Shiv Charan Lal Sharma Vs State of Raj and Ors.

CW 10143/08

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In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No.10143/2008 Shiv Charan Lal Sharma Versus State & Ors.

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Date of Order ::: 04/11/09

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Hon'ble Mr. Justice Ajay Rastogi

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Mr. Dinesh Kr. Garg, for petitioner Ms Priyanka Pareek, Dy. Govt. Counsel for respondents.

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Reply has been filed by Govt. Counsel

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appearing on behalf of respondents.

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Counsel submits that controversy
raised herein has been decided by DB decision
of this Court at principal seat Jodhpur in
Special Appeal (Writ) 208/06 & bunch of others
(State of Rajasthan Vs. Ramniwas Porwal) on
13/12/07 (Per Hon. Mr. Rajesh Balia, J.) (2008
(2) WLC 406) clarifying the position ad infra:

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“However, it may be clarified that
because of the provisions made in Note 8
read with Note appended to Rule 6 a Senior
Teacher drawing pay in second selection
grade of 6500-10500 prior to 1.7.1998 and
promoted as Senior Teacher but after
1.7.1989 who has not completed 10 years as
Senior Teacher at the time of commencement
of the Act his pay in pay-scale of 6500-
10500 was protected as personal to him,
though he would become eligible to such
scale under the new rules of 1998 only on
completion of 10 years. In this view of
the matter, the rights of the respondents
even under the aforesaid provision remain
intact and unaffected and it could not
have any adverse effect on them.

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But those who have been promoted as
Senior Teachers drawing their pay in
Second Selection Grade of 6500-10500 will

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CW 10143/08

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//2//

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not be eligible for this pay protection
because even under the Rules of 1998 as
initially exist, they were to be promoted
to Senior Scale, which was Rs.5500-9000
only. But because of lacuna in the Rules
originally enacted, not 26 providing any
specific provision, their fixation has
been wrongly made by considering all
Senior Teachers to be of the same
category. The initial fixation in higher
pay-scale being without any mistake on
their part, until Notification of
amendment, the resultant recoveries of
excess amount paid to them has been
waived.

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But after correction of this lacuna
on amendment of Note 8, no such protection
has been granted under the Rules. If any
such recovery has become due on account of
continued drawing of pay by such Senior
Teachers promoted after 1.7.1998, due to
no mistake or misrepresentation on the
part of such incumbents, they may make
appropriaterepresentationtothe
Government to consider their cases against
recovery.

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Accordingly, with the aforesaid
clarification the appeals are allowed. The
judgmentunderappealdeclaring
Notification dated 8.6.2001 to be ultra
vires is set-aside. However, the view
which we have taken on interpretation of
the Rules, the existing teachers who have
been promoted as Senior Teacher in the
SecondSelectionGradepriorto
commencement of the Rules at any time but
because of non-completion of 10 years of
service as Senior Teacher under the
revised rules were required to be fixed in
lower pay-scale, their continuance in the
higher pay-scale was protected as pay-
scale personal to them under Note to Rule
6. The rights of all the appellants stand

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CW 10143/08

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protected to this extent. In that light,
the writ petitions filed by the appellants
stand allowed to that extent.”

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A bunch of 62 Special Appeals (Writ) (No.

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936/05 State of Rajasthan Vs. Shyam Swaroop
Upadhayaya) came up for consideration before
Division Bench at Jaipur Bench – that too vide
judgment dt.04/04/08 (per Hon.Mr.R.M.Lodha,
J.) were disposed of in the light of judgment

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in State of Rajasthan Vs. Ramniwas Porwal
(2008(2) WLC 406) ad infra:

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“The existing teachers who have been
promoted as Senior Teacher in the second
selection grade prior to commencement of
the Rules at any time but because of non-
completion of 10 years of service as
Senior Teacher under the revised Pay rules
are required to be fixed in lower pay
scale. Their continuance in higher pay
scale protected as pay scale personal to
them under Note to Rule 6 would remain to
that extent.”

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As regards judgments (supra), it has not been
disputedbyGovernmentCounselabout
controversy being decided by this Court.

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Without going into merits, writ

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petition is disposed of with the direction to
the petitioner to make fresh representation
within one month and if made, respondent-
authority is directed to pass speaking order
in terms of DB decision in State of Rajasthan
Vs. Ramniwas Porwal & State of Rajasthan Vs.
Shyam Swaroop Upadhyayaquoted(supra)&
communicate it within three months to him who
if feels aggrieved, will be free to avail of
remedy under law. However, impugned recovery
vide order dt.19/08/08 (Ann.4) shall remain
stayed till disposal of his representation.

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( Ajay Rastogi), J.

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K.Khatri/p.3/

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10143CW08Nov4SlsclRpGARcvry.doc

Shiv Charan Lal Sharma v. State of Raj and Ors.

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Shiv Charan Lal Sharma v. State of Raj and Ors.

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