Allowed

R S Trivedi and Anr. v. State of Raj and Ors.

Rajasthan HC11 Jul 2018CW/3424/2009

Case brief

AI extract

What is this about?

petitioners absorbed as surplus employees under 1969 Rules sought equal pensionary benefits with similarly placed colleagues. Court held absorption mandates counting past service for pension. Ruling declared discriminatory denial illegal and ordered payment of arrears.

What did the court decide?

Petitioners entitled to same pensionary benefits as similarly placed employees; arrears of pension to be worked out and paid with interest at 9% per annum.

R S Trivedi and Anr. Vs State of Raj and Ors. — Labour and Industrial Disputes | Rajasthan HC (2018)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

¶2

S.B. Civil Writs No. 3424/2009

¶3

R.S. Trivedi S/o Shri Madhukar Ji Shastri, aged about 53 years, R/o Madan Bari, Nayakhera, Jaipur.

¶4

G.S. Gupta, S/o Shri Shiv Ram Gupta, aged about 56 years, R/o A-33, Saraswati Nagar, Malviya Nagar, Jaipur.

¶5

----Petitioners

¶6

Versus

¶7

State Of Rajasthan, Through Chief Secretary To The Government , Government Secretariat, Jaipur.

¶8

Secretary, General Administration Department , Government Secretariat, Jaipur.

¶9

Secretary, Department Of Women & Child Development

¶10

, Government Secretariat, Jaipur.

¶11

Director, Department of Women & Child Development, Gandhi Nagar, Jaipur.

¶12

Principal Secretary, Animal Husbandry Department, Government Secretariat, Jaipur.

¶13

Director, Animal Husbandry Department, Gandhi Nagar, Jaipur.

¶14

----Respondents

¶15

For Petitioner(s) : Mr. Brijesh Yadav Mr. Dinesh Yadav Mr. Akhil Simlote For Respondent(s) : Mr. B.K. Sharma, AGC Mr. Arpit Srivastava, Dy.G.C.

¶16

HON'BLE MR. JUSTICE VEERENDR SINGH SIRADHANA

¶17

Judgment / Order

¶18

11/07/2018

¶19

Aggrieved of the discriminatory action of the State respondents in denial of same pensionary benefits, allowed to identical placed employees; the petitioners have instituted the present writ application praying for the following relief.

¶20

(2 of 9)

¶21

[CW-3424/2009]

¶22

“(i) by an appropriate writ, order or direction, the petitioners may kindly be absorbed in the Women and Child Welfare Department w.e.f. 21.04.2000 along with all consequential benefits;

¶23

(ii) by an appropriate writ, order or direction, petitioners may kindly be paid pension and further they may kindly be absorbed from the date the became surplus along with all consequential benefits;

¶24

(iii) by an appropriate writ, order or direction, petitioners may kindly be fixed in the pay scale of 15600-39100 grade pay 5400 (as per revised pay scale);

¶25

(iv) or any other appropriate relief may kindly be granted to the petitioner which this Hon’ble Court may deem fit and proper in the facts and circumstances of the present case;

¶26

(v) cost of the litigation may kindly be allowed to the petitioner.”

¶27

Learned counsel for the petitioners, however, gave up the claim for relief under clause (iii) and restricted the claim only to the extent of equal pensionery benefits, allowed to identically placed employees, treating them to be absorbed.

¶28

Briefly, the essential skeletal material facts are: that the petitioners were appointed on the post of ‘Purchase Officer’, in the year 1979 in the Rajasthan State Sheep & Wool Marketing Federation Ltd. (for short, the Federation). On 09^th September, 1998, in view of the State Cabinet’s decision (Annexure-1), the Rajasthan State Sheep & Wool Marketing Federation Ltd., was to be liquidated and the surplus employees, including the petitioners, who did not wish to take voluntary retirement, were to be absorbed in other departments. By an order placed on record as Annexure-2, relaxation was granted to the surplus employees while absorbing them under the Rajasthan Civil Services (Absorption of Surplus Employees) Rules, 1969 (for short, Rules of 1969). It is pleaded case of the petitioners that they were appointed on the post of Child Development Project Officer (for short “CDPO”) under Rule 6(3)(ii) of the Rajasthan Women and

¶29

(3 of 9)

¶30

[CW-3424/2009]

¶31

Child Development (State & Subordinate) Service Rules, 1998 (for short, Rules of 1998).

