Rajasthan High Court - Jodhpur
Chandra Prakash Assudani vs State Of Rajasthan (2024:Rj-Jd:39785) on 24 September, 2024
Author: Farjand Ali
Bench: Farjand Ali
[2024:RJ-JD:39785]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 7810/2020
1. Chandra Prakash Assudani S/o Shri Nanak Ram, Aged
About 45 Years, Resident Of Shastri Nagar Colony, Ward
No. 32, Balotara, Barmer.
2. Shaitan Dan Charan S/o Shri Sagardan Charan, Aged
About 43 Years, Resident Of Rewara Bharthan, District
Barmer.
3. Chandra Shekhar S/o Shri Sohan Singh, Aged About 51
Years, Resident Of 1229, Sampuran Gonw, Pachapadra
City, District Barmer.
4. Prakash S/o Shri Kuna Ram, Aged About 42 Years,
Resident Of Kumharon Ka Bas, Panchpadra City, District
Barmer.
----Petitioners
Versus
1. State Of Rajasthan, Through The Director, Elementary
Education, Bikaner.
2. Director, Elementary Education, Bikaner.
3. The District Education Officer (Headquarter), Elementary
Education, Barmer.
4. The Zila Parishad Barmer, Through Its Chief Executive
Officer.
5. Peeo Cum Principal, Govt. Sr. Sec. School, Bagawas,
Patodi, District Barmer.
6. Peeo Cum Principal, Govt. Sr. Sec. School, Simarkhinya,
Patodi, District Barmer.
----Respondents
For Petitioner(s) : Mr. Kailash Choudhary
For Respondent(s) : Mr. Digvijay Sodha for
Mr. Kamlesh Sharma, AGC
HON'BLE MR. JUSTICE FARJAND ALI
Order 24/09/2024
1. The petitioner has claimed for the following relief:-
"(a) By an appropriate writ, order or direction, impugned orders dated 17.08.2020, 18.08.2020 and 20.08.2020 (Annexure 4) may kindly be declared illegal and be qaushed and set aside and further, the respondents be directed not be effort recovery from the petitioner and the respondents be further directed to (Downloaded on 26/09/2024 at 08:53:09 PM) [2024:RJ-JD:39785] (2 of 9) [CW-7810/2020] treat the period of probation of the petitioner w.e.f. 01.010.2008.
(b) By an appropriate writ, order or directions, the respondents be directed to grant full salary to the petitioner during the period of probation in light of the judgment in the case of Gopal Kumawat and revise the pay accordingly.
(c) By an appropriate writ, order or directions, the respondents be directed to give arrears of salary with interest @ 18% per annnum from the date the same became due till the date of payment."
2. The present dispute arises out of the recruitment process initiated by the Panchayat Raj Department in the year 2012-2013 for the post of Teacher Grade-III. The petitioners being eligible, participated in the selection process in question and were consequentially given appointments. Counsel for the petitioners has shown the judgment passed by this Court in the matter of Dal Chand Jat Vs. State of Rajasthan and Ors.:SB Civil Writ Petition No. 19924/2017 delivered on 13.11.2017, in which the judgment of Hemlata Shrimali & Ors. Vs. State of Rajasthan and Ors. (SB Civil Writ Petition No. 3247/2015) has been followed. Learned counsel has next taken this Court to the judgment of Hemlata Shrimali (supra) passed by this Court in decided on 01.04.2015 and operative portion of the said order reads as follows:
"10. The learned counsels for the petitioners have not disputed the above stated facts mentioned in the reply filed by the respondents. They have also not disputed that as per the decision of the Division Bench which is under challenge before the Supreme Court, the petitioners are not eligible to be considered for the posts of Teacher Gr.III (Level I and Il), they having possessed (Downloaded on 26/09/2024 at 08:53:09 PM) [2024:RJ-JD:39785] (3 of 9) [CW-7810/2020] less than 60% marks in RTET. In the opinion of the Court, the respondents therefore were justified in issuing the press notes calling only those candidates who had secured 60% or more marks in RTET, for verification of the documents.
11. It is pertinent to note that the respondents have prepared the merit lists in question for the appointment on the post of Teacher Gr.III(Level I and II) for various subjects, subject to the final outcome of the SLP, which is pending before the Apex Court, and accordingly have also reserved the posts for the candidates falling in above stated category 'Y' and 'Z', at the relevant place in the merit list, securing their rights, if the decision of the Apex Court ultimately is found to be beneficial to them.
12. In view of the above, it is directed that the respondents shall be at liberty to proceed further with the selection and appointment of those meritorious candidates, who have secured 60% or more marks in RTET, which appointments will be subject to the final outcome of the decision of the Apex Court in SLP No.23178-23182/2013. It is clarified that if the candidates belonging to the 'Y' and 'Z' categories stated hereinabove are found eligible as per the decision of the Apex Court in SLP referred above, they shall be given notional benefits including the benefit of seniority, but not the monetary benefits.
