Rajasthan High Court - Jaipur
State Of Raj And Ors vs Pyare Lal Jatav on 15 April, 2013
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN D.B. Special Appeal (Writ) No.2422/2011 With Stay Application No.15670/2011 State of Rajasthan through Chief Engineer, Department of Irrigation, Rajasthan, Jaipur, and Others Vs. Pyarelal Jatav Date of Order ::: 15.04.2013 Present Hon'ble Mr. Justice Mohammad Rafiq Hon'ble Mrs. Justice Nisha Gupta Shri Dinesh yadav, Additional Advocate General for respondents-appellants Shri Chiranji Lal Saini, counsel for writ-petitioner-respondent #### By the Court:-
Appellants, who were respondents in writ petition, have filed this appeal aggrieved by order dated 07.01.2009 of learned Single Judge in Civil Writ Petition No.6993/2009.
Respondent Pyarelal, who was writ-petitioner, filed the writ petition assailing the order dated 11.12.2002, whereby he was deprived of his consideration for grant of selection scale on completion of fifteen years of service from the date he joined service as work-charged Mistri on 13.07.1971.
Learned Single Judge allowed the writ petition and set aside the order dated 11.12.2002 and restored the order dated 21.02.1992. Respondents (appellants herein) were directed to consider writ-petitioner to be regularly appointed vide order dated 13.07.1971 for grant of selection scale admissible on completion of 15 years of work-charged service pursuant to Government order dated 23.01.1985, and for grant of selection scales admissible on completion of 9, 18 and 27 years of service in terms of Government Circular dated 25.01.1992, with consequential benefits flowing therefrom.
Facts of the case are that the writ-petitioner was initially appointed with Irrigation Department on daily wages and later on as work-charged Mistri vide order dated 13.07.1971. On completion of ten years of service, he was conferred semi-permanent status with effect from 01.08.1981 in accordance with Rule 3(2) of the Work Charge Employees Service Rules, 1964, vide order dated 24.02.1984. Thereafter, writ-petitioner was granted benefit of selection grade on completion of fifteen years of service vide order dated 21.02.1992. The Chief Engineer (Headquarters), Irrigation Department, Rajasthan, Jaipur, vide office order dated 25.07.1995, in compliance of the Notification dated 21.02.1989 of the State of Rajasthan and the Letter dated 04.07.1992, appointed the writ-petitioner, who was an ad-hoc Mistri, under Rules 20 and 26 of the Rajasthan Engineering Subordinate Service (Irrigation Branch) Rules, 1967, on the post of Mistri in the pay scale of Rs.950-1680 on the regular establishment of the Irrigation Department.
The appellants State, vide Circular dated 25.01.1992, ordered for grant of selection scales to the members of its subordinate services on their completion of 9, 18 and 27 years of service. This benefit was also extended to those who were in work-charged cadre. On the basis of this Circular the writ-petitioner submitted a representation for grant of selection scales on his completion of 9, 18 and 27 years of service but the appellants, vide order dated 26.05.1999, communicated to the petitioner that he being appointed on regular basis vide order dated 25.07.1995, the service rendered prior to that date would not be considered for the purpose of selection scales. The writ-petitioner challenged that order before the Rajasthan Civil Services Appellate Authority by filing Appeal no.2313/1999, which was decided vide judgment dated 03.04.2002 and set aside the order dated 26.05.1999 only to the extent it ordered for recovery of excess payment made and writ-petitioner was given opportunity to submit representation raising his grievance before the competent authority, which authority was directed to decide as to from which date the writ-petitioner would be considered eligible for grant of selection scales. The appellants vide order dated 11.12.2002, decided the representation of the writ-petitioner holding that no recovery can be made from him. It was further observed that since writ-petitioner was appointed as Mistri on regular basis vide order dated 25.07.1995, the selection scale on completion of 15 years of service pursuant to order dated 23.01.1985 of the State Government, would be admissible counting his services only from 25.07.1995. Aggrieved thereby, the writ-petitioner filed writ petition, which has been allowed by the impugned order. Hence this appeal.
