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2019 DIGILAW 2123 (RAJ)

Vijay Singh v. State of Rajasthan

2019-08-07

PUSHPENDRA SINGH BHATI

body2019
JUDGMENT : Pushpendra Singh Bhati, J. 1. The petitioner has preferred this writ petition claiming the following reliefs: "It is, therefore, humbly prayed that Your Lordships may be pleased to accept and allow this writ petition and; (i) by issuing an appropriate writ, order or direction the impugned order dated 24.05.2016 passed by respondent No. 2 and also minutes of the screening committee dated 23.05.2016 qua the petitioner whereby the committee sanctioned the benefit of selection scale to the petitioner from 20.08.1997 may kindly be quashed and set aside. (ii) by issuing an appropriate writ, order or direction the respondents be directed to re-sanction the benefit of selection scale to the petitioner from actual date 20.08.1994 instead of approved dated 20.08.1997 by counting his service from date of initial appointment with incorporation of his temporary/adhoc service under Career Advancement Scheme with all consequential benefits. (iii) Any other appropriate order or direction which this Hon'ble Court deems just and proper in the facts and circumstances of this case may kindly also be passed in favour of the petitioner." 2. The petitioner was appointed as Lecturer in the subject of Business Administration on temporary basis at Government College on 20th August, 1979. The petitioner was thereafter selected by the RPSC vide order dated 6th August, 1982 and in pursuance thereof, he joined at Government College on 11th August, 1982. 3. Learned counsel for petitioner Shri Lokendra Singh Shekhawat submits that petitioner was entitled to senior scale w.e.f. 20th August, 1997 and selection scale w.e.f. 20th August, 1994. The limited grievance of the petitioner is that selection scale which ought to have been granted from 20th August, 1994 has been granted on 20th August, 1997. 4. Learned counsel for petitioner submits that the respondents convened the Review Screening Committee on 23rd May, 2016 and found that APARs of the petitioner for the year 1986-87, 1988-89 and 1995-96 were satisfactory and therefore, the petitioner was not entitled as per Career Advancement Scheme dated 1st May, 1989 for grant of selection scale w.e.f. 20th August, 1994. 5. Learned counsel for petitioner has placed reliance upon the judgment of this court in Shree Krishan Agarwal Vs. State of Rajasthan & Ors., SB Civil Writ Petition No. 2569/2004, decided on 3rd January, 2017. 5. Learned counsel for petitioner has placed reliance upon the judgment of this court in Shree Krishan Agarwal Vs. State of Rajasthan & Ors., SB Civil Writ Petition No. 2569/2004, decided on 3rd January, 2017. The relevant portion of which reads as follows: "Learned counsel for the petitioner has relied upon the judgment passed in SB Civil Writ Petition No. 5160/2009 Vishveshwar Lal Choudhary Vs. State of Rajasthan & Anr. decided on 8.9.2015. The relevant portion of the judgment is as follows:- "It is submitted by learned counsel for the petitioner that the so called endorsement made by the respondents for refusing grant of Selection Scale to the petitioner cannot be sustained, inasmuch as, during the period 1986-1994, the petitioner was not communicated any adverse entry and the requirement of UGC norms about Performance Appraisal Report of eight years cannot be said to be laking by the petitioner so as to deny the Selection Scale. It is submitted that the entries, if adverse, as the respondents having failed to communicate such entries, they cannot rely on the same for the purpose of refusing the benefit to the petitioner. It was also submitted that the order dated 05.02.2009 passed by the respondents deserves to be set aside to the extent of refusing grant of Selection Scale and the respondents be directed to grant Selection Scale to the petitioner w.e.f. 01.01.1994 with all consequential benefits. Reliance was placed on U.P. Jal Nigam and Ors. v. Prabhat Chandra Jain and Ors., (1996) 2 SCC 363 , Dev Dutt v. Union of India and Ors., (2008) 8 SCC 725 and Prabhu Dayal Khandelwal v. Chairman, U.P.S.C. and Ors., 2015 AIR SCW 4417. Learned counsel for the respondents submitted that as the petitioner was not fulfilling the requirement of consistent good Performance Appraisal Reports for eight years, he was rightly denied 4 the grant of Selection Scale. It is further submitted that as the entries as such were not adverse, there was no question of communicating the same to the petitioner and, therefore, the petitioner was rightly refused the grant of Selection Scale and the Screening Committee having considered the matter in entirety based on judgment of this Court, has found the petitioner suitable only for grant of Senior Scale and, therefore, the writ petition filed by the petitioner deserves to be dismissed. In view of the above, it cannot be said that as the entries were not adverse they were not required to be communicated and, consequently, could be used against the petitioner for denying the Selection Scale. In that view of the fact situation, where the petitioner has not been communicated the entries for the period 1986-1987 to 1992-1993, the refusal of grant of Selection Scale based on such entries cannot be sustained. So far as the course to be adopted in such a situation is concerned, guidance can be had from the judgment of Hon'ble Supreme Court in the case of Prabhu Dayal Khandelwal (supra), wherein, in similar circumstances, Hon'ble Supreme Court observed and directed as under:- "7. In the above view of the matter, we are satisfied that the impugned order passed by the High Court, deserves to be set aside, inasmuch as, the claim of the appellant could not be ignored by taking into consideration, uncommunicated Annual Confidential Reports for the years 1995-1996, 1996-1997 and 1998-1999, wherein the 7 appellant was assessed as "good". In the absence of the aforesaid entries, it is apparent, that the remaining entries of the appellant being "very good", he would be entitled to be considered fit for the promotion, to the post of Chief Commissioner of Income Tax, on the basis of the then prevailing DoPT guidelines, and the remaining valid Annual Confidential Reports. 