Sangilal Changgani vs State of Rajasthan

Dr. Vineet Kothari, J.—The present petitioner Sanghi Lal Changgani after his retirement has filed the present writ petition with the prayer that even though he worked for more than 40 years with the respondent Devasthan Department in the Class IV Cadre as Peon/Chowkidar, having been appointed as Peon against the sanctioned post way back on 13/7/1966, at the time of his retirement, he was paid a paltry sum of Rs. 1000/- pm only instead of the regular pay scale of Class IV servant and no retiral benefits have been paid to him and, therefore, the present writ petition has been filed seeking appropriate relief in this regard against the respondent Devasthan Department.

The writ petition was filed by the petitioner at 66 years of age on 20/9/2011. Upon issuance of the notices, the respondents have filed a reply to the writ petition and have contested the same.

First the facts in nutshell are like this. Vide appointment order Annex. 1 dated 13/7/1966, the Assistant Commissioner of Devasthan Department, Jodhpur issued sanction in favour of Assistant Commissioner, Devasthan Department, Bikaner to appoint the present petitioner as a Peon. Thereafter, the petitioner was made permanent on the said post vide Annex. 2 order passed by the Assistant Commissioner of Devasthan Department, Bikaner on 6/10/1969 and due grade increments were also given to him vide order Annex. 3 dated 2/12/1971.

Annex. 4 is a representation made by the petitioner to the respondent Department that without any reason his pay of Rs. 60/- pm has been reduced by Rs. 5/- pm and consequently the Assistant Commissioner, Devasthan Department, Jodhpur sanctioned payment of his pay again to the Inspector of the Devasthan Department Bikaner vide Annex. 6 dated 10/12/1975 in which it was clearly stated that the petitioner Sanghi Lal Changgani, Chowkidar is again posted on his previous post. However, it appears that under the orders of the Inspector of Devasthan Department, Bikaner, referred to in para 3 of the representation of the petitioner (Annex. 7), the petitioner was asked to discharge his duties as Chowkidar in Jaggannath Temple, Bikaner, though he was appointed on the substantive post of Peon, and since he was asked to discharge his duties as Chowkidar, for the first time in the month of January, 1975 when his pay was reduced by Rs. 5/- pm, as Chowkidars were paid fixed monthly amount only, the petitioner made the aforesaid representation. Somehow it appears that the petitioner continued to discharge his duties as Chowkidar only since then and was paid only fixed monthly amount instead of regular pay scale of Peon in Class IV Cadre and that is why he made a detailed representation to the Commissioner of Devasthan Department in the year 2007 on 27/12/2007, a copy of which is placed at Annex. 7, in which he narrated the details of his service career and prayed for regular pay scale of Peon to the learned Commissioner instead of monthly amount of Rs. 595/- by that time. Copy of said representation was also endorsed to the concerned Hon''ble Minister & Chief Minister of the State.

Upon the comments being sought from the higher authorities in this regard, the Assistant Commissioner, Devasthan Department, Bikaner favourably recommended the case of the petitioner for grant of regular pay scale vide communication Annex. 10 dated 26/2/2008 stating therein that the petitioner''s services were absorbed in the year 1975 on the post of Chowkidar and since then he was working as Chowkidar in the Temple of ''Rasik Shiromani'' Bikaner and the payment was made out of the fund created for the Devasthan Department. Learned Commissioner asked the Assistant Commissioner, Devasthan Department, Bikaner to take appropriate action at its own level vide Annex. 11 dated 8/8/2008 on the aforesaid representation of the petitioner. Vide Annex. 12 dated 13/8/2008, the Assistant Commissioner, Devasthan Department informed the petitioner that since his case is old and complex, the same will take some time. But since no decision thereof was taken, again the Commissioner of Devasthan Department vide communication Annex. 15 dated 24/6/2009 asked for some information from the Assistant Commissioner, Devasthan Department. The said communication was replied vide Annex. 16 dated 20/11/2009. It would be relevant to quote here the response of Assistant Commissioner, Devasthan Department, Bikaner vide letter dated 27/10/2010 (Annex. 17) and other relevant documents such as Annex. 10, 11, 12, 15 and 16 are also quoted below for ready reference.

