of Rajasthan & Ors. : S.B. Civil Writ Petition No. 2156/2007, decided on 5.9.2008 laid down that the incumbent would be entitled to grant of First Selection Grade in the immediate promotion post but a higher pay scale and, therefore, the writ petition filed by the petitioner deserves to be accepted and the orders impugned dated 10.6.2013 (Annex.5) and 15.2.2017 (Annex.12) deserve to be quashed and set aside. 8. It was also submitted that when similarly placed employees approached the Rajasthan Civil Service Appellate Tribunal, order dated 29.5.2015 was passed by the Tribunal relying on judgment in the case of Sohanlal Mathur (supra) pursuant thereto, relief has been grant to the said similarly situated employees and even the Director (Jail) Rajasthan has recommended that the said anomaly may be removed. 9. Learned counsel appearing for the respondents supported the orders impugned. It was submitted that the provisions of the Circular dated 25.1.1992 according selection grade on completion of 9, 18 and 27 years of service is clear, wherein, the petitioner is entitled to the selection grade based on the pay scale of promotional post and as admittedly the pay scale of the promotional post has already been granted to the petitioner while passing the orders impugned, the petitioner cannot claim for the benefits of higher pay scale and, therefore, the writ petition filed by the petitioner deserves to be dismissed. 10. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 11. It is in dispute that the pay scale of the post held by the petitioner i.e. Carpenter and that of the promotional post i.e. Vocational Teacher is both in the pay scale of Rs. 950-1680/- and, therefore, the petitioner on completion of 9 years of service, was granted benefit of First Selection Grade in a higher pay scale of Rs. 975-1720/-. 950-1680/- and, therefore, the petitioner on completion of 9 years of service, was granted benefit of First Selection Grade in a higher pay scale of Rs. 975-1720/-. The petitioner continued to enjoy the said benefits since the year 1993, where after the order dated 10.6.2013 (Annex.5) was issued seeking to take back the benefits on account of supposition that he was entitled only to the pay scale of the promotional post irrespective of the pay scale the said post was carrying and thereafter the order dated 15.2.2017 (Annex.12) has been issued seeking to recover the amount allegedly paid excess to the petitioner. 12. The issue as raised by the petitioner is no more res integra, inasmuch as, this Court in the case of Sohanlal Mathur (supra) laid down as under:- "The controversy involved in this petition for writ is considered by this Court in Sharvan Kumar v. State of Rajasthan & Ors., SB Civil Writ Petition No. 2156/2007, decided on 5.9.2008. In the case aforesaid the issue was relating to grant of selection grade of a person holding the post of Electrician Gr.I having an avenue for promotion to the post of Foreman Gr.II in the same pay scale. In the case aforesaid this Court held as follows:- "As per the respondents the pay scale of post of Foreman Gr.II was given to the petitioner on completion of 18 years of service, however, it is in dispute that the pay scale of Foreman Gr.II and the Electrician GR.I is same. The Government of Rajasthan under the notification dated 25.1.1992 allowed selection grades on completion of a specific term of service with a view to remove stagnation in service, due to non-grant of promotion. Promotion in service means authority of higher post with higher emoluments. The selection grade satisfies higher emoluments only. If the government do grant even the higher emoluments then the prescription of selection grade shall be of no consequence. The prescription of same pay scale on competition of 18 years of service as a matter of fact is an illusory benefit and that is at all grant of selection grade with the spirit of the notification dated 25.1.1992. If the government do grant even the higher emoluments then the prescription of selection grade shall be of no consequence. The prescription of same pay scale on competition of 18 years of service as a matter of fact is an illusory benefit and that is at all grant of selection grade with the spirit of the notification dated 25.1.1992. The petitioner though was possessing the requisite qualification for the purpose of promotion to the post of Electrical Supervisor, however, selection grade as per para 5 of the notification dated 25.1.1992 should have been allowed to him as that adequately take care of such circumstances." In the instant matter too the petitioner is holding the post of Fitter Gr.I and the pay scale of Foreman Gr.II is given to him. The pay scale applicable for the post of Fitter Gr.I and Foreman Gr.II is same. As per para 5 of the Government of Rajasthan's notifications dated 25.1.1992 and 17.2.1998, in such eventuality the employee is required to receive the next higher pay scale as prescribed in para 5 of the notifications aforesaid. The petitioner as per para 5 of the notification dated 25.1.1992 was entitled to receive second selection grade i.e. of Rs. 1400-2600/- instead of Rs. 1200- 2050/-. After revision of the pay scale the petitioner become entitled to get his pay fixed in the pay scale of Rs. 5000- 8000/- instead of Rs. 4000-6000/-. As a consequent to the fixation of the selection grades as above, the petitioner also become entitled for fixation in the pay scale of Rs. 5500- 9000/- instead of Rs. 5000-8000/- on getting third selection grade i.e. on completion of 27 years of service. In view of whatever said above, this petition for writ deserves acceptance and, therefore, the same is allowed. The respondents are directed to allow selection grade to the petitioner on completion of 18 years of service as per para 5 of the notifications dated 25.1.1992 and 17.2.1998. The petitioner is declared entitled for getting the pay scale of Rs. 1400-2600/- (Rs. 5000-8000/-) as second selection grade on completion of 18 years of service and the pay scale of Rs. 5500-9000/- on completion of 27 years of service as the third selection grade. The entitlement as declared above is required to be executed by the respondents within a period of six months from today. No order to costs." 13. 1400-2600/- (Rs. 5000-8000/-) as second selection grade on completion of 18 years of service and the pay scale of Rs. 5500-9000/- on completion of 27 years of service as the third selection grade. The entitlement as declared above is required to be executed by the respondents within a period of six months from today. No order to costs." 13. It was specifically laid down by this Court that in a case where a pay scale of the promotional post is same, then the employee is required to receive the next higher pay scale as per para-5 of the Notification dated 25.1.1992. 14. In view of the above fact situation as well as the legal position, the orders dated 10.6.2013 (Annex.5) as well as 15.2.2017 (Annex.12) passed by the respondents, cannot be sustained. 15. Consequently, the writ petition filed by the petitioner is allowed. The orders dated 10.6.2013 (Annex.5) and 15.2.2017 (Annex.12) are quashed and set aside. 16. Amount, if any, recovered from the petitioner pursuant to the above orders, shall be refunded back to the petitioner within a period of one month from today.