Rajasthan High Court - Jaipur
Shree Krishan Agarwal vs State Of Raj & Ors on 3 January, 2017
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B.Civil Writ Petition No. 2569 / 2004
Shree Krishan Agarwal s/o Sh. P.R. Agarwal, r/o Heda Gali,
Shahpura Mohalla, Beawar-01
----Petitioner
Versus
1. State of Rajasthan through the Secretary to Govt.
department of Higher Education Rajasthan Secretariat,
jaipur.
2. Director College Education Gandhi Nagar, Jaipur
3. Chairman Rajasthan Public Service Commission, Ajmer
4. secretariat, university grants commission Bhadur Shah Zafar
Marg, New Delhi-110002
5. Principal, Government College, Beawar.
----Respondent
_____________________________________________________ Counsel For Petitioner(s) : Mr. MS Beg Counsel For Respondent(s) : Mr. Neeraj Batra on behalf of Mr. BS Chhaba, Addl. Solicitor General of India Mr. Pushpendra Singh Naruka for Mr. Manu Bhargava, GC _____________________________________________________ HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI Judgment / Order 03/01/2017 The petitioner has preferred this writ petition making the following prayer:-
" It is, therefore, humbly prayed-
(2 of 10) [CW-2569/2004]
(a) that an appropriate writ order or direction be issued to the respondents to modify the impugned order dt.2-5-2003 and the name of the petitioner be placed at serial no.2 above the name of Sh. D.K. Gupta as Sh. Gupta S.No.2 to 12 are juniors to the petitioner, who were allowed selection scales alongwith arrears w.e.f. 1.1.86 admissible under the Rules.
(b) that an appropriate writ order or direction be issued to the respondents to revise pension, gratuity, commutation & other pensionary benefits immediately after fixation in the selection scale with arrears alongwith 24% interest per annum on all pensionary benefits due to the petitioner w.e.f. 1.1.86 but actually delayed due to discrimination & culpable negligence of the state functionaries.
Any other order direction or relief deems fit in the circumstances of this case may kindly be passed in favour of the petitioner." The petitioner was appointed as PTI (Physical Training Instructor) in the respondent-Department on 2.7.1958. Services of the petitioner were subsequently confirmed w.e.f. 6.7.1959 and he continued to discharge duties in various Government Colleges (3 of 10) [CW-2569/2004] until 30.9.1994 when he got voluntarily retired. The petitioner was granted senior scale in October, 1998 but the selection scale was not allowed to him. As per the petitioner, he was entitled to get the selection scale w.e.f 1.1.1986 and if such selection scale was sanctioned to him, his pension, gratuity, commutation and other pensionary benefits shall stand revised accordingly. The petitioner filed a writ petition No. 1939/2002 which was decided on 31.7.2002 with a direction to the respondents to consider the cases of the petitioner for selection scale w.e.f. 1.1.1986 in compliance of the orders so passed by this court. The respondents held a meeting of Screening Committee on 27.3.2003 and selection scales were granted to Physical Training Instructors who were junior to the petitioner. The petitioner claimed that as per the seniority list, he stood above Shri BL Gupta at Serial No. 2 and his seniority status continued to be above all the other candidates between Serial No.2 to 12. The petitioner also categorically averred that throughout his service carrier he neither carried any adverse entry or any downgrading of service while discharging his duties. The persons junior to the petitioner were allowed the selection scales along with arrears w.e.f. 1.1.1986.
Learned counsel for the respondents drew attention of the court to the reply in which the fact that grant of selection scale w.e.f. to the persons junior to the petitioner was not denied but it was explained that the petitioner was not found suitable for placement in the selection scale by the Screening Committee. Learned counsel for the respondents vehemently argued that it (4 of 10) [CW-2569/2004] was the right of the respondent to consider the names for selection scale on their merits. Learned counsel for the respondents also drew attention of the court to the order dated 9.12.2011 in which grant of selection scale for Physical Training Instructor required Consistent Satisfactory Appraisal Report and since the petitioner did not have Consistent Satisfactory Appraisal Report, therefore, he was not granted selection scale w.e.f. 1.1.1986.
