Rajasthan High Court - Jaipur
Smt Dhapu Devi And Ors vs State Of Raj (Education) And Ors on 26 September, 2011
Author: Mn Bhandari
Bench: Mn Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR ORDER 1. SB Civil Writ Petition No. 9063/2011 Jyoti Swaroop Yadav & ors versus State of Rajasthan & ors 2. SB Civil Writ Petition No. 12877/2011 Smt Santosh Palsaniya versus State of Rajasthan & ors 3.SB Civil Writ Petition No. 6761/2011 Laxman Ram & ors versus State of Rajasthan & ors 4. S.B. Civil Writ Petition No.9671/2009 Hanuman Prasad Sharma Versus State of Rajasthan & Ors. 5. S.B. Civil Writ Petition No.4921/2011 Smt. Usha Gupta Versus State of Rajasthan & Ors. 6. S.B. Civil Writ Petition No.4967/2011 Mukat Ram Sharma Versus State of Rajasthan & Ors. 7. S.B. Civil Writ Petition No.5290/2011 Smt. Premlata Meheshwari Versus Dy. Secretary Education Deptt. & Ors. 8. S.B. Civil Writ Petition No.5665/2011 Narottam Prasad Sharma & Anr. Versus State of Rajasthan & Ors. 9. S.B. Civil Writ Petition No.5684/2011 Jagdish Prasad Sharma & Anr. Versus State of Rajasthan & Ors. 10. S.B. Civil Writ Petition No.5685/2011 Rohatash Singh Tanwar Versus Union of India & Ors. 11. S.B. Civil Writ Petition No.5686/2011 Jagdish Chandra Sharma Versus State of Rajasthan & Ors. 12. S.B. Civil Writ Petition No.5687/2011 Gyan Singh & Ors. Versus State of Rajasthan & Ors. 13. S.B. Civil Writ Petition No.5793/2011 Om Prakash Dhakad & Ors. Versus State of Rajasthan & Ors. 14. S.B. Civil Writ Petition No.6136/2011 Padam Singh & Anr. Versus State of Rajasthan & Ors. 15. S.B. Civil Writ Petition No.6354/2011 Balveer Singh Dagur Versus State of Rajasthan & Ors. 16. S.B. Civil Writ Petition No.6527/2011 Hari Krishna Verma & Ors. Versus State of Rajasthan & Ors. 17. S.B. Civil Writ Petition No.6532/2011 Uttam Chand Gautam & Ors. Versus State of Rajasthan & Ors. 18. S.B. Civil Writ Petition No.6725/2011 Ashvini Kumar & Ors. Versus State of Rajasthan & Ors. 19. S.B. Civil Writ Petition No.6776/2011 Mohammed Hanif & Ors. Versus State of Rajasthan & Ors. 20. S.B. Civil Writ Petition No.6900/2011 Girdhari Singh & Anr. Versus State of Rajasthan & Ors. 21. S.B. Civil Writ Petition No.6903/2011 Om Prakash Sharma & Ors. Versus State of Rajasthan & Ors. 22. S.B. Civil Writ Petition No.7403/2011 Peer Mohammed Pathan Versus State of Rajasthan & Ors. 23. S.B. Civil Writ Petition No.7404/2011 Pushkar Narayan Mishra Versus State of Rajasthan & Ors. 24. S.B. Civil Writ Petition No.7458/2011 Ramji Lal Rana Versus Principal Secretary & Ors. 25. S.B. Civil Writ Petition No.7628/2011 Shivdan Singh Versus State of Rajasthan & Ors. 26. S.B. Civil Writ Petition No.7638/2011 Shyam Lal Tailor Versus State of Rajasthan & Ors. 27. S.B. Civil Writ Petition No.7657/2011 Shyam Mohan Sharma & Anr. Versus State of Rajasthan & Ors. 28. S.B. Civil Writ Petition No.7659/2011 Ratan Lal Sharma Versus State of Rajasthan & Ors. 