Rajasthan High Court - Jaipur
State Of Rajasthan vs Dr.K.M. Gavendra S/O Shri Nanag Ram on 28 September, 2021
Bench: Sabina, Manoj Kumar Vyas
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D. B. Civil Special Appeal (Writ) No. 534/2020
In
S. B. Civil Writ Petition No. 27459/2018
State of Rajasthan & Another
----Appellants
Versus
Dr. K.M. Gavendra & Others.
----Respondents
Connected With D. B. Civil Special Appeal (Writ) No. 295/2020 In S. B. Civil Writ Petition No. 26867/2018 State of Rajasthan & Another.
----Appellants Versus Dr. Satish Saraswat & Others.
----Respondents D. B. Civil Special Appeal (Writ) No. 305/2020 In S. B. Civil Writ Petition No. 12278/2019 State of Rajasthan & Another.
----Appellants Versus Dr. Kamal Kant Sharma
----Respondent D. B. Civil Special Appeal (Writ) No. 306/2020 In S. B. Civil Writ Petition No. 13566/2010 State of Rajasthan & Others.
----Appellants Versus Dr. Madan Mohan Trigunanyat
----Respondent D. B. Civil Special Appeal (Writ) No. 308/2020 In S. B. Civil Writ Petition No. 9324/2019 State of Rajasthan & Others.
----Appellants
Versus
Dr. Aruna Adam
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----Respondent
D. B. Civil Special Appeal (Writ) No. 226/2021 In S. B. Civil Writ Petition No. 11688/2019 State of Rajasthan & Another
----Appellant Versus Dr. Rajendra Singh
----Respondent For Appellants : Mr. Prakhar Gupta Advocate on behalf of Dr. Vibhuti Bhushan Sharma Additional Advocate General.
For Respondents : Mr. Rajendra Prasad Senior Advocate assisted by Mr. Karan Tiberwal Advocate (In SAW No. 306/2020).
Mr. Samarth Sharma Advocate.
HON'BLE MRS. JUSTICE SABINA HON'BLE MR. JUSTICE MANOJ KUMAR VYAS Order 28/09/2021 D. B. Civil Special Appeal (Writ) No. 306/2020:
Heard.
Recovery proceedings against the respondent shall remain stayed.
D. B. Civil Special Appeal (Writ) No. 534/2020, 295/2020, 305/2020, 306/2020, 308/2020 & 226/2021:
Instant appeals have been filed by the State against order dated 13.08.2019 and order dated 30.08.2019 passed by the learned Single Judge.
Learned Single Judge, while allowing S. B. Civil Writ Petition No. 12278/2019 and other connected writ petitions vide order dated 30.08.2019, has observed as under:(Downloaded on 30/09/2021 at 09:37:16 PM)
(3 of 8) [SAW-534/2020] "On directions of this Court, Mr. Prakhar Gupta, Adv. Appears for the respondent-department.
Learned counsel for the petitioners submits that the controversy involved in the present batch of these writ petitions has been decided by this Court in its recent judgment rendered in Dr. Madan Mohan Trigunanyat Vs. State of Rajasthan & Ors. (SB Civil Writ Petition No. 13566/2010); decided on 13.08.2019, the relevant portion of which reads as follows:-
5. After hearing Counsel for the parties, this Court is of the opinion that Rule 11 of the Rules of 1999 has been amended by the Government Vide notification dt. 19/02/2001, which came into force w.e.f. 1st day of January, 1996 and the amended Rule 11 of the Rules, 1999 is directly applicable in the present controversy.
The precedent law cited deals with the issue of rule 11 for granting two advance grade increment to the government lecturers. The Hon'ble Court reached to the conclusion that the lecturers of 2001 will be eligible for two advance increment when he moves into selection scale as stipulated in Condition No.C of Rule 11. There is no reason to differ from the aforementioned precedent law. The Rule 11 of Rules of 1999 reads as follows: -
"11. Incentive for Ph.D./M.Phil :
(a)Four and two advance increments will be admissible to those who hold Ph.D. And M.Phil degree respectively at the time of recruitment as Lecturers,
(b)One increment will be admissible to those teachers with M. Phil who acquire Ph.D. within two years of recruitment,
(c)A Lecturer with Ph.D. will be eligible for two advance increments when she/he moves into Selection Scale.
