Allowed

Radhey Shyam Pancholi v. State of Rajasthan and Ors.

Rajasthan HC4 Aug 2023CW/4380/2018

Case brief

AI extract

What is this about?

The High Court allowed writ petitions challenging the denial of selection grade benefits. It held that absorption into a new department does not forfeit rights accrued from the initial appointment, directing respondents to calculate and pay benefits from the original appointment date.

What did the court decide?

Respondents directed to confer selection grade/ACP benefits from date of initial appointment and pay consequential arrears within three months.

Radhey Shyam Pancholi Vs State of… — Pension and Retirement Benefits | Rajasthan HC (2023)

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[2023:RJ-JD:24822]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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(1) S.B. Civil Writ Petition No. 4372/2018

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Prem Shankar Ameta S/o Sh. Bhanwar Lal Ameta, R/o Bhramon Ki Hatye Chittorgarh Dist. Chittorgarh.

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----Petitioner

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Versus

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State Of Rajasthan Through The Secretary Cum Commissioner, Rural Development And Panchayati Raj Department, Government Of Rajasthan, Jaipur.

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The Chief Executive Officer, Zila Parishad, Chittorgarh. 3. The Vikas Adhikari, Panchayat Samiti Bhegun District Chittorgarh.

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----Respondents

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Connected With

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(2) S.B. Civil Writ Petition No. 4378/2018 Radhey Shyam Sharma S/o Shri. Mohan Lal Sharma, R/o Village Semaliya, Post Chachi, Tehsil Begun, District, Chittorgarh.

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----Petitioner

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Versus 1. State Of Rajasthan Through The Secretary Cum Commissioner, Rural Development And Panchayati Raj Department, Government Of Rajasthan, Jaipur.

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The Chief Executive Officer, Zila Parishad Chittorgarh.

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The Vikas Adhikari, Panchayat Samiti Bhesroadgarh District Chittorgarh.

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----Respondents

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(3) S.B. Civil Writ Petition No. 4379/2018 Satyanarayan Chasta Son Of Shri Daya Shankar, R/o Jai Nagar Road, Begun, District Chittorgarh.

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----Petitioner

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Versus

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1. State Of Rajasthan Through The Secretary Cum Commissioner, Rural Development And Panchayati Raj Department, Government Of Rajasthan, Jaipur.

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1. The Chief Executive Officer, Zila Parishad Chittorgarh. 3. The Vikas Adhikari, Panchayat Samiti Begun, District Chittorgarh.

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----Respondents

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(4) S.B. Civil Writ Petition No. 4380/2018 Radhey Shyam Pancholi S/o Sh. Badri Lal, R/o Bhrmon Ki Hatye Begun Dist. Chittorgarh.

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----Petitioner

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Versus

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State Of Rajasthan Through The Secretary Cum Commissioner, Rural Development And Panchayati Raj Department, Government Of Rajasthan, Jaipur.

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The Chief Executive Officer, Zila Parishad Chittorgarh. 3. The Vikas Adhikari, Panchayat Samiti Bhegun District Chittorgarh.

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----Respondents

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(5) S.B. Civil Writ Petition No. 4381/2018

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Rameshwar Lal Tiwari S/o Sh. Bharmal, R/o Village Meghpura Post Dorai Tehsil Begun Dist. Chittorgarh

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----Petitioner

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Versus 1. State Of Rajasthan Through The Secretary Cum Commissioner, Rural Development And Panchayati Raj Department, Government Of Rajasthan, Jaipur.

(2 of 8)

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[CW-4372/2018]

The Chief Executive Officer, Zila Parishad Chittorgarh. 3. The Vikas Adhikari, Panchayat Samiti Begun, District Chittorgarh.

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----Respondents

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For Petitioner(s) : Mr. Mukesh Vyas For Respondent(s) : Mr. Manish Tak

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JUSTICE DINESH MEHTA

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Judgment

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04/08/2023

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These writ petitions involve common question of facts and law and therefore, are being disposed of by this common order.

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For the sake of brevity and convenience, the facts of S.B. Civil Writ Petition No.4372/2018; Prem Shankar Ameta Vs. State & Ors. are taken into consideration.

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2.1. The petitioner (Prem Shankar Ameta) was engaged by the Municipal Board, Bhegun, District Chittorgarh as an adhoc employee in the year 1985.