13. With the above stated directions, all the petitions stand disposed of. By this order, the stay applications and other pending application, if any also stand disposed of. A copy of this order be placed in each connected files."
3. Counsel for the petitioners has also drawn attention of this Court to the order passed by this Court in the case of Leela Ram Parmar and Ors. Vs. The State of Rajasthan and Ors., decided on 24.05.2017, the relevant part of which reads thus:
"Undeniably, the petitioners have already been accorded appointment. However, State-respondents have declined seniority and other benefits to the petitioners from the (Downloaded on 26/09/2024 at 08:53:09 PM) [2024:RJ-JD:39785] (4 of 9) [CW-7810/2020] date the petitioners became entitled on account of revision of the result while candidates lower in merit to the petitioners have been accorded those benefits. Thus, the petitioners have claimed benefit of pay fixation and seniority on notional basis from the date juniors to the petitioners, have been accorded in the same recruitment process of the year 2013.
Accordingly, the State-respondents are directed to extend the benefit of pay fixation and seniority on notional basis to the petitioners from the date juniors) to the petitioners) has/have been accorded with reference to the same recruitment process of the year of 2013."
4. Counsel for the petitioners thus raised a limited contention that State respondents were under legal obligation to extend the benefit of pay fixation and seniority on notional basis to the petitioners from the date, the similarly situated persons selected in the same recruitment process of the year 2012-13 have been granted.
5. Counsel for the petitioners has demonstrated to this Court on the strength of the aforesaid judgment that all the three categories of candidates which are named 'X', 'Y' and 'Z' wherein category 'X' obtained 60% marks or above marks in TET Examination, category 'Y' candidate secured 55% marks or above but less than 60% marks and 'Z' category of candidates treated pass in TET Examination (2011-2012) on the basis of order dated 23.03.2011, issued by the State Government although having not secured 55% marks (secured less than 55% marks) have been found to be eligible as per the law laid down by Apex Court, and therefore, they are entitled to all the benefits notionally, including seniority but not the monetary benefits. Counsel for the (Downloaded on 26/09/2024 at 08:53:09 PM) [2024:RJ-JD:39785] (5 of 9) [CW-7810/2020] petitioners has also drawn attention of this Court to the judgment of Gopal Kumawat Vs. State of Rajasthan & Ors: DB Civil Writ Petition No. 2963/2007 decided on 29.07.2015, relevant part of which is reproduced hereinbelow for ready reference:
"33. We find the practice of payment of fixed remuneration without any allowances and benefit of increments to the probationers, who were appointed after adopting the regular selection process, on substantive posts, or even after following the selection process on adhoc basis, as well as all those employees who are appointed on substantive posts, to be wholly illegal and arbitrary, and pernicious practice of forced labour.
34. We find no justification for the State Government, to adopt the practice of paying fixed remuneration to the probationers, which is not prevalent, either in the Central Government, or in any other States in the country. The Government of Rajasthan has adopted this evil practice of forced labour for its employees, taking advantage of the attraction of the Government service.
The Notifications dated 13.03.2006, amending the Rules, are thus, declared to be unconstitutional, being violative of Article 14, 16, 21, 23 and 38 of the Constitution of India, and against the conscience of the Constitution of India.
35. The writ petition is allowed. The Notification dated 13.03.2006, amending the Rajasthan Service Rules, 1951, and the Notification of the same date i.e. 13.03.2006, amending the Rajasthan Civil Services(Revised Pay Scale) Rules, 1998- Fixed remuneration to probationer trainees, are hereby quashed. The State-respondents are directed to pay the entire differential amount of regular pay scale and allowances to the petitioner, after deducting the amount of fixed remuneration paid to him during the period of probation.(Downloaded on 26/09/2024 at 08:53:09 PM)
[2024:RJ-JD:39785] (6 of 9) [CW-7810/2020]
36. Now since by this judgment, we have declared the Notification dated 13.03.2006, amending the Rajasthan Service Rules, 1951, and the Notification of the same date i.e. 13.03,2006, amending the Rajasthan Civil Services(Revised Pay Scale) Rules, 1998- Fixed remuneration to probationer trainees, to be unconstitutional and consequently quashed the same, we direct that the State Government shall, pay to all its employees, appointed on regular or adhoc basis under the statutory Rules on substantive posts, except the employees appointed on contract, daily rated or work charged employees, regular pay in time scale along with all allowances including Special Pay, Dearness Pay, Dearness Allowance, House Rent Allowance, City Compensatory Allowance, Non-Practicing Allowance, Non- Clinical Allowance. Rural Allowance, Project Allowance, Mess Allowance, Washing Allowance or any other allowance, as are admissible to a confirmed employee in the same department. The payment of these allowances will not be dependent upon the period of probation, or successful completion of the period of probation. The probationer trainees will also be entitled to deductions towards General Provident Fund(GPF), State Insurance, and Travelling Allowance, as are admissible and payable to the regular employees. They shall also be entitled to annual grade increments for the period of probation, after confirmation and Casual Leave, as in the case of other regular employees."