8. On the issue, whether the representations filed by the appellant against the Reports for the years 1995-1996, 1996-1997 and 1998-1999 need to be taken to their logical conclusion, we are of the view, that since almost two decades have passed by since the aforesaid Annual Confidential Reports were recorded, it would be too late in the day to require the Authorities to adjudicate upon the representations made by the appellant as against the uncommunicated Annual Confidential Reports." (Emphasis Supplied) It would be noticed that Hon'ble Supreme Court directed that the petitioner therein would be treated as fit and the matter cannot be remanded back for communication of the entries and for the petitioner to make representation against those entries on account of passage of two decades, in the present case also two decades have already passed, inasmuch as, the petitioner has retired in the year 1994. In view of the above, the writ petition filed by the petitioner is allowed. In view of the above, the writ petition filed by the petitioner is allowed. The order dated 05.02.2009 (Annex.-18) passed by the respondents is quashed to the extent the grant of Selection Scale has been refused to the petitioner. The respondents are directed to reconsider the grant of the Selection Scale i.e. the pay scale of 3700-125-4950-150-5700 to the petitioner w.e.f. 01.01.1994 with all consequential benefits within a period of two months, in light of the findings recorded hereinbefore. No order as to costs." Learned counsel for petitioner has also relied upon the judgment of Mahendra Nath Sharma Vs. State of Rajasthan & Anr. In SB Civil Writ Petition No. 8089/2007 vide order dated 11.7.2016. Relevant portion of the judgment is as follows:- "Indisputably, the respondents introduced the Career Advancement Scheme w.e.f. 01.01.1986 vide order dated 30.01.1995 (Annexure-4). A perusal of the scheme reveals that on completion of eight years of service, Lecturer shall be eligible for grant of senior scale and after completion of sixteen years of service, Lecturer is eligible for selection scale. Other conditions for eligibility have also been stipulated in the order dated 01.05.1989 including consistently good performance appraisal report. It is also provided that the placement in the senior and selection scales shall be on the basis of recommendation as to suitability by a duly constituted screening committee. In the seniority list dated 30.09.1997 (Annexure-19), the petitioner is at Sr. No. 1 while Shri S.K. Qazmi is at Sr. No. 4. Vide order dated 02.05.2003 (Annexure 18), Mr. S.K. Qazmi has been granted selection scale w.e.f. 01.01.1986. It is not discernible from the reply filed by the respondents as to why the petitioner has not been granted the selection scale w.e.f. 01.01.1986 as granted to his junior, namely; S.K. Qazmi. As a matter of fact, a rather cryptic reply has been filed by the respondents wherein it is stated that as the selection scale has been granted to the petitioner, the petition has 3 been rendered infructuous. It is not the case of the respondents that the service record of the petitioner was not satisfactory or he was otherwise ineligible for grant of selection scale. Therefore, there is no justification in denying the petitioner selection scale w.e.f. 01.01.1986. It is not the case of the respondents that the service record of the petitioner was not satisfactory or he was otherwise ineligible for grant of selection scale. Therefore, there is no justification in denying the petitioner selection scale w.e.f. 01.01.1986. Consequently, the petition is allowed and the respondents are directed to grant selection scale to the petitioner w.e.f. 01.01.1986 with all consequential benefits, within a period of three months from the date of receipt of a certified copy of this order." I have heard learned counsel for the parties and perused the pleadings. In my opinion any adverse appraisal report which is being relied upon by the respondents were required to be indicated and consequently without communication they could not have been used against the petitioner for denying the selection scale. The petitioner in this case has not been communicated any adverse entry or any other entry which could resulted in denial of selection scale. In view of above, this writ petition is allowed and the respondents are directed to grant the selection scale to the petitioner w.e.f. 1.1.1986 with all consequential benefits within a period of three months from the date of receipt of certified copy of this order. The petitioner shall be entitled to 6% interest on the amount so computed." 