Allowed

Shri Satya Narayan Lohra v. the Registrar General

Rajasthan HC16 Jul 2024CW/2542/2023

Case brief

AI extract

What is this about?

This court allowed a writ petition challenging the rejection of promotion entry in the service book. The court held that an employee on deputation retains a lien to their parent cadre and is entitled to promotion benefits accrued since joining the parent establishment, even if transfer was self-requested. Orders rejecting the petitioner's claims were set aside and the promotion order restored.

What did the court decide?

Orders dated 15th June 2020 and 20th July 2020 were set aside; the promotion order dated 29th November 2018 was restored with a caveat on seniority reckoning.

Shri Satya Narayan Lohra Vs the Registrar… — Pension and Retirement Benefits | Rajasthan HC (2024)

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[2024:RJ-JD:29185-DB]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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D.B. Civil Writ Petition No. 2542/2023

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Satya Narayan Lohra S/o Late Shri Kishan Lal Ji Lohra, Aged About 49 Years, Resident Of Gundi Mohalla, Navchowkiya, Jodhpur (Rajasthan).

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----Petitioner

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Versus

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The Registrar General, Rajasthan High Court, Jodhpur (Rajasthan).

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The Registrar Administration, Rajasthan High Court, Jodhpur (Rajasthan).

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The District And Sessions Judge, Balotra, District Barmer (Rajasthan).

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----Respondents

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For Petitioner(s) : Mr. Harish Kumar Purohit with Ms. Archana Purohit

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For Respondent(s) : Dr. Sachin Acharya, Sr. Advocate assisted by Mr. Chayan Bothra

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HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON'BLE MR. JUSTICE KULDEEP MATHUR

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Order

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16/07/2024

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By the Court (Per, Hon’ble Shree Chandrashekhar, J):-

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The writ petitioner has challenged the orders dated 15^th June 2020 and 20^th July 2020 and seeks a direction for the pay-fixation on the basis of the order dated 29^th November 2018 passed by the District and Sessions Judge, Balotra.

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The petitioner was appointed to the post of Stenographer and posted in the District Court at Balotra. On a request made by him, he was brought to the High Court by an order dated 4^th May 2013 on the post of Junior Personal Assistant. Thereafter, he was

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[2024:RJ-JD:29185-DB]

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[CW-2542/2023]

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(2 of 9)

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absorbed on the said post by an order dated 21^st January 2016 issued under the signature of the Registrar (Admin.). This is also a matter of record that the petitioner was promoted in the rank of Stenographer Grade- II in the grade pay of Rs.3600/- with effect from 1^st July 2013 and in the grade pay of Rs.4200/- with effect from 01^st January 2016 with the pay matrix L-11 by virtue of an order passed by the District and Sessions Judge, Balotra on 29^th November 2018.

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On the basis of the order of absorption of the petitioner, the respondents have taken a position that the petitioner who ceased to be a member of the District Judiciary and was not governed under the Rajasthan Subordinate Judiciary Ministerial Establishment Rules, 1986 (now known as Rajasthan District Court Ministerial Establishment Rules, 1986 as amended with effect from 19^th July 2017) could not have been granted promotion by the District and Sessions Judge, Balotra and, therefore, the order of his promotion dated 29^th November 2018 promoting him to the post of Stenographer Grade- II was wrong. In the counter affidavit the respondents have taken the following stand:-

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“That the contents of para no.6 of the writ petition are not admitted in the manner stated and hence denied. It is submitted that had the petitioner been working at Balotra Judgeship and not been transferred to Rajasthan High Court on his own request, the petitioner would have been entitled to promotion which would have accrued to him on 17.09.2015. However, admittedly, he was transferred from Balotra Judgeship to the Rajasthan High Court on 04.05.2013 and was finally absorbed vide order dated 21.01.2016 and therefore, he was not entitled to promotion in accordance with the communication dated 20.08.2019 sent by the Rajasthan High Court to answering respondent no. 3.

