Rajasthan High Court - Jaipur
State Of Raj And Anr vs The Raj Civil Services Appell Tri And An on 26 August, 2019
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 19959/2013
1. State Of Rajasthan, Through Its Principal Secretary, Public
Health Engineering Department, Government Of Rajasthan,
Secretariat, Jaipur.
2. Chief Engineer, Public Health Engineering Department,
Government of Rajasthan, Jaipur.
----Petitioner
Versus
1. Rajasthan Civil Services Appellate Tribunal, Jaipur.
2. Om Prakash Vashishtha son of Shri Jwala Prasad Sharma,
resident of 28-B, Chitrakoot Colony, Mavli Nagar Vistar Yojana,
Kota; presently working on the post of Junior Engineer, Public
Health Engineering Department, Distribution Sub Division-II
Kota.
----Respondent
Connected With S.B. Civil Writ Petition No. 19973/2013
1. State Of Rajasthan, Through Its Principal Secretary, Public Health Engineering Department, Government Of Rajasthan, Secretariat, Jaipur.
2. Chief Engineer, Public Health Engineering Department, Government of Rajasthan, Jaipur.
----Petitioner Versus
1. Rajasthan Civil Services Appellate Tribunal, Jaipur.
2. Raj Kumar Saxena son of late Shri Ramesh Chander Saxena, resident of B-406, Ashirwad Vaibhav, Indira Vihar, Kota; presently working on the post of Junior Engineer, Public Health Engineering Department, Distribution Sub Division-V Kota.
----Respondent S.B. Civil Writ Petition No. 19974/2013
1. State Of Rajasthan, Through Its Principal Secretary, Public (Downloaded on 06/06/2021 at 06:21:14 PM) (2 of 7) [CW-19959/2013] Health Engineering Department, Government Of Rajasthan, Secretariat, Jaipur.
2. Chief Engineer, Public Health Engineering Department, Government of Rajasthan, Jaipur.
----Petitioner Versus
11. Rajasthan Civil Services Appellate Tribunal, Jaipur.
22. P.C. Uppadhyay son of Shri H.L. Uppadhyay, resident of 55, 4Jawahar Nagar, Mangal Pandey Marg, Kota; presently working oin the post of Junior Engineer, Public Health Engineering Department, Distribution Sub Division Kota.
----Respondent S.B. Civil Writ Petition No. 5785/2017 Usman Ali S/o Shri Sabbir Ali, Ward No. 5, Behind Vikram School, Salasar Road, Sikar
----Petitioner Versus
1.State Of Rajasthan Through Its Principal Secretary, Public Health Engineering Department, Governmen, Government Secretariat, Jaipur
2. Principal Secretary, Department Of Personnel, Government Of Rajasthan, Government Secretariat, Jaipur
3. Chief Engineer Admn. Public Health Engineering Department, Jaipur
----Respondents S.B. Civil Writ Petition No. 19097/2018 Vishnu Prakash Sharma S/o Shri Radheyshyam Sharma, Aged About 50 Years, R/o C-8, Behind Tagore Public School Shastri Nagar, Jaipur
----Petitioner Versus
1.State Of Rajasthan Through Its Principal Secretary, Public Health Engineering Department, Governmen, Government (Downloaded on 06/06/2021 at 06:21:14 PM) (3 of 7) [CW-19959/2013] Secretariat, Jaipur
2.Principal Secretary, Department Of Personnel, Government Of Rajasthan, Government Secretariat, Jaipur
3.Chief Engineer Admn. Public Health Engineering Department, Jaipur
----Respondents For Petitioner(s) : Ms. Archana and Mr. Yatharth Gupta for Mr. Anil Mehta, AAG for State For Respondent(s) : Mr. Ashok Bansal, Mr. R.D. Meena, for Junior Engineers HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI Order 26/08/2019 In all these matters, common question of law and facts are involved, hence, with the consent of the learned counsel for the parties, all these matters are decided by this common order. For convenience, the facts are taken from SBCWP No. 19959/2013.
By way of this petition, the petitioner has claimed for the following relief.
"i) by way of appropriate writ, order or directions the order dated 28th February 2013 passed by the learned Tribunal may kindly be quashed and set aside
ii) by way of appropriate writ, order or directions the appeal filed by the non-petitioner No.2 may kindly be dismissed with costs throughout."
Counsel for the State Ms. Archana, appearing for Mr. Anil Mehta, AAG, submits that the law laid down by the Hon'ble Apex Court in the matter of Jagdish Narain and Surendra Mohanot, has been followed by the Full Bench of this Court in the matter of State of Rajasthan Vs. Smt. Sudha Devi: DBSAW No. (Downloaded on 06/06/2021 at 06:21:14 PM) (4 of 7) [CW-19959/2013] 904/2016, decided on 03.07.2017, clearly stipulating that the ad- hoc period of any employee cannot be allowed to be considered for the benefits of 9, 18 and 27 years of selection scale. Counsel for the State further submits that in judgments apart from the aforementioned judgments which may be holding the field, cannot be applied in the present case, where the petitioners are governed by the Circulars issued by the respondents on 17.02.1998, which supersede all the earlier Circulars passed by the respondent-State in which such benefits were being conferred upon the employee in contravention to the basic law of selection scale. Counsel for the State also submits that a further clarification was issued by the Finance Department on 16.07.2000 whereby the exception was carved out for adhoc Junior Engineers for the reason that service of Junior Engineers was continuing against the same permanent post.
