JUDGMENT : Per Dr. Pushpendra Singh Bhati, J: 1. This writ petition under Article 226 of the Constitution of India has been preferred claiming the following reliefs: “It is, therefore, humbly and respectfully prayed that writ petition of the petitioner may kindly be allowed and by an appropriate writ, order or direction:- (A) That, the part of notification dated 13.02.2009 (Annex.P/1) “in such cases 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” may kindly be declared ultra vires Article 14 of the Constitution of India and be set-aside. (B) That, Respondents may kindly be restrained from effecting any recovery from Petitioner in pursuance of order dated 13.04.2009 (Annex.P/3) and 20.05.2009 (Annex.P/5). (C) That, consequent to aforesaid it may kindly be directed that Petitioner is entitled to be fixed at a stage of Rs.12500/-w.e.f. 15.04.2009. (D) That, Respondents may further be directed to pay to the petitioner the amount deducted from his arrears. (E) Any other relief which this Hon’ble Court may deem fit may kindly be granted in favor of the petitioner; (F) Cost of the writ petition may kindly be awarded to the petitioner.” 2. The petitioner, being a dependent of a deceased government servant (father), was appointed as Patwari in Tehsil Kapasan, District Chittorgarh on 15.04.2000, whereafter, he has passed the Patwar Examination on 06.09.2001. 3. As the pleaded facts and the record would reveal, in the present writ petition, the petitioner, firstly, is partially assailing the notification dated 13.02.2009, whereby vide the Rajasthan Civil Services (Revised Pay) (First Amendment) Rules, 2009, a new proviso has been inserted to sub-rule (1) of Rule 10 of the Rajasthan Civil Services (Revised Pay) Rules, 2008 (hereinafter referred to as ‘Rules of 2008’); such challenge, to be specific, is laid to a particular part of the said newly inserted proviso i.e., “In such cases 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”. 3.1. 3.1. In pursuance of the aforesaid said notification dated 13.02.2009, particularly, the initial part of the aforesaid newly inserted proviso i.e. “where a Government servant is due for promotion or grant of selection grade, whichever may be higher after 12.09.2008 and if he so desires to first avail the benefit of next promotion or selection grade, as the case may be, in the existing pay scale in force prior to 01.09.2006, in such a case Government servant may elect to switch over to the Running Pay Band and Grade Pay under these rules from the date of availing such promotion or selection grade, as the case may be, in the existing pay scale”, the petitioner submitted an application along with an option form on 25.03.2009, seeking to switch over to the specified running pay band/grade pay. 3.1.1. In the said application, the petitioner stated that because as on 15.04.2009, he was to complete 9 years of service and as per the Rajasthan Civil Services (Revised Pay) Rules, 1998, his revised pay scale was Rs.5000-150-8000 i.e. basic pay of Rs.5,000/-, and owing to the pay revised under the Rules of 2008, the petitioner, w.e.f. 15.04.2009, was to be placed in the running pay band of Rs.9300-34800 with Grade Pay No.11 i.e. Rs.3200, therefore, as per the said option form, his basic pay, as on 15.04.2009, was required to be fixed at Rs.9300+3200 = Rs.12,500/-. 3.2. As per the petitioner, while holding the post of Patwari, on the date of coming into force of the Rules of 2008, his basic pay was Rs.3,650/- (pay scale of Rs.3050-4590 under Rules of 1998). On count of promulgation of the Rules of 2008, the petitioner’s basic pay was fixed at Rs.8,410/-. 3.2.1. As contended by the petitioner, in pursuance of the aforesaid option form, which was submitted on account of the extension of the benefit of first selection grade (now Assured Career Progression i.e. ACP), his basic pay was fixed at Rs.12,500/-. 3.3. On count of promulgation of the Rules of 2008, the petitioner’s basic pay was fixed at Rs.8,410/-. 3.2.1. As contended by the petitioner, in pursuance of the aforesaid option form, which was submitted on account of the extension of the benefit of first selection grade (now Assured Career Progression i.e. ACP), his basic pay was fixed at Rs.12,500/-. 3.3. However, in pursuance of the order dated 29.12.2008 (whereby general permission for re-option was accorded) passed by the Department of Finance (Rules Division), Government of Rajasthan, an office order dated 13.04.2009 came to be passed by the office of Tehsildar, Kapasan, granting permission to recover, from certain incumbents (Patwari), including the present petitioner, the arrears of excess amount (of pay and allowances already drawn on account of fixation of pay under Rules of 2008), in accordance with the re-option submitted by them. 3.3.1. The aforesaid notifications and/orders, culminated into issuance of the Memorandum dated 20.05.2009, wherein it has been mentioned and ordered that after consideration of the matter, it has been decided that the amount of arrears of pay and allowances may be deposited by the concerned employees in six equal monthly installments from the salary i.e. from June, 2009 to November, 2009. It was further stipulated therein that no further extension would be allowed and orders of fixation of pay on the basis of re-option shall be issued after the entire amount of the arrears is deposited by the concerned employees in the Government Account. 