Devraj Sharma and Others vs State of Rajasthan and Others

M.N. Bhandari, J.—1. The petitioners were initially appointed on the posts of Vaccinator, Malaria Surveillance Worker, Cholera Worker, etc. and later on merged/absorbed on the post of Multi-Purpose Health Worker (in short "MPHW"). On completion of 9 years of service, the petitioners were given benefit of first selection scale. On completion of 18 and 27 years of service, the petitioners became entitled to second and third selection scale. The benefit of selection scale has been granted but dispute remains about the pay scale. The petitioners are claiming pay scale of Rs. 1200-2050 (revised to 4000-6000) and pay scale of 1640-2900 (revised to 5500-9000) on second and third selection scale. The controversy about entitlement of pay scale was raised before this court as well as before the Rajasthan Civil Services Appellate Tribunal (in short "Tribunal"). The Tribunal allowed the pay scale demanded by the petitioners looking to the fact that on grant of first and second selection scale, pay scale was not changed as it was 975-1720 on grant of first and second selection scale. The Tribunal so as this court allowed pay scale of 1200-2050 on second selection scale and pay scale of 1640-2900 on third selection scale. The judgment of the Tribunal was challenged before the High Court. It was maintained followed by judgment of the Division Bench upholding the view taken by the Tribunal. The writ petitions filed before the court were also allowed and appeal before the Supreme Court filed by the State Government was dismissed as it was barred by limitation. In view of above, the petitioners are entitled to the pay scale of 1200-2050 (revised to 4000-6000) on second selection scale and pay scale of 1640-2900 (revised to 5500-9000) on third selection scale.

Learned Additional Advocate General Shri J.M. Saxena and Government Counsel Shri Sanjay Sharma have contested the writ petitions.

It is submitted that the interference in grant of pay scale was made by the Tribunal as well as by this court looking to the fact that on grant of first as well as second selection scale, the pay scale was 975-1720 thus on grant of second selection scale, the pay scale remains the same. The Tribunal as well as this court allowed the pay scale of 1200-2050 on second selection scale and thereupon 1640-2900 on third selection scale but in between the pay scale of 975-1720 and 1200-2050, the pay scale of 1025-1800 was existing. Thus even if the ground urged by the petitioners is taken into consideration, they are entitled to the pay scale of 1025-1800 on grant of second selection scale and thereupon pay scale of 1200-2050 on third selection scale. The issue aforesaid is pending consideration before the Division Bench in the Writ Petition No. 4971/2005. A Notification was also issued to provide pay scale of 1025-1800 on second selection scale and thereupon 1200-2050 on third selection scale.

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

The issue raised by the petitioners regarding pay scale on second and third selection scale to MPHW has been adjudicated not only by the Tribunal but by this court also many times and the prayer made by the petitioners herein has been allowed by this court. The Division Bench thereafter dismissed the special appeal preferred by the State Government. The reference of all the relevant facts exist in the judgment of Division Bench in the case of State of Rajasthan & Ors. v. Karan Singh, D.B. Civil Special Appeal (Writ) No. 382/2013 decided by the Principal Seat at Jodhpur on 25th March, 2014. Recently same issue came up for consideration before the Division Bench again in bunch of appeals led by Govind Dan Charan v. State of Rajasthan & Ors., D.B. Civil Special Appeal (Writ) No. 1068/2014 decided by the Principal Seat at Jodhpur on 17th December, 2015. Therein, earlier judgment on the issue as well as judgment of the Division Bench in the case of Karan Singh (supra) were considered. The relevant paras of the said judgment are quoted for ready reference:

"The issue as to whether the persons like the appellants, who were appointed as Malaria Surveillance Worker/Multi Purpose Works (MPW) are entitled to the selection grade on completion of 9, 18 and 27 years of service in the pay-scale of Rs. 1640-2900 as claimed by the appellants or Rs. 1200-2050 as claimed by the respondents, is no more res integra and has been repeatedly decided by this Court in innumerable cases.

The submissions made by learned Additional Advocate General regarding the judgment in the case of Chandra Shekhar (supra) being not applicable and the issue having not been raised therein needs a detailed scrutiny. The issue was raised by Chandra Shekhar & Ors. by filing Appeal No. 351/1999 before the RCSAT. The appeal was filed against the order dated 07.06.1999, whereby the selection grade in the pay-scale of Rs. 1640-2900 granted to them was amended and the appellants were granted pay-scale of Rs. 1200-2050. The RCSAT noticed two issues for determination, (i) the pay-scale, to which, the appellants were entitled and, (ii) date, from which, they were entitled for such pay-scale. The RCSAT based on its earlier order in the case of Durga Prasad Saini v. Director, Medical & Health Department & Ors., decided on 16.10.2001, came to the conclusion that the appellants would be entitled to pay-scale of Rs. 1640-2900 from the date of initial appointment and allowed the appeal vide its order dated 25.02.2002. Aggrieved against 7 the order dated 25.02.2002, the State filed S.B. Civil Writ Petition No. 4627/2005, which was decided on 21.09.2005. The writ petition was dismissed holding that the judgment was based on sound appreciation of existing legal position and the judgment did not require any interference. Whereafter, the State preferred Special Appeal and in the Special Appeal decided on 11.10.2011 (supra) held as under:--

