Partly allowed

State of Rajasthan and Ors. v. Laxmi Beniwal

Rajasthan HC6 Oct 2018WRW/184/2017

Case brief

AI extract

What is this about?

The Division Bench reviewed its earlier order that struck down a Finance Department notification regarding Assured Career Progression. The Court accepted the review, recalled the strike-down of the notification as an error, and restored it while leaving the respondents\' ACP benefits undisturbed.

What did the court decide?

The part of the order under review striking down the Finance Department's notification dated 31.12.2009 is recalled; the notification is restored.

State of Rajasthan and Ors. Vs Laxmi… — Constitutional and Fundamental Rights | Rajasthan HC (2018)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN JODHPUR

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S.B. Writ Review No. 177/2017

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State Of Rajasthan And Ors.

----Petitioner

Versus

Roop Giri

----Respondent

Connected With S.B. Writ Review No. 184/2017 State Of Rajasthan And Ors. ----Petitioner Versus Laxmi Beniwal ----Respondent For Petitioner(s) : Mr.Dinesh Ojha, Assistant to Mr. P.R. Singh, AAG For Respondent(s) : Mr. H.S. Sidhu Mr.N.L. Joshi

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HON'BLE MR. JUSTICE SANDEEP MEHTA

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Judgment / Order

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06/10/2018

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These two review petitions have been preferred by the State of Rajasthan seeking review of the common order dated 12.08.2016 passed by this Court in SBCWP No.4425/2013 (Roop Giri Vs. State of Rajasthan & Ors.) & SBCWP No.12610/2013 (Smt. Laxmi Beniwal Vs. State of Rajasthan & Ors.)

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The judgment in the case of Smt. Laxmi Beniwal was assailed by State of Rajasthan by filing DBSAW No.126/2017 : State of Rajasthan & Ors. vs Laxmi Beniwal which was decided by Hon’ble Division Bench of this Court vide order dated 22.02.2017 as follows:

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[WRW-177/2017]

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(2 of 6)

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“1. Learned Counsel for the appellant submits that the order of the learned Single Judge is clearly contrary to sub-rule (4) of the Rule 19 of the Rajasthan Civil Services (Revised Pay), Rules, 2008 (hereinafter referred to as ‘the Rules of 2008’) which provides as under:-

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Scheme of Assured Career Progression.- In lieu of selection grades the scheme of Assured Career Progression (ACP) with three financial upgradations shall be allowed as under:-

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(1) The Scheme will be available to all posts in class IV, ministerial, subordinate services and those holding isolated posts and drawing pay in the Rajasthan Civil Services (Revised Pay) Rules, 2008 upto grade pay of Rs.4200 excluding State services. (2) Benefit of pay fixation available at the time of normal promotion shall be allowed at the time of financial upgradations under the scheme.

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(3) The grade pay shall change at the time of financial upgradation under this scheme. The grade pay given at the time of financial upgradations under ACPs will be the immediate next higher grade pay in the hierarchy of running pay bands and grade pay being prescribed. Thus, grade pay at the time of financial upgradation under ACPs can, in certain cases where regular promotion is not between two successive grades be different than what is available at the time of regular promotion. In such cases, the higher grade pay attached to the next promotion post in the hierarchy of the concerned cadre/organization will be given only at the time or regular promotion.

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(4) Financial upgradation under the scheme will be available whenever a person has spent [9 years] continuous regular service in the same grade pay. However, not more than three financial upgradations shall be given in the entire career.

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(5) Existing Government servants who have already availed benefit of three selection grades will not be eligible for the grant of ACP. Those Government servants who have availed benefit of one selection grade/one promotion will be eligible for second and third

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[WRW-177/2017]

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(3 of 6)

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ACP on completion of 18 &27 years of regular service, respectively. Similarly those Government servants who have availed benefit of two selection grades/two promotions/one promotion and one selection grade as the case may be will be eligible for third ACP on completion of 27 years of regular service. (6) The authority competent to make appointment on the post held by the government servant shall be competent to grant ACP. (7). In the case of Government servants who become eligible for ACP on completion of requisite period of service while drawing pay in the Grade Pay of Rs.4800/- in the running pay band PB-2 ‘9300-34800’ shall be granted ACP in the grade pay of Rs.5400/in the running pay band PB-2 ‘9300-34800’.