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That the contents of para no. 7 of the writ petition require no reply from the answering respondents, the same being a matter of record to the extent the same pertain to Annexure-4. However, the inference sought therefrom is categorically

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(3 of 9)

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[2024:RJ-JD:29185-DB]

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[CW-2542/2023]

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denied. It is submitted that granting the petitioner promotion to the post of Stenographer Grade-II vide order dated 29.11.2018 passed by respondent no. 3 was erroneous, inasmuch since he had been sent to Rajasthan High Court way back in the year 2013 on his own request and he was no longer an existing employee of Balotra Judgeship, when the order of promotion dated 29.11.2018 was passed. The present was a case of transfer as contemplated under explanation 1 to Rule 20 of Rajasthan High Court Staff Service Rules, 2002 and therefore, he was not entitled to the aforesaid promotion.

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That the contents of para no. 8 of the writ petition require no reply from the answering respondents to the extent the same pertain to Annexure 5, 6 and 7, the same being a matter of record. However, the rest of the contents and the inferences drawn therefrom are denied. It is submitted that the fixation of the petitioner was not done for the simple reason that he was erroneously granted promotion on the post of Stenographer Grade-II since he was no longer an existing employee of Balotra Judgeship as on 17.09.2015 on account of his transfer to Rajasthan High Court on his own request and later on being absorbed as Stenographer Grade-III in the establishment of High Court on 23.01.2016. Accordingly he was placed in the bottom of the cadre of existing Junior Personal Assistants in Rajasthan High Court as on 21.01.2016 and he was granted benefit of one advance increment under the recommendation of Shetty Commission with effect from 23.01.2015.

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That the contents of para no. 9 of the writ petition require no reply from the answering respondents, the same being a matter of record. That the contents of para no. 10 of the writ petition are not admitted in the manner stated and are vehemently denied. It is submitted that as stated above, the fixation of the petitioner on the post of Stenographer Grade-II was not done since he was erroneously granted promotion on the said post. As regards the rejection of his representations, it is submitted that he was absorbed as a Junior Personal Assistant in the Rajasthan High Court vide order dated 21.01.2016 and was working as an employee of the Rajasthan High Court and therefore, respondent no. 2 was the appropriate authority to decide his representation.

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That the contents of para 11 of the writ petition are not admitted in the manner stated and hence denied. It is submitted that no opportunity of hearing is required to be given to the petitioner since he was accorded promotion on the post of Stenographer Grade-II wrongly and vide order dated 20.07.2020. Note No.3 of the order dated 29.11.2018 needs a special mention, In which it is clearly stated that in case of any omission the order can be amended. Also, the provisions under the Rajasthan District Courts Ministerial Establishment Rules, 1986 also do not

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[2024:RJ-JD:29185-DB]

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[CW-2542/2023]

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(4 of 9)

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prescribe granting any opportunity of hearing to the employee prior to passing of such an order.”

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After having gone through the orders dated 15^th June 2020 and 20^th July 2020, we have formed an opinion that the stand taken by the respondents cannot be countenanced in law. The issue which arises in this case is whether the petitioner who was brought on deputation to the post of Junior Personal Assistant can be denied the benefit of promotion in his parent cadre. In the Rajasthan High Court Staff Service Rules, 2002, three modes of recruitment are provided. Under sub-Rule (1), recruitment to a post or category of post specified in the second column of Schedule-I can be made (a) by direct recruitment, or (b) by promotion, or (c) by transfer from subordinate Courts or offices of the Government. The post of Junior Personal Assistant is at serial No.10 in the category of non-gazetted posts in Schedule-I. The order dated 4^th May 2013 clearly records that Satya Narayan Lohra and Anil Kumar Singh were brought on deputation ‘to do work in the establishment of Rajasthan High Court, Jodhpur on deputation basis’. Of course, this is also mentioned in the order dated 4^th May 2013 that the petitioner and the co-employee Anil Kumar Singh were brought in the establishment of the Rajasthan High Court on their own request but this also cannot be overlooked that they were brought on deputation basis. Therefore, it must be held that the order dated 4^th May 2013 is not an order of appointment by transfer as provided under Rule 5 of the High Court Staff Service Rules. In service jurisprudence, the expression ‘deputation’ has a distinct connotation and it indicates consent of two establishments and the employee concerned. This is also quite a settled proposition that an employee brought on deputation shall have a