"The matter pertains to grant of selection grade which was granted earlier but later on it was withdrawn without giving opportunity of hearing and recovery was sought to be made. The RCSAT has quashed the order of recovery which has been passed against the respondent. Writ Petition was preferred before the Single Bench, same has also been dismissed by the impugned order. Aggrieved thereby, the intra-court appeal has been preferred.

Though the period was counted with effect from the date of initial appointment on ad hoc basis, the said period could not have been counted in view of the decision of the Apex Court in State of Rajasthan v. Jagdish Narain Chaturvedi, , (2009) 12 SCC 49. However, the State Government in order to avoid the hardship has taken the policy decision after the decision rendered by the Apex Court on 20.08.2010 not to review the cases where the benefit of selection grade has already been granted after counting the period spent on ad hoc officiation.

In view of the decision taken by the State Government as stated in the order dated 20.8.2010 and 29.6.2009, nothing further survives in the appeal as the benefit of selection grade has been granted earlier.

In view of the above, the appeal stands dismissed."

From the above, it would be noticed that though the Division Bench came to the conclusion that the period could not be counted from the date of initial appointment as per the judgment in the case of Jagdish Narain Chaturvedi (supra), in view of the Policy decision dated 20.08.2010 taken by the State after the judgment not to review the cases, where the benefit of 8 selection grade had already been granted after counting the period spent on ad-hoc officiation, the appeal was dismissed. The circular dated 20.08.2010, which has been placed for perusal of the Court, merely dealt with cases, where selection grades were granted after taking into consideration the ad-hoc service and the said circular had nothing to do with a particular pay-scale, inasmuch as, the circular was a general circular and was not specific either to the Department or to the post held by the appellants.

In view of the above state of affairs, it is apparent that the grant of pay-scale of 1640-2900, which was sought to be withdrawn by the State was quashed by the RCSAT, and was upheld by the learned Single Judge and the Division Bench of this Court and the issue pertaining to the date for grant of selection grade was dealt with in terms of the Policy decision of the State dated 20.08.2010 and, therefore, the submissions made by learned counsel for the respondents regarding the judgment in the case of Chandra Shekhar (supra) not being applicable to the facts of the case has apparently no basis. Against the judgment of the Division Bench, the State preferred SLP, which was dismissed by the Supreme Court on 07.05.2013 as time barred.

Further in the case of Vijay Pal Dabi v. State of Rajasthan & Ors.: S.B. Civil Writ Petition No. 1633/2012 and connected matters decided on 28.01.2013, the following direction was issued by a learned Single Judge, which also dealt with both the issues i.e. the date for grant of selection grade and the pay-scale 9 i.e. Rs. 1640-2900:--

"In view of the above, the present writ petition is allowed and the respondents are directed to fix the selection grades of the petitioners in the first, second and third selection grades in the pay scales of 975-1720, 1200-2050, 1640-2900 on completion of 9, 18 and 27 years of service respectively from their initial date of appointment. The exercise shall be completed within a period of two months from today."

Against the said judgment of Vijay Pal Dabi (supra), Special Appeal was preferred by the State and the Division Bench in its judgment dated 25.03.2014, which was delivered in the case of Karan Singh & other connected cases (supra) noticed and held as under:--

"While distinguishing their cases with those who, according to them, are similarly placed, it has been stated that the respondents-writ-petitioners had been granted selection grades in the admissible pay scales on completion of required length of service as per the Rules as due to them. It has been averred as well that the respondents-writ-petitioners were not entitled to the pay scale of Rs. 1640-2900 on completion of 27 years of continuous service as claimed by them. The reiterated that the respondents-writ petitioners were entitled to selection grades as per the circular dated 25.1.1992 in the following terms:--

"In the above view of the matter, we find substantial merit in the present appeals. The impugned judgments and orders are thus set aside. We make it clear that by the determination herein the aspect of entitlement to the selection grades scales of pay on completion of 9, 18 and 27 years of services on the basis of the legal proposition as propounded in Jagdish Narain Chaturvedi (supra) has only been made.

The appeals are allowed in the above terms. A copy of this judgment be placed in all the files."