3.4. Thus, in the above backdrop, apart from the challenge to the impugned notification dated 13.02.2009 (to the extent indicated above), by preferring the present petition, the petitioner also assails the aforesaid order dated 13.04.2009 and Memorandum dated 20.05.2009, while alleging that the same is ultra vires the Constitution of India and against the laws governing the field. 4. The main thrust of the argument advanced by Mr. 4. The main thrust of the argument advanced by Mr. R.S. Saluja, learned counsel for the petitioner and as averred in the writ petition, is that due to the impugned omission and commission on the part of the respondents, the petitioner, who was running in the pay of Rs.8,940/- after extension of the benefit of ACP, yet again has been fixed in the pay of Rs.3,725/-, consequent whereupon, as per the Rules of 2008, his basic pay, which was required to be fixed at Rs.12,500/-, has not been so fixed as yet, on count of the fact that the recovery in question is yet to be effected from the petitioner. 4.1. Learned counsel for the petitioner submitted that Rule 28 of the Rajasthan Service Rules, 1951 prescribes in unambiguous terms, that once the pay scales are revised, the pay fixation, in accordance with such revision, is automatic, as per the Rules governing the field, and thus, on that count alone, the impugned action of the respondents is unsustainable in the eyes of law. 4.2. Learned counsel has harped upon the fact that the Original proviso to Rule 10 and the newly inserted proviso thereto, cannot operate simultaneously, in as much as, the Original proviso stipulates that a person will be fixed in the pay scale corresponding to his existing pay scale in the Rules of 1998, whereafter, he will get the benefit of selection grade and consequently, his pay scale would be fixed in accordance with the Rules of 2008, without any element of recovery, as sought to be effected from the present petitioner and the like incumbents. 4.2.1. In contrast, as per learned counsel, the newly inserted proviso to Rule 10 provides that the higher pay scale received by an employee on count of fixation of his pay under the Rules of 2008, shall be recovered on getting the selection scale/ACP. 4.2.2. Learned counsel further submits that the impugned recovery is unsustainable in the eyes of law, rather the case set up by the petitioner is in consonance, amongst others, with the Rajasthan Service Rules, 1951, as the benefits have been received by the petitioner without any misrepresentation or fraud. As per learned counsel, in the above backdrop, the impugned proviso runs contrary, also to the Rajasthan Service Rules, thereby rendering the same non est in law. 5. On the other hand, Mr. As per learned counsel, in the above backdrop, the impugned proviso runs contrary, also to the Rajasthan Service Rules, thereby rendering the same non est in law. 5. On the other hand, Mr. Mahaveer Bishnoi, learned Additional Advocate General with Mr. Harshvardhan Singh, appearing on behalf of the respondents, opposed the aforesaid submissions made on behalf of the petitioner. 5.1. It was submitted that the impugned notification dated 13.09.2009 does not pertain to any change in pay scale, but rather, it relates to determination of pay after promotion or grant of selection grade, and in contrast, Rule 28 of the Rajasthan Service Rules deals with Regulation of Pay when pay of a post is changed, and therefore, there is a clear distinction between the two. 5.2. It was further submitted that the benefit of selection grade is payable to the employees of the State Government, prior to the year 2008. The financial upgradation is payable as per the ACP, and therefore, the impugned notification, which has been issued for the benefit of the employees of the State, is justified in law. 5.3. It was also submitted that though the aforesaid proviso contained in the impugned notification is for the benefit of the employees, but the same is conditional, inasmuch as, if promotion or selection scale is payable after 12.09.2008 and option was given for determination of pay, then the pay and other monetary benefits paid in accordance with the previous option and previously determined pay is liable to be deposited by the concerned incumbents, as a one time measure, that too, in six equal installments; such condition has been imposed so as to save the Public Exchequer from unwarranted loss of revenue. 5.4. It was further submitted that the petitioner has obtained revised pay scale w.e.f. 15.04.2009 after availing the benefit of first selection grade in the existing pay scale. As per his earlier option, he has taken the benefit of revised pay scale w.e.f. 01.09.2006 and as such, due to revised option, he is entitled to get the pay in the existing pay scale till 14.04.2009; any payment made in the revised pay scale during this period is thus an excess payment and the revision of pay as prayed for herein, is subject to refund of such excess amount. 5.5. 5.5. It was thus submitted that by no stretch of imagination, it can be inferred that the respondents have acted in an arbitrary, unreasonable and discriminatory manner or in violation of the Constitution of India. Therefore, it was submitted that the writ petition is not worthy of acceptance, and thus, the same deserves to be dismissed. 