Being aggrieved by the aforesaid position, the petitioner again moved a detailed representation to the learned Commissioner, Devasthan Department, which is part of Annex. 17 before filing the present writ petition and thereafter, the present writ petition was filed by the petitioner in this Court. The stand taken by the respondents in their reply is also extracted below for ready reference:-

8......... In this connection, it is respectfully submitted that vide letter No. 1354 dt. 2.10.1974 written by the Inspector, Devasthan to the Assistant Commissioner, it was informed that on account of non-availability of the post of Peon, the petitioner has been appointed on the post of Peon, the petitioner has been appointed on the post of Chowkidar at Mandir Shri Rashikshiromani Ji. After availability of the post of Peon, at no point of time, the petitioner applied for his appointment on the said post. As a matter of fact, the petitioner continuously discharged his duties of the post of Chowkidar throughout all those years.

That the averments made in para no. 9 of the writ petition are denied for the reasons submitted hereinabove in detail. At the cost of repetition, it is respectfully submitted that by the letter dt. 10.12.1975, the Assistant Commissioner asked the Inspector to appoint the petitioner on the post of Chowkidar instead of the post of proposed post of Bhitriya. The petitioner was working earlier on the post of Chowkidar. Accordingly, the Inspector, Devasthan Department complied with the order dt. 10.12.1975 and by the order dt. 15.12.1975 appointed the petitioner on the post of Chowkidar.

That the averments made in para no. 19 of the writ petition are not disputed so far as they are in conformity with the letter dt. 20.11.2009 written by the Assistant Commissioner, Devasthan Department to the Commissioner, Devasthan Department. It is, however, reiterated that the petitioner was though initially appointed on ad-hoc basis on the post of Class-IV employee, but due to non-availability of the post of Class IV employee, he was subsequently appointed on the post of Chowkidar, which appointment was accepted by the petitioner. Thereafter, by the letter dt. 10.12.1975, the Assistant Commissioner asked the Inspector to appoint the petitioner on the post of Chowkidar instead of the post of proposed post of Bhitriya. The petitioner was working earlier on the post of Chowkidar. Accordingly, the Inspector, Devasthan complied with the order dt. 10.12.1975 and by the order dt. 15.12.1975 appointed the petitioner on the post of Chowkidar. It is also respectfully submitted that after the year 1975, the petitioner at no point of time objected his appointment on the post of Chowkidar.

I have heard the learned counsels at length and perused the record and relevant rules.

Strangely, the respondent Department has taken a completely unsustainable stand in the present case before this Court. From extracted portion of reply of the respondents, it is clear that the respondents are proceedings on wholly erroneous assumption that the petitioner was appointed on the post of Peon in Class IV cadre on ad hoc basis way back in the year 1966 and later on in the year 1975 he was appointed as part time Chowkidar since no regular post of Peon was available in the cadre governed by ''The Service Rules Relating to the Staff of Self Supporting (Funded) Court of Wards Temples Under the Control and Superintendence of Devasthan Department, Rajasthan, 1959'' (for short hereinafter referred to as ''the Rules of 1959''). It appears that the respondents have completely ignored their own order dated 13/7/1966 (Annex. 1) itself and the confirmation of the petitioner on the post of Peon vide Annex. 2 dated 6/10/1969. When a person is appointed substantively against the vacant post as Peon in Class IV cadre, one fails to understand how he could be reverted back to the post of a part time Chowkidar, except by authority of law by way of disciplinary action taken against him. The order passed by the Assistant Commissioner, Devasthan Department in 1975 asking him to discharge the duties of part time Chowkidar is nothing but an order of change of nature of duties as Peon/Chowkidar in Class IV cadre. There was no question of reducing his pay or not giving him the regular pay scale and only pay him fixed monthly salary as part time Chowkidar under the guise of Fund Rules, which are applicable to the part time Chowkidar. It may be that because payment of part time Chowkidar was only Rs. 5/- pm less than the regular pay of a Peon of Rs. 60/- pm in 1975 when the petitioner filed the aforesaid representation Annex. 5 dated 17/1/1975 but that difference over a period of time became huge and if the regular pay scale had been granted to the petitioner, he would have been getting normal pay of Class IV servant or a Peon rather than the fixed pay of part time Chowkidar under the Fund Rules, 1959. There is no order on record specifically abolishing the post of Peon under the Fund Rules, 1959. On the contrary the revision of pay scales for Peons was given from time to time under the Revision of Pay Scales in 2002 & 2010.