29. S.B. Civil Writ Petition No.7660/2011 Suraj Karan & Ors. Versus State of Rajasthan & Ors. 30. S.B. Civil Writ Petition No.8684/2011 Ramesh Chand Gupta Versus State of Rajasthan & Ors. 31. S.B. Civil Writ Petition No.8706/2011 Smt. Premlata Kulhar & Ors. Versus State of Rajasthan & Ors. 32. S.B. Civil Writ Petition No.9064/2011 Sanwar Mal Jangid & Ors. Versus State of Rajasthan & Ors. 33. S.B. Civil Writ Petition No.9224/2011 Murari Lal Sharma & Ors. Versus State of Rajasthan & Ors. 34. S.B. Civil Writ Petition No.9450/2011 Laxmi Narayan Sharma Versus Secretary, Secondary & Ele. & Anr. 35. S.B. Civil Writ Petition No.9633/2011 Radhey Shyam Sharma Versus State of Rajasthan & Ors. 36. S.B. Civil Writ Petition No.9780/2011 Kailash Chand Rathi Versus State of Rajasthan & Ors. 37. S.B. Civil Writ Petition No.9980/2011 Gopal Prasad Sharma Versus State of Rajasthan & Ors. 38. S.B. Civil Writ Petition No.10015/2011 Shir Khawaz Mohd. Qureshi & Ors. Versus State of Rajasthan & Ors. 39. S.B. Civil Writ Petition No.10400/2011 Smt. Asha Varshaney Versus State of Rajasthan & Ors. 40. S.B. Civil Writ Petition No.10454/2011 Chhitarmal Gupta Versus State of Rajasthan & Ors. 41. S.B. Civil Writ Petition No.11405/2011 Jai Govind Sharma & Ors. Versus State of Rajasthan & Ors. 42. S.B. Civil Writ Petition No.11406/2011 Jagdish Prasad Gupta Versus State of Rajasthan & Ors. 43. S.B. Civil Writ Petition No.11449/2011 Mrs. Rajul Jain Versus State of Rajasthan & Ors. 44. S.B. Civil Writ Petition No.12114/2011 Pritam Bihari Jain Versus State of Rajasthan & Ors. 45. S.B. Civil Writ Petition No.12312/2011 Smt. Dhapu Devi & Ors. Versus State of Rajasthan & Ors. 46. S.B. Civil Writ Petition No.12538/2011 Salaudden Khan Versus Principal Secretary & Ors. 26.9.2011 HON'BLE MR. JUSTICE MN BHANDARI Mr JM Saxena with Mr Dharmendra Pareek Mr Hanuman Choudhary with Mr Tarun Choudhary Mr Karanpal Singh Mr Akhil Simlote Mr Nikhlesh Katara Mr Subhash Bisawa Mr Munesh Bhardwaj Mr Laxmikant Sharma Mr Kartar Singh Mr RS Bhardwaj Mr Brijesh Bhardwaj Mr Ashwini Jaiman Mr Arpit Srivastava Mr CP Sharma Mr Arvind Sharma Mr Manoj Singh Raghav Mr KC Sharma Mr Vikas Kabra Mr SK Singodiya Mr Santosh Kumar Jain Mr Vijay Pathak Ms Kavita Bhati Mr Kanwar Bahadur - for the petitioners Mr Ganesh Meena, Government Counsel Ms Priyanka Pareek, Dy Govt Counsel for respondents Mr HR Bishnoi, Accounts Officer, Directorate of Secondary Education, Bikaner present in person BY THE COURT:
Since on same set of facts, similar relief has been claimed, all these writ petitions have been heard together and decided by this common order.
By these writ petitions, a challenge has been made to the order dated 2.2.2011 at Annexure-3 in CWP No.9063/2011 and consequential order, by which, petitioners have been re-fixed in the Grade Pay of Rs.4200/- instead of Rs.4800/-. Consequential orders of recovery have also been challenged.