6. Heard learned counsel for the parties as well as perused the record of the case. 7. This Court observes that the petitioner was appointed as Patwari on 15.04.2000. The anomaly in question arose in the sequence whereby the Rules of 2008 were made effective w.e.f. 01.09.2006 by notification dated 12.09.2008. Another amendment was incorporated in the Rules of 2008 by notification dated 13.02.2009. The petitioner submitted his option for switching over to the Running Pay Band/Grade Pay and was receiving the pay scale, in accordance with the Rules of 1998. The petitioner’s option, as claimed by him, was under the ACP, but actually it was under the scheme of law. The petitioner claimed that while his pay scale was fixed as Rs.12,500/-, the amendment notification dated 13.02.2009 was detrimental to his pay fixation and a recovery of Rs.42,428/- was sought to be made from the petitioner as a one time measure, due to such amendment. 8. The petitioner claimed that the newly inserted proviso disentitled the employees of the benefits of the ACP, under the Rules of 2008, while the ACP was already accorded in the existing proviso prior to 13.02.2009. This Court observes that the the case set up by the petitioner is that the promotion, upgradation and pay scales before 12.09.2008 were to be fixed in the Rules of 2008 w.e.f. 01.09.2006 and then the benefit should have been granted; whereas, effective date of the notification changed when the notification dated 13.02.2009 was issued, and the earlier benefits were sought to be recovered. 9. This Court observes that the running pay band and the grade pay given in Schedule I were to apply to the government servants, like the present petitioner, and they had an option to draw pay in the existing pay scales, until the new Rules became applicable. The Court further observes that the government had given an option vide the notification regarding higher pay scales in 2006 regarding the promotion/upgradation/pay scales/selection grades etc. The Court further observes that the government had given an option vide the notification regarding higher pay scales in 2006 regarding the promotion/upgradation/pay scales/selection grades etc. to elect and switch over to the running pay band and grade pay from the date of his promotion/upgradation/pay scales/selection grades etc. The notification dated 13.02.2009 has merely added a proviso for the employees, who wanted to take the benefit of determination of pay after getting promotion and selection grades on the basis of the notification dated 12.09.2008. 10. In this case, the respondents are justified in saying that after the petitioner had given an option for determination of the pay in accordance with the Rules of 2008 and in pursuance of notification dated 13.02.2009, then taking a circular or any advantage of the previously determined pay scale, was liable to be recovered. 11. The petitioner cannot keep his legs on two boats, either he could have chosen the option given in the Rules of 2008, in which further notification dated 13.02.2009 became relevant, or he could have taken the advantage of the previously determined pay scale, by re-depositing the excess amount claimed. The amendment in Rule 10 of the Rules of 2008 vide the notification dated 13.02.2009 is not for change of pay scale but it is for the date of determination of the pay after promotion or grant of selection grade, and there is no similarity between Rule 28 of the Rajasthan Service Rules, 1951 and the Rules of 2008. The benefit of the selection grade was payable to the employees of the State before the year 2008, but after enactment of the Rules of 2008, the financial upgradation was available as per the ACP Scheme. The Notification dated 13.02.2009 was issued for saving the employees from financial loss only, and he could have chosen his benefits between the selection grade and ACP Scheme, but in the present case, the petitioner seems to be trying to seek benefit of the notification dated 13.02.2009 on the basis of his previously determined pay scale, whereas, such benefit is not available to him as per the new Rules of 2008. 12. This Court is thus of the opinion that the petitioner had already obtained the benefits of revised pay scale from 15.04.2009, after availing first selection grade in the existing pay scale, this Court finds that his claim over such entitlement is not justified. 13. 12. This Court is thus of the opinion that the petitioner had already obtained the benefits of revised pay scale from 15.04.2009, after availing first selection grade in the existing pay scale, this Court finds that his claim over such entitlement is not justified. 13. This Court also observes that the notification dated 13.02.2009 is a clarification of the earlier laws and the part thereof sought to be struck down i.e. “In such cases 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”, cannot be struck down, as it is merely a choice given to all the employees, and once the petitioner has exercised the other choice, he has to deposit the excess amount in pursuance of the notification dated 13.02.2009. 14. In light of the aforesaid observations, this Court does not find it a fit case so as to grant any relief to the petitioner in the instant writ petition. 15. Consequently, the present writ petition is dismissed. All pending applications stand disposed of.