Counsel for the Junior Engineers Shri Ashok Bansal and Shri R.D. Meena, submit that the Circular dated 16.07.2000 was a conscious stand of the State which brought the Junior Engineers outside the ambit of regular law of selection scale. Counsel for the Junior Engineers further reiterated that once the State itself had taken a conscious decision diversifying from the Circular dated 17.02.1998, it was not open for the State to go back and say that the Junior Engineers were not entitled for the selection scale from the initial date of appointment. Counsel for the Junior Engineers also submitted that the Circular dated 16.07.2000 was passed in favour of Junior Engineers noticing the fact that these Junior Engineers were working against the permanent posts and discharging services akin to regular persons. Counsel for the Junior Engineers have also referred to the judgment passed by the (Downloaded on 06/06/2021 at 06:21:14 PM) (5 of 7) [CW-19959/2013] Single Bench in the matter of Bhiya Ram Bishnoi Vs. State: SB CWP No. 14215/2013, decided on 14.2.2017, relevant portion of which reads as follows.
"5. A look at the circular of 17.2.1998 would show that the same is a repetition of the circular dated 29.1.1992. Further the word used in the new circular is a "service shall be only regular service".
On the said basis, it is argued that the services prior to the screening could not have been counted for the purpose of grant of selection grade. In this regard, it has to be noted that the Finance Department itself on 16.7.2000 has clarified its earlier circular of 1998 and had again carved out exception for junior engineers which obviously is on account of reason that the service of junior engineer was continuous against a permanent post. It is for the said reason that the screening clause was inserted in all the Engineering Departments and the observation made by this court in Shyam Sunder's case (supra) is in conformity with the circular issued from time to time by the Finance Department. Having said so, this Court is of clear opinion that the entire period of service has to be counted of the junior engineers from the date of their initial appointments as they were in the regular pay scale.
6. In view of the law which has been held by this Court in the aforesaid judgments and taking into consideration the circulars issued by the Finance Department from time to time there cannot be two opinions on the issue of considering the entire period of service of junior engineer from the date of initial appointment.
7. Accordingly, this writ petition is allowed. The petitioner is declared to be entitled to count his entire period of service for the purpose of grant of selection scale in terms of circular dated 25.1.1992, 20.1.1993, 17.2.1998 and 16.7.2000. The department is now directed to release the selections scale of the petitioner on completion of 9, 18 years of service and the same be paid to the petitioner along with arrears within the period of three months from date of passing of this order." (Downloaded on 06/06/2021 at 06:21:14 PM)
(6 of 7) [CW-19959/2013] Counsel for the Junior Engineers also submitted that the judgment of Bhiya Ram (supra) has been affirmed by the Division Bench of this Court at Jodhpur in D.B. SAW No. 983/2017 decided on 4.7.2018. Counsel for the Junior Engineers also points out that the precedent law was based upon the earlier judgment passed in the matter of State of Rajasthan Vs. Kan Singh, Civil Appeal No.1118/2013 and also Shyam Sunder's case which was affirmed upto the Hon'ble Supreme Court. Counsel also submitted that the compliance of Shyam Sunder's case has been made by the respondents.
Counsel for the State Ms. Archana at this stage submits that a review petition against the judgment in Bhiya Ram (supra) is pending.
After hearing counsel for the parties, this Court is of the opinion that once the court has taken a stand pertaining to grant of selection scale benefits on completion of service of 9, 18 and 27 years to the Junior Engineers of the same Department under the same set of facts and circumstances reiterated on 14.2.2017 in the Bhiya Ram by Single Bench and upheld on 4.7.2018 in the Division Bench which are holding the field then there is no reason for the Court to distinguish from the outcome. This court is following the Single Bench and Division Bench judgment in Bhiya Ram (supra) and in case any reverse opinion is taken in the review application in the case of Bhiya Ram (supra), it shall be open for the petitioner to take appropriate remedy in accordance with law.
In the light of the aforesaid observations, the present petitions are disposed of while following the judgment of Bhiya Ram Bishnoi (supra).
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(7 of 7) [CW-19959/2013] Accordingly, SB CWP Nos. 19959/2013, 19973/2013 and 19974/2013 are dismissed.
SB CWP Nos. 5785/2017 and 19097/2018 are allowed in terms of judgment in Bhiya Ram (supra). It is further directed that necessary compliance in terms of judgment in Bhiya Ram (supra) shall be made by the State within a period of six months.
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