Rajasthan High Court - Jaipur
Director Ayurved Department And Anr vs Jagdish Prasad Sharma on 5 April, 2019
Bench: Mohammad Rafiq, Goverdhan Bardhar
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D. B. Civil Special Appeal (Writ) No. 667/2018
In
S. B. Civil Writ Petition No. 9110/2011
1. Director, Ayurved Department, Rajasthan, Ajmer.
2. District Ayurved Officer, Ayurved Department, Rajasthan,
Sawaimadhopur, District Sawaimadhopur.
----Appellants/Respondents
Versus Jagdish Prasad Sharma S/o. Shri Ram Chandra Vyas, by caste Brahmin, resident of Kota Via Mandawar Mahuwa Road, District Dausa- Attendant (Paricharak), District Ayurved Office, Mudia, District Karauli.
----Respondent/Petitioner.
For Appellant(s) : Mr. Chiranji Lal Saini, AAG.
For Respondent(s) : Mr. Anil Agarwal.
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ
HON'BLE MR. JUSTICE GOVERDHAN BARDHAR
Judgment
05/04/2019
This appeal has been filed by the appellants against the judgment dated 11.01.2018 passed by the learned Single Judge of this Court whereby writ petition filed by the respondent has been disposed of in terms of order dated 15.05.2017 passed by another Single Bench in Budh Singh Vs. Urban Improvement Trust, Alwar (S. B. Civil Writ Petition No. 1882/2016). Aforesaid writ petition filed by Budh Singh was allowed in part in following terms:
"Consequently, following the principle of equal pay for equal work, and the mandate of law as interpreted in the case of State of Punjab & Ors. Vs. Jagjit Singh & Ors. (supra), as prayed, the present petition is allowed to the (Downloaded on 27/06/2019 at 11:02:01 PM) (2 of 6) [SAW-667/2018] limited extend by holding that the petitioner shall be entitled to grant of minimum regular pay scale and the salary of the petitioner shall be fixed in the regular minimum pay scale from the date of his initial appointment. However, arrears to be paid to the petitioner shall be restricted to thirty- eight months before filing of the writ petition. The respondent shall however, calculate the regular pay scale of the petitioner by extending revision of pay scale as was admissible to other employees from time to time."
Learned Additional Advocate General appearing on behalf of the appellants-respondents has submitted that as far as prayer of the respondent-writ petitioner in the writ petition for regularisation is concerned, since learned counsel appearing on behalf of the respondent-petitioner prayed for disposal of the writ petition in terms of order passed in Budh Singh (supra), therefore, that prayer stood not pressed, but he contended that the writ petitioner be paid minimum pay scale as being paid to other employees including persons junior to him. Reliance was placed on the judgment of the Supreme Court in State of Punjab & Others Vs. Jagjit Singh & Others, (2017) 1 SCC 148. It is argued that the learned Single Judge has disposed of the writ petition of the respondent in terms of judgment passed in Budh Singh (supra) wherein the respondent-petitioner was held entitled to minimum pay scale from the date of initial appointment. However, the arrears were restricted to 38 months before filing of the writ petition.
Referring to the judgment of the Supreme Court in State of Punjab & Others Vs. Jagjit Singh & Others (supra), learned Additional Advocate General argued that the supreme Court in para 55 of the Report modified judgment of the High Court by directing that concerned employees would be entitled to (Downloaded on 27/06/2019 at 11:02:01 PM) (3 of 6) [SAW-667/2018] the minimum of the pay scale, of the category to which they belong, but would not be entitled to allowances attached to the post held by them. He also argued that there was no justification for granting arrears of the salary for 38 months before filing of the writ petition, particularly when the writ petition itself was filed on 13.07.2011.
Learned Additional Advocate General cited judgment dated 13.03.2008 passed by the Division Bench of this Court in State of Rajasthan & Another Vs. Jagdish Prasad Sharma (D.B. Civil Special Appeal (Writ) No. 1023/2006) and argued that the Division Bench of this Court has set aside judgment dated 13.07.2006 passed by the learned Single Judge whereby services of the respondent-petitioner were ordered to be regularized but directed that he shall be entitled to minimum wages payable by the State Government to the employees of his status. His argument therefore is that in the light of aforesaid judgment, subsequent writ petition filed by the respondent-petitioner was not maintainable.