6. The counsel for the petitioners has thereafter also submitted that any payments made in conformity with the aforesaid orders of this Court have to be sustained by the respondents themselves and the respondents cannot now at this stage go back on their stand and try to wriggle out of their commitment to give notional benefits alone. Counsel for the petitioners has shown the order dated 26.11.2018 in which the respondents have decided that all (Downloaded on 26/09/2024 at 08:53:09 PM) [2024:RJ-JD:39785] (7 of 9) [CW-7810/2020] the benefits of pay fixation and seniority have to be given notionally and the actual payment shall be given only from the date of joining.
7. Learned counsel for the State-respondents has vehemently opposed the submissions and submits that Rule 8 of the Rajasthan Service Rules, 1951 (for short 'RSR Rules') provides for a probation of two years on fixed remuneration and thereafter minimum of pay scale is allowed for the persons whose probation training is completed.
Rule 8 of RSR reads thus:
"8. Notwithstanding anything contained in any rules all appointments in Government service on or after 20.1.2006 shall be made as a probationer trainee for a period of 2 years and during the period of probation training, he/she will be paid fixed remuneration at such rates as may be prescribed by the Government from time to time. After successful completion of probation training he/she will be allowed minimum pay in the pay scale of the post and the period of probation training shall not count for grant of annual grade increment(s)."
8. Counsel for the respondents has also taken us to Rule 24 of RSR Rules in which it is envisaged that the pay of an employee shall not exceed as to pay of the post. Rule 24 reads thus:
"24. Pay not to exceed pay of the post-A person appointed in Government service to a post on a time scale of pay shall draw as initial pay the minimum of the scale or at such stage as may be prescribed or approved by the Government provided it shall not exceed the pay sanctioned by the competent authority for the post held by him. No special or personal pay shall be granted to a Government servant without the sanction of Government."(Downloaded on 26/09/2024 at 08:53:09 PM)
[2024:RJ-JD:39785] (8 of 9) [CW-7810/2020]
9. Counsel for the respondents has strenuously harped on the issue that under no circumstances, actual payment can be made to the petitioners for the period they have not rendered any services and actual payment would be applicable to the petitioners only from the date of joining. Counsel for the respondents further submits that the probation period of two years has to be taken into consideration while computing benefits to the petitioners.
9. After hearing counsel for the parties and perusing record of the case, this Court finds that the purport of the case law mentioned above are that the petitioners, who were equally entitled and eligible to be appointed on the post of Teacher Gr.-III where out of advertisement of 2012-2013 at level I and level II for various subjects are to be treated at par with each other. The discrimination on account of joining duties due to various bone of contentions relating to eligibility and qualifications have been nullified by aforesaid judgments, including in the case of Hemlata Shrimali (supra) and since all the candidates who are now found eligible and as per existing case law and the judgments of the Apex Court, they have to be treated at par with each other. There cannot be any doubt regarding expressions made by this Court in the previous litigation that these all the petitioners who stand in merit and who have qualified 2012-2013 recruitment for the post of Teacher Grade-III would be entitled for the notional benefits for the purpose including pay fixation and seniority from the date their equivalent or lesser merit person in that phase of recruitment was given such benefits. This Court also finds that focal averment raised by the respondents that no monetary (Downloaded on 26/09/2024 at 08:53:09 PM) [2024:RJ-JD:39785] (9 of 9) [CW-7810/2020] benefits can be accorded to the petitioners for the period when they were not actually discharging services, is also consistently answered in the precedent of law laid down by this Court. Thus, taking strength from the same precedent of law as cited by counsel for the parties, this petition is disposed of with a direction to the respondents that petitioners shall be paid the notional benefits, including benefits of seniority and pay fixation from the stage when the appointment of persons at the same or lesser merit were appointed. However, no monetary benefits where the petitioners not having discharged actual services would be payable.
10. Needless to say that any notional fixation or any notional benefits which has resulted into current payment and current position where the petitioners are discharging their services, shall not be recovered and shall be continued to be paid.
11. In view of the aforesaid, it is directed that no recovery in line with the aforesaid observations be made from the petitioners.
(FARJAND ALI),J 107-Samvedana/-
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