Rajasthan High Court - Jaipur
Ram Swaroop Sharma vs State Of Raj & Ors on 24 November, 2012
Author: M.N. Bhandari
Bench: M.N. Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH ORDER 1. S.B. CIVIL WRIT PETITION NO.10280/2009 (Radhey Shyam Sharma Vs. State of Rajasthan & Ors.) 2. S.B. CIVIL WRIT PETITION NO.7758/2009 (Pooran Chand Vs. State of Rajasthan & Ors.) 3. S.B. CIVIL WRIT PETITION NO.7754/2009 (Om Prakash Gupta Vs. State of Rajasthan & Ors.) 4. S.B. CIVIL WRIT PETITION NO.7670/2009 (Babu Lal Sharma Vs. State of Rajasthan & Ors.) 5. S.B. CIVIL WRIT PETITION NO.7667/2009 (Shyam Kishore Sharma Vs. State of Rajasthan & Ors.) 6. S.B. CIVIL WRIT PETITION NO.7762/2009 (Govind Ram Soni Vs. State of Rajasthan & Ors.) 7. S.B. CIVIL WRIT PETITION NO.7671/2009 (Ram Gopal Sharma Vs. State of Rajasthan & Ors.) 8. S.B. CIVIL WRIT PETITION NO.7669/2009 (Bhanwar Singh Vs. State of Rajasthan & Ors.) 9. S.B. CIVIL WRIT PETITION NO.7668/2009 (Kalyan Sahai Sharma Vs. State of Rajasthan & Ors.) 10. S.B. CIVIL WRIT PETITION NO.7755/2009 (Mithan Lal Sharma Vs. State of Rajasthan & Ors.) 11. S.B. CIVIL WRIT PETITION NO.7753/2009 (Rameshwar Lal Acharya Vs. State of Rajasthan & Ors.) 12. S.B. CIVIL WRIT PETITION NO.7752/2009 (Govind Ram Sharma Vs. State of Rajasthan & Ors.) 13. S.B. CIVIL WRIT PETITION NO.7682/2009 (Rameshwar Gupta Vs. State of Rajasthan & Ors.) 14. S.B. CIVIL WRIT PETITION NO.8060/2009 (Sharwan Lal Sharma Vs. State of Rajasthan & Ors.) 15. S.B. CIVIL WRIT PETITION NO.7681/2009 (Ram Swaroop Sharma Vs. State of Rajasthan & Ors.) 16. S.B. CIVIL WRIT PETITION NO.7770/2009 (Gangadhar Vs. State of Rajasthan & Ors.) Date of Order : 24.11.2012 PRESENT HON'BLE MR. JUSTICE M.N. BHANDARI Mr. Anand Sharma for the petitioners. Ms. Shruti Dixit, for the respondents. BY THE COURT
By these writ petitions a challenge has been made to the order dated 4th May, 2009 passed by the respondent no.3 Addl. Director (Admn.), Medical and Health Services, Rajasthan Jaipur by which the selection scale granted to the petitioners in the pay scale of 1640-2900 was withdrawn.
2. It is submitted by the counsel for the petitioners that earlier also the pay scale referred to above was withdrawn. The petitioners challenged the action of the respondents by maintaining appeal before the Tribunal where they remained successful. A challenge to the order of Tribunal was made by the State upto the Hon'ble Division Bench but remained unsuccessful. The State was given liberty to pass fresh order after giving an opportunity of hearing and accordingly after serving a notice to the petitioners, the impugned order dated 04.05.2009 has been passed.
3. Counsel for the petitioners has submitted that the petitioners were working on the post of Non-medical Supervisor, thus, entitled to the benefit of pay scale of the promotional post of Senior Non-Medical Supervisor which was allowed in favour of the petitioners, but subsequently the same was withdrawn considering it to be isolated post having avenue promotion. While withdrawing the benefit of selection pay scale of promotional post while granting benefit of selection scale, the respondents failed to consider that similarly placed candidates were given promotion on the post of Senior Non-Medical Supervisor vide annexure-3 dated 23rd August, 1990. If the avenue of promotion is not available then how the promotion was given to them. A reference to annexures 4, 5 and 6 has been given to show existence of the post of Senior Non-Medical Supervisor in the Revised Pay Scale Rules. The aforesaid document was also ignored by the respondents while passing the impugned order. It is precisely for the reasons that the consideration of the reply to the show cause notice is without a speaking order. No reason has been assigned for withdrawing the benefit of pay scale while passing the impugned order. It is lastly urged that the avenue of promotion from the post of Non-Medical Supervisor is provided under the Rules by giving promotion to the post of Urban Leprosy Worker.