¶32

Mr. Akhil Simlote, learned counsel for the petitioners reiterating the contents of the writ application asserted that the petitioners and others, similarly placed employees, were declared surplus and were to be absorbed in other departments; yet, the respondents employed/engaged them (the petitioners), on deputation, which was extended from time to time and ultimately absorption was made on 29^th February, 2012 (Annexure-8).

¶33

According to learned counsel, the counter-affidavit to the writ application filed on behalf of all the respondents under paragraph 5, would reveal that the petitioners and other similarly placed employees, were absorbed on newely created posts in the Department of Animal Husbandry so as to ensure compliance of the mandate of Rules of 1969, contemplating absorption of surplus employees so also circular issued thereunder.

¶34

Learned counsel further submits that the claim of the petitioners has been declined while all identically placed employees, who were declared surplus, alongwith the petitioners, in view of liquidation of Rajasthan State Sheep & Wool Marketing Federation Ltd.; are being accorded pension, reckoning the entire period of service including the period of service with the Federation. It is further pointed out that the writ petition was instituted in the year 2009, but response on behalf of respondents No.5 and 6, was not filed until 05^th July, 2017.

¶35

It is also contended that by an additional affidavit filed on 23^rd April, 2018, the petitioners have placed on record, documentary evidence substantiating the fact that identically placed persons, who were declared surplus, alongwith the

¶36

(4 of 9)

¶37

[CW-3424/2009]

¶38

petitioners from the same Federation; are in receipt of pension reckoning the entire period of their service. Specific reference has been made to the case of one Shri Kumba Ram Choudhary, Govind Prasad Sharma and Jeet Singh Rathore. Referring to order dated 22^nd September, 1997, it is also asserted that even one Dinesh Arora, is also in receipt of pension reckoning the entire period of his service.

¶39

Learned counsel for the petitioners further claimed that once the petitioners were absorbed under the Rules 1969; their past services, including service period with the erstwhile liquidated Federation; is required to be counted for all purposes, including pensionary benefits; keeping in view provisions under Rule 15 of the Rules of 1969, which provides even for determination of interse seniority of absorbed employees. Hence, the petitioners are entitled to the benefit of entire length of service, including the period of their employment prior to their absorption with the erstwhile Federation. In support of the contention reliance is placed on the opinion of a Co-ordinate Bench of this Court case of Parivar Aivam Bal Kalyan Yojna Karamchari Sangh, Jaipur Vs. State of Rajasthan in S.B. Civil Writ Petition No.1468/88 decided on 25^th March, 1992. A copy of the order of the opinion aforesaid, has been furnished to the counsel for the State-respondents as would be evident from interim application (I.A. No.47724 of 2012).

¶40

In response to notice on writ application, the Staterespondents have filed their counter affidavit collectively as well as separately, resisting the claim of the petitioners.

¶41

Mr. B.K. Sharma, learned counsel representing the respondent No.1 to 4, made a statement that an additional

¶42

(5 of 9)

¶43

[CW-3424/2009]

¶44

affidavit was also filed on behalf of the respondents on 28^th October, 2015, enclosing a copy of the order dated 16^th May, 2001. However, neither such an additional affidavit is on record nor any interim application, substantiating the factum of institution of such an additional affidavit. Counsel for the State-respondents, further pointed out that the alleged additional affidavit was filed in the year 2015, which remained on the defect side and notice to this effect was also issued, but, what happened to it, is not known to him. Be that as it may, learned counsel for the petitioners made a definite statement that the order dated 16^th May, 2001, refers to receipts of pensionary benefits, reckoning the entire period of service, of Dinesh Arora and evidence in this regard has also been placed on record as would be evident in view of the additional affidavit filed on 23^rd April, 2018, on behalf of the petitioners.

¶45

Learned counsel for the petitioners referring to the Additional Affidavit filed on 23^rd April, 2018 and materials available on record emphasized that similarly placed employees of the erstwhile Rajasthan State Sheep & Wool Marketing Federation Ltd., were also to be absorbed and in fact were absorbed under the Rules of 1969. And therefore, the petitioners are also entitled to the same pensionary benefit.

