Rajasthan High Court - Jaipur
Dr Bhanwar Lal Gorsi vs State Of Raj And Ors on 1 April, 2019
Author: Ashok Kumar Gaur
Bench: Ashok Kumar Gaur
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writs No. 9649/2014
Dr Bhanwar Lal Gorsi S/o Shri Prem Singh Gorsi, aged about 64
years, B/c Gurjar (SBC), R/o 1/25, Housing Board Colony, Near
Bus Stand Sikar and now retired from the post of college lecturer
(Chemistry) from Govt. S.K. P.G. College, Sikar.
----Petitioner
Versus
1. State of Rajasthan through Secretary, Higher Education Govt.
of Rajasthan Secretariat, Jaipur.
2. Secretary Finance Department, Govt. of Rajasthan,
Secretariat, Jaipur.
3. Commissioner/Director, College Education Rajasthan, Jaipur.
4. Director, Pension & Pensioners Welfare Department, Rajasthan
Jaipur.
5. Principal, Govt. S.K. P.G. College, Sikar.
----Respondents
Connected With S.B. Civil Writs No. 9408/2014 Dr Sushma Kashyap W/o Shri S.S. Sharma, aged about 58 years, B/c Brahmin, R/o 1/6, Housing Board, Roadways Bus Depot, Sikar. Presently working on the post of College Lecturer (Hindi) at Govt. S.K. P.G. College, Sikar.
----Petitioner Versus
1. The State of Rajasthan through Secretary, Higher Education, Government Secretariat Rajasthan, Jaipur.
2. The Secretary Finance Department, Government of Rajasthan, Secretariat, Jaipur.
3. The Commissioner/Director College Education, Rajasthan, Jaipur.
----Respondents S.B. Civil Writs No. 8344/2017 Dr. Ramji Lal Chauhan S/o Hanumana Ram, aged about 60 years, B/c (SC), R/o Plot No. 204, Sawatri Sadan, 4-C Jamanapuri, Murlipura, Jaipur. Presently Working on the Post of Principal in his respective College.
(D.B. SAW/245/2021 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 06:46:06 AM) (2 of 10) [CW-9649/2014]
----Petitioner Versus
1. State of Rajasthan through Principal Secretary, Higher Education Govt. of Rajasthan, Secretariat, Jaipur.
2. The Commissioner, College Education and Ex-Office, Joint Secretary, Higher Education, Rajasthan, Jaipur.
3. The Joint Director (HRD) College Education, Rajasthan, Jaipur.
----Respondents S.B. Civil Writs No. 15101/2018 Smt. Usha Agrawal W/o Late Dr. Kamlesh Nandan Arya, aged about 62 years, R/o B-11, Girraj Colony, Inside Killa, Bharatpur.
----Petitioner Versus
1. State of Rajasthan, through the Additional Chief Secretary, Department of Higher Education, Govt. of Rajasthan, Secretariat, Jaipur.
2. The Commissioner, College Education, Dr. Radha Krishnan Shiksha Sankul, J.L.N. Marg, Jaipur.
----Respondents S.B. Civil Writs No. 11850/2018 Ramavatar Gupta S/o Shri Mangati Lal Gupta, aged about 62 years, R/o 2/32, Housing Board, Sawaimadhopur.
----Petitioner Versus
1. State of Rajasthan, through the Additional Chief Secretary, Department of Higher Education, Govt. of Rajasthan, Secretariat, Jaipur.
2. The Commissioner, College Education, Dr. Radha Krishnan Shiksha Sankul, J.L.N. Marg, Jaipur.
----Respondents S.B. Civil Writs No. 11851/2018 Satya Prakash Arya S/o Shri Surajmal Gupta, aged about 64 years, R/o Karamchari Colony, College Road, Gangapur City, District Sawaimadhopur.
----Petitioner Versus
1. State of Rajasthan, through the Additional Chief Secretary, Department of Higher Education, Govt. of Rajasthan, Secretariat, (D.B. SAW/245/2021 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 06:46:06 AM) (3 of 10) [CW-9649/2014] Jaipur.