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[2024:RJ-JD:29185-DB]

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[CW-2542/2023]

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(5 of 9)

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lien to the post on which he was posted under the previous employer prior to his deputation. The petitioner who definitely had a lien to the post of Stenographer Grade- III till 21^st January 2016 became entitled for promotion on completing the minimum prescribed years of service and was, infact, promoted to the post of Stenographer Grade-II. Pertinently, the order dated 29^th November 2018 by which the petitioner along with eight other Stenographer Grade-III were promoted clearly records in paragraph No.3 that the said order has been issued in compliance of the recommendations of the Shetty Commission. However, a glance at the order dated 20^th July 2020 would reveal that the promotion granted to the petitioner to the post of Stenographer Grade-II was recalled in compliance of the letter dated 20^th August 2019 from the High Court. But then, the communication dated 20^th August 2019 refers to seniority of the employees who were transferred on their own request to another Judgeship and it is not the direction of the High Court that no service-linked benefit can be given to an employee who opted for deputation to the establishment of the High Court. As we have already noticed, the petitioner did not raise any grievance regarding his seniority in the cadre of Junior Personal Assistant and this issue has not even been agitated by him in the present writ proceeding.

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According to Rule 20 of the Rajasthan High Court Staff Service Rules, 2002 (as amended up to 28^th February 2024), the seniority of an employee in the service shall be determined from the date of substantive appointment on the post. Rule 20 reads as under:

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(6 of 9)

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[2024:RJ-JD:29185-DB]

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[CW-2542/2023]

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“ Rule 20. SENIORITY.— Seniority in service shall be determined from the date of substantive appointment on the post. Explanation:— (1) Seniority in service of the member of staff of the Subordinate Court transferred to the Court otherwise than on his own request under proviso to sub-rule (1) of Rule 5 of these Rules shall be determined from the date of substantive appointment on the corresponding post where from he is transferred.

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Explanation:— (2) [Deleted]⁴⁰ : Provided that—

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(i) That the seniority inter se of persons appointed to a post by direct recruitment on the basis of one and the same selection, except those who do not join the service when post is offered to them within a period as specified by the Appointing Authority from the date of the issue of the order or longer if extended by the Appointing Authority, shall follow the order in which the names have been placed in the select list.

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(ii) two or more persons were appointed on a post in the same year, a person appointed by promotion shall be senior to the person appointed by direct recruitment;

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(iii) the seniority inter se of persons selected on the basis of seniority-cum-merit and on the basis of Seniority-cum- efficiency in the same selection shall be the same as in the next below post;

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(iv) if a candidate belonging to the Scheduled Caste/Scheduled Tribe is promoted to an immediate higher post/grade against a reserved vacancy earlier than his senior General/Other Backward Class candidate who is promoted later to the said immediate higher post/grade, the General/Other Backward Class candidate will regain his seniority over such earlier promoted candidate of the Scheduled Caste/Scheduled Tribe in the immediate higher post/grade.”

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The explanation (1) to Rule 20 provides that seniority in service of the member of staff of the subordinate Courts transferred to the Court otherwise than on his own request under sub-Rule (1) of Rule 5 of the High Court Staff Services Rules shall be determined from the date of substantive appointment on the

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(7 of 9)

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[2024:RJ-JD:29185-DB]

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[CW-2542/2023]

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corresponding post where from member of the subordinate Court

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has been transferred. Rule 5 reads as under:-

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“Rule 5. METHOD OF RECRUITMENT.— (1) Recruitment to a post or category of posts specified in the second column of Schedule-I shall be made by one or more of the following methods, namely:- (a) by direct recruitment, or (b) by promotion, or

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(c) by transfer from subordinate courts or offices of the Government;

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Provided that in case of direct recruitment, the Chief Justice may, if deemed appropriate, for the purpose of short listing of the candidates, provide for screening test² .