(d) A Lecturer will be eligible for two advance increments as and when he acquires a Ph.D. Degree in his service career provided that he/she has not availed the advance increment admissible for possessing M.Phil degree at the time of recruitment.
Rule 11(c) clearly applicable in the present case. This has also been held to be applicable in the same set of situation where another candidate doing PG became entitled but was given the same benefit from the date of grant of selection scale.
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6. In light of aforesaid observations, the present writ petition is allowed and the respondents are directed to give all consequential benefit while applying rule 11(c) and computing two advance increments to the petitioner w.e.f. his entering into the selection scale i.e. 17.12.1999.
Learned counsel for the respondents is not in a position to refute the same.
Consequently, the present writ petitions are allowed in terms of the judgment passed by this Court in the case of Dr. Madan Mohan Trigunanyat (supra) and the respondents are directed to grant all consequential benefits to the petitioner by applying Rule 11(c) of the Rajasthan Civil Services (Revised Pay Scales of Government College Teachers Including Librarians and PTI) (Amendment) Rules, 2001 within a period of three months of the receipt of certified copy of this order. It is made clear that any amount, recovered from the petitioners contrary to the aforementioned precedent law, shall be refunded."
Learned State Counsel has submitted that the order passed by the leaned Single Judge was in contravention to the order dated 18.12.2014 passed by Division Bench of this Court in Dr. Amita Agarwal Vs. the State of Rajasthan & Others (D.B. Special Appeal (Writ) No. 2005/2014).
Learned counsel for the respondents, on the other hand, have opposed the appeals and have submitted that as per amended Rule 11 of the Rajasthan Civil Services (Revised Pay Scales for Government College Teachers including Librarians and PTIs) Rules, 1999 (hereinafter referred to as 'the Rules of 1999'), the respondents were eligible for two advance increments when they acquired Ph.D. degree and were further eligible to receive two advance increments when they moved into selection scale.
A Co-ordinate Division Bench of this Court in the case of Dr. Amita Agarwal (supra), while interpreting amended Rule 11 of the Rules of 1999 observed as under:
(Downloaded on 30/09/2021 at 09:37:16 PM)(5 of 8) [SAW-534/2020] "Indisputably, in the instant case, the appellant joined service on 07/07/1984 and on the basis of the Ph.D. degree awarded to her, she indisputably was awarded two advance increments on 19/03/1997 and immediately thereafter she moved for selection scale based on the Ph.D. degree and two further advance increments were availed by the appellant on 07/07/1997 and that being a duplicacy of the two advance increments to her, immediately when this fact came to notice on the accounts being audited, action was taken to hold recovery from the appellant in regard to the excess payment.
The main thrust of submission of counsel before the ld. Single Judge and so also before this Court is that before the impugned action regarding recovery being initiated, opportunity of hearing was not afforded and since there was no concealment on the part of the appellant, at least the recovery could not have been made and the very action of the respondents in passing of the order of holding recovery from the appellant vide Ann.-4 dt. 02/03/2010, being violative of the principles of natural justice, the recovery could not have been made from the appellant.
Even to support the submission, no tangible evidence is on record to take a different view at least from the facts available on record that the two advance increments, which were availed by the appellant at the time when she moved into selection scale on 07/07/1997, were not admissible as she had already availed two advance increments for acquiring Ph.D. degree on 19/03/1997 and thereafter, two additional advance increments, which the appellant availed under the scheme of notification dt.19/02/2001, which has been noticed by us, were not admissible under law and in these facts and circumstances, calling for notice and affording opportunity certainly remains a useless formality and not going to serve any purpose. Even before this Court, the appellant is unable to prima-facie justify to support that she was entitled to claim two advance increments in addition to the two increments which she has already availed on acquiring Ph.D. degree and that being so, the additional two increments, paid to the appellant, were not admissible to her under the scheme of notification dt.19/02/2001 and in our considered view, affording of opportunity of hearing certainly remains a useless formality and that what the ld. Single Judge has also considered while passing the order impugned dt.25/08/2014."
