Rajasthan High Court - Jaipur
State Of Rajasthan vs Hari Narain Sharma S/O Shri Rameshwar ... on 14 December, 2021
Bench: Akil Kureshi, Uma Shanker Vyas
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Special Appeal Writ No. 386/2020
1. State Of Rajasthan, Through Secretary, Public Works
Department, Government Of Rajasthan, Secretariat
Jaipur.
2. Chief Engineer, Public Works Department, Rajasthan,
Jaipur.
3. Superintending Engineer, Pwd Mech, Circle Jaipur.
----Appellants
Versus
Hari Narain Sharma S/o Shri Rameshwar Lal Sharma, Aged
About 41 Years, Resident Of Charan Nadi, Near Govt. School,
Nadi Ka Phatak, Benar Road, Jhotwara, Jaipur.
----Respondent
For Appellant(s) : Mr. Rajesh Maharshi, AAG For Respondent(s) : Mr. P.C. Sharma HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON'BLE MR. JUSTICE UMA SHANKER VYAS Order 14/12/2021 This appeal is filed by the State Government to challenge the judgment of the learned Single Judge dated 14.11.2019 in Civil Writ Petition No.8459/2002. Brief facts are as under:-
Respondent-original petitioner was working as stenographer in the State service. The State Government issued a notification on 16.04.1990 (hereinafter to be referred as 'the first notification') promulgating Rajasthan Civil Services (Revised Pay Scales) Rules, 1990. By virtue of these rules, the Rajasthan Civil Services (Revised Pay-Scales) Rules, 1987 came to be amended. One of the amendments pertains to the Stenographers where the pay (Downloaded on 18/12/2021 at 09:10:49 PM) (2 of 7) [SAW-386/2020] scale was Rs.1140-2250. This amended rule also envisaged grant of two additional increments to the stenographers subject to certain conditions relevant portion of which reads as under:-
(a) Stenographer 1140-2250(11) (i).................
(ii) Persons holding the post of Stenographer/Personal Assistant/Sr. Personal Assistant/Private Secretary as on 1.4.1987 and who were appointed to the post of Stenographer on (a) Passing qualifying tests both in Hindi & English Stenography and typing conducted by the Rajasthan Public Service Commission or (b) passing qualifying test either in Hindi or English Stenography and typing conducted by the Rajasthan Public Service Commission and have passed one of the Courses/tests of Stenography and typing in second language (Hindi or English only), of the Courses/tests enumerated in the Note given below or......
(4) have undergone the Course/Training, as the case may be, of eight months duration in Stenography conducted by the Bhasha Vibhag or O&M Department (now Administrative Reforms Department).
These amendments were given effect from 01.04.1987. As per this notification thus the stenographer will be granted two additional increments if he has successfully undergone a course/training of eight months duration in stenography conducted by Bhasha Vibhag or O & M Department. The petitioner was sent (Downloaded on 18/12/2021 at 09:10:49 PM) (3 of 7) [SAW-386/2020] for such training on 01.05.1990 and completed the training on 31.12.1990. Certificate of having passed the training was issued on 15.02.1991.
In quick succession of the first notification, the State Government issued a new notification dated 18.05.1990 (hereinafter to be referred to as 'the second notification') under which the Rajasthan Civil Services (Revised Pay Scales) (Forty sixth Amendment) Rules, 1990 were promulgated. The amendment took effect from 01.09.1988. The stenographers were placed in the pay scale of Rs.1400-2300. Regarding grant of two increments these rules envisaged as under:-
(a) Stenographer 1400-2300 (10) (i)................
(ii) Persons holding the post of Stenographer/Personal Assistant/Senior Personal Assistant/Private Secretary or who maybe appointed to these posts on passing qualifying tests either in Hindi or English Stenography and typing, conducted by Rajasthan Public Service Commission shall be granted two advance increments with effect from the date they pass qualifying test of Stenography and typing test in the second language (Hindi or English only) conducted by the Rajasthan Public Service Commission.
Note:- Advance increments as above shall be granted only once in the entire service.
The petitioner was granted the increments by an order dated 15.05.1991 in terms of the first notification dated 16.04.1990. (Downloaded on 18/12/2021 at 09:10:49 PM)
(4 of 7) [SAW-386/2020] On 08.11.2002 the State Government issued an order communicating to the petitioner that the action of grant of two increments was erroneous since the petitioner did not fulfill the conditions of the second notification dated 18.05.1990. As per this notification the petitioner had to pass the test that may be conducted by the Department. The increments granted are therefore required to be withdrawn with consequential effect.