Learned counsel for the petitioner has relied upon the judgment passed in SB Civil Writ Petition No.5160/2009 Vishveshwar Lal Choudhary Vs. State of Rajasthan & Anr. decided on 8.9.2015. The relevant portion of the judgment is as follows:-
"It is submitted by learned counsel for the petitioner that the so called endorsement made by the respondents for refusing grant of Selection Scale to the petitioner cannot be sustained, inasmuch as, during the period 1986-1994, the petitioner was not communicated any adverse entry and the requirement of UGC norms about Performance Appraisal Report of eight years cannot be said to be laking by the petitioner so as to deny the Selection Scale. It is submitted that the entries, if adverse, as the respondents having failed to communicate such entries, they cannot rely on the same for the purpose of (5 of 10) [CW-2569/2004] refusing the benefit to the petitioner. It was also submitted that the order dated 05.02.2009 passed by the respondents deserves to be set aside to the extent of refusing grant of Selection Scale and the respondents be directed to grant Selection Scale to the petitioner w.e.f. 01.01.1994 with all consequential benefits. Reliance was placed on U.P. Jal Nigam and Ors. v. Prabhat Chandra Jain and Ors.:(1996) 2 SCC 363, Dev Dutt v. Union of India and Ors.: (2008) 8 SCC 725 and Prabhu Dayal Khandelwal v. Chairman, U.P.S.C. and Ors.: 2015 AIR SCW 4417. Learned counsel for the respondents submitted that as the petitioner was not fulfilling the requirement of consistent good Performance Appraisal Reports for eight years, he was rightly denied 4 the grant of Selection Scale. It is further submitted that as the entries as such were not adverse, there was no question of communicating the same to the petitioner and, therefore, the petitioner was rightly refused the grant of Selection Scale and the Screening Committee having considered the matter in entirety based on judgment of this Court, has found the petitioner suitable only for grant of (6 of 10) [CW-2569/2004] Senior Scale and, therefore, the writ petition filed by the petitioner deserves to be dismissed.
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. 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. So far as the course to be adopted in such a situation is concerned, guidance can be had from the judgment of Hon'ble Supreme Court in the case of Prabhu Dayal Khandelwal (supra), wherein, in similar circumstances, Hon'ble Supreme Court observed and directed as under:- "7. In the above view of the matter, we are satisfied that the impugned order passed by the High Court, deserves to be set aside, inasmuch as, the claim of the appellant could not be ignored by taking into consideration, uncommunicated Annual Confidential Reports for the years 1995-1996, (7 of 10) [CW-2569/2004] 1996-1997 and 1998-1999, wherein the 7 appellant was assessed as "good". In the absence of the aforesaid entries, it is apparent, that the remaining entries of the appellant being "very good", he would be entitled to be considered fit for the promotion, to the post of Chief Commissioner of Income Tax, on the basis of the then prevailing DoPT guidelines, and the remaining valid Annual Confidential Reports. 8. On the issue, whether the representations filed by the appellant against the Reports for the years 1995-1996, 1996-
1997 and 1998-1999 need to be taken to their logical conclusion, we are of the view, that since almost two decades have passed by since the aforesaid Annual Confidential Reports were recorded, it would be too late in the day to require the Authorities to adjudicate upon the representations made by the appellant as against the uncommunicated Annual Confidential Reports." (Emphasis Supplied) 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 (8 of 10) [CW-2569/2004] 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. "
Learned counsel for petitioner has also relied upon the judgment of Mahendra Nath Sharma Vs. State of Rajasthan & Anr. in SB Civil Writ Petition No.8089/2007 vide order dated 11.7.2016. Relevant portion of the judgment is as follows:-
"Indisputably, the respondents introduced the Career Advancement Scheme w.e.f. 01.01.1986 vide order dated 30.01.1995 (Annexure-4). A perusal of the scheme reveals that on completion of eight years of service, Lecturer shall be eligible for grant of senior scale and after completion of (9 of 10) [CW-2569/2004] sixteen years of service, Lecturer is eligible for selection scale. Other conditions for eligibility have also been stipulated in the order dated 01.05.1989 including consistently good performance appraisal report. It is also provided that the placement in the senior and selection scales shall be on the basis of recommendation as to suitability by a duly constituted screening committee. In the seniority list dated 30.09.1997 (Annexure-19), the petitioner is at Sr.No.1 while Shri S.K. Qazmi is at Sr.No.4. Vide order dated 02.05.2003 (Annexure-
18), Mr. S.K. Qazmi has been granted selection scale w.e.f. 01.01.1986. It is not discernible from the reply filed by the respondents as to why the petitioner has not been granted the selection scale w.e.f. 01.01.1986 as granted to his junior, namely;
S.K. Qazmi. As a matter of fact, a rather cryptic reply has been filed by the respondents wherein it is stated that as the selection scale has been granted to the petitioner, the petition has 3 been rendered infructuous. It is not the case of the respondents that the service record of the petitioner was not satisfactory or he was otherwise ineligible for grant of selection scale. Therefore, there is no justification in denying the petitioner selection scale w.e.f. 01.01.1986.
(10 of 10) [CW-2569/2004] Consequently, the petition is allowed and the respondents are directed to grant selection scale to the petitioner w.e.f. 01.01.1986 with all consequential benefits, within a period of three months from the date of receipt of a certified copy of this order. "
I have heard learned counsel for the parties and perused the pleadings. In my opinion any adverse appraisal report which is being relied upon by the respondents were required to be indicated and consequently without communication they could not have been used against the petitioner for denying the selection scale. The petitioner in this case has not been communicated any adverse entry or any other entry which could resulted in denial of selection scale.
In view of above, this writ petition is allowed and the respondents are directed to grant the selection scale to the petitioner w.e.f. 1.1.1986 with all consequential benefits within a period of three months from the date of receipt of certified copy of this order. The petitioner shall be entitled to 6% interest on the amount so computed.
(DR. PUSHPENDRA SINGH BHATI)J. Sunita/98