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Thus, in the present appeals, the point under
consideration is as to whether the respondents were entitled to receive, in all, four advance increments after acquiring Ph.D. degree while in service (two advance increments) and thereafter, at the time of moving into selection scale (two advance increments) in terms of amended Rule 11 of the Rules of 1999.
The Existing Rule 11 of the Rules of 1999 was amended by the Government vide notification dated 19.02.2001. Amended Rule 11 of the Rules of 1999 reads as under:
"11. Incentives for Ph.D./M.Phil :
(a) Four and two advance increments will be admissible to those who hold Ph.D. and M.Phil degree respectively at the time of recruitment as Lecturers,
(b) One increment will be admissible to those teachers with M. Phil, who acquire Ph.D. within two years of recruitment.
(c) A Lecturer with Ph.D. will be eligible for two advance increments when she/he moves into Selection Scale.
(d) A teacher will be eligible for two advance increments as and when he acquires a Ph.D. degree in his service career provided that he/she has not availed the advance increment admissible for possessing M.Phil degree at the time of recruitment."
A perusal of the above amended Rule 11 of the Rules of 1999 reveals that vide the said Rule, incentive had been granted to lecturers, who had got Ph.D. or M.Phil degree. Admittedly, in the present cases, the respondents do not possess M.Phil degree and also did not have Ph.D. degree at the time of their recruitment as lecturers. Thus, the respondents/lecturers before us are those lecturers, who had acquired Ph.D. degree while in service and had been granted two advance increments on the (Downloaded on 30/09/2021 at 09:37:16 PM) (7 of 8) [SAW-534/2020] basis of Ph.D. degree and thereafter, they were also granted two advance increments when they moved into selection scale. On account of an audit objection, the employer-State took the decision that the respondents could have got only two increments on acquiring Ph.D. degree and were debarred from getting further two advance increments on moving into selection scale.
After carefully perusing amended Rule 11 of the Rules of 1999, it transpires that at the time of recruitment as lecturer, a candidate, who is already holding Ph.D. degree, would be entitled for four advance increments. As per Clause (d) of amended Rule 11 of the Rules of 1999, a candidate/lecturer, who acquires Ph.D. degree while in service, would be eligible for two advance increments provided he/she had not availed advance increments admissible for possessing M.Phil degree at the time of recruitment.
As per Clause (c) of amended Rule 11 of the Rules of 1999, a lecturer with Ph.D. degree would be eligible for two advance increments when he/she moved into selection scale.
A conjoint reading of all the Clauses of amended Rule 11 of the Rules of 1999 leads to the inference that a lecturer, who is holding Ph.D. degree at the time of recruitment would get four advance increments whereas a lecturer, who acquires Ph.D. degree after recruitment, would get in all four increments in two stages, i.e., two advance increments at the time of acquiring Ph.D. degree and also two advance increments while moving into selection scale. A lecturer, who acquires Ph.D. degree after recruitment, is liable to be placed at the same footing, to a lecturer, who possesses Ph.D. degree at the time of recruitment, vis-à-vis admissibility of advance increments. However, Co-
ordinate Division Bench of this Court in the case of Dr. Amita (Downloaded on 30/09/2021 at 09:37:16 PM) (8 of 8) [SAW-534/2020] Agarwal (supra) has taken a view that a lecturer, who acquires Ph.D. degree after recruitment, would get only two advance increments.
Hence, we are of the opinion that the issue-in-question requires to be decided by a Larger Bench. The question required to be considered/decided by the Larger Bench is as under:
"Whether in terms of amended Rule 11 of the Rajasthan Civil Services (Revised Pay Scales for Government College Teachers including Librarians and PTIs) Rules, 1999, the respondents were entitled to receive, in all, four advance increments, i.e., two advance increments after acquiring Ph.D. degree while in service and thereafter, two advance increments at the time of moving into selection scale."
Accordingly, the files be placed before Hon'ble the Chief Justice for appropriate orders.
(MANOJ KUMAR VYAS),J (SABINA),J
Manoj Narwani/30-35
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