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2022 DIGILAW 1283 (RAJ)

Rais Ahmad v. State Of Rajasthan

2022-04-25

REKHA BORANA

body2022
JUDGMENT Rekha Borana, J. - The present petition has been filed with the following averments:- The petitioner was appointed as Class IV employee on 09.07.1975 and was promoted to the post of LDC w.e.f. 30.09.1986 in the year 2004 in compliance of the order passed by the learned Tribunal in his favour. It has further been submitted that the petitioner was granted first selection grade as LDC w.e.f. 30.09.1986 and the second selection grade w.e.f. 30.09.2004. He was granted the third selection grade w.e.f 30.09.2013 and was promoted as UDC vide order dated 26.12.2013. It was later on revealed that the third selection grade as LDC w.e.f. 30.09.2013 granted to the petitioner vide order dated 13.10.2014 was wrongly granted to him and therefore, the order for recovery of excess amount was passed. The said order was challenged by the petitioner before the Rajasthan Civil Service Appellate Tribunal and the appeal of the petitioner was partly allowed. It was specifically held by the learned Tribunal that the petitioner is not entitled to the third selection grade but so far as the order of recovery of excess amount is concerned, the same was set aside by the learned Tribunal in view of the law as laid down in 2015 (2) WLC (SC) Civil 388 State of Punjab v. Rafiq Masih. Aggrieved against the said order dated 28.05.2018 of the learned Tribunal, the present writ petition has been filed. 2. Counsel for the petitioner submits that firstly, in terms of proviso to Rule 20(4) of the Rajasthan Civil Services (Revised Pay) Rules, 2008, (hereinafter referred to as 'Rules of 2008') the petitioner being not in ministerial/subordinate service, would be eligible for grant of third ACP. Secondly, similarly situated employees namely Mr. Wasaf Ali, Mr. Sukhram Prajapat and Mr. Mohd. Rafeeq Bhati had been granted the benefit of third ACP and therefore, he should also be granted the same benefit. 3. Counsel relied upon the Apex Court's judgment passed in Dr. G. Sadasivan Nair v. Cochin University of Science and Technology represented by its Registrar & Ors. (Civil Appeal No. 6994/2021) decided on 01.12.2021. 4. Per contra, counsel for the respondent submitted that in terms of the Rules of 2008 the petitioner cannot be held to be entitled to grant of the third ACP. G. Sadasivan Nair v. Cochin University of Science and Technology represented by its Registrar & Ors. (Civil Appeal No. 6994/2021) decided on 01.12.2021. 4. Per contra, counsel for the respondent submitted that in terms of the Rules of 2008 the petitioner cannot be held to be entitled to grant of the third ACP. Counsel relied upon Rule 20(4) of the Rules of 2008 which provides as under:- "(4) Financial upgradation under the Scheme will be available whenever a person has spent 10 years continuous regular service in the same grade pay. However, not more than three financial upgradations shall be be given in the entire career. Provided that the existing Government servants who have already availed benefit in ministerial/subordinate service of three selection grades will not be eligible for the grant of ACP. Those Government servants who have availed benefit of one selection grade/one promotion will be eligible for second and third ACP on completion of 20 and 30 years of regular service, respectively. Similarly those Government servants who have availed benefit of two selection grades/two promotions/one promotion and one selection grade, as the case may be, will be eligible for third ACP on completion of 30 years of regular service." 5. Further counsel submitted that the present one is peculiar case where the petitioner had already been granted the benefit of first selection grade and the second selection grade on the post of class IV employee in the year 1992 and 1993. Thereafter, in pursuance to the directions of the Tribunal, he was granted promotion on 21.02.1995 w.e.f. 30.09.1986. After being granted the said promotion he was again granted the benefits of first selection grade and the second selection grade on the post of LDC in the year 1995 and in the year 2004. Thereafter, he was promoted as UDC in the year 2013 and as Assistant Administrative Officer in the year 2016. Therefore, in terms of the Rules of 2008 which specifically provides that an employee could not be granted more than three financial upgradations in his complete career, the petitioner having already been granted more than five financial upgradations, cannot be held to be entitled for one more financial upgradation in the form of third selection grade. Counsel therefore prayed that the order of the Tribunal being solely in consonance with law deserves to be upheld. 6. Counsel therefore prayed that the order of the Tribunal being solely in consonance with law deserves to be upheld. 6. Heard learned counsels for the parties and perused the material available on record. 7. A bare perusal of the pleadings as made in the writ petition makes it clear that the fact of the grant of the first selection grade and the second selection grade to the petitioner on the post of class IV employee in the year 1992 and 1993 have not even been pleaded in the petition which specifically means that the said fact has been concealed in the present petition. It is also clear on record that after being promoted as LDC in the year 1995 with retrospective effect from 1986, the petitioner was again granted the benefit of both selection grades on the post of LDC. Thereafter, petitioner was again promoted in the year 2013 and 2016. Therefore, the case of the petitioner cannot be the one where there has not been any financial upgradation so far as his service benefits are concerned. The whole intention of the introduction of the ACP scheme was to overcome the stagnation in the career of an employee and the said scheme specifically provides that more than three financial upgradations could not be granted to an employee in his entire career. So far as the grant of the third selection grade is concerned, it has specifically been provided that a person who has availed the benefits of two selection grades and one promotion or two promotions and one selection grade, would not be granted the benefit of third selection grade. 8. Here is a case where the petitioner has been granted the benefit of first and the second selection grade twice in his career coupled with three promotions. Therefore, in terms of the Rules of 2008 and in terms of the settled law, the finding of the learned Tribunal to the effect that the petitioner would not be entitled to the grant of third selection grade cannot be interfered with, the same being totally in consonance with law. So far as the ratio as laid down in Dr. G. Sadasivan Nair's case (supra) is concerned, there can be no dispute about the proposition that the law does not allow the employer to apply the rules differently in relation to the person who are similarly situated. 9. So far as the ratio as laid down in Dr. G. Sadasivan Nair's case (supra) is concerned, there can be no dispute about the proposition that the law does not allow the employer to apply the rules differently in relation to the person who are similarly situated. 9. In the present matter, it has not been proved on record that the alleged similarly situated employees had been granted three promotions and two selection grades twice in their career as granted to the petitioner. A perusal of the order of grant of third selection grade to the said persons as placed on record shows that the same has been granted to them on the post of LDC only. The said order nowhere shows that those persons had been granted the benefit of two selection grades as class IV employee also as in the case of the petitioner. In view of the same the said persons cannot be held to be similarly situated to that of the petitioner. 10. In view of the above discussion and observations, this Court is not inclined to interfere with the order dated 28.05.2018 passed by the learned Tribunal. 11. Consequently, the present writ petition is dismissed.