4. Counsel for the respondents, on the other hand, has submitted that the petitioners were not entitled to the pay scale of 1640-2900 and the grant of selection pay scale in fact, the aforesaid pay scale was even due to bona fide mistake and has been corrected. It is submitted that the post of Non-Medical Supervisor is an isolated post accordingly, the petitioners were entitled to the pay scale as given in Para 5 of the circular dated 25th January, 1992. The petitioners were given show cause notice to that effect and after hearing them, the impugned order has been passed. So far as the order at Annexure-3 regarding promotion of four officers is concerned that was passed in ignorance of the Rules because no post of Senior Non-Medical Supervisor existed. Any illegality committed by the respondents may not be perpetuated. So far as the revised pay scale Rules is concerned, it does not indicate avenue of promotion but provides only the pay scale showing any post therein does not mean it to be a promotional post to ascertain the claim of selection scale. It is lastly urged that if the post of Urban Leprosy Worker is taken to be promotional post then the petitioners have been extended the benefit of pay scale of aforesaid post as well because it does not carry pay scale of 1640-2900 but carries the pay scale of 1400-2600. Hence, for all these reasons there is no merit in these writ petitions more so when show cause notice contains the reasons for withdrawal and thereupon the final order has been passed.
5. I have considered the rival submissions of the counsel for the parties and perused the record.
6. This is a case where the petitioners were given benefit of selection scale and according to the respondent they were fixed in the pay scale to which they were not entitled. The withdrawal of the pay scale so as to allow the petitioners to the pay scale was an issue considered by the respondents and the error earlier committed has been rectified. The first issue in my consideration is as to whether there exists a post of Senior Non-Medical Supervisor under the Rules so as to allow the petitioners to the pay scale of the said post. A perusal of the Rajasthan Medical and Health Sub-ordinate Services Rules, 1965 (hereinafter to be referred as the 'Rules of 1965') does not indicate a post of Senior Non-Medical Supervisor. Since, a post has not been shown it cannot be said that a avenue of promotion exists to the post of Senior Non-Medical Supervisor. The first issue is accordingly decided against the petitioners.
7. So far as the grant of promotion to four employees is concerned, I find that the respondents committed an illegality in granting promotion to a post not existing under the Rules and it is a settled law that an illegality should not be perpetuated by the court though it is necessary to observe that the Officers of Government were not vigilant while passing the promotion order i.e. Annexure-3, may be on temporary basis. They are directed to remain vigilant while passing such orders.
8. So far as the revised pay scale rules are concerned it does not decide either the avenue of promotion or as to whether post is un-cadre under the Rules or the Revised Pay Scale Rules makes the _____ about the post existing in various departments and not to a specific department. It may be that the post of Senior Non-Medical Supervisor exists thus, the revised pay rules is not decisive factor to determine as to whether existence avenue promotion to the post of Senior Non-Medical Supervisor. Accordingly the aforesaid argument made by the petitioners cannot be accepted.
9. So far as the impugned order is concerned, it is true that the specific reasons have not been given for withdrawal of the benefit but I find that the show cause notice makes a mention as to why the benefit is to be withdrawn. It is precisely on the ground that the pay scale for the post of Senior Non-Medical Supervisor was given while granting benefit of selection scale on the post aforesaid is not existing under the Rules though tried to be explained by the petitioners in their reply. The impugned order was thus, thereafter passed. It would have been better to specify the aforesaid issue while passing the impugned order. Now, this court has considered the matter on merit, thus, the argument aforesaid cannot be accepted.
10. The last argument by the counsel for the petitioners is that the post of Non-Medical Supervisor is not an isolated post rather promotion is provided to the post of Urban Leprosy Worker. If the argument aforesaid is accepted, then also it is admitted by both the counsel for the parties that the post is carrying the pay scale of 1400-2600 which has already been allowed to the petitioners. Thus, the position of the petitioners is not improved even if last argument is accepted. The fact remains that the pay scale of 1640-2900 was allowed under a mistaken belief of existing of the post of Senior Non-Medical Supervisor. The error has been rectified by the respondents. Accordingly, I find no illegality in the impugned order.
11. The fact however remains as to whether the respondents should be allowed to recover the amount already paid to the petitioners more so they have already retired from services. The recent judgment of the Hon'ble Supreme Court in the case of Chandi Prasad Uniyal & Ors. Vs. State of Uttarakhand & Ors. permits the recovery of such benefits. It was after considering the earlier two judgments. I, however, find that the earlier order to withdraw the benefit of the higher pay scale and recovery was set aside by the Tribunal and the judgment aforesaid was maintained upto to the Hon'ble Division Bench. Accordingly, with the setting aside of the order, recovery was not permissible. Hence, till the date of the judgment of the Hon'ble Division Bench, the respondents would not be entitled to recover the amount from the petitioners. It is to further note that the petitioners are those retired from services, thus, whether it would be proper to recover the amount already paid to them or to effect the revision of pay scale on lower downing the selection scale under Rules. This issue would be open for the respondents to consider and it is expected that inspite of effecting the recovery upto the date of judgment of the Hon'ble Division Bench, they will take a sympathetic view to avoid the hardship of the petitioners who were retired persons, though they would be at liberty to revise the pay scale of the petitioners.
12 With the aforesaid observations, the writ petitions stand disposed of.
(M.N. BHANDARI), J MS/-
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.- Manoj Solanki, Jr. P.A