¶46

Heard the counsel for the parties and perused the materials available on record so also gave my thoughtful consideration to the rival submissions at Bar.

¶47

A glance of counter affidavit filed on behalf of the respondents, supported by affidavit, would reflect that the petitioners were absorbed keeping in view the statutory mandate for absorption of the surplus employees under the Rules of 1969. At this juncture, it will be profitable to take note of the contents of

¶48

(6 of 9)

¶49

[CW-3424/2009]

¶50

para 5, of the counter affidavit filed on behalf of the respondents, which reads thus:-

¶51

“In the meanwhile, an order dated 01.02.2012 came to be passed by the Department of Animal Husbandry upon creation of three posts of Publicity Officer in the Department of Animal Husbandry which inter-alia provide that the Department of General Administration shall pass appropriate orders for absorption in the Department of Animal Husbandary who would be appointed on dying cadre i.e. the posts shall stand abolished after said employees and that the Department of Animal Husbandry would take necessary action to include such post in its service rules. The approval was accorded by the Finance Department as mentioned in the order dated 01.02.2012 itself. A copy of order dated 01.02.2012 is being annexed hereto and marked as Annexure R-1. In furtherance to the order dated 01.02.2012, the Department of General Administration passed order dated 13.02.2012 to absorb the petitioners and another working as CDPO to absorb on the newly created posts in the Department of Animal Husbandry. Such was done as per the Rajasthan Civil Services (Absorption of Surplus Employees) Rules, 1969 and the circular issued there under. A copy of order dated 13.02.2012 is being annexed hereto and marked as Annexure R-2. This followed into passing of an order dated 29.02.2012 by the Department of Animal Husbandry inter-alia absorbing the petitioners and one another w.e.f. 01.09.2006 on the newly created posts in the Department of Animal Husbandry. A copy of order dated 29.02.2012 is being annexed hereto and marked as Annexure R-3. Accordingly, the order dated 29.02.2012 was passed by the Directorate of Integrated Child Development Services relieving petitioners and one another. A copy of order dated 29.02.2012 passed by the Directorate of Integrated Child Development Services is being annexed hereto and marked as Annexure R-4. Thereafter, the petitioners have joined on the new post. A copy of Joining Report dated 13.03.2012 of order dated 20.04.2012 are being annexed hereto and marked as Annexure R-5.”

¶52

When the matter came up before this Court on 16^th April, 2018, counsel for the petitioners was allowed to file an additional affidavit providing details of the factual matrix having bearing on the merits of the case, including the fact that similarly placed persons/employees, have been allowed pensionary benefits reckoning entire period of service. Liberty was reserved to the respondents to complete their instructions, including filing of counter affidavit, if so advised; within 10 days thereafter. Order made on 16^th April, 2018, reads thus:

¶53

(7 of 9)

¶54

[CW-3424/2009]

¶55

“As prayed, counsel for the petitioners is allowed two weeks’ time to file additional affidavit detailing out the facts having bearing on the merits of the case, including the fact that similarly placed persons have been allowed benefit of counting of past service in the parent department and consequent relief. Counsel for the respondents may also complete his instructions within ten days thereafter, including filing of counter affidavit, if so advised. Matter be listed again on 14^th May, 2018.”

¶56

The controversy raised in instant writ application may not detain this Court for long in view of adjudication by a Co-ordinate Bench of this Court vide order dated 25^th March, 1992, a copy of which was furnished to the counsel for the State-respondents. Respondents have also not disputed the statement made on behalf of the petitioners that the adjudication aforesaid was not challenged any further and attained finality.

¶57

In the case of Parivar Aivam Bal Kalyan Yojna Karamchari Sangh, Jaipur (supra), a Co-ordinate Bench of this Court while considering the consequence of absorption of surplus employees, under the Rules of 1969, in no uncertain terms held that once the employees have been absorbed, they would be entitled to consequential benefits. Here it will be gainful to consider the relevant text of the opinion, which reads thus:

¶58

“From the rival pleadings of the parties it is clear that the only question which requires determination in this writ petition is as to whether the respondents are justified in applying Government’s decision No.28 appearing below rule 180 of the Rajasthan Service Rules, 1951. While Petitioner’s case is that the employees have been absorbed under 1969 rules and they cannot be treated as employees of the institutes which were taken over by the Government, the case of the respondent is that the employees of the erstwhile Rajasthan State Social Welfare Advisory Board are to be governed by the State Government decision.

