Allowed

Harish Kumar Kaushik v. State of Raj and Ors.

Rajasthan HC16 Sept 2016CW/12067/2016

Case brief

AI extract

What is this about?

This judgment allows multiple writ petitions filed by Public Health Engineering Department employees. The court held that granting the same pay scale upon selection scale completion is illusory and contrary to the spirit of service circulars. The court directed the respondents to grant a higher pay scale as per Para 5 of the relevant circulars.

What did the court decide?

Respondents directed to grant higher pay scale as per Para 5 of the circulars on grant of selection scale within three months.

Harish Kumar Kaushik Vs State of Raj and… — Pension and Retirement Benefits | Rajasthan HC (2016)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

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JAIPUR BENCH, JAIPUR

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ORDER

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1.SB Civil Writ Petition No.12074/2016

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Vishnu Dutt Sharma S/o Shri Rudradutt Sharma, aged about 69 years, R/o Plot No. 111/45, Rudrasha Bhawan, Teja Chowk, Kotada, Pushkar Road, Ajmer, District Ajmer (Raj.).

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.... Petitioner

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Versus

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State of Rajasthan through its Principal Secretary, Public Health Engineering Department, Rajasthan, Secretariat, Jaipur.

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The Chief Engineer (Administration), Public Health Engineering Department, P.H.E.D. Head Office Campus, Rajasthan, Jaipur

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The Superintending Engineer,

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Circle Ajmer, Public Health Engineering Department, District Ajmer, Rajasthan.

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... Respondents

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2.S.B. Civil Writ Petition No. 12089/2016

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Badrudeen S/o Shri Moinudeen Kha, aged about 57 years, R/o Mohalla Rajban, Tonk, District Tonk (Raj.).

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.... Petitioner

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Versus

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State of Rajasthan through its Principal Secretary, Public Health Engineering Department, Rajasthan, Secretariat, Jaipur.

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The Chief Engineer (Administration), Public Health Engineering

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Department, P.H.E.D. Head Office Campus, Rajasthan, Jaipur

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The Superintending Engineer, Public Health Engineering Department, Tonk, District Tonk, Rajasthan.

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3.S.B. Civil Writ Petition No. 12090/2016

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Murli Manohar S/o Shri Madanlal, aged about 59 years, R/o Mali Mohalla, Pushkar, District Ajmer (Raj.).

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.... Petitioner

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Versus

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State of Rajasthan through its Principal Secretary, Public Health Engineering Department, Rajasthan, Secretariat, Jaipur.

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The Chief Engineer (Administration), Public Health Engineering Department, P.H.E.D. Head Office Campus, Rajasthan, Jaipur.

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The Superintending Engineer,

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Circle Ajmer, Public Health Engineering Department, District Ajmer, Rajasthan.

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.... Respondents

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4.S.B. Civil Writ Petition No. 12067/2016

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Harish Kumar Kaushik S/O Sh. Krishan Lal Sharma, Aged about 59 years R/O 3F1, Ridu Nagar Main Niwaru Link Road, Govind Pura, Kalwar Road, Jaipur.

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..Petitioner

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Versus

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State of Rajasthan through

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The Secretary,PHED, Govt. of Rajasthan,

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Secretariat, Jaipur-302005

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2.The Chief Engineer (Administration),

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PHED, Civil Lines, Jaipur (Rajasthan).

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3.The Superintending Engineer

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PHED, city circle, Gandhi Nagar, Jaipur

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.... Respondents

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5.S.B. Civil Writ Petition No. 12075/2016

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Shankar Lal s/o Shri Vijai Lal, aged about 71 years, resident of Ragairo Ka Mohalla, Jamwaramgarh, Jaipur (Raj.).

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.... Petitioner

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Versus

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State of Rajasthan through its Principal Secretary, Public Health Engineering Department, Rajasthan, Secretariat, Jaipur.

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The Chief Engineer (Administration), Public Health Engineering Department, P.H.E.D. Head Office Campus, Rajasthan, Jaipur.

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The Superintending Engineer, City Circle (North), Public Health Engineering Department, Rajasthan, Jaipur.

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.... Respondents

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6.S.B. Civil Writ Petition No. 11229/2016

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Ramgopal Saini S/o Sh.Mangi Lal Saini, aged about 71 years, R/o A- 3, Bheru Nagar, Mansarovar, Jaipur.