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2.2. The petitioner had filed a writ petition claiming regularization and during the pendency of the same, the Municipal Board, Bhegun decided to give appointment to the petitioner against a vacant post in the pay scale of 825-15900-20-1200-25-1350 w.e.f. 01.02.1995 by an order dated 15.03.1995.

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2.3. Thereafter, the posts of Sub-Nakedar were abolished by the State Government and all the employees including the petitioner were absorbed in different departments.

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2.4. The petitioner was absorbed in Panchayat Samiti, Bhegun, District Chittorgarh by way of order dated 1.05.2001.

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2.5. The order of absorption dated 01.05.2001 contained various conditions, out of which the following two are relevant, i.e. (i) , the services rendered by the petitioner prior to the absorption shall not be counted for promotion, etc. and (ii) , the date of absorption shall be reckoned from the date of appointment on the new post.

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2.6. The petitioner claimed benefit of selection grade from the date of initial appointment and since the respondents denied the petitioner’s claim, a writ petition came to be filed by him being S.B. Civil Writ Petition No.14489/2016.

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2.7. Said writ petition came to be disposed of by a Coordinate Bench of this Court vide order dated 09.12.2016. While referring to the judgment passed in the case of Jagdish Bhanoda Vs. State of Rajasthan & Ors.; S.B. Civil Writ Petition No.773/2009 , decided on 29.07.2009, the Coordinate Bench directed the petitioner to file a representation with a corresponding direction to the respondents to consider his case in light of the judgment passed in the case of Jagdish Bhanoda (supra).

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2.8. The petitioner submitted a representation in furtherance of the above referred order dated 09.12.2016, but the same was rejected by the respondents vide order dated 26.10.2017.

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2.9. While rejecting the petitioner’s representation, the respondent No.3 highlighted point Nos.1 & 2 of the absorption order and held that the petitioner was not entitled for grant of selection grade/ACP w.e.f. the date of initial appointment.

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Mr. Vyas, learned counsel for the petitioner(s) argued that the order dated 26.10.2017, passed by the respondent No.3 is exfacie illegal and contrary to the facts and law, including the judgment of Hon’ble the Supreme Court rendered in the case of State of Rajasthan Vs. Jagdish Narain Chaturvedi reported in (2009) 12 SCC 49 .

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Learned counsel invited Court’s attention towards the order dated 15.03.1995 and underscored that the petitioner’s appointment as Sub-Nakedar was made against a vacant post and his services had been made effective from 01.02.1995, while giving regular pay scale to the petitioner.

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He argued that since the petitioner has been appointed against a vacant post and regular pay scale was given, he is entitled for benefit of selection grade/ACP on completion of 9-1827 years while reckoning the date of appointment as 01.02.1995.

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Learned counsel fairly submitted that though the petitioner was working as a daily wager since 1985, but he is not claiming benefit of such period and his claim is confined to the period after he was taken on regular roll.

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Mr. Tak, learned counsel for the respondent-State submitted that the petitioner cannot claim benefit of selection grade/ACP from 01.02.1995 inasmuch as, he was absorbed and came in the respondent-Department after his absorption w.e.f. 01.05.2001. 8. He submitted that the respondent-State has rightly given benefit of selection grade/ACP to the petitioner(s) w.e.f. 01.05.2001. While inviting Court’s attention towards the point Nos.1 & 2 of the order of absorption dated 01.05.2001, learned counsel argued that the petitioner’s services prior to the

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absorption cannot be reckoned for the purpose of benefit of selection grade/ACP.

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Mr. Vyas, learned counsel for the petitioner in rejoinder relied upon the judgment of Coordinate Bench of this Court passed in the case of Gulam Rasool Bisayati Vs. State of Rajasthan & Ors.; S.B. Civil Writ Petition No.18941/2018 , decided on 08.09.2022 and submitted that in somewhat similar circumstances, the Coordinate Bench had directed the State to give benefit of selection grade/ACP to the similarly situated employees from the date when they were declared semipermanent.

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Mr. Tak, learned counsel for the respondent-State informed that the State has filed an appeal against the above judgment in the case of Gulam Rasool Bisayati (supra). 11. Heard learned counsel for the parties and perused the relevant law including the judgments passed in the case of Jagdish Narain Chaturvedi (supra) and Jagdish Bhanoda (supra). 12. According to this Court, the circular dated 25.01.1992, in relation to conferment of selection grade gives a regularly selected candidate a right to be conferred benefits of selection grade on completion of 9-18-27 years of service. The fact is clear on record that the petitioner was appointed against a vacant post w.e.f. 01.02.1995 by way of order dated 15.03.1995 passed by the Executive Officer of Municipal Board, Bhegun and a regular pay scale was given to him.