2. The Commissioner, College Education, Dr. Radha Krishnan Shiksha Sankul, J.L.N. Marg, Jaipur.
----Respondents S.B. Civil Writs No. 11852/2018 Devi Singh S/o Shri Kalyan Singh, aged about 62 years, R/o Near Chakki, Adarsh Nagar-B, Sawaimadhopur.
----Petitioner Versus
1. State of Rajasthan, through the Additional Chief Secretary, Department of Higher Education, Govt. of Rajasthan, Secretariat, Jaipur.
2. The Commissioner, College Education, Dr. Radha Krishnan Shiksha Sankul, J.L.N. Marg, Jaipur.
----Respondents S.B. Civil Writs No. 11853/2018 Harlal Singh Meena S/o Shri Moolchand Meena, aged about 59 years, R/o 1/556, Housing Board, Sawaimadhopur.
----Petitioner Versus
1. State of Rajasthan, through the Additional Chief Secretary, Department of Higher Eduction, Govt. of Rajasthan, Secretariat, Jaipur.
2. The Commissioner, College Education, Dr. Radha Krishnan Shiksha Sankul, J.L.N. Marg, Jaipur.
---Respondents For Petitioner(s) : Mr. Lokendra Singh Shekhawat, Adv.
Mr. Tarun Choudhary, Adv.
For Respondent(s) : Mr. Aditya Sharma, Addl. Govt.
Counsel.
Mr. Zakir Hussain, Addl. Govt.
Counsel.
HON'BLE MR. JUSTICE ASHOK KUMAR GAUR Order 01/04/2019 Since all the writ petitions involve common issue, the petitions are decided by the common order. (D.B. SAW/245/2021 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 06:46:06 AM) (4 of 10) [CW-9649/2014] This Court may refer the facts pleaded in SBCWP No.9649/2014 as lead case.
The question involved in all the writ petitions is with regard to counting of temporary/ad-hoc services rendered by the petitioners prior to their regular appointment for the purpose of conferring the benefit of senior and selection scale in Career Advancement Scheme (CAS) introduced by the University Grant Commission.
The another relevant question involved in the writ petitions is with regard to considering the non-communication of APAR of the petitioners, same being as satisfactory and its impact on non- communication of satisfactory remark in APAR.
The petitioner in SBCWP No.9649/2014 was initially appointed on the post of Lecturer in chemistry subject on 20.08.1977. The petitioner thereafter was selected by the Public Service Commission in the year 17.08.1982. The petitioner was granted benefit of selection scale after completion of 13 years of service as the petitioner was Ph.D. holder and the State Government accordingly issued an order on the basis of Screening Committee held on 18.12.1995 and the petitioner was conferred benefit of selection scale w.e.f.17.08.1995.
The selection grade granted to the petitioner was revised by the respondents vide order dt.06.02.2014 and it was granted w.e.f.27.07.1998.
The petitioner has pleaded that by the impugned order dt.15.07.2014, the petitioner was granted benefit of selection scale from 27.07.1998 and he was not held entitled for selection scale from the year 1995 as the petitioner did not have (D.B. SAW/245/2021 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 06:46:06 AM) (5 of 10) [CW-9649/2014] consistently good service record and did not have requisite APAR for the relevant years.
The petitioner has pleaded that on account of orders issued by the State Government dt.06.02.2014 and dt.15.07.2014, the State Government also initiated process of recovery from the emoluments paid to the petitioner.
Mr. Lokendra Singh Shekhawat, Adv. and Mr. Tarun Choudhary, Adv. counsel for the petitioners have submitted that this Court in catena of cases has taken a view that if the satisfactory remarks in APAR are not communicated to the employee concerned, the same cannot be made basis for the purpose of denying grant of selection scale.
Learned counsel have further argued that counting of temporary/ad-hoc service prior to regular selection for the purpose of granting benefit under the CAS, has also been consistently held by this Court as well as Apex Court.
