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2023 DIGILAW 262 (RAJ)

Radhey Shyam Sharma v. State Of Rajasthan

2023-01-23

ANOOP KUMAR DHAND

body2023
JUDGMENT : Anoop Kumar Dhand, J. Instant petition has been filed by the petitioner with the following prayer:- "It is therefore prayed that the writ petition of the petitioner may kindly be accepted and the Hon'ble Court may be pleased- i. to issue any order or direction or writ of any nature for quashing order/letter dated 25.05.2002(Annexure-1); ii. to issue any order or direction or writ of any nature directing the non-petitioners to pay higher pay scale on completing 9, 8 and 27 years of services w.e.f. date of initial appointment i.e. 03.03.1990; iii. to issue any order or direction or writ of any nature restraining the non-petitioner's from which helding payment of annual grade increment and to recover any amount from the petitioner in pursuance of order dated 25.05.2002. iv. or any order or direction as deemed just and proper by the Hon'ble Court in the facts and circumstances of the case may also kindly be passed in favour of the petitioners." 2. Learned counsel for the petitioner submits that the petitioner was appointed on the post of watchman/class-IV employee on daily wages. Thereafter, his service was terminated by the respondents. Against such action of the respondents, the petitioner approached to this Court by way of filling S.B. Civil Writ Petition No. 2389/1991 and the same was allowed by this Court vide its order dated 04.12.1991 by observing thus:- The Writ Petition is, therefore, allowed. Termination of service of the petitioner with effect from 15.06.91 is declared as illegal and void. The Respondents are directed to reinstate the petitioner in service with all consequential benefits. It is declared that the petitioner is entitled to the benefit of equal pay for equal work and on the basis of that principle, he is entitled to be paid salary in regular pay scale of Class IV employees with effect from the date of filing of this writ petition i.e. 15.04.1991. Accordingly, it is ordered that the petitioner shall be paid salary in the regular pay scale of Class IV employees with effect from 15.04.1991 by being fixed at the minimum of the scale. The petitioner shall be paid Dearness Allowance. If any other allowance is admissible under the Rules, the same shall also be paid to the petitioner. Arrears of the salary should also be paid to the petitioner within three months of the date of presentation of copy of this order. The petitioner shall be paid Dearness Allowance. If any other allowance is admissible under the Rules, the same shall also be paid to the petitioner. Arrears of the salary should also be paid to the petitioner within three months of the date of presentation of copy of this order. Parties are left to bear their own costs." 3. Counsel for the petitioner submits that in pursuance of the directions issued by this Court, the respondents granted regular pay to the petitioner w.e.f 15.04.1991 and thereafter, grade increments were also given to him w.e.f. 15.04.1991. Counsel submits that all of a sudden, respondents passed the impugned order on 25.05.2002 and the decision was taken to recover the amount and benefits given to the petitioner w.e.f. 15.04.1991 on the pretext that the service of the petitioner was regularized w.e.f. 15.08.1996, hence the petitioner is not entitled to get the above benefits. Counsel submits that it is settled proposition of law that if any amount is received by the employee without any fault of his own and if the amount is ordered to be recovered by the Department, then the same amounts to violation of principle of natural justice. Counsel submits that the amount which has been received by the petitioner between 15.04.1991 till 15.08.1996 cannot be allowed to be recovered. 4. In support of his contention, he has placed reliance on the judgment of this Court in the case of Smt. Basanti Mathur v. The State of Rajasthan and Ors. reported in 2005 (1) WLC 508. Counsel submits that the respondents have extended the benefits of selection scale to the petitioner on completion of 9, 18 and 27 years of service from the date of initial appointment i.e. 03.03.1990, so appropriate directions be issued to the respondents to grant the benefits of selection scale to the petitioner from the aforesaid date. 5. Per contra, learned counsel for the respondents opposed the arguments raised by the learned counsel for the petitioner and submitted that the petitioner was appointed on the post of Watchman/Class-IV employee as daily wager on 03.03.1990 and when his service was terminated by the Department, he approached to this Court by way of filing S.B.Civil Writ petition No. 2389/1991. 5. Per contra, learned counsel for the respondents opposed the arguments raised by the learned counsel for the petitioner and submitted that the petitioner was appointed on the post of Watchman/Class-IV employee as daily wager on 03.03.1990 and when his service was terminated by the Department, he approached to this Court by way of filing S.B.Civil Writ petition No. 2389/1991. Counsel submits that the aforesaid petition was disposed of by this Court and no such directions were issued by this Court for regularizing the service of the petitioner w.e.f. his initial date of appointment i.e. 03.03.1990. Counsel submits that only direction issued by this Court was to pay salary to the petitioner in the regular pay scale of Class-IV employee w.e.f. 15.04.1991 by being fixed at minimum of the pay scale. Counsel submits that in compliance of the said order, the salary of the petitioner was fixed in regular pay scale of Class-IV employee w.e.f. 15.04.1991 but inadvertently the regular pay scale was extended instead of the minimum of the scale. Counsel submits that when this fact came to the notice of the Department, the mistake was rectified by passing of the impugned order dated 25.05.2002. Counsel submits that under these circumstances, the Department has not committed any illegality in passing of the above order. Hence, interference of this Court is not warranted. 6. Heard and considered the submissions made at bar and perused the material available on record. 7. This fact is not in dispute that the petitioner was appointed on the post of Watchman/Class-IV employee on daily wages on 03.03.1990. This fact is also not in dispute that the service of the petitioner was terminated by the Department and he knocked the door of this Court by way of filing S.B.Civil Writ Petition No. 2389/1991 and the same was allowed by this Court vide order dated 04.12.1991 with specific directions to the respondents to reinstate the petitioner in service and it was made clear by this Court that the petitioner would be entitled to get the benefit of equal pay for equal work and he would be paid salary in the regular pay scale of Class-IV employee with effect from the date of filing of the writ petition on 15.04.1991. At the same time, directions were issued by this Court that the petitioner shall be paid salary in the regular pay scale of Class-IVth employee w.e.f. 15.04.1991 by being fixed at the minimum of the pay scale and other benefits were also granted to him. It is worthy to note here that no such directions were issued by this Court to regularize the service of the petitioner on the post held by him w.e.f. 15.04.1991, the only direction was issued by this Court was to pay him regular pay scale of Class-IVth employee at the minimum of the pay scale. It appears that by misunderstanding of the above order, the respondents have granted regular pay scale to the petitioner by treating his service as regularized w.e.f. 15.04.1991. When the mistake came to notice of the Department, the same was rectified by passing the impugned order and thereafter, regularized the service of the petitioner w.e.f. 15.08.1996. 8. I find no error with the decision taken by the authorities by regularizing the services of the petitioner w.e.f 15.08.1996. Now the only question which remains for consideration of this Court is that whether the respondents can recover the amount which has already been received by the petitioner for no fault of his own. This Court in the case of Smt. Basanti Mathur (Supra) has held that the benefits received by the employee without any fault of his own part, cannot be allowed to be recovered by the authorities as the same amounts to violation of principles of natural justice. 9. Accordingly, the writ petition is partly allowed, the impugned order dated 25.05.2002 is quashed to the extent of recovery of amount. The respondents are directed to refund the amount (if recovered or deducted) within a period of three months from today. The respondents are further directed to extend the benefit of selection scale to the petitioner by treating his service w.e.f 15.08.1996. 10. Stay application and all pending application(s), if any, also stand dismissed.