From the above, it is ex-facie clear that the Division Bench while deciding the case, made it clear that the determination was only based on the legal proposition as propounded in Jagdish Narain Chaturvedi (supra) and the appeals were allowed in the said terms i.e. the respondents therein were not entitled to get the period spent on ad-hoc, daily-wages or work-charge basis for grant of selection scale and the other part of the order, where the respondents therein were held entitled to grant of selection scale in the pay-scale of 1640-2900 was not disturbed.

Besides the above, the issue was determined way back in State of Rajasthan & Ors. v. Akhil Rajasthan Medical & Health and Family Welfare, Multi-purpose Workers'' Employees Union: D.B. Civil Special Appeal (Writ) No. 982/2001, decided on 23.04.2002 at Jaipur Bench, wherein the Division Bench held that first selection grade and second selection grade cannot be similar and the MPWs were entitled to third appropriate selection grade.

Again in State of Rajasthan & Ors. v. Rameshwar Prasad Sharma & Ors.: D.B. Civil Special Appeal (Writ) No. 1025/2003, decided on 18.04.2004 at Jaipur Bench, a similar issue raised was also determined based on judgment in the case of Akhil Rajasthan M&H (supra).

In view of the above, it is apparent that the issue pertaining to entitlement of the appellants to the third selection grade in the pay-scale of Rs. 1640-2900 (5500-9000) already stands determined in the case of Karan Singh (supra), Chandra Shekhar (supra) and Vijay Pal Dabi (supra) and the contentions 11 to the contrary by the State cannot be countenanced.

So far as the direction of the learned Single Judge in directing the appellants to pursue their notice for demand of justice is concerned, in view of the fact that the issue already stood settled by way of two Division Bench judgments and when a similarly situated petitioner had already been granted relief in the case of Laxmi Narayan Vyas (supra) decided by the learned Single Judge, there was apparently no reason for denying the similar relief to the appellants.

In view of the above discussion, the appeals filed by the appellants are allowed. The order dated 15.04.2014 passed by the learned Single Judge in all the writ petitions is set aside, the writ petitions filed by the petitioners-appellants are allowed to the extent that the appellants would be entitled to selection grade and get fixation in the pay-scale of Rs. 975-1720, 1200-2050 and 1640-2900 (5500-9000) on completion of 9, 18 and 27 years of service respectively in terms of judgment in the case of Jagdish Narain Chaturvedi (supra) i.e. from the date of regular appointment."

The judgment of the Division Bench covers the issue raised herein and otherwise there are several judgments of Single Bench so as Division Bench granting same relief as claimed herein. This court also disposed of bunch of writ petitions filed by the State Government against the judgment of the Tribunal led by State of Rajasthan v. Rajasthan Civil Services Appellate Tribunal, S.B. Civil Writ Petition No. 20968/2013 vide order dated 22nd January, 2016. The judgments earlier rendered by the Tribunal or by this court have already been complied by the respondents. In one case, even SLP was dismissed though as it was on limitation and not on merit. In view of above, I am unable to take different view than expressed by the Division Bench of this court.

Learned Additional Advocate General Shri J.M. Saxena and Shri Sanjay Sharma, Government Counsel have raised the issue in reference to the order issued on 22nd December, 1993 where pay scale on first, second and third selection scales was provided and said to have not been challenged. They further prayed for providing pay scale of 1025-1800 and 1200-2050 on second and third selection scale. It has been vehemently argued that even if the selection scale cannot be in the pay scale in which employee is working then also immediately higher pay scale can be given. For illustration, after the pay scale of 975-720, there exist pay scale of 1025-1800 but this court has allowed the pay scale of 1200-2050 and on third selection scale, the pay scale of 1640-2900.

The aforesaid argument cannot be accepted in discrimination because similarly placed candidates have already been allowed pay scale of 1200-2050 on second selection scale and pay scale of 1640-2900 on third selection scale. If benefit is denied to the petitioners, it will cause discrimination among similarly placed candidates. The State Government was having option to take up the issue raised herein either before the Division Bench or Apex Court in appropriate case. If the Notification issued by them specifically provides the intervening pay scale 1025-1800 then it can be given on grant of second selection scale. In any case, the observations have been made to deal with the argument of the learned counsel for respondents otherwise the issue raised in these writ petitions is covered by the judgment of the Division Bench referred above.

All the writ petitions are allowed with the direction to the respondents to allow pay scale of 1200-2050 (revised to 4000-6000) on second selection scale and pay scale of 1640-2900 (revised to 5500-9000) on third selection scale to MPHW. The compliance of the order be made within a period of four months from the date of receipt of copy of this order. In view of direction given above, if any adverse order has been passed on a representation or otherwise, then all those adverse orders are set aside. It is made clear that benefit aforesaid would be available to those petitioners who have not yet been granted pay scale given above on second and third selection scale.

It disposes of the stay applications also.