Rajasthan High Court - Jodhpur
State Of Rajasthan vs Champalal Vyas on 31 July, 2019
Author: S. Ravindra Bhat
Bench: S. Ravindra Bhat, Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
(1). D.B. Special Appeal (Writ) No. 821/2019
The State Of Rajasthan
----Appellants
Versus
Laxmi Narayan Soni
----Respondent
(2). D.B. Special Appeal (Writ) No. 233/2019
State of Rajasthan
----Appellant
Gopal Das Soni
-----Respondent
(3). D.B. Special Appeal (Writ) No. 912/2019
State of Rajasthan
-----Appellant
Champalal Vyas
----Respondent
For Appellant(s) : Mr. Hemant Choudhary.
HON'BLE THE CHIEF JUSTICE S. RAVINDRA BHAT
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Reportable Judgment 31/07/2019 Per S. Ravindra Bhat, CJ:
1. The State's appeal is directed against an order of the learned Single Judge. By the impugned order, the learned Single Judge directed the appellant-State to grant pay-scales applicable to the regular post of Principal, from the date they were asked to perform the duties of Principal i.e. 30.11.2009, 20.09.2010 and 23.10.2009 respectively.
2. The facts are that the writ petitioners were initially recruited as Lecturer, School Education, after selection to that post by the Rajasthan Public Service Commission. They all were - after some length of time, eligible for promotion to the post of Principal, (Downloaded on 02/09/2019 at 12:56:23 AM) (2 of 8) [SAW-821/2019] Senior Secondary School. The State did not, for various reasons (disclosed to the Court), constitute any Departmental Promotion Committee(DPC) for that purpose. The promotional process therefore got unduly delay. In these circumstances, the Director, Secondary Education direct the posting of the petitioners in their existing Pay Band and Grade Pay, as Principal. Relevant details of the petitioners, with respect to such arrangements are extracted in tabular fashion as follows:
Name Date of Initial Posting as Date of Patey
Appointment as Principal in Vetan order
Lecturer-School existing Pay (Exchange
Education Band and arrangement on
Grade Pay - same post)
Patey Vetan
(Pay Scale
No.17)
Champalal Vyas 22.01.1985 820-1550 16.10.2009
Gopaldas Soni 10.10.1984 820-1550 16.10.2008
Laxmi Narayan 22.01.1985 820-1550 16.10.2009
3. It is not in dispute that all the writ petitioners discharged the duties and responsibilities of the post of Principal continuously from the dates they were made to so function, against those vacancies. Eventually, after following the regular process and considering the recommendations of duly constituted DPC, they were promoted by an order dated 06.05.2013. The promotional vacancies in the case of two of the petitioners were of 2008-09 and in the case of one of the petitioners it was 2010-11.
4. Complaining that the pay fixation resorted to by the State was wrong, as they were given pay scales as Principals only from the date when the petitioners were actually promoted on 06.05.2013, (instead from dates they were asked to perform the (Downloaded on 02/09/2019 at 12:56:23 AM) (3 of 8) [SAW-821/2019] duties and responsibilities of Principal), a common writ petition was preferred. In the writ petition, it was argued that after having been made to function as Principal and discharge the duties and responsibilities attached to it, (which included administrative, financial and supervisory responsibilities) and assigned to them, they ought to have been granted the pay-scales - from the date they joined in 2008-09 instead of their fixation of the pay-scale of Principal from the date of their regular promotion on 06.05.2013.
5. The State had defended its position contending that when appointed the writ petitioners were expressly told that they were asked to function, as Principal in their existing pay-scale and were entitled to that existing pay and pay band. In fact the State had to resort to such urgent temporary arrangements because of the delay in constitution of the DPC. It was submitted that the writ petitioners could not claim the higher pay for merely having discharged the responsibilities for a certain period. The State argued that the working arrangements were in conformity with law and Rule 28 of the Rajasthan Educational Subordinate Service Rules, which allowed the concerned individuals to be appointed for short period, and at the same time permitted them to be paid the existing pay-scales in the lower grade of the post.
6. The learned Single Judge, after taking note of Rule 9 of the Rajasthan Education Service Rules 1970, which deals with the determination of the vacancies, held as follows:
"Division Bench of this Court, in Rajasthan Council of Diploma Engineers & Anr. Vs. State of Rajasthan & Anr. [1991(2) WLC (Raj.) 597], while considering the true purport of Rule 9, observed that it cannot be applied with same rigor in case of direct recruitment but its adherence with rigor is essential in respect of promotion. The Court held:
"Rule 9 of the Rajasthan Service of Engineer (Building and Roads Branch) Rules, 1954 as amended vide notification (Downloaded on 02/09/2019 at 12:56:23 AM) (4 of 8) [SAW-821/2019] No. F.7(1) D.O.P. A-II/81 dated 21.12.81 with effect from 1.4.1981 is mandatory, but in view of the absence of any provision regarding unfilled vacancies of earlier years falling in direct recruitment quota, it cannot be applied for year- wise selections in case of direct recruitment with the same rigour as it is to be applied in the case of vacancies of earlier years in respect of promotion quota."