Learned counsel for petitioners submit that initially petitioners were appointed on the post of Teacher Gr III. A circular was issued by the respondents on 25.1.1992 to provide benefit of selection scale to those who have not been extended benefit of promotion. It was to remove stagnation in service. An employee completing 9, 18 and 27 years of service was made entitled for first, second and third selection scale, if not promoted. As per the aforesaid circular, benefit of first, second and third selection scale was to be in the pay scale of the post on which one is entitled for promotion. In case one is not eligible for promotion or promotional post does not exist then he was to be governed by para 5 of the circular aforesaid. The respondents thereupon issued a Notification to revise pay scale vide Rajasthan Civil Services (Revised Pay Scales) (Sixth Amendment) Rules, 1998 (for short 'the Rules of 1998'). Therein, Teacher Gr III was given starting pay scale of Rs.4500-7000 and, thereupon, benefit of senior scale after completion of 10 years of service in the pay scale of Rs.5000-8000. Selection scale for them was in the pay scale of Rs.5500-9000 after completion of 10 years of service the senior scale. By virtue of aforesaid Notification, the employees were made entitled for the benefit of two scales to remove stagnation. It was thus reduced the benefit of selection scale from three to two.
So far as Senior Teacher is concerned, he was given entry in the pay scale of Rs.5500-9000. Thereupon, he was given benefit of senior scale after completion of 10 years of service in the pay scale of Rs.6500-10500 and selection scale was in the pay scale of Rs.7500-12000 after completion of 8 years of service in senior scale.
The respondents, realising some anomaly in fixation after coming into effect of Revised Pay Scale Rules of 1998, issued Notification on 8.6.2001. In para 3 of the said Notification, it was provided that the Teachers (erstwhile Teacher Gr III) drawing pay in the second selection grade of Rs.6500-10500 and promoted as Senior Teacher prior to 1.7.1989 shall draw pay in the scale of Rs. 6500-10500 as senior scale of Senior Teacher. Meaning hereby, those already promoted on the post of Senior Teacher on or prior to 1.7.1989 were given benefit of Senior Scale under the Rules of 1998 and for others, who have not completed nine years of service as Senior Teacher as on 1.7.1989 their pay on the aforesaid date was to be fixed in the pay scale of Rs.5500-9000 but with a stipulation that such Senior Teachers shall be allowed pay in the senior scale of Rs.6500-10500 on completion of ten years of service as Senior Teacher. As a consequence of the Notification dated 8.6.2001, respondents issued orders to bring number of employees from pay scale of Rs.6500-10500 to the pay scale of Rs.5500-9000. Litigation therein was finally concluded in the case of State of Rajasthan & ors Versus Raniwas Porwal & ors, reported in 2008(2) WLC (Rajasthan) 406. Therein, directions were given in para No.40 to 43. Respondents accordingly implemented the directions issued in the aforesaid judgment.
The respondents, thereupon, came with the Rajasthan Civil Services (Revised Pay) Rules, 2008 (for short 'the Rules of 2008') to revise the pay scale and, therein, again, an employee has been made entitled to get benefit of three selection grades. The scheme has been named as Assured Career Progression (for short the 'ACP'). Provision for the aforesaid was made under rule 19 of the Rules of 2008. In view of the aforesaid, the position as was obtaining pursuant to circular dated 25.1.1992 was restored to the extent of grant of benefit of three selection grades but in the name of ACP. Petitioners, who were working in the pay scale of Rs.6500-10500 were to be fixed in the running pay band of Rs.9300-34800 with grade pay of Rs.4200, whereas, those, existing in the pay scale of Rs.7500-12000 were to get benefit of grade pay of Rs.4800. Since all the petitioners completed 9, 18 and 27 years of service, hence, became entitled for benefit of third ACP which is in the pay scale of Rs.7500-12000. Respondents accordingly made fixation of the petitioners in the grade pay of Rs.4800/- while fixing them in the running Pay Band of Rs.9300-34800. The respondents erroneously withdrawn benefit of grade pay of Rs.4800/- by the impugned order. This court may accordingly set aside order dated 2.2.2011 and consequential order passed by the respondents.
