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2019 DIGILAW 712 (RAJ)

Rajendra Kumar v. State of Rajasthan

2019-03-01

GOVERDHAN BARDHAR, MOHAMMAD RAFIQ

body2019
JUDGMENT 1. This writ petition has been filed by the petitioners with the prayer that the respondents be directed to carry out necessary amendment in para No. 2 of clause (1) of Rule 8 of the Rajasthan Civil Services (Revise Pay) Rules, 2017 issued by Finance Department (Rules Division) Government of Rajasthan and be further directed to given exemption in giving option to elect to switch over to the revise pay structure from the date of promotion, upgradation or ACP. It is further prayed that the respondents be further directed to carry out amendments in consonance with the notification dated 13.2.2009 so as to give liberty to the petitioners for electing to switch over to the revised structure from the date of promotion, upgradation or ACP ignoring the fact that they were promoted after the date of notification and para No. 2 of sub-rule (1) of Rule 8 to the extent of giving option to those government servants for electing to switch over to the revised pay structure from the date of promotion or upgradation or ACP as the case may be who have been placed in higher grade pay between 1.10.2017 and the notification dated 30.10.2017 may be declared ultra vires to the Articles 14 and 16 of the Constitution of India. 2. In the course of hearing, learned counsel for the petitioners could not point out as to how the subordinate legislation i.e. Rule 8(1) and its proviso and note 2 may be declared ultra vires to the Constitution. He has not disputed the competence of the State Government in framing the aforesaid Rule. He has however argued that at the time when the Rajasthan Civil Services (Revise Pay) First Amendment Rules, 2009 were promulgated vide notification dated 13.02.2009, the corresponding provision was differently worded and provided that where a government servant is due for promotion or grant of selection scale, whichever may be higher after 12.9.2008, he may elect to switch over to the running Pay Band and Grade Pay from the date of availing such promotion or selection grade, as the case may be, in the existing pay scale when the excess amount of pay and allowances already drawn on account of fixation of pay under these rules shall be deposited by the concerned incumbent in lump sum. 3. 3. Learned counsel submitted that there was no reason why similar provision should not have been incorporated in the Rules of 2017. He also submitted that the State Government itself has set up a Committee headed by D.C. Samant, I.A.S. (Retd.) to go into the anomalies of the Revised Pay Scale Rules and the consequences flowing therefrom which ought to also examine the grievance of the petitioner. 4. This Court does not find any merit in the challenge to the constitutional validity inasmuch as petitioners have not been able to show whether the impugned order suffers from any kind of voice of arbitrariness or incompetence. This Court is not persuaded to accept the contention that hardship can be a ground to declare any particular provision to be unconstitutional. For the kind of prayer that has been made that the respondents be directed to carry out the necessary amendment in para 2 of Rule 8(1), this court cannot mandate the respondents to amend the Rules in a particular manner. However, as far as hardship is concerned, this Court requires the petitioners to approach the Principal Secretary to the Government, Department of Finance by raising all the arguments in a representation, who shall examine grievance of the petitioners either by himself or shall have the same examined through D.C. Samant Committee. If he chooses to decide the representation of the petitioners himself, appropriate order deciding the representation shall be passed within three months from the date such representation is made or if the reference is made to D.C. Samant Committee, the respondents shall act upon the recommendations if and when made by the D.C. Samant Committee. 5. With that observation, the writ petition is disposed of.