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.... Petitioner

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Versus

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State of Rajasthan through its Principal Secretary, Public Health Engineering Department, Rajasthan, Secretariat, Jaipur.

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The Chief Engineer (Administration), Public Health Engineering Department, P.H.E.D. Head Office Campus, Rajasthan, Jaipur.

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The Superintending Engineer, City Circle (South), Public Health Engineering Department, Rajasthan, Jaipur.

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.... Respondents

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7.S.B. Civil Writ Petition No. 11230/2016

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Trilok Chandra S/o Sh. Nanagram, aged about 73 years, R/o Plot No. A-13, Near Sofia School, Shiv Nagar, Ghatgate, Jaipur.

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.... Petitioner

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Versus

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State of Rajasthan through its Principal Secretary, Public Health Engineering Department, Rajasthan, Secretariat, Jaipur.

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The Chief Engineer (Administration), Public Health Engineering Department, P.H.E.D. Head Office Campus, Rajasthan, Jaipur.

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The Superintending Engineer, City Circle (North), Public Health Engineering Department, Rajasthan, Jaipur.

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.... Respondents

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8.S.B. Civil Writ Petition No. 11221/2016

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Kalu S/o Sh. Prabhat, aged about 64 years, R/o Raigero Ka Mohalla, Handipura, Amer, District Jaipur.

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.... Petitioner

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Versus

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State of Rajasthan through its Principal Secretary, Public Health Engineering Department, Rajasthan, Secretariat, Jaipur.

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The Chief Engineer (Administration), Public Health Engineering

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Department, P.H.E.D. Head Office Campus, Rajasthan, Jaipur.

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The Superintending Engineer, City Circle (North), Public Health Engineering Department, Rajasthan, Jaipur.

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.... Respondents

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9.S.B. Civil Writ Petition No. 11228/2016

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Rewar S/o Sh. Bheru, aged about 62 years, R/o Opposite 132 KVA Grade, Near Airtel tower, Jaipur Road, Jamwaramgarh, District Jaipur

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.... Petitioner

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Versus

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State of Rajasthan through its Principal Secretary, Public Health Engineering Department, Rajasthan, Secretariat, Jaipur.

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The Chief Engineer (Administration), Public Health Engineering Department, P.H.E.D. Head Office Campus, Rajasthan, Jaipur.

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The Superintending Engineer, City Circle (North), Public Health Engineering Department, Rajasthan, Jaipur.

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.... Respondents

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10.S.B. Civil Writ Petition No. 11231/2016

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Pookharaj S/o Shri Devilal, aged about 59 years, R/o Ambedhakar Colony, Devnagar Road, Ward no. 20, Pushkar, District Ajmer (Raj.).

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.... Petitioner

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Versus

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State of Rajasthan through its Principal Secretary, Public Health Engineering Department, Rajasthan, Secretariat, Jaipur.

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The Chief Engineer (Administration), Public Health Engineering Department, P.H.E.D. Head Office Campus, Rajasthan, Jaipur.

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3. The Superintending Engineer,

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Circle Ajmer, Public Health Engineering Department, District Ajmer Rajasthan.

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.... Respondents

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11.S.B. Civil Writ Petition No. 12293/2016

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Hanuman Sahai Meena S/o Late Sh. Gopal Lal Meena, aged about 28 years, R/o Bhatala, Post Saipura, Tehsil Amer, District Jaipur.

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Smt. Mangli Devi D/o Late Sh. Gopal Lal Meena, W/o Manish Meena, R/o Uniyara Garden, Near Trimurti Circle, Jaipur, Distt. Jaipur.

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Smt. Gulli Devi D/o Late Sh. Gopal Lal Meena W/o Sh. Meetha Lal Meena, R/o Malhotra Nagar, Vidhyadhar Nagar, Jaipur.

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.... Petitioner

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Versus

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State of Rajasthan through its Principal Secretary, Public Health Engineering Department, Rajasthan, Secretariat, Jaipur.

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The Chief Engineer (Administration), Public Health Engineering Department, P.H.E.D. Head Office Campus, Rajasthan, Jaipur.

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The Superintending Engineer, City Circle (North) Public Health Engineering Department, Rajasthan, Jaipur.