Learned counsel for respondents, on the other hand, submit that there are two sets of Teacher Gr III which becomes clear from perusal of the Notification dated 8.6.2001 itself. Rule 3 of the said Notification, at the first instance, provides for teachers who are drawing pay in the second selection grade of Rs.6500-10500 and promoted as Senior Teacher prior to 1.7.1989. They have been given protection of pay scale of Rs.6500-10500. All others, falling in the second category have been given pay scale of Rs.5500-9000. To clarify the aforesaid, it is stated that pursuant to the order/circular dated 25.1.1992, the erstwhile teacher was entitled for three selection scales and, at the relevant time, if he could get second selection scale then corresponding pay scale was of Rs.6500-10500. He was given protection of pay scale therein but subject to the condition that he stood promoted as Senior Teacher prior to 1.7.1989. Those who had not completed 9 years of service as Senior Teacher as on 1.7.1989 they were to be fixed in the pay scale of Rs. 5500-9000 and such Senior Teachers were allowed pay scale of Rs.6500-10500 on completion of 10 years of service as Senior Teacher.
In view of the aforesaid, two different categories of teachers were existing in the department. As per the judgment in the case of Raniwas Porwal (supra) i.e. teachers falling in the second category was to be given benefit of pay protection personal to them while taking in the pay scale of Rs.5500-9000. The Circular dated 2.2.2011 is applicable to the aforesaid category of teachers. The petitioners have unnecessarily created confusion in the present writ petitions. If any irregularity is existing in implementation of the circular dated 2.2.2011, it would be cured or necessary direction may be given by this court. Thus, writ petitions may be disposed of accordingly.
I have considered rival submissions of learned counsel for parties and perused record of the case.
To have clarity on the facts, it is necessary to narrate that before the Revised Pay Scale Rules of 1998, all the teachers and employees of the State of Rajasthan, were entitled to the benefit of three selection scales on completion of 9, 18 and 27 years of service from the date of their regular appointment. Teachers Gr III were accordingly entitled to the benefit of three selection scale and in many of the cases, such benefits were given to the extent of second selection scale. The aforesaid was to be in the pay scale of the promotion post accordingly. Those Teachers Gr III having received benefits of two selection scales were fixed in the corresponding pay scale of promotional post. By virtue of the Rules of 1998, system of granting benefit of selection scale was done away by the respondents. In place of benefit of three selection scales, pattern of Senior and Selection scale were introduced. For a Teacher Gr III Senior Scale was made admissible on completion of 10 years of service and thereupon selection scale on completion of another 10 years of service. For a Senior Teacher, senior scale was made applicable on completion of 10 years of service, whereas, selection scale was made admissible to him on completion of another 8 years of service.
On account of change in the pattern to award benefit of senior and selection scale, the employees were made entitled only for two higher pay scales to remove stagnation, if not given promotion.
The respondents, however, came up with the Notification dated 8.6.2001 to clarify entitlement of the pay scale of Rs.6500-10500. Rule 3 of the Rajasthan Civil Services (Revised Pay Scales) (Sixth Amendment), Rules 2001 is relevant thus quoted hereunder for ready reference -
3.In the Rajasthan Civil Services (Revised pay Scales) Rules, 1998 in Schedule V of the existing General Note 8) shall be re-numbered as 8(i) and following new clause (ii) and (iii) thereunder shall be inserted namely -
(ii)The teacher (erstwhile Teacher grade III) draing pay in the second selection grade of Rs.6500-10500 and promoted as Senior Teacher prior to 1.7.1989 shall draw pay in the scale of Rs.6500-10500 as senior scale of Senior Teacher. Those Senior Teachers who have not completed nine years of service as Senior Teacher on 1.7.1989, their pay on 1.7.1989 shall be fixed in the pay scale of Rs.5500-9000 and such Senior Teachers shall be allowed pay in the senior scale of Rs.6500-10500 on completion of ten years service as Senior Teacher.
