Rajasthan High Court - Jaipur
Omprakash Barsiwal S/O Ram Lal Barsiwal vs The State Of Rajasthan ... on 18 April, 2024
Bench: Manindra Mohan Shrivastava, Bhuwan Goyal
[2024:RJ-JP:18135-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D. B. Civil Reference No. 7/2020
In
S. B. Civil Writ Petition No. 21266/2018
Omprakash Barsiwal
----Applicant-Petitioner
Versus
State of Rajasthan & Others.
---Non-Applicants-Respondents
For Applicant : Mr. Hemant Taylor Advocate with Mr. Puneet Advocate.
For Respondents : Mr. Hardik Singh Advocate on behalf of Mr. Basant Singh Chhaba Additional Advocate General.
HON'BLE THE CHIEF JUSTICE MR. MANINDRA MOHAN SHRIVASTAVA HON'BLE MR. JUSTICE BHUWAN GOYAL Order 18/04/2024
1. Heard.
2. Learned Single Judge vide its order dated 19.12.2018 has referred the following questions for consideration by the Larger Bench:
"(i) Whether a person who has been given additional charge of higher post in his own pay scale, would be entitled for regular pay scale from the said date in spite of the fact that he has been promoted on regular basis subsequently by DPC against the subsequent year and
(ii) Whether the view taken by the Coordinate Bench in "Champalal Vyas Vs. State of Rajasthan & Others Writ Petitions" S.B. Civil Writ Petition No. 6881/2015 and other writ petitions lays down the correct law in light of the rules quoted hereinabove."
3. At the outset, learned counsel for the applicant-writ petitioner would submit that the order passed by the Court in the Case of Champalal Vyas Vs. State of Rajasthan & Others (S.B. Civil (Downloaded on 23/04/2024 at 08:41:27 PM) [2024:RJ-JP:18135-DB] (2 of 3) [CREF-7/2020] Writ Petition No. 6881/2015 and other writ petitions), which led to reference, was challenged by the State in D.B. Special Appeal (Writ) No. 912/2019, State of Rajasthan Vs. Champalal Vyas.
4. The Division Bench of this Court at Principal Seat at Jodhpur in the aforesaid case held as below:
"11. It is evident on a plain reading of Rule 28 (1) that the competent authority can resort to officiating appointments in a temporary capacity by filling "eligible officials and employees" who are in the line of promotion to the higher post. Undoubtedly, the power to resort to such temporary arrangements exists. At the same time, it is also evident that such temporary arrangements are conditional and the State cannot exceed one year limit specified in the proviso. Crucially, only employees eligible for promotion can be asked to officiate. Rule 28(2) speaks of a specific situation which is that in the event of non-availability of suitable persons fulfilling the requirement for promotion, the State can resort to temporary appointment from even those ineligible. Read in the context of Rule 28(1) this can only mean that in the absence of those eligible for appointment on temporary basis, the procedure under Rule 28(2) can be resorted to. In the present case, there in no dispute that Rule28(2) could not have been resorted to; the writ petitioners were in-fact eligible for promotion. They were indeed promoted subsequently in respect of the same vacancy years, applicable from the time they were made to function on officiating capacity. That apart, Rule 28(2) which the State relies upon, speaks of "general instruction" which would govern the grant of promotion till the vacancies and the manner in which pay and allowances are to be given to such temporary officials. In the present case, the State has not produced any general instructions but rather relies upon specific orders dictating the terms upon which the petitioners were made "temporarily" for a period of three years work as Principals.
12. In the light of the above discussion, this Court is of the opinion that no exception can be taken to the learned Single Judge's directions given that all the petitioners were eligible at the time when they were given temporary appointment; they did not fulfill the description or fall within the exception of Rule 28(2) and most importantly all of them were eligible and could have been promoted with effect from the date they were made to officiate temporarily as Principals. But for the fact that (Downloaded on 23/04/2024 at 08:41:27 PM) [2024:RJ-JP:18135-DB] (3 of 3) [CREF-7/2020] no DPC was held, all of them were subsequently selected through regularly constituted DPC. In these circumstances the denial of salary and all benefits to them from the date of their initial temporary appointment (having regard to their subsequent selection and appointment on regular basis against the vacancies for the earlier period), could not but be held to be arbitrary."
5. Thus, it is clear that the issue raised in this reference application already stands answered by the Division Bench of this Court at Principal Seat at Jodhpur in the case of State of Rajasthan Vs. Champalal Vyas (supra).
6. Accordingly, as the issue stands resolved, it is not necessary for this Court to answer the reference made by the learned Single Judge.
7. Reference Application stands disposed of accordingly.
8. Let the matter be listed before the learned Single Judge for decision of the writ petition.
(BHUWAN GOYAL),J (MANINDRA MOHAN SHRIVASTAVA),CJ MANOJ NARWANI /19 (Downloaded on 23/04/2024 at 08:41:27 PM) Powered by TCPDF (www.tcpdf.org)