Director, Women and Child and Others vs Sita Sharma

We have heard learned counsel for the parties.

All these Special Appeals arise out of the judgment of the learned Single Judge by which he has directed that if any representation is filed by the petitioners, the same should be decided by the respondents considering the judgment of learned Single Judge of this court in SBCWP No. 4518/2010 "Chandra Prabha Sharma v. Director, Mahila Evam Baal Vikas Vibhag, Rajasthan, Jaipur, decided on 17.4.2010.

It is submitted that the judgment in Chandra Prabha Sharma''s case (supra) followed the judgment of the learned Single Judge in the case of Smt. Manju Rani Nadheria v. State of Rajasthan, "SBCWP No. 2156/2007" decided on 5.3.2010, against which the Special Appeal was dismissed by the Division Bench of this court in DBCSA No. 511/2010 on 1.10.2010 and Special Leave to Appeal was also dismissed by the Apex Court on 26.11.2013. The review petition filed by the State of Rajasthan against the dismissal of the Petition for Special Leave to Appeal (Civil) No. 5750/2011, being Review Petition No. 1853/2014, with the observations:

"....We are convinced that the orders against which review has been sought, does not suffer from any error apparent, warranting its consideration."

The lead case being DBCSA No. 829/2014 has been preferred with the delay of 1382 days alongwith the delay condonation application stating therein that the judgment, passed by the Court in Smt. Manju Rani''s case (supra), which has been relied upon by the learned Single Judge, was challenged before the Supreme Court by filing Special Leave Petitions. The interim orders were passed by the Supreme Court in the Special Leave Petitions, which continued till the final adjudication of the case, which were ultimately dismissed on 26.11.2013 and, as such, delay in filing the appeal is neither intentional nor deliberate and has been occasioned due to the circumstances beyond the control and knowledge of the appellants.

The grounds for condonation of delay are neither good nor sufficient, inasmuch as the State of Rajasthan was not required to wait for the decision in the Special Leave Petitions for filing an appeal against the judgment of learned Single Judge. The Special Leave Petitions were dismissed on 26.11.2013 and the DBCSA No. 829/2014 has been filed on 12.5.2014. In any case, we find that the learned Single Judge, while deciding the writ petitions, has not committed any error in directing that the representation be decided following the judgment in Chandra Prabha Sharma''s case (supra).

The application for condonation of delay is rejected.

It is submitted by Mr. Rajendra Prasad, learned Additional Advocate General, that the learned Single Judge has, in deciding the Writ Petition No. 2156/2007 and other connected cases, failed to consider that the Rajasthan Civil Services (Revised Pay) Rules, 2008 (in short, "the Rules of 2008"), which were made applicable with effect from 1.1.2006, had come into force in pursuance to the acceptance of the report of the Sixth Pay Commission and on which the Office Memorandum dated 25.1.1992 providing for three financial upgradation under the Assured Career Progression Scheme (ACPS) was substituted and that after enforcement of the Rules of 2008, vide Office Memorandum dated 31.12.2009 for grant of ACP to Class IV, Ministerial and Subordinate Service, the Rules provide for the financial upgradation under the ACPS to be counted on completion of period of service prescribed in Rule 19 of the Rules of 2008.

It is submitted that under the Government Circular dated 25.1.1992, the writ petitioners were entitled to grant of Selection Grade on completion of 9, 18 & 27 years of service equivalent to the pay scale of next promotional post i.e. Sr. Lady Supervisor, if on completion of 9 years on the post of Lady Supervisor, she does not get promotion. It is further submitted that in the past, promotions were made on the post of Assistant Child Development Project Officer (ACDPO) from amongst Lady Supervisors, who had completed 10 years on the post of Lady Supervisor, as provided under the Rajasthan Women and Child Development (State and Subordinate) Service Rules, 1998, (in short, "the Rules of 1998"), in which due to administrative exigency, a large number of posts of ACDPO were lying vacant.

Learned Single Judge has granted the relief on the basis of the Circular dated 25.1.1992 when the Rajasthan Civil Services (Revised Pay) Rules, 2008, which were made applicable with effect from 1.1.2006, had come into force providing for Grade Pays and the ACP Scheme. Learned Single Judge did not consider that prior to 1998, there were no service rules framed governing the service conditions, as the petitioners were working under a Scheme. On the enforcement of the Rules of 2008, the Grade Pays became applicable and on which, as per the Rules, the Supervisor was entitled to be promoted as Sr. Supervisor and then to the post of ACDPO and then to the CDPO. Under the Rules, on completion of 9 years of service, they were entitled to pay scale of Rs. 5000-8000 and upon completion of 18 years of service, they were entitled to the pay scale of Rs. 5500-9000 and then to the pay scale of Rs. 6500-10000 on completion of 27 years of service. The petitioners have rendered only 19 years of service. Learned Single Judge has not considered the effect of the Rules of 2008, which came into force with effect from 1.1.2006 and granted the relief and consequential benefits in accordance with the Rules of 2008.

We are unable to accept the submission against the reliefs given by the learned Single Judge in Smt. Manju Rani''s case (supra), inasmuch as the judgment was delivered on 5.3.2010 and the Rules of 2008 had come into force with effect from 1.1.2006 but they were neither brought to the notice of the Court nor any argument was raised, based on the amended Rules. The points were also not taken and argued in the Special Appeal as well as Special Leave to Appeal. In review before the Supreme Court, these points were taken but the Supreme Court, having considered the review, dismissed it on merits, which prohibits this Court to re-consider the questions.

It is submitted that though the Rules of 2008 had come into force in almost all the Services, the petitioners, who were Female Supervisors under the Women and Child Development Scheme, were given benefits dehors the Rules opting for the new pay scales under the Rules of 2008, which came into force on 1.1.2006. The ratio of the judgment may not be applied to all other departments.

The principles of constructive res judicata debar us from reopening the issues, after the Special Leave Petition as well as the Review Petition were dismissed by the Supreme Court.

We are of the view that so far as the Women and Child Development Department is concerned, since the judgment of the learned Single Judge in Smt. Manju Rani''s case (supra) has become final upto the Apex Court, the matter cannot be reopened. So far as the services other than on the posts in the Women and Child Development Department are concerned, the applicability of the Rules to the other departments is a matter, which is to be considered by the Court, whenever the persons of such departments approach the court independently.

We further find that all the Special Appeals are barred by limitation and that the inordinate delay has not been sufficiently explained by the Department. It is contended that the Department was waiting for the result of the Special Leave Petition and the Review Petition. In our view, the pendency of the Special Leave Petition or the Review Petition in the Apex Court cannot be a ground to condone the delay in filing the Special Appeals.

All the Special Appeals are, accordingly, dismissed.

A copy of this judgment be placed in all the connected matters.