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The petitioner was appointed as Sub-Nakedar and from 01.02.1995 he entered the State services. But the posts of SubNakedar were abolished by the State Government and consequent

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to a policy decision, he was absorbed in the respondentPanchayati Raj Department per-viam order dated 01.05.2001. 14. It would be apt to produce Proviso 3 to Clause 3 of the circular dated 25.01.1992 which is being reproduced herein under:

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“Provided further that in the case of an employee who has been/ is declared surplus and absorbed against a new post either in the same or another department excluding absorption on higher post, the service of nine, eighteen or twenty seven years, as the case may be, shall be counted for the purpose of grant of selection grade from the date of initial appointment in the Government service in accordance with the provisions contained in the relevant recruitment rules. As a result of counting of service rendered prior to absorption for grant of selection grade, if the pay of a junior Government servant happens to be more than the pay of his senior, no stepping up of pay of senior Government servant shall be permissible.”

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A simple look at above clause makes it clear that in case of absorption, the benefits of selection grade/ACP shall be given from the date of initial appointment in the Government services.

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In the opinion of this Court, point No.1 in the absorption order cannot be an impediment in petitioner’s way of getting selection grade/ACP w.e.f. 01.02.1995, inasmuch as the same only provides that the services rendered prior to the absorption will not be counted for the purpose of promotion.

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The concept of promotion is entirely different than the right of the employee to get benefit of selection grade/ACP which is also called stagnation benefit.

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The stagnation benefit or selection grade/ACP (pursuant to circular dated 25.01.1992 or other circular(s) issued in this regard) is given to an employee as an acknowledgment of long

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and satisfactory services rendered by an employee, when promotional avenues are not available. Whereas promotion raises an employee’s position in the official hierarchy. In the case of promotion as the claim of competing employees (on the basis of seniority and/or merit) are to be taken into account and in such background/situation, condition No.1 may well be understood that the services rendered as Sub-Nakedar cannot be counted for purpose of promotion.

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The condition No.1 which has been incorporated to exclude the period of petitioner’s services as Sub-Nakedar prior to absorption for the purpose of promotion cannot be used to deprive the petitioner of his rightful claim of getting benefits of selection grade/ACP w.e.f. his regular appointment which in the present case is concededly, 01.02.1995.

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The post of Sub-Nakedar was a cadre post and the petitioner was appointed against a vacant post, as is evident from his appointment order. Hence, he had entered the State services with effect from 01.02.1995. The State’s decision to abolish the post and to absorb all the Sub-Nakedars in different departments cannot have the effect of forefeiture of the services which the petitioner has rendered in Municipal Board. But for abolition of post and petitioner’s absorption in Panchayati Raj Department, he would definitely get the advantage of stagnation benefit (by whatever name called) from the date of his initial appointment.

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For what has been discussed herein above, all the captioned writ petitions (which involve identical facts narrated hereinabove) are hereby allowed.

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The respondents are directed to confer the benefits of selection grade/ACP to the petitioners on completion of 9-18-27 years of service w.e.f. the date of their initial appointment as SubNakedar in their respective municipalities.

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The respondents shall rework or calculate the benefits of selection grade/ACP already granted to the petitioners, making the same effective from their initial date of appointment.

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While carrying out such exercise, the respondents shall be free to examine individual case and to ascertain as to whether the appointment of the petitioner(s) was against vacant post and a regular pay scale was granted to them or not and if given from which date it was given.

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Necessary exercise be done within a period of three months from today and such calculation be intimated to the petitioners. After calculation has been made, it will be required of the respondent-State to pay the consequential benefit/amount to the petitioners within a period of three months therefrom.

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All these present writ petitions stand allowed, accordingly.

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(DINESH MEHTA),J

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39 to 43-AbhishekS & Akanksha/-

Radhey Shyam Pancholi v. State of Rajasthan and Ors.

Case brief

What is this about?

What did the court decide?

Radhey Shyam Pancholi v. State of Rajasthan and Ors.

Case brief

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