¶59

It is not in dispute that employees have been absorbed under the provisions of the Rajasthan Civil Services (Absorption of Surplus Personnel) Rules, 1969. Therefore, absorption under these rules was possible only when they were treated as Government servants, who have been rendered surplus to the requirement of a particular department or organisation. Once the employees have been absorbed under 1969 rules, their past services are to be counted for all purposes. As per rule 15 they are entitled to the benefit of length of service for the purpose of seniority depend

¶60

(8 of 9)

¶61

[CW-3424/2009]

¶62

on the nature of the employment held by them prior on the nature of the employment held by them prior to their absorption. Government’s decision No.28 below rule 180 of the Rajasthan Service Rules is applicable only in case where the institutes are taken over by the Government and there is nothing on record to show that the employees, on whose behalf the present petition has been filed, were serving in institution which was taken over by the Government. Contrary to this fact shows that the projects were transferred to the Government in the Community Development and Panchayati Raj Department and thereafter, options were given to the employees to get themselves absorbed in the Government service or to continue to serve the Board. Subsequently, these projects were transferred to Directorate of Women, Children and Nutrition alongwith sanctioned posts, personnel and budget provisions. Thus it is clear that the basic ingredients specified in Government’s decision No.23 under rule 180 are not available in the case of the employees who have been absorbed under 1969 rules. Logically it is to be held that the respondents have committee an error in applying the aforesaid decision to the case of these employees.

¶63

In the result, the writ petition is allowed.

¶64

Exhibits 2 and 3 in so far as the restrict the benefit of pension to the employees represented by petitioner from 01.04.1977 only are declared illegal and the respondents are directed to count the entire length of service of the employees for the purpose of pensionary benefits. The respondents are directed to take steps for grant of pensionary benefits to the employees within a period of four months of the date of presentation of copy of this order.”

¶65

From the factual matrix and materials available on record it is not disputed that identically placed employees of the erstwhile liquidated Rajasthan State Sheep and Wool Marketing Federation Ltd., were absorbed under Rules 1969, so also the petitioners, and pensionary benefits have been accorded to them (similarly placed employees), reckoning their entire past service since their initial employment, including with Rajasthan State Sheep and Wool Marketing Federation Ltd; while such benefits have been declined to the petitioners. No reason sustainable in law, has been advanced so as to accept the stand of the respondents in declining the claim of the petitioners. Hence, the action of the Staterespondents is not only discriminatory but is also in violation of the mandate of the Rules of 1969, for once the petitions were

¶66

(9 of 9)

¶67

[CW-3424/2009]

¶68

absorbed under the Rules of 1969; they would be entitled to benefit of length of entire period of service as contemplated under Rule of 1969. Further, such a course has been adopted in the case of identically placed persons, who were declared surplus alongwith the petitioners from the erstwhile Rajasthan State Sheep and Wool Marketing Federation Ltd.

¶69

No other point was raised by the counsel for the parties for consideration of this Court.

¶70

For the reasons and discussions aforesaid and in the singular facts in the case at hand; the writ petition merits acceptance and is hereby allowed.

¶71

In the result, the petitioners are also entitled to same pensionary benefits as have been allowed to similarly placed employees who too were declared surplus with them and were absorbed under the Rules of 1969. The arrears of pension of the petitioners shall be worked out and paid to them alongwith interest @ 9% per annum.

¶72

The State-respondents are directed to ensure compliance of the order as expeditiously as possible; preferably, within six weeks from the date a certified copy of this order is presented.

¶73

No costs.

¶74

(VEERENDR SINGH SIRADHANA),J

¶75

Arun/123

R S Trivedi and Anr. v. State of Raj and Ors.

Case brief

What is this about?

What did the court decide?

R S Trivedi and Anr. v. State of Raj and Ors.

Case brief

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