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In our opinion since the aforesaid rule is not referred either in the affidavit and reply nor any contention is there with regard to Rule 11 or Rule 19 during the course of hearing before the learned Single Judge, we are not inclined to consider it in the appeal.

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Counsel for the appellants seeks permission to withdraw the appeal with liberty to move an application before the learned Single Judge by way of review application.

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The liberty is therefore, granted. Appellant permitted to withdraw the present appeal, with leave to file review.

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If the review is preferred, the same will be considered on merit and the time which has been taken for filing this appeal will be taken into consideration by the learned Single Judge for considering the review on merits.”

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While remanding the matter, the Hon’ble Division Bench has directed the Court to consider the review petition on merits while condoning the delay. Thus, the application for condonation of delay filed under Section 5 of Limitation Act is allowed and the delay occasioned in filing these review petitions is condoned.

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[WRW-177/2017]

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(4 of 6)

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Shri Ojha, Assistant to Mr. P.R. Singh, AAG representing the applicant State of Rajasthan, candidly concedes that so far as the aspect of grant of third selection scale to the respondents is concerned, the same does not require any interference because the penalties which were inflicted upon these respondents are of the period prior to the introduction of 19(4) of the Rajasthan Civil Services (Revised Pay) Rules, 2008. He, however contends that the part of the order under review whereby the Finance Department’s notification dated 31.12.2009 was struck down is erroneous because the same was passed without considering the import of Rule 19(4) of the Rajasthan Civil Services (Revised Pay) Rules, 2008 with which the Counsel representing the State failed to apprise the Court while the matters were considered precisely.

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He contents that the notification dated 31.12.2009 was issued in terms of Rule 19(4), the validity whereof is not under challenge. The Rule requires that the financial up-gradation scheme will be available whenever a person has spent 9 years continuous regular service in the same grade pay and thus as per Shri Ojha, the finance department’s notification which is nothing but an extension of a statutory rule was erroneously struck down. He thus, craves acceptance of review petitions and seeks recalling and review of this Court’s judgment to that extent.

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Learned Counsel representing the respondents vehemently tried to convince the Court that the extraordinary power of review conferred upon this Court need not be exercised because the

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[WRW-177/2017]

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(5 of 6)

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judgment under review does not suffer from any error apparent on the face of record.

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I have given my thoughtful consideration to the arguments advanced at bar and gone through the judgment under review and the statutory provision relied upon by Shri Ojha.

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It may be at the outset mentioned that while the writ petitions were being considered, none of the Counsel representing the parties, drew the Court’s attention to Rule 19(4) of the Rules of 2008 which has been incorporated in the Division Bench’s order dated 22.02.2017. It is trite to note here that the validity of the Rule cannot be examined in the Single Bench jurisdiction of this Court. Furthermore, it is admitted that the Rule has not been challenged in any Court of law till date. Thus, the Rule which exists as of now, has to be applied while considering any controversy to which the same applies.

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The Rule clearly postulates that the financial upgradation under the ACP Scheme will be available whenever a government servant has spent nine years continuous regular service in the same grade pay. The Rule also make it clear that as and when question of interpretation arises regarding implication thereof, decision of the Finance Department shall be final. It is in exercise of these powers conferred upon the Finance Department that the notification dated 31.12.2009 was issued. Manifestly, if a penalty is imposed upon a government servant governed by the notification dated 25.10.1992 during his service tenure, he would suffer corresponding deferment of ACP and thus, the rise in grade

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[WRW-177/2017]

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(6 of 6)

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pay will also be deferred for such employee. In this background, and by virtue of Rule 19(4), the subsequent ACP available to such employee will have to be correspondingly deferred.

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Manifestly, as the notification dated 31.12.2009 was issued by the Finance Department in exercise of power of interpretation conferred upon it by the statutory provision i.e., Rule 19(4) and therefore, the striking down thereof by this Court in ignorance of the Rule can be termed as nothing but an inadvertent error and has to be rectified. Thus, the review petitions deserve to be and are hereby accepted. The part of the order under review whereby the Finance Department’s notification dated 31.12.2009 was struck down is hereby recalled. The notification dated 31.12.2009 is restored. However, the benefit of ACP granted to the respondents shall not be disturbed.

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The review petitions are partly allowed in these terms.

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(SANDEEP MEHTA),J

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Sudhir Asopa/1 & 2

State of Rajasthan and Ors. v. Laxmi Beniwal

Case brief

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State of Rajasthan and Ors. v. Laxmi Beniwal

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