6. Learned counsel for petitioner has also relied upon judgment of this court in Smt. Usha Agarwal Vs. State of Rajasthan & Anr., SB Civil Writ Petition No. 15101/2018, decided on 1st April, 2019. The relevant portion of which reads as follows: "I have heard both the learned counsel and perused the material available on record. This Court finds that the view taken in the case of Vishveshwar Lal Choudhary (supra) and the same being approved by the Division Bench in DB Civil Special Appeal (Writ) No. 199/2016, the employees have been held entitled for grant of selection scale even if they had satisfactory record. This Court further finds that non-communication of satisfactory record has also been considered in the case of Vishveshwar Lal Choudhary (supra) and as such the benefit cannot be denied to an employee if the adverse remark in APAR of satisfactory performance is not communicated. This Court further finds that in the case of Shree Krishan Agrawal (supra), Deep Chand Gupta (supra) and in the case of SBCWP No. 8145/2017 [Dr. (Mrs.) Gunmala Jain Vs. This Court further finds that in the case of Shree Krishan Agrawal (supra), Deep Chand Gupta (supra) and in the case of SBCWP No. 8145/2017 [Dr. (Mrs.) Gunmala Jain Vs. State of Rajasthan & Anr.] and other connected writ petitions, the coordinate Bench has taken a view that the employees are entitled for grant of selection scale after reckoning their period of temporary service and cannot be deprived only on account of having satisfactory remark in their APAR. This Court finds that the case referred by counsel for the respondents in SB Civil Review Petition (Writ) No. 422/2017, does not deal with the situation which is involved in the present bunch of petitions. The issue of non-communication of satisfactory remark in APAR was not before the coordinate Bench in the review petition and further counting of temporary service for the purpose of grant of selection scale in CAS was also not an issue before the coordinate Bench. This Court finds that the objection raised by learned counsel for the respondents for the relief claimed by the petitioners, is no more res-integra in view of several pronouncements of this Court as well as Apex Court for counting of temporary service of an employee rendered prior to regular selection by the Public Service Commission and the Apex Court in the case of [State of Rajasthan & Anr. Vs. Milap Chand Jain & Anr.] reported in (2013) 14 SCC 562 has already decided the controversy with respect of grant of selection grade to the Lecturers who were initially appointed on ad-hoc/temporary basis and later on came to be appointed by regular method. This Court following the law laid down by the coordinate Bench as well as approved by the Division Bench, considers it appropriate to allow the writ petitions filed by the petitioners. The respondents are directed to count services of the petitioners rendered by them prior to their regular appointment for the purpose of senior selection scale and for selection scale and the respondents may not insist for having the consistently good service record for the purpose of grant of benefit under the CAS as the action of the respondents of possessing the consistently good service record is not found tanable in view of non-communication of satisfactory remarks in APAR to the petitioners. The required exercise of granting benefit to the petitioners may be carried out by the respondents within a period of six weeks after receipt of copy of this order and accordingly all the writ petitions stand allowed. Copy of this order may be placed in each file." 7. Learned counsel for petitioner submits that it is undisputed position that APARs of the year 1986-87, 1988-89 and 1995-96 were not communicated to the petitioner and therefore, the adverse inference as per Career Advancement Scheme dated 1st May, 1989 cannot be drawn against the present petitioner. 8. Learned counsel for respondents is not in a position to refute the applicability of the precedent law quoted. 9. Learned counsel for respondents also accepts factual position that the satisfactory APARs were not communicated to the petitioner for the period in question. 10. After hearing learned counsel for the parties and looking to the record as well as factual aspect, this court finds that the petitioner was regularly appointed as Lecturer through RPSC and given appointment on 11th August, 1992. The petitioner was admittedly entitled to selection scale w.e.f. 20th August, 1994 but the same selection scale was given to the petitioner on 20th August, 1997. This court finds that only reason to deny the selection scale to the petitioner is that his APARs for the period of 1986-87, 1988-89 and 1995-96 were satisfactory and since the minimum requirement was good, therefore, as per the Career Advancement Scheme dated 1st May, 1989, the petitioner was held to be not entitled for selection scale w.e.f. 20th August, 1994. This court has seen the precedent law and it is a settled law that in case any adverse APAR is not communicated to the person in question, any subsequent adversarial action of the respondents based upon such APARs could not be sustained in the eye of law. 11. In the light of settled law, we allow this writ petition with the direction to the respondents to give selection scale to the petitioner strictly in accordance with law while not treating the APARs for the period of 1986-87, 1988-89 and 1995-96 to be adverse to the petitioner for computation of selection scale only. Such benefits shall be passed on the petitioner within a period of three months from today.