Rajasthan High Court - Jodhpur
State & Ors vs Ramesh Singh Choudhary on 18 January, 2011
Author: Arun Mishra
Bench: Arun Mishra
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR.
JUDGMENT
STATE OF RAJASTHAN & ORS. VS. CHANDRA PRAKASH GEHLOT
1.D.B.Civil Special Appeal (W) No.644/2008 STATE OF RAJASTHAN & ORS.VS. RAM LAL DAMAR
2. D.B.Civil Special Appeal (W) No.480/2009 STATE OF RAJASTHAN & ORS. VS. RAJ BAHADUR
3. D.B.Civil Special Appeal (W) No.481/2009 STATE OF RAJASTHAN & ORS. VS. JALIM SINGH
4. D.B.Civil Special Appeal (W) No.482/2009 STATE OF RAJASTHAN & ORS. VS. RAJENDRA KUMAR AGGARWAL
5. D.B.Civil Special Appeal (W) No.483/2009 STATE OF RAJASTHAN & ORS. VS. SHAQIL AHMAD
6. D.B.Civil Special Appeal (W) No.484/2009 STATE OF RAJASTHAN & ORS. VS. YOGESHWAR PANDYA
7. D.B.Civil Special Appeal (W) No.485/2009 STATE OF RAJASTHAN & ORS. VS. MAHENDRA KUMAR ACHARYA
8. D.B.Civil Special Appeal (W) No.486/2009 STATE OF RAJASTHAN & ORS. VS. CHANDRA PRAKASH
9.D.B.Civil Special Appeal (W) No.487/2009 STATE OF RAJASTHAN & ORS. VS. VINAY KUMAR GEORGE
10. D.B.Civil Special Appeal (W) No.488/2009 STATE OF RAJASTHAN & ORS. VS. MAHENDRA KUMAR VYAS
11. D.B.Civil Special Appeal (W) No.655/2009 STATE OF RAJASTHAN & ORS. VS. NARENDRA KUMAR
12. D.B.Civil Special Appeal (W) No.656/2009 STATE OF RAJASTHAN & ORS. VS. DHARAM NARAIN CHARPOTA 2
13. D.B.Civil Special Appeal (W) No.657/2009 STATE OF RAJASTHAN & ORS. VS. RAMESH SINGH CHOUDHARY
14. D.B.Civil Special Appeal (W) No.658/2009 STATE OF RAJASTHAN & ORS. VS. SUBHASH CHANDRA UPADHYAY
15. D.B.Civil Special Appeal (W) No.669/2009 STATE OF RAJASTHAN & ORS. VS. MANOHAR LAL JAIN
16. D.B.Civil Special Appeal (W) No.670/2009 STATE OF RAJASTHAN & ORS. VS. VIMAL KUMAR SHARMA
17. D.B.Civil Special Appeal (W) No.812/2009 against the judgment and order dated 18.01.2007 passed by the learned Single Judge in SB Civil Writ Petition No.1562/2003.
Date of Judgment: 18th January, 2011
PRESENT
HON'BLE THE CHIEF JUSTICE MR. ARUN MISHRA
HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI. Mr.G.R.Punia, Additional Advocate General, for the appellants.
Mr.M.R.Singhvi ] for the respondents. Mr.Mahipal Singh Rajpurohit ] (PER HON'BLE JOSHI,J.)-
A common controversy is involved in all these intra court appeals, arising out of various S.B.Civil Writ Petitions, decided by different Single Benches of this Court, on different dates. Since the core controversy is common, all these appeals are being decided by this judgment.
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The controversies involved in all these intra court appeals have been decided by the learned Single Bench in Chandra Prakash Gehlot vs. State of Rajasthan & Ors. [SB Civil Writ Petition No.1562/2003] vide order dated 18.01.2007 and further other SB Civil Writ Petitions decided in the light of Chandra Prakash Gehlot's case (supra). Except SBCW Pet. No.1562/2003, in all other writ petitions, the learned Single Bench directed the petitioners (respondents herein ) to file the representations with the certified copy of the order passed in Chandra Prakash Gehlot's case (supra), within a month of the date of the order, and further directed the respondents (appellants herein) to decide those representations, while taking into consideration the order of the learned Single Bench in Chandra Prakash Gehlot 's case, (supra), within a period of two months thereafter.
Being aggrieved by the order dated 18.01.2007, the State of Rajasthan & Ors. have preferred DB C.Special Appeal (W) No.644/2008. Rest of the Special Appeals have been preferred against the directions of the learned Single Bench to the respondents (appellants herein) to decide the representations in the light of the order passed in Chandra Prakash Gehlot 's case, (supra).
The brief facts of the case giving rise to SB C.Special Appeal (W) No.644/2008 are that the respondent-petitioner, filed a writ against the State of Rajasthan, through the 4 Secretary , Social Welfare Department, Government of Rajasthan & Ors., stating inter alia that he was appointed initially as Warder on 23.12.1974 and in due course of time, he was confirmed to that post and was further promoted as Assistant Hostel Superintendent in the year 1982. The nomenclature of the post of Assistant Hostel Superintendent , came to be deleted and the post came to be read as Hostel Superintendent , and thus the petitioner was working as Hostel Superintendent, since 1982.