(iii) As a result of re-fixation of pay in accordance with the provisions contained in clause (ii) above, the recovery of overpayment, if any, shall stand waived for the period from 1.7.1989 to the date of issue of this Notification.
Perusal of rule quoted above shows that erstwhile Teacher Gr III drawing pay in the pay scale of Rs.6500-10500 and promoted as Senior Teacher prior to 1.7.1989 was given protection in the pay scale of Rs.6500-10500. For others, who have not completed nine years of service as Senior Teacher on or before 1.7.1989 was allowed pay scale of Rs.5500-9000 but with the stipulation that he would be entitled for the pay scale of Rs.6500-10500 on completion of ten years of service as Senior Teacher.
A litigation cropped up on the said, when respondents revised the pay scale of many teachers making it in the pay scale of Rs.5500-9000. Litigation thereupon was finally concluded in the case of Raniwas Porwal (supra). Para 41 to 43 of the said judgment are quoted hereunder for ready reference -
41. But those who have been promoted as Senior Teachers drawing their pay in Second Selection Grade of 6500-10500 will not be eligible for this pay protection because even under the Rules of 1998 as initially exist, they were to be promoted to Senior Scale, which was Rs.5500-9000 only. But because of lacuna in the Rules originally enacted, not providing any specific provision, their fixation has been wrongly made by considering all Senior Teachers to be of the same category. The initial fixation in higher pay-scale being without any mistake on their part, until Notification of amendment, the resultant recoveries of excess amount paid to them has been waived.
42. But after correction of this lacuna on amendment of Note 8, no such protection has been granted under the Rules. If any such recovery has become due on account of continued drawing of pay by such Senior Teachers promoted after 1.7.1989, due to no mistake or misrepresentation on the part of such incumbents, they may make appropriate representation to the Government to consider their cases against recovery.
43. Accordingly, with the aforesaid clarification the appeals are allowed. The judgment under appeal declaring Notification dated 8.6.2001 to be ultra vires is set aside. However, the view which we have taken on interpretation of the Rules, the existing teachers who have been promoted as Senior Teacher in the Second Selection Grade prior to commencement of the Rules at any time but because of non-completion of 10 years of service as Senior Teacher under the revised rules were required to be fixed in the lower pay scale, their continuance in the higher pay scale was protected as pay-scale personal to them under Note to Rule 6. The rights of all the appellants stand protected to this extent. In that light, the writ petitions filed by the appellants stand allowed to that extent.
Perusal of the above quoted paras of the judgment shows that in reference to Note 8 read with Note appended to Rule 6, a Senior Teacher drawing pay in the pay scale of Rs.6500-10500 prior to 1.7.1989 was given due protection and, for others, the issue has been dealt with in para 43.
The Rajasthan Civil Services (Revised Pay) Rules, 2008 came into force thereafter. Rule 19 of the Rules of 2008 provides for ACP. Under the said rule, an employee was made entitled for benefit of three ACP on completion of 9, 18 and 27 years continuous regular service in the same grade pay. Introduction of the benefits of three ACPs seems to be nothing but similar as was therein the circular dated 25.1.1992. The anomaly came up at the stage when Notification dated 7.8.1998 was issued, where, instead of granting benefit of three selection scales, benefit of Senior and Selection scale was allowed. Rule 19 of the Rules of 2008 is however relevant thus quoted hereunder for ready reference -
19. Scheme of Assured Career Progression. - In lieu of selection grades, scheme of Assured Career Progression (ACP) with three financial upgradations shall be allowed as under -
1. The scheme will be available to all posts including State Services.
2. Benefit of pay fixation available at the time of normal promotion shall be allowed at the time of financial upgradations under the scheme. Thus, an increase of 3% of sum of pay in the running pay band and grade pay shall be available as financial upgradation under the scheme.