Shri Dinesh Yadav, learned Additional Advocate General, appearing on behalf of the appellants State argued that learned Single Judge could not have allowed the writ petition beyond the scope of prayer contained therein. It was argued that learned Single Judge has erred in law in directing that the writ-petitioner should be deemed to have regularly been appointed from the date of his initial appointment on 13.07.1971 as work-charged employee and it is from that date that the period for grant of selection scale should be counted. It is contended that the date of his initial appointment cannot, in every circumstance, be treated as the date of his regular appointment. This controversy has been set at rest by the Supreme Court in State of Rajasthan & Ors. Vs. Jagdish Narain Chaturvedi : (2009) 12 SCC 49 : 2009(5) Supreme 387 in which, it has been held that benefit of Selection Scale in terms of Circular of the State Government dated 25.01.1992 has to be granted only from the date of regular appointment. The writ-petitioner was erroneously granted benefit of selection scale on completion of fifteen years of service vide order dated 21.02.1992, which was based on the earlier order dated 24.02.1984 passed by the Executive Engineer, Irrigation Division, Alwar, which was to the effect that as per the provisions of Rules 7(22) and 14(Ga) of the Rajasthan Service Rules, respondent Pyarelal, Mistri, who is regularly working on that post on ad-hoc basis since 20.07.1971, is declared permanent with effect from 01.08.1981, whereas the Executive Engineer had no such authority. He had no authority to confer status of permanency on the writ-petitioner. Aforesaid order was therefore rightly withdrawn by order dated 25.07.1995. The Chief Engineer (Headquarters), Irrigation Department, Rajasthan, Jaipur, in fact, regularized the service of the writ-petitioner vide order dated 25.07.1995 thereby bringing him on regular establishment of the Irrigation Department. The period of service for the purpose of grant of selection scale to the writ-petitioner, should be counted only from that date.
Shri Chiranji Lal Saini, learned counsel for the writ-petitioner, opposed the appeal and submitted that all earlier instructions were superseded by the State Government, which had issued fresh Circulars in respect of grant of benefit of selection scales to the work-charged employees. Learned counsel in this respect invited attention of the court to the Order dated 04.03.1998 and Circular dated 30.09.1998. it was argued that learned Single Judge has rightly directed that period of 9, 18 and 27 years of service should be counted from 13.07.1971 because it was that date when the writ-petitioner was appointed as work-charged employee, which appointment has to be treated as akin to the regular appointment. The impugned judgment is perfectly just and reasonable and does not call for any interference.
We have given our anxious consideration to rival submissions and perused the material on record. We find that the Order of the Government dated 04.03.1998 was issued in supersession of earlier Orders dated 20.09.1995 and 03.03.1997. In those Orders, the Government had taken a decision that the work-charged employees would be entitled to get the benefit of first, second and third selection scales on completion of 9, 18 and 27 years only from the date of conferment of permanent status. However, by subsequent Order dated 04.03.1998 and Circular dated 30.09.1998, the earlier decision was changed and the Government decided to grant selection scale to the work-charged employees from the date they are declared semi-permanent. The semi-permanent status was liable to be conferred on the writ-petitioner on completion of the period of two years. In the present case, it is not disputed before us that the writ-petitioner though was initially appointed on daily wages basis but the date, on which he was appointed as work-charged employee, was 13.07.1971. The appellants at the maximum would be justified in saying that the writ-petitioner be made semi-permanent on completion of two years of service as per Rule 3 of the Work Charged Employees Service Rules, 1964, i.e. 13.07.1973. But their contention that the entire period of service rendered by writ-petitioner from 13.07.1971 to 25.07.1995 should be ignored altogether cannot at all be justified. The learned Single Judge has however directed that the period of selection scale be counted from 13.07.1971. We are however, persuaded to bring that date forward to 13.07.1973, the date on which the writ-petitioner would otherwise be entitled to be conferred the status of semi-permanent on completion of period of two years, as per Rule 3 of the Work Charge Employees Service Rules, 1964, because that is as per the Government Order dated 04.03.1998 and Circular dated 30.09.1998, supra.
In the result, this appeal is allowed in part. The impugned judgment is modified as indicated above. However, the appellants shall be liable to now make compliance of the judgment of the learned Single Judge, impugned in this appeal, and pay consequential benefits to the writ-petitioner within three months from today.
This also disposes of the stay application (Nisha Gupta) J. (Mohammad Rafiq) J. //Jaiman//21
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Giriraj Prasad Jaiman PS-cum-JW