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Provided further³ that the Chief Justice or subject to any general or special order of the Chief Justice, the Registrar General may order transfer of any member of the Ministerial or Class IV staff serving on the establishment of the Court to any Subordinate Court and viceversa on such terms and conditions as may be deemed proper.

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(d) all persons who are working on any post in ad hoc/officiating/temporary basis on the date of commencement of these Rules shall be screened by a Committee constituted by the Chief Justice for adjudging their suitability to the post,

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Provided they possess the qualification prescribed in these Rules or Rules superseded by these Rules either for direct recruitment or promotion.

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(e) [Deleted]⁴

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(f) The recruitment, appointment and posting on “E-Courts Posts”, for High Court as well as for Subordinate Courts, shall be made by the High Court.”⁵

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(g) A sitting Judge of the Court may nominate one person for appointment as Class IV employee enabling him/her to retain one personal staff member, who would be attached to his/her residence. Such nominated person shall be considered for appointment as Class IV employee subject to the condition that he possesses educational and other qualifications required for the post as prescribed in the Rules' However, if required, age relaxation may be granted to him. Provided that such nomination for appointment shall be made only once by the Hon,ble Judge during his/her entire tenure. If such nomination has been made prior to this

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(8 of 9)

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[2024:RJ-JD:29185-DB]

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[CW-2542/2023]

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amendment and implemented, no fresh nomination shall be made.⁶

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(2) The Chief Justice may, from time to time, by general or special order:-

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(a) specify the method by which recruitment to a post or category of posts shall be made.

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(b) determine the proportion of vacancies to be filled in by each method in case of recruitment by more than one method, and

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(c) specify the manner in which such recruitment shall be made.

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This is the stand taken by the respondents that the petitioner who was transferred to the High Court on his request shall lose his seniority in terms of Rule 20. However, in our opinion, this issue does not fall for consideration by this Court inasmuch as the grievance raised by the petitioner is directed against the order dated 15^th June 2020 by which his request for entry in the service book regarding his promotion to the post of Stenographer GradeII was rejected and the order dated 20^th July 2020 by which the order of promotion dated 20^th August 2019 has been recalled.

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The order dated 20^th July 2020 by the District and Sessions Judge, Balotra seems to have been passed on a misconstruction of the communication dated 20^th August 2019 from the High Court. The stand of the respondents that on 29^th November 2018 the petitioner had already become a member of establishment of the High Court and, therefore, he could not have been promoted to the post of Stenographer Grade-II on 29^th November 2018 is misconceived inasmuch as the order of promotion clearly records that he became eligible for promotion on 1^st July 2013 in grade pay of Rs.3600/- and with effect from 1^st January 2016 in grade pay of Rs.4200/-. Merely because the order of promotion was

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(9 of 9)

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[2024:RJ-JD:29185-DB]

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[CW-2542/2023]

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issued belatedly the rights which had already accrued to the petitioner could not have been denied to him.

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For the foregoing reasons, the orders dated 15^th June 2020 and 20^th July 2020 are set aside and, consequently, the order dated 29^th November 2018 is restored. However, we make it clear that the seniority of the petitioner in the cadre of Junior Personal Assistant shall be reckoned as per the extant Rules.

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D.B. Civil Writ Petition No. 2542/2023 is allowed to the aforesaid extent.

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(KULDEEP MATHUR),J

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(SHREE CHANDRASHEKHAR),J

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109-Arjun Daiya/-

Shri Satya Narayan Lohra v. the Registrar General

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Shri Satya Narayan Lohra v. the Registrar General

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