3. The grade pay shall change at the time of financial upgradation under this scheme. The grade pay given at the time of financial upgradation under ACPs will be immediate next higher grade pay in the hierarchy of Running Pay Bands and grade pay being prescribed. Thus, grade pay at the time of financial upgradation under ACPs can, in certain cases where regular promotion is not between two successive grades, be different than what is available at the time of regular promotion. In such cases, the higher grade pay attached to the next promotion post in the hierarchy of the concerned cadre/ organisation will be given only a the time of regular promotion.
4. Financial upgradation under the scheme will be available whenever a person has spent 9 years continuous regular service in the same grade pay. However, not more than three financial upgradations shall be given in the entire career.
5. In the case of Government servants who become eligible for ACP on completion of requisite period of service while drawing pay in the Grade Pay of Rs. 4800/- in the running pay band PB-2 9300-34800' shall be granted ACP in the grade pay of Rs.5400/- in the running pay band PB-2 '9300-34800'.
Perusal of rule 19 of the Rules of 2008 shows that an employee would be entitled to maximum of three ACPs. Case of the petitioners is that they have already completed 18 or 27 years of service thus are entitled for the benefit of ACP, accordingly, they may be fixed in the PB-2 '9300-34800' with grade pay of Rs.4800/-. Those Teachers Gr III who were later on promoted and having not completed 27 years of service and not fixed in the pay scale of Rs.7500/12000, may be fixed in the running pay band of PB-2 '9300-34800' with grade pay of Rs.4200/-. Respondents accordingly made certain clarifications by issuing orders from time to time and the last order in that regard was passed on 2.2.2011. Perusal of the order dated 2.2.2011 reveals that it has been made applicable to those who were given benefit of pay scale of Rs.6500-10500 as personal pay while in the pay scale of Rs.5500-9000. The aforesaid is in reference to paras 41 to 43 of the judgment in the case of Raniwas Porsal (supra), wherein, those who were not entitled to be fixed in the pay scale of Rs.6500-10500 pursuant to the Notification dated 8.6.2001 were made entitled to the pay scale of Rs.5500-9000, however, to redress the grievance for them who were already given benefit of pay scale of Rs.6500-10500, it was made personal to them. It is, however, not applicable to those who, were entitled for the pay scale of Rs.6500-10500 and further benefit of selection was available to them in the pay scale of Rs.7500-12000. Even as per the Notification dated 8.6.2001 the erstwhile Teacher Gr III drawing pay in the second selection grade of Rs.6500-10500 and having been promoted to the post of Senior Teacher on or before 1.7.1989 was made entitled for the benefit of senior scale of Senior Teacher in the pay scale of Rs.6500-10500. Respondents seems to have applied the order dated 2.2.2011 even on those teachers and, accordingly, they have been fixed in the grade pay of Rs.4200/- while keeping them in the running pay band of Rs.9300-34800 though it cannot be made applicable to them.
In the light of aforesaid discussion, there is no illegality in the circular/ order dated 2.2.2011 but default lies in regard to its implementation. The order dated 2.2.2011. It is not applicable to erstwhile Teacher Gr III drawn selection grade of Rs.6500-10500 and promoted to the post of Senior Teacher on or before 1.7.1989 and Teachers Gr III, who have been given promotion to the post of Senior Teacher on or before 1.7.1989 and have completed 10 years of service thus become entitled for the pay scale of Rs.6500-10500 and thereafter entitled to the benefit of third ACP having not given benefit of three financial up-gradation earlier and if benefit of third financial up-gradation was given then they were fixed in the pay scale of Rs.7500-12000.
The other Teachers, who were initially appointed as Teacher Gr III and were not given benefits mentioned in para above, would be governed by the circular dated 2.2.2011.
The respondents are directed to undertake necessary exercise in view of the clarification and directions given above. However, respondents are restrained to recover the amount paid to the petitioners even if it is found in excess to their entitlement as payment was not made to the petitioners on account of their misrepresentation or fraud but was at the instance of respondents themselves.
With the aforesaid, all the writ petitions so as the stay applications are disposed of.
(MN BHANDARI), J.
bnsharma All corrections made in the judgment/ order have been incorporated in the judgment/ order being emailed.
(BN Sharma) PS-cum-JW