The Government of Rajasthan issued an order dated 25.1.1992 for granting the first, second and third Scales to the employees, for removing the stagnation in the promotion avenues, which has been produced as Annx.1. The petitioner became entitled for First Selection Scale upon completion of 9 years' service and the service conditions of petitioner are governed by The Rajasthan Social Welfare Statutory Subordinate Service Rules 1963 (for short 'the Rules of 1963') and under the said Rules of 1963 , a person holding the post of Hostel Superintendent, is further eligible for promotion to the post of Hostel Superintendent Grade -I, carrying the pay scale of Rs.1025-1800. The petitioner was confirmed on the first selection pay scale and was fixed in the pay scale of Rs.975- 1720, vide order dated 13.07.1993, whereas the next promotional post of the Superintendent, carries the pay scale of Rs.1025-1800. Copy of the order dated 13.07.1993 has been annexed as Anx.2. The petitioner further stated in para No.6 of the writ petition that at the relevant time, he was not 5 fixed in the prescribed pay scale but only fixed on the pay scale as per Annx. 2, whereas no such pay scale existed at that time.
The next avenue of promotion is to the post of Welfare Inspector, which has to be filled by promotion from amongst the Superintendent Grade-I. This carries the pay scale of Rs.5000-8000. The petitioner was also entitled for second Selection Pay Scale upon completion of 18 years' service, in terms of Annx.1. Therefore, he was entitled to be fixed in the pay scale of Rs.5000-8000. The petitioner on completion of 18 years of service, was confirmed in the 2nd Selection Pay Scale by fixing him to the pay scale of Rs.3400- 5200 instead of Rs.5000-8000. Copy of the order dated 12.08.2002 has been annexed as Annx.3.
The petitioner has also stated that one Arjun Lal Tanwar, similarly situated employee, was given Second Selection Pay Scale, and was fixed in the Scale of Rs.5000-8000 vide order dated 06.08.1999 and the said order is annexed as Anx.4. Thus, the respondent-petitioner was subjected to a glaring and hostile discrimination in the grant of Second Selection Scale, in terms of Annx.1 and thus, he prayed for similar treatment to that of Arjun Lal Tanwar.
In other Special Appeals , the petitioners (respondents herein) filed the writ petitions, with the prayer for directing the respondents (appellants herein) to modify the First and Second Selection Scale, granted in terms of the order of the 6 State Government and Departmental Rules, and to fix the petitioners in Pay Scale No.9 in place of Pay Scale No.7. The petitioners (respondents herein), were having different dates of appointment, but the common controversy was regarding their fixation in a particular Scale ,and they all pleaded their fixation as discriminatory to the fixation made by the Department in respect of Smt. Kiran Devi and Gopal Sharma.
The appellants in SAW No.644/2008 , who were the respondents in the original petitions, denied the averments made in the writ petitions and the learned Single Bench , vide orders dated 18.01.2007 and 17.08.2008, allowed the writ petitions as indicated above. Further, in other writ petitions, there was a specific averment in the reply that fixation in the case of Smt. Kiran Devi and Gopal Sharma were made on different footing on the ground that they were promoted to the post of Hostel Superintendent, in D Grade on the basis of merit, earlier to present petitioners (respondents herein).
In Special Appeal No.644/2008 the learned Addl.Advocate General contended that the respondent -petitioner has pleaded in the writ petition that initially he was Assistant Hostel Superintendent, but later on by way of amendment, the word "Assistant" was deleted. Thus, he worked as Hostel Superintendent. But he has not pleaded about the fact that whether in Category "B" of the Rajasthan Social Welfare Service Rules 1963, he was serving in group 'G' or group 'F' at the relevant time. The learned Addl.Advocate General further 7 contended that under the statutory Rules, named as Rajasthan Social Welfare Subordinate Service Rules, 1963, in Group 'B' the initial post is Hostel Superintendent (I) and (2) Teacher and in Group 'G' Welfare Worker, in group 'F' Investigator ,(Distt- Shelter)/ Beggar Home, Sewa Sadan, Mentally Regarded Home for Women. in group 'E' Investigator (Home)/ Investigator (Cell)/Investigator (Bhangi Kast Mukti)/ Investigator (Beggar Home), in group 'D' Welfare Inspector /Nutrition Inspector/Manager, Orphanage/ Social Worker, Orphanage, group 'C' Industrial Inspector/ Investigator (beggary Survey) Reception Centre, Social Case Worker ( Sewa Sadan)/ Case Worker (Promotion Home). @ 2. Field Social Worker, and group 'B' Assistant Lady Welfare Officer Home ( Sewa Sadan), Distt. Shelter Orphanage (Bal & Balika Grih) Foundling Home/ Reception Centre/Hostel Supdts. ( Grade-I)/Research Asstt./ Welfare Officer ( Prisons ).