Learned counsel for the petitioners have placed reliance on an order passed at Principal Seat, Jodhpur in SBCWP No.5160/2009 [Vishveshwar Lal Choudhary Vs. State of Rajasthan & Anr.] on 08.09.2015. The view taken by the coordinate Bench was upheld by the Division Bench in D.B. Civil Special Appeal (Writ) No.199/2016 [The State of Rajasthan & Anr. Vs. Vishveshwar Lal Choudhary] decided on 30.03.2016. The relevant portion of the order passed by the Single Bench in SBCWP No.5160/2009 is reproduced hereunder:-
"In view of the above, it cannot be said that as the entries were not adverse they were not required to be communicated and, consequently, could be used against the petitioner for denying the Selection Scale.
(D.B. SAW/245/2021 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 06:46:06 AM) (6 of 10) [CW-9649/2014] In that view of the fact situation, where the petitioner has not been communicated the entries for the period 1986-1987 to 1992- 1993, the refusal of grant of Selection Scale based on such entries cannot be sustained.
It would be noticed that Hon'ble Supreme Court directed that the petitioner therein would be treated as fit and the matter cannot be remanded back for communication of the entries and for the petitioner to make representation against those entries on account of passage of two decades, in the present case also two decades have already passed, inasmuch as, the petitioner has retired in the year 1994.
In view of the above, the writ petition filed by the petitioner is allowed. The order dated 05.02.2009 (Annex.-18) passed by the respondents is quashed to the extent the grant of Selection Scale has been refused to the petitioner.
The respondents are directed to reconsider the grant of the Selection Scale i.e. the pay scale of 3700-125-4950-150-5700 to the petitioner w.e.f. 01.01.1994 with all consequential benefits within a period of two months, in light of the findings recorded hereinbefore.
No order as to costs."
The order of Division Bench passed in DB Civil Special Appeal (Writ) No.199/2016 (supra) is reproduced hereunder:-
"It is not in dispute that the criteria for promotion to the post concerned is seniority-cum- merit. Therefore, even if it is assumed that the ACRs concerned were only satisfactory, then too, that would not give any reason to ignore promotion to the petitioner, in view of the settled law that while considering the case of a person for promotion under the criteria of seniority-cum- merit, no comparative merit is required to be assessed. It is seniority that is to prevail when the person concerned possesses minimum merit to hold the post concerned.
In the case in hand, it is the position admitted that the criteria for grant of selection grade is the same, as applicable for promotion. The respondents, as such, while considering the case for grant of selection grade, are supposed to adhere to the same criteria, as applicable for promotion.
The respondent-petitioner is not having any such adverse remark, that would have affected his minimum merit. He is a person senior with satisfactory service record. In view of it, no reason was existing to deny selection grade, which is an (D.B. SAW/245/2021 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 06:46:06 AM) (7 of 10) [CW-9649/2014] alternative to promotion. The learned Single Bench, in our considered opinion, rightly accepted the petition for writ.
The appeal, being bereft of merit, is dismissed."
This Court in SBCWP No.2569/2004 [Shree Krishan Agrawal Vs. State of Rajasthan & Ors.] decided vide order dt.03.01.2017 followed the same aforesaid judgment and the benefit was conferred of selection scale.
This Court in SBCWP No.7218/2018 [Deep Chand Gupta Vs. State of Rajasthan & Anr.] had taken similar view while passing order dt.08.08.2018. The relevant portion of the order passed in SBCWP No.7218/2018 (supra) is reproduced hereunder:-
"This Court following the orders passed in the case of Dr. Pooran Chaudhary Vs. State of Rajasthan & Ors.) (Supra) & (Shree Krishan Agarwal Vs. State of Rajasthan & Ors.) (Supra), allows the instant petition and set aside the order passed by the respondents on 4th April, 2014 (Annex. 3). The respondents are directed to consider the entire service rendered by the petitioner from the year 1977 for the purpose of Selection scale, by ignoring the remarks of satisfactory in APARs. Accordingly, the writ petition stands allowed. The consequential orders may be passed within a period of four weeks, from the date of receipt of certified copy of this order."