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..Respondents

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16.9.2016

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HON'BLE MR. JUSTICE MN BHANDARI

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Mr CP Sharma

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Mr Manoj Pareek - for petitioners

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Mr. Saurabh Saraswat, Dy Government Counsel – for the State

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BY THE COURT:

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Since common questions of facts and law are involved in these writ petitions, they were heard together and are being decided by this common judgment. By these writ petitions, a direction is sought for higher pay scale on grant of selection scale.

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Learned counsel for petitioners submit that State of Rajasthan issued circular on 25.1.1992 to provide benefit of selection scale if one is not given promotion during his service career. It is to remove stagnation. The said circular was superseded by the circular dated 17.2.1998. The petitioners herein were given benefit of selection scale. On completion of 9, 18 and 27 years of service, as the case may be, the respondents allowed selection scale but by keeping the petitioners in the same pay scale itself. In view of above, petitioners stagnated on the same pay scale, whereas, promotion or selection scale should entitle an employee to get higher pay scale. The prayer is accordingly made to direct the respondents to allow higher pay scale to the petitioners on grant of selection scale and further selection scales should also be in the higher pay as per para 5 of the circular. Reference of various judgments of this court has been given.

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Shri Saurabh Saraswat, learned Deputy Government Counsel appearing for respondents, argued that the Rules and the Circulars dated 25.01.1992 and 17.02.1998 need to be given

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interpretation in their true spirit. The benefit of selection scales on completion of 9, 18 and 27 years of service has rightly been given to the respondents in terms of Circulars dated 25.01.1992 and 17.02.1998. A bare perusal of the Circulars clearly reveals that the benefit of first selection grade shall be given to the employees in the pay scale of next promotional post, second selection grade shall be given to the employee in the pay scale of second promotional post and benefit of third selection grade shall be given in the pay scale of third promotional post. Meaning thereby, the pay scale may be higher or lower or equal depending on the pay scale of promotional post. It is according to para 4 of the Circulars dated 25.01.1992 and 17.02.1998. The respondents are working on the post, which carry promotion channel, therefore, they are governed by Para 4 of the Circulars dated 25.01.1992 and 17.02.1998. According to the provisions in both the Circulars, the respondents are not entitled to get the benefit of the Table given in para 5 of the Circulars because the pay scale given in Table of para 5 is meant for those who are not in possession of the required qualification of promotional post or is a case of isolated post.

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Learned Deputy Government Counsel argued that there is no bar in the rule for fixing in the same pay scale on promotion or on grant of selection scale. Looking to the difficulties being faced by the employee in such circumstances, the rule making authority enacted rule 26A for meeting out injustice in regard to same pay

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scale. In case the promotional post carries same pay scale then employee is given one advance grade increment of the pay scale. It is mentioned in para 12 of the Circular dated 17.02.1998. Para 5 of the Circular dated 17.02.1998 would not be applicable because the pay scales given in the Table are meant for isolated posts etc. The respondents have complied the Circulars dated 25.01.1992 and 17.02.1998 in letter and spirit and the said Circulars have not been challenged by petitioners.

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Learned Deputy Government Counsel further argued that Para 12 of the Circular dated 17.02.1998 provides that in case an employee, who gets his regular promotion after getting selection scale, which may be identical or lower than the pay scale of promotional post, his pay shall be fixed in accordance with provisions of Note 4 to Rule 26A of the Rajasthan Service Rules. In case the promotional post carries the same pay scale, then benefit of Rule 26A of the RSR is given to the employee. The respondents are duty bound to comply with the provisions of the Circulars and no order be passed contrary to the said Circular as it has not been quashed by the court. It is contended that there are two types of posts. One category is of general posts and second category is of isolated posts. General posts are those which carry promotional channel and are governed by Para 4 of the Circulars dated 25.01.1992 and 17.02.1998, whereas isolated posts carry no promotional channel and therefore, they are governed by Table of Para 5 of said Circulars. In the case of “Sohanlal Mathur

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versus State of Rajasthan”, SB Civil Writ Petition No. 3631/2008, decided on 17.11.2008 at Principal Seat, Jodhpur, Table given in Para 5 of the Circular dated 17.02.1998, has wrongly been applied.

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I have considered rival submissions of the parties and perused the record.