There has been absolutely no justification for the respondents to take work from the petitioner as a Chowkidar even though he was duly and regularly appointed on substantive post of Peon in Class IV cadre and to change the regular pay scale being given to the petitioner to the fixed monthly salary as was done in the present case and due the inaction on the part of respondent Department, the petitioner till his retirement on 31/12/2010 was only getting Rs. 1000/- pm while the others so similarly situated and working on the Class IV post would have been getting more than Rs. 10,000/- pm approximately or may be more.

The petitioner has spent his entire life serving the temple of God but under the nose of the God, by the illegal and rather mischievous acts of the bureaucrats, he was made to suffer by getting the low fixed monthly salary of Rs. 595/- or so against which he made several representations also to the highest authority of the Department and Government but it seems and as it usually happens, nobody was there to listen to the feeble voice of the poor man and the genuine request of the petitioner fell on the deaf ears. When the learned Commissioner sought the relevant information from the Assistant Commissioner, Devasthan Department in this regard upon the representation of the petitioner, a typical delaying tactics was adopted as was clear from Annex. 12, 14, 16 and 17, quoted above and the Assistant Commissioner stated that since the case of the petitioner was old and complicated, it would require time to decide his case. Even though it would appear that earlier the Assistant Commissioner had favourably recommended the case of the petitioner vide communication Annex. 10 dated 26/2/2008, quoted above.

Thus, in a very pitiable condition, the petitioner had to knock the doors of this Court about three years back & when after the said three years this case was taken up for final disposal and the authorities concerned were directed to remain present in this Court by the order dated 8/7/2014, the authorities reiterated the same stand taken by them in the reply, which for the aforesaid reasons cannot be accepted by this Court and the Assistant Commissioner of the Devasthan Department, Bikaner, the present incumbent fairly submitted that if this Court passes appropriate directions, they would abide by them and grant suitable relief to the petitioner. The interim order passed by this Court on 8/7/2014 is quoted below for ready reference:-

This is a peculiar case where a poor person, who served the respondent Devasthan Department of the Government of Rajasthan from 1966 till his superannuation in the year 2010, as a peon/chowkidar has not been paid any pension or other retiral benefit and, on the contrary, though initially he was regularly given the appointment as a Peon as Class-IV servant but later on, as a Chowkidar on a fixed monthly amount of Rs. 500/- He was allowed to work as Chowkidar in a temple in Bikaner and retired as such. On the purported ground that since he was a part-time Chowkidar, therefore, not treating him as a regular employee of the State Government, no pensionary benefits were paid to him. The representation made by him did not yield anything and hence, the present writ petition was filed by him.

Prima facie, it shocks the conscience of this Court. A serious miscarriage of justice against the petitioner appears to have taken place. Therefore, the respondent Assistant Commissioner of Devasthan Department, Bikaner and a responsible officer from the Pension Department at Bikaner are directed to appear before this Court on the next date and show cause as to why the petitioner be not held entitled to the grant of pensionary and other retiral benefits, treating him as a regular employee of the State Government.

Put up on 16th July 2014, after showing name of Mr. Narendra Singh Rajpurohit, counsel for the Pension Department and both the counsel are directed to inform the concerned officers of the Department to remain present on the next date, positively.

The contention raised on behalf of the respondents that since under the provisions of the "The Service Rules Relating to the Staff of Self Supporting (Funded) Court of Wards Temples Under the Control and Superintendence of Devasthan Department, Rajasthan, 1959" the post of Peon was abolished and, therefore, the petitioner was given the duties of part time Chowkidar is also misconceived, as admittedly, no specific order was passed for abolition of the post under the said Fund Rules, 1959 nor any specific order appointing him as part time Chowkidar was ever passed by any competent authority of the respondent Department. The cadre of Class IV employees is admittedly included under the said Fund Rules of 1959 as well and from time to time pay revisions of the employees covered by these Fund Rules have been made and attention of this Court was drawn to certain Notifications issued under the Devasthan Fund Employees (Revised Pay Scales) Rules, 2002 vide Notification No. dated 18/1/2002 and Notification No. dated 30/8/2010. Consequently, even if the petitioner is covered by the said Fund Rules of 1959, there was no justification for treating him as part time Chowkidar only till the age of his superannuation and he should have been absorbed as Class IV servant under the said Rules.