Learned counsel for the respondent-writ petitioner submitted that vide award dated 27.09.1994 passed by the Labour Court, Bharatpur (for short 'the Labour Court') not only termination of the petitioner was declared illegal but he was declared entitled to reinstatement with continuity of service and full back wages. The appellant reinstated the respondent in service but he was not regularised and was paid Rs. 2/- per day which he was receiving earlier, though services of one similarly situated person Babu Lal Sharma were regularised and he was also given benefit of regular pay scale w.e.f. 26.03.1991. The (Downloaded on 27/06/2019 at 11:02:01 PM) (4 of 6) [SAW-667/2018] respondent filed S.B. Civil Writ Petition No. 2969/2000 before this Court. A Single Bench of this Court vide order dated 13.07.2006 disposed of the writ petition and directed the appellant to regularise services of the respondent at par with Babu Lal Sharma. The appellants filed D.B. Civil Special Appeal(Writ) No. 1023/2006 before Division Bench of this Court which allowed the same vide judgment dated 13.03.2008 and set aside of judgment of the Single Bench but held the respondent entitled to minimum wages payable by the State Government to such employees.
We are not inclined to uphold the argument of learned Additional Advocate General that writ petition in which impugned judgment has been passed was itself not maintainable in view of the judgment dated 13.03.2008 passed by the Division Bench of this Court in the case of respondent himself. That judgment was rendered in the appeal filed by the State against the judgment passed by the learned Single dated 13.07.2006 thereby directing regularization of services of the respondent-writ petition at par with Babu Lal Sharma. The Division Bench reversed the judgment of the Single Bench insofar as regularisatin was concerned. However, it was directed that the respondent-petitioner shall be entitled to minimum wages payable by the State Government. Judgment was delivered by the Division Bench of this Court on 13.03.2008. It is thereafter that the respondent-writ petitioner filed Writ Petition No. 9110/2011 on 13.07.2011 with the prayer to consider his case for regularization on the post of Class IV as per notification dated 27.02.2009 issued by the Department of Personnel, Government of Rajasthan, which was issued in the light of judgment of the Supreme Court in Secretary, State of (Downloaded on 27/06/2019 at 11:02:01 PM) (5 of 6) [SAW-667/2018] Karnataka & Others Vs. Uma Devi (3) & Others, (2006) 4 SCC 1 which gave him a fresh cause of action to maintain the writ petition. We are therefore not inclined to upheld the argument that the writ petition subsequently filed by the respondent- petitioner was not maintainable.
So far as prayer of regularisation is concerned, the same cannot be now considered and granted because the respondent-petitioner himself prayed for disposal of writ petition in terms of judgment passed in Budh Singh (supra) in which case also prayer for regularisation of services was not pressed by the petitioner therein and therefore, the same ratio would also apply to the case of the respondent-petitioner herein also, meaning thereby the prayer of regularisation in the case of present respondent-writ petition also stood not pressed and he has also not challenged that part of judgment of the learned Single Judge which has now attained finality qua him. The respondent-writ petitioner confined his prayer in writ petition up to payment of minimum pay scale at par with his junior Babu Lal Sharma. The Supreme Court in State of Punjab & Others Vs. Jagjit Singh & Others (supra), in para 55, modified the directions of the High Court, which were challenged therein and directed that concerned employees would be entitled to only the minimum of the pay scale of the category to which they belong but would not be entitled to allowances attached to the post held by them. We therefore direct that the respondent-petitioner would be entitled to the minimum of the pay scale of the category of post on which he was appointed, but would not be entitled to any allowances attached to that post.
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(6 of 6) [SAW-667/2018] Coming now to the arrears to be paid to the respondent- petitioner, learned Single Judge has not given any justification as to why arrears were confined to 38 months before filing of the writ petition. Writ petition was filed on 13.07.2011 and it was decided vide judgment dated 11.01.2018. The basis on which arrears for 38 months anterior to filing of the writ petition have been granted is not discernible from the judgment. Such a relief, in our view, ought to have been granted from the date of filing of the writ petition, i.e. from the month of July, 2011 onwards.
In the result, the appeal is allowed in part and judgment of the learned Single Judge is modified accordingly. The arrears be counted from the date of filing of the writ petition, i.e. from the month of July, 2011 onwards and paid to the respondent-petitioner within a period of three months from the date copy of receipt of copy of this judgment by the appellants, failing which the respondent-petitioner shall be entitled to interest @ 6% per annum for the entire period. It goes without saying that as and when the minimum pay scales are revised, the respondent-petitioner would be entitled to such revised pay scales.
(GOVERDHAN BARDHAR),J (MOHAMMAD RAFIQ),J
Manoj/82
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