Gurvinder Kaur vs State of Rajasthan and Others

Sandeep Mehta, J.

The instant writ petition is preferred on behalf of the petitioner Gurvinder Kaur seeking a direction for being paid the regular pay scale meant for primary school teachers. As per the admitted facts on record, it is evident that the petitioner, being a widowed lady, was selected and appointed on the post of Teacher Grade-III after facing a selection process held in pursuance of the advertisement Annex.P/1 dated 9.4.2005.

An appointment order Annex.P/2 dated 12.1.2006 was issued appointing the petitioner in the pay scale of Rs. 4500-7000/- and the place of posting was mentioned therein as Government Primary School, 7KMM, Nohar. Thereafter, an amended order Annex.P/5 dated 5.4.2006 came to be issued whereby, on the basis of two State Government circulars dated 20.1.2006 and 18.3.2006, the petitioner was relegated to an unspecified fixed remuneration and was posted at Government Primary School, RIICO Area, Panchayat Samiti, Sri Ganganagar. The petitioner is aggrieved of the said portion of the order, whereby she was relegated to a fixed remuneration.

The learned counsel for the petitioner has placed on record, a copy of the order dated 18.3.2015, whereby the petitioner''s services have been made permanent with effect from 21.10.2012.

Learned counsel for the petitioner places reliance upon the order dated 28.11.2013 passed by this Court in a bunch of writ petitions led by S.B. Civil Writ Petition No. 9144/2008 (Kalu Ram v. State of Rajasthan and Ors.) and urged that the respondent authorities have acted beyond jurisdiction in directing that the petitioner''s pay scale will be governed by the circulars dated 20.1.2006 and 18.3.2006 and thereunder, she will be entitled to fixed remuneration only. He contends that the petitioner was appointed as a primary teacher vide order Annex.2 on regular basis after undergoing a selection process on 12.1.2006 and thus, the conditions of her service cannot be governed by a circular which came into existence subsequently. He submits that applying these circulars on the petitioner''s case would imply that the circulars are being given a retrospective effect which is neither warranted nor permissible in law. Learned counsel relied upon the following excerpts of the judgment rendered in Kalu Ram''s case (supra):--

"The Notification dated 13.02.2007 reads as under:--

GOVERNMENT OF RAJASTHAN FINANCE DEPARTMENT (RULES DIVISION)

NOTIFICATION

No. F1(2)FD(Rules)/2006 Jaipur, dated: 13 FEB 2007

In exercise of the power conferred by proviso to Article 309 of the Constitution of India, the Governor hereby makes the following rules further to amend the Rajasthan Service Rules, 1951, namely:--

"1. These rules may be called the Rajasthan Service (Amendment) Rules, 2007.

They shall come into force w.e.f.20.1.2006.

In the aforesaid rules- after the existing ''Note (v)'' appearing below Rule 8, a new ''Note (vi) shall be inserted by the following, namely:--

"(vi) Where recruitment process was completed and appointment orders were issued prior to 20.1.2006 except to some of the selectees because of stay orders of court or any other justified reasons, appointments of such remaining selectees will be governed under the provisions of the various rules in force prior to 20.1.2006."

By Order of the Governor,

(Subhash Garg) Finance Secretary-III

In view of the above discussions and after going through the Notification dated 13.02.2007, there is no hesitation in holding that the services of the petitioners, who were appointed against the vacancies pertaining to the period prior to 20.01.2006 are to be governed by the provisions of the various Rules in force prior to 20.01.2006.

In such circumstances, these writ petitions are allowed. The respondents are directed to issue necessary orders in this respect clarifying that the services of all the petitioners will be governed by the Service Rules in force prior to 20.01.2006 and it is also directed that respondents shall also grant all benefits to the petitioners while applying the provisions of Service Rules which were in force prior to 20.01.2006. It is further directed that above directions shall be carried out within a period of three months from the date of production of certified copy of this order."

He urged that the ratio of the above order squarely applies to the petitioner''s case and prays that the writ petition deserves to be accepted and the impugned order Annex.5, whereby the petitioner was directed to be paid fixed salary, deserves to be modified appropriately and the pay scale which was accorded to her vide the order Annex.P/2 deserves to be restored.

Per contra, the learned Govt. counsel insisted that the petitioner was not appointed on substantive basis and was inducted in the pay scale subject to acquiring the mandatory training qualifications and as such she cannot be considered in regular service from 12.1.2006. She submits that by the effect of the two circulars dated 20.1.2006 and 18.3.2006, the petitioner was rightly placed in fixed salary service and thus, no interference is called for in the impugned order.

Heard and considered the arguments advanced at the Bar and perused the material available on record.

The order Annex.P/2, whereby the petitioner was appointed on the post of Teacher Grade-III does not show that the petitioner was appointed on ad hoc basis. The petitioner was given salary in the regular pay scale and was posted at Nohar. The order bears a stipulation that the candidates being appointed, would be required to acquire the requisite training within a period of three years. Thereafter, she was transferred to Zila Parishad, Sri Ganganagar and was given a fresh posting order Annex.P/5 dated 5.4.2006 wherein, it was stipulated that the petitioner would be entitled to a fixed salary in reference to the above mentioned two circulars. This, in the opinion of the Court, amounted to alteration in the petitioner''s service conditions and was impermissible. The circulars dated 20.1.2006 and 18.3.2006, on the strength whereof, the petitioner was reduced from regular pay scale to fixed pay could not have been applied because the petitioner was appointed substantively after facing regular selection process on 12.1.2006. Such an attempt would amount to giving retrospective effect to a government circular which attempts to alter the service conditions and cannot but be termed as arbitrary and unconstitutional. This Court whilst examining an identical controversy in the case of Kalu Ram (supra), relied upon the notification dated 13.2.2007 issued by the State Government and held in no unequivocal terms that the circulars dated 20.1.2006 and 18.3.2006 cannot be applied retrospectively. The circular dated 13.2.2007 itself provides that where the recruitment process was completed and appointment orders issued prior to 20.1.2006, the appointments of such selected candidates would be governed by the provisions of the Rules in force prior to 20.1.2006. Consequently, the action of the respondents in placing the petitioner in fixed salary by order Annex.P/5 with reference to the circulars dated 20.1.2006 and 18.3.2006 is absolutely unjust, arbitrary and deserves to be quashed.

Learned Govt. counsel tried to persuade this Court that by order Annex.P/3 dated 25.1.2006, the petitioner''s services had been terminated and thus, the order Annex.P/5 dated 5.4.2006 should be construed as a fresh appointment order.

In this Court''s opinion, the said argument is absolutely fallacious in as much as, the order Annex.P/3 dated 25.1.2006 is simply a posting order and not an order of appointment. The order of appointment dated 12.1.2006 (Annex.P/2) otherwise also could not have been cancelled by the competent authority because that would amount to terminating the services of a regularly selected candidate without following the mandatory procedure prescribed under the CCA Rules of 1958.

As a result of the aforesaid discussion, the instant writ petition deserves to be and is hereby allowed. The impugned order Annex.P/5 dated 5.4.2006 is hereby modified and it is hereby directed that the petitioner shall be entitled to regular pay scale right from the date of her induction in service i.e. 12.1.2006 with all consequential benefits.

No order as to cost.