The petitioner thereupon approached the High Court by filing the above mentioned petition and in which the Court stayed the said communication dated 08.11.2002. The petition came to be disposed of by the learned Single Judge by the impugned judgment. The learned Judge was of the opinion that as per the first notification dated 16.04.1990 the amendment in the pay rules was to take effect from 01.04.1987. The petitioner was therefore entitled to two increments with effect from 01.04.1987. Subsequent notification dated 18.05.1990 which amended the pay rules would not change this position. The petition was disposed of with following directions:-
"Thus, the order dated 8.11.2002 is quashed and set aside. Further the Department is directed to make revision of pay of the petitioner by revising the order dated 15.5.1991 and granting two increments to the petitioner under the pay scale Rules of 1987 w.e.f. 1.4.1987, thereafter revised his pay accordingly under Rajasthan Civil Services (Revised Pay Scale) Rules, 1989 onward. However if any excess payment is found to have been made, the same shall not be recovered. This exercise shall be conducted within a period of 3 months."
The State Government has challenged the said judgment in this appeal. Learned Government counsel clarified that this appeal is confined to the directions pertaining to the increments and pay (Downloaded on 18/12/2021 at 09:10:49 PM) (5 of 7) [SAW-386/2020] fixation and not against the recovery of the salary already paid. We have therefore looked in the appeal from this angle.
Having heard learned counsel for the parties and having perused the documents on record, in our opinion the learned Single Judge has committed a few legal errors which are required to be corrected. As noted, under the first notification dated 16.04.1990 the State Government while prescribing the pay scale of Rs.1140-2250 for stenographers, also made available the benefit of two advance increments to those stenographers who undergo a course or training of eight months duration which may be conducted by the Department. Though these amendments were given retrospective effect from 01.04.1987, the petitioner who had not undergone the training as on that date, in any case cannot claim advance increments from 01.04.1987. Giving retrospective effect to an amendment in the pay rules is different from claiming benefit as per such amendments without satisfying the requirement of advance increments. The learned Single Judge therefore when provided that the petitioner would get two advance increments form 01.04.1987, committed an error since on that date the petitioner had not even completed the training which was a pre-condition for grant of advance increments.
Further, as noted soon after issuance of the first notification, the Government had issued second notification on 18.05.1990. These rules also made amendments in the Pay Rules of 1987. Relevant features of these amendments were that the stenographers' pay was enhanced to Rs.1400-2300.
The condition for grant of two additional increments was changed to passing of a test in Hindi language that may be conducted by the Rajasthan Public Service Commission. These (Downloaded on 18/12/2021 at 09:10:49 PM) (6 of 7) [SAW-386/2020] changes would be effective from 01.09.1988. In this area thus the amendments under the first notification dated 16.04.1990 stood superseded. Significantly while granting two increments to the petitioner the State Government had fixed his pay in the scale of Rs.1640-2900. This was not the scale of stenographers even as per the revised pay structure under the second notification. Under the second notification as noted, the pay scale prescribed for stenographers was 1400-2300. The learned Judge also noticed this dichotomy.
The petitioner cannot claim the benefit of pay fixation under the second notification while seeking benefit of grant of advance increments as per the first notification. If the pay of the petitioner was fixed in terms of the revised pay scales prescribed under the second notification, his right for being granted two increments also had to be governed as per the terms and conditions provided in the said notification.
Under the circumstances we do not find any error in the action of the Government in withdrawing two increments wrongly granted to the petitioner under order dated 15.05.1991. However for multiple reasons recovery pursuant to such correction in his pay fixation cannot be permitted. Firstly the Government has not filed appeal against the directions for not carrying out any recovery. Secondly there was no misrepresentation on the part of the petitioner which led to this error. Thirdly the error which was committed in the year 1991 was sought to be corrected more than ten years later. Lastly the petitioner has by now retired. It would be inequitable to permit recovery from a retired Government servant under the above noted circumstances. (Downloaded on 18/12/2021 at 09:10:49 PM)
(7 of 7) [SAW-386/2020] In the result appeal is disposed of with the following directions:-
(i) The impugned order dated 08.11.2002 ordering withdrawal of two increments granted to the petitioner is upheld. The pay of the petitioner would be accordingly re-fixed. However the pay scale of Rs.1640-2900 which has been granted to the petitioner would not be withdrawn since this aspect even the Government has not questioned.
(ii) The re-fixation of the pay of the petitioner would have only prospective effect. In other words on the basis of such exercise it would not be open for the Government to recover any amount from the petitioner towards the past salary payments.
(iii) At this stage learned Advocate for the petitioner stated that because of the pending controversy the petitioner's pensionary benefits have not been released though the petitioner retired with effect from 30.09.2021. Now that the dispute about the petitioner's pay fixation has been resolved, it is expected that the department shall release his pensionary benefits without any further delay.
(UMA SHANKER VYAS),J (AKIL KURESHI),CJ Kamlesh Kumar/N.Gandhi/16 (Downloaded on 18/12/2021 at 09:10:49 PM) Powered by TCPDF (www.tcpdf.org)