It may also be stated here that if the petitioner was never made a member of Provident Fund and he never contributed to the said Provident Fund nor the respondent State contributed its share for his Provident Fund, instead of getting the Provident Fund dues back from the respondent State, the petitioner shall be entitled to get pension payable to the Class IV employees and the petitioner cannot be deprived of either of them, the Provident Fund dues or the pension in the alternative. Therefore, rejecting the contention of the respondents, it is directed that the respondent Department shall pass appropriate orders for either making refund of Provident Fund deposits made by the petitioner, if such amount was ever deducted from the salary of the petitioner or shall prepare the pension case of the petitioner and forward the same to the Pension Department for payment of regular pension to the petitioner within a period of three months from today.

The petitioner at the relevant time, if he has contributed to the Provident Fund then only the Pension Scheme may not be applicable to him. But in that case he would get his Provident Fund dues with interest. Rule 25 of Fund Rules, 1959 provides that every permanent member of the Staff shall be required to subscribe to the P.F. The Rule 25 of the Rules, 1959 reads as under:-

Retiring Benefits.- (a) The staff shall subscribe to a Provident Fund.

(b) Every permanent member of the staff after the date of the commencement of these rules shall be required to subscribe to the P.F. of the temple or institution under which he is employed at the rate of six and one quarter per cent of his basic salary in accordance with the rules made thereunder. The temple or institution shall contribute to the P.F. of each subscriber an amount equal to the amount of his subscription.

(c) The retired Government servants who are re-employed will not be eligible to contribute to the Provident Fund.

Since it is not clear from the material on record whether the petitioner was ever made a member of the Provident Fund of the said Department or not, the following directions are given.

This Court is, therefore, of the considered opinion that in the present case great injustice has been done by the respondent Department and the petitioner certainly beyond the pale of doubt was entitled to the regular pay scale of Class IV with all fixation and revision of pay in accordance with the Rules including the revision of pay upon recommendation of 6th Pay Commission also deserves to be computed and paid accordingly. Since not a single penny has been paid to the petitioner after retirement in the form of retiral dues for the fault of the respondent Department, the petitioner is also entitled to the some compensation.

Accordingly, the present writ petition deserves to be allowed and same is allowed. The respondents are directed to treat the petitioner continuously employed as Class IV employee i.e. Peon irrespective of the work taken from him as Peon/Chowkidar in the Temples, maintained and administered by the Devasthan Department under the Fund Rules, 1959 and after making the suitable orders for pay fixation, as if the petitioner had throughout worked as Peon in Class IV cadre including revision of pay and after adjustment of the amount already paid to him, wrongly treating him as part time Chowkidar only, the balance amount may be paid to the petitioner within three months from today positively. For the loss of interest on the arrears of pay and retiral benefits, the respondents shall pay a lump sum compensation of Rs. 1 lac (Rs. One Lac only) to the petitioner within three months from today.

The case for grant of pension to the petitioner as a Class IV employee shall depend upon the factum of his being a member of Provident Fund as per Rule 25 of the Fund Rules, 1959 or not. If no Provident Fund account of the petitioner was ever opened & contributions were never made by him & the Department, he may be entitled to the pension as a Class IV servant as per Pension Rules, 1996, as there is no prohibition against grant of pension to class IV servants of the State Government under the Fund Rules of 1959.

Therefore, on this aspect, the respondent Assistant Commissioner, Devasthan Department, Bikaner will pass appropriate orders within three months from today after giving an opportunity of hearing to the petitioner or his authorised representative. If, however, he was a member of Provident Fund & such Provident Fund dues have been paid to him at the time of his retirement, the petitioner will not be entitled to any pension. The Provident Fund account, if opened, but his dues have not been paid, the same may be paid to him within three months from today.

The writ petition is accordingly allowed. No orders as to costs. Copy of this order be sent to the parties concerned forthwith.