Thus, the Scales were granted to the respondent petitioner according to the promotion posts, as mentioned in the Rules and it is averred in the writ petition that he was initially appointed as Warder but he has not mentioned the Scale in which he was initially appointed, and there is no such Notification regarding the amendment of the nomenclature of the post of Asstt. Hostel Superintendent, to that of Hostel Superintendent.
The petitioner was granted the First Selection Pay Scale upon completion of 9 years and was fixed on the pay scale of 8 Rs.975-1720 under the Rajasthan Civil Services Revised Pay Scale Rules 1989 group '(ड.)' and (च):-
1. अन षक (पक ष) 925-1800 1025-1800 (8)
2. अन षक (गह) 925-1800 1025-1800 (8)"
Under those Rules, the pay scale of Rs.1025-1800 was fixed for Assistant Superintendent 'A' and 'B' Grade Hostels. The petitioner has not pleaded that he has ever remained posted as Assistant Hostel Superintendent at Grade 'A' or 'B' Hostels. Therefore, in the absence of those pleadings, the pleadings in para No.6 and 7 of the writ petition, cannot be accepted. The scale of Rs.1025-1800 was also sanctioned for (1) Investigator, (prakosth) and (2) Investigator (Grah). There is also no such pleading that the petitioner has ever been posted on these posts also.
The learned Addl. Advocate General also contended that Arjun Lal Tanwar cannot be said to be a similarly situated employee. As per Anx.4, Arjun Lal Tanwar was initially appointed on 11.03.1960 , whereas, as per Annx.2, the respondent - petitioner Chandra Prakash Gehlot was appointed on 23.12.1974 as Warder. Thus, the position of the respondent- petitioner cannot be said to be at par with Arjun Lal Tanwar.
The learned Addl.Advocate General further contended that the case of fixation of Smt.Kiran Devi and Gopal Sharma, were not similar to that of the other petitioners (respondents-herein), on the ground that Smt.Kiran Devi and Gopal Sharma were 9 earlier promoted than the petitioners, on the basis of merit.
The learned counsel for the respondent-petitioner vehemently defended the order of the learned Single Bench and argued that as per the Statutory Rules, the State has not applied the provisions of the Statutory Rules named as The Rajasthan Social Welfare Subordinate Service Rules, 1963 and the respondents -petitioners have wrongly been fixed in the pay scale of Rs.3400- 5300, instead of Rs.5000-8000.
We have considered the rival contentions of the learned counsel for the parties and also perused the writ petitions along with Annx. 1 to Annx.5 and the order of the learned Single Bench ,in all writ petitions.
The order of the learned Single Bench has been assailed on similar ground and the stand taken by way of arguments advanced on behalf of the petitioner-respondents, in rest of the appeals, are also by and large similar to the contentions raised in Appeal No.644/2008 in defending the impugned order.
It is evident that no legal rights of respondent- petitioners were infringed because as per the averments made in the petitions and supported by Annexures , it cannot be said that they were ever denied any Selection Scale, after the completion of 9 years or 18 years. They were entitled to next higher pay scale , on completion of 9 years and 18 years of satisfactory service, and it was not denied to them . Rather, it was granted 10 to them vide impugned orders and other orders annexed with the respective writ petitions. It is clear from the record that the cases of Arjun Lal Tanwar, Smt.Kiran Devi and Gopal Sharma were not at par with that of the present respondent -petitioners. Even assuming that some illegal benefit was extended to Arjun Lal Tanwar , Smt.Kiran Devi and Gopal Sharma the Court cannot perpetuate the illegality by extending similar benefits to other persons also.
The perusal of the record reveals that the cases of Arjun Lal Tanwar, Smt.Kiran Devi and Gopal Sharma, do not rest on same footing, as they were initially appointed in different years , whereas the respondent-petitioner Chandra Prakash Gehlot was initially appointed in the year 1974. Similarly, Smt.Kiran Devi and Gopal Sharma were promoted on the basis of merit, earlier to the petitioner- respondent. The learned Single Bench committed illegality in allowing the writ petition and thereby allowing Chandra Prakash Gehlot, the pay scale of Rs.5000- 8000 from the date of completion of 18 years of service. Because the respondent-petitioner Chandra Prakash Gehlot was fixed to corresponding equal pay scale, as prescribed under the Rajasthan Civil Services (Revised Pay Scales) Rules, 1983, 1987, 1989 and 1998.
As a consequence, Special Appeal (W) No.644/2008 is allowed and we hereby set aside the order passed by the learned Single Bench dated 18.01.2007.
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Rest of the appeals arose out of the orders of the Single Bench, passed on the basis of the order dated 18.01.2007 passed in Chandra Prakash Gehlot's case (supra) and since that order of Single Bench, has been set aside by us, therefore, the orders passed by Single Bench in rest of the appeals, also cannot be sustained and the same are set aside.
All the appeals , thus, stand allowed.
No order as to cost.
(KAILASH CHANDRA JOSHI),J. (ARUN MISHRA),C. J. l.george