From the undisputed factual matrix in all these matters, it is clearly borne out that all the petitioners are working on promotional post of Principal without any interruption with satisfactory performance. Furthermore, all the petitioners are adjudged suitable for promotion in the DCP held on 6 th December, 2013 and were allotted their respective year of vacancy for promotion. Therefore, the delayed action on the part of respondents in holding DPC cannot be cited as a reason for depriving the petitioners of financial benefits besides seniority etc. From the reply of respondents also, no plausible reason is forthcoming for delayed convening of DPC."
7. The learned Single Judge relied upon the decision of the Delhi High Court in H.B. Sharma Vs. Union of India [1996(4) SCT 339 (Delhi)], and of the Supreme Court in State of Punjab vs. Jagat Singh [(2017) 1 SCC 148], and declared that the writ petitioners are entitled to regular pay-scale with effect from the date or dates when they first joined, as Principal and not from the date they were promoted regularly on 06.08.2013.
8. It is argued on behalf of the State that the impugned judgment cannot be sustained. Learned counsel relied upon Rule 28 of the Rajasthan Educational Subordinate Service Rules, 1971 and submitted that this provision expressly grants discretion to the State, in case where vacancies cannot be immediately filled up by direct recruitment or promotion, to make appointments of employees on officiating capacity, provided, such individuals are eligible for appointment to the post by promotion on a purely temporary basis. Pointed reference was made to Rule 28(2) to argue that temporary appointments could be resorted to by the State, by prescribing such conditions of eligibility through general (Downloaded on 02/09/2019 at 12:56:23 AM) (5 of 8) [SAW-821/2019] instructions, and impose such conditions and restrictions regarding pay and other allowances as it deemed appropriate.
9. It was submitted that having voluntarily accepted the duties and responsibilities applicable to the higher post of Principal, (on the basis of their existing scale on the lower post), the petitioners were precluded from claiming as a matter of right, that on regular promotion, they ought to have been granted pay benefits and arrears from the dates they joined on purely temporary basis. It was submitted that the temporary arrangement cannot be treated as regular as it is not preceded by selection through a duly constituted DPC; nor were the other procedural norms such as determination of vacancies and calling the required number of candidates for selection, resorted to.
10. Rule 28, which is relied upon by the State in its appeal reads as follows:
"28. Urgent Temporary Appointment-(1) A vacancy in the Service which cannot be filled in immediately either by direct recruitment or by promotion under the rules may be filled in by the Government or by the 3 [Competent Authority] to make appointments, as the case may be, by appointing in an officiating capacity thereto an officer eligible le for appointment to the post by promotion or by appointing temporarily thereto a person eligible for direct recruitment to the Service, where such direct recruitment has been provided under the provisions of these rules:
Provided that such an appointment will not be continued beyond a period of one year without referring the case to the Commission for concurrence, where such concurrence is necessary, and shall be terminated immediately on its refusal to concur.
[Provided further that in respect of the service or a post in the service for which both the above methods of recruitment have been prescribed, the Government or the authority competent to make appointment, as the case may be, shall not, save with the specific permission of the Government in the Department of Personnel in case of State Service and Government in the Administrative Department concerned in respect of other services, fill the temporary (Downloaded on 02/09/2019 at 12:56:23 AM) (6 of 8) [SAW-821/2019] vacancy against the direct recruitment quota by a whole time appointment for a period exceeding three months, other-wise than out of persons eligible for direct recruitment and after a short-term advertisement.
[(2)In the event of non-availability of suitable persons, fulfilling the requirement of eligibility for promotion. Government may, notwithstanding the condition of eligibility for promotion required under sub-rule (1) above, lay down general instruction for grant of permission to fill the vacancies on urgent temporary basis subject to such conditions and restrictions regarding pay and other allowances as it may direct. Such appointments shall, however, be subject to concurrence of the Commission as required under the said sub-rule.] [Provided further that if the Government is satisfied in a year that eligible persons are not available for appointment as 2 [Teachers] persons who have passed Matriculation Examination/or its equivalent examination and have successfully completed either the emergency short-term BSTC Course started by the Government in January / February, 1973 or first year of the regular BSTC Course may be appointed during the year 1974-75,1975-76, 1976-77and 1977-78 and there will be no urgent temporary appointment to the posts 2 [Teachers] from the year 1978-79. Such persons shall be treated as `Untrained` for purpose of pay till they acquire necessary certificate of training or an equivalent qualification.]"
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 (Downloaded on 02/09/2019 at 12:56:23 AM) (7 of 8) [SAW-821/2019] 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 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.
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13. For the foregoing reasons, there is no merit in the appeal, it is accordingly dismissed.
(DR. PUSHPENDRA SINGH BHATI),J (S. RAVINDRA BHAT),CJ 13-Ashutosh/-
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