Mr. Aditya Sharma, Dy. Govt. Counsel and Mr. Zakir Hussain, Addl. Govt. Counsel have submitted that the coordinate Bench in SB Civil Review Petition (Writ) No.422/2017 [Dr. Chitra Arora Vs. State of Rajasthan & Ors.] has allowed the review petition and set aside the order passed for granting of benefit of selection scale and the requirement of consistently having good record was changed to consistently satisfactory performance w.e.f. 27.07.1998.
(D.B. SAW/245/2021 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 06:46:06 AM) (8 of 10) [CW-9649/2014] Learned counsel on the strength of the said judgment has submitted that if the petitioners did not have consistently good record and their service record reflected satisfactory performance, the same cannot be substituted by consistently good record.
Learned counsel has argued that the petitioners in all the petitions, were not having requisite record for giving them benefit of selection grade and as such no benefit can be conferred.
I have heard both the learned counsel and perused the material available on record.
This Court finds that the view taken in the case of Vishveshwar Lal Choudhary (supra) and the same being approved by the Division Bench in DB Civil Special Appeal (Writ) No.199/2016, the employees have been held entitled for grant of selection scale even if they had satisfactory record.
This Court further finds that non-communication of satisfactory record has also been considered in the case of Vishveshwar Lal Choudhary (supra) and as such the benefit cannot be denied to an employee if the adverse remark in APAR of satisfactory performance is not communicated.
This Court further finds that in the case of Shree Krishan Agrawal (supra), Deep Chand Gupta (supra) and in the case of SBCWP No.8145/2017 [Dr. (Mrs.) Gunmala Jain Vs. State of Rajasthan & Anr.] and other connected writ petitions, the coordinate Bench has taken a view that the employees are entitled for grant of selection scale after reckoning their period of temporary service and cannot be deprived only on account of having satisfactory remark in their APAR.
This Court finds that the case referred by counsel for the respondents in SB Civil Review Petition (Writ) No.422/2017, does (D.B. SAW/245/2021 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 06:46:06 AM) (9 of 10) [CW-9649/2014] not deal with the situation which is involved in the present bunch of petitions. The issue of non-communication of satisfactory remark in APAR was not before the coordinate Bench in the review petition and further counting of temporary service for the purpose of grant of selection scale in CAS was also not an issue before the coordinate Bench.
This Court finds that the objection raised by learned counsel for the respondents for the relief claimed by the petitioners, is no more res-integra in view of several pronouncements of this Court as well as Apex Court for counting of temporary service of an employee rendered prior to regular selection by the Public Service Commission and the Apex Court in the case of [State of Rajasthan & Anr. Vs. Milap Chand Jain & Anr.] reported in (2013) 14 SCC 562 has already decided the controversy with respect of grant of selection grade to the Lecturers who were initially appointed on ad-hoc/temporary basis and later on came to be appointed by regular method.
This Court following the law laid down by the coordinate Bench as well as approved by the Division Bench, considers it appropriate to allow the writ petitions filed by the petitioners. The respondents are directed to count services of the petitioners rendered by them prior to their regular appointment for the purpose of senior selection scale and for selection scale and the respondents may not insist for having the consistently good service record for the purpose of grant of benefit under the CAS as the action of the respondents of possessing the consistently good service record is not found tanable in view of non-communication of satisfactory remarks in APAR to the petitioners. (D.B. SAW/245/2021 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 06:46:06 AM) (10 of 10) [CW-9649/2014] The required exercise of granting benefit to the petitioners may be carried out by the respondents within a period of six weeks after receipt of copy of this order and accordingly all the writ petitions stand allowed.
Copy of this order may be placed in each file.
(ASHOK KUMAR GAUR),J A.Kumar/74 (D.B. SAW/245/2021 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 06:46:06 AM) Powered by TCPDF (www.tcpdf.org)