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Although, it may be true that the Supreme Court, while dismissing the SLP filed by the State in the case of Sohanlal Mathur (supra) had left the question of law open but what is being argued before this court, cannot be said to be purely a question of law. It is common knowledge that the scheme/policy for grant of selection scales to the employees of the State Government and its instrumentalities was introduced with a view to remove stagnation faced by members of the ministerial/ subordinate services. Due to non-grant of timely promotion and if the Government, while granting selection scale, does not grant higher pay scale, then prescription of selection grade, as rightly held by this court in the case of “Sharvan Kumar versus State of Rajasthan & ors”, SB Civil Writ Petition No.2156/2007, decided on 5.9.2008, shall be of no consequence. The grant of same pay scale on selection scale would be illusory being contrary to the spirit of the scheme. Para 4(i) of the Circular dated 25.01.1992, which is reiterated in Circular dated 17.02.1998, provided that first selection grade, whenever admissible in terms of the said order, shall be the pay of promotional post in the same

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service/cadre. It further provided that in case there is no promotional post in the same service/cadre or the employee does not possess the academic qualification prescribed for promotion, the selection scale shall be the pay scale corresponding to his pay scale specified in para 5.

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Learned Deputy Government Counsel for respondents argued that similar provisions are contained in para 4(i) of the Circular dated 17.02.1998 and the Table of the pay scales available in para 5 of the Circular would be applicable to only isolated posts having no avenue of promotion but that argument does not commensurate with the very language of the circular. It envisages other categories as well, namely, when there is no promotional post or where employee does not possess requisite qualification for the promotion. While keeping in view these facts, para 5 of the Circular dated 25.01.1992 as also Circular dated 17.02.1998 would apply. Para 5 of the Circular dated 17.02.1998 indeed provides selection grades when there is no promotional post or the employee does not possess academic qualification prescribed for promotion.

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This court in Sharvan Kumar and Sohanlal Mathur (supra) has decided the same question in terms that if the Government does not grant higher pay scale then prescription of selection grade shall be of no consequence. Prescription of same pay scale on completion of 9, 18 or 27 years of service as a matter of fact

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is an illusory benefit and that is not at all grant of selection grade with the spirit of the Circulars/Notifications dated 25.01.1992 and 17.02.1998. This purposive interpretation of para 4 and 5 of the said Circulars has been approved not only by the Division Bench in above referred cases but also by the Supreme Court. This does not involve any question of law and therefore the contention that judgment in Sohanlal Mathur (supra) has not been decided on correct perspective and the matter should be reopened all over again to be decided afresh, cannot be accepted. This court is informed that the department has made compliance of similar judgments in the case of several employees and therefore, cannot seek to create two classes of employees of the very same Department of the State, who are otherwise similarly situated.

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The Division Bench of this court has allowed bunch of appeals on the same issue, led by “Govind Dan Charan versus State of Rajasthan & ors”, DB Civil Special Appeal (Writ) No.1068/2014, decided on 17.12.2015 at Principal Seat, Jodhpur. Therein, reference of the judgment of this court in the case of “Vijay Pal Dabi versus State of Rajasthan & ors”, SB Civil Writ Petition No.1633/2012, decided on 28.1.2013, has also been given. The Division Bench did not approve grant of selection scale in the same pay scale though it was held that length of service for selection scale is to be counted from the date of regular appointment. The judgment aforesaid also covers the issue raised herein.

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The appeal preferred by the State Government against the judgment in the case of Govind Dan Charan (supra) was dismissed by the Apex Court on 14.3.2016 thus after judgment of the Apex Court keeping the legal issue open, subsequent view expressed by the Division Bench has again not been interfered.

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In view of aforesaid, all the writ petitions are allowed. The respondents are directed to give higher pay scale as per para 5 on grant of selection scale in the similar manner as has been directed by this court in the cases of Sohanlal Mathur and Sharvan Kumar (supra). The petitioners would accordingly be entitled to the higher pay scale instead of same pay scale on grant of selection scale. The compliance of the order be made within three months from the date of receipt of copy of this order.

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A copy of this order be placed in each connected file.

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(MN BHANDARI), J.

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bnsharma

Harish Kumar Kaushik v. State of Raj and Ors.

Case brief

What is this about?

What did the court decide?

Harish Kumar Kaushik v. State of Raj and Ors.

Case brief

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What did the court decide?

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