Shoji Ram Mali @APPELLANT@Hash State of Rajasthan & Ors.

This writ petition has been filed by the petitioner seeking the following reliefs :-

“(A) That, in the impugned order dated 2nd July, 2007 Annex.7 may kindly be quashed and set aside.

(B)Â Â Â Â Â Â That, consequent to aforesaid respondents may be directed to release in favour of petitioner III selection grade of Rs.5500-9000/-

w.e.f. 1.9.1997.

(C)      Any other relief which this Hon’ble Court may deem fit may kindly be granted in favour of the petitioner; (D) Cost of the writ

petition may kindly be awarded to the petitioner.â€​

It has been indicated in the writ petition that the petitioner was appointed as Chowkidar in work charged establishment of Irrigation Department on

12.08.1968; on 31.08.1970, he was made semi-permanent; the petitioner was made Munshi Gr.II on 09.03.1978 and Munshi Gr.I on 01.09.1984. The

petitioner thereafter was declared surplus from the Irrigation Department on 26.09.1990 and was absorbed as LDC in Medical & Health Department

on 08.10.1990 and ultimately, retired from service on 31.12.2000.

The petitioner while in service was granted benefit of 1st and 2nd selection grade w.e.f. 01.02.1993 by order dated 27.12.1997 (Annex.3). By order

dated 07.08.2001 after initially granting 3rd selection grade on completion of 27 years of service w.e.f. 31.08.1997, the same was withdrawn and the

benefit was conferred w.e.f. 01.01.1998 after withdrawing the benefit of 1st and 2nd selection grades, which were granted w.e.f. 01.02.1993.

The respondents after fixing the petitioner in the pay-scale of Rs.4000-6000/- w.e.f. 01.01.1998 ordered for recovery (Annex.4).

The petitioner raised industrial dispute alongwith other workman, which was answered against the petitioner by award dated 01.11.2004.

Feeling aggrieved, the petitioner filed SBCWP No.1502/2005, which came to be decided by order dated 12.10.2006. It was, inter-alia, directed as

under :-

“In view of whatever discussed above, this petition for writ is allowed. The award impugned dated 1.11.2004 is declared illegal and, therefore, the

same is quashed. The respondents are directed to allow selection grades to the petitioner in accordance with notification dated 25.1.1992 by computing

his services from the date semi permanent status was granted to him i.e. 31.8.1970. The petitioner is declared entitled for getting selection grades on

completion of 9 and 18 years of service w.e.f. 25.1.1992 and selection grade on completion of 27 years of service w.e.f. 1.9.1997. The respondents

are directed to grant selection grades to the petitioner in terms above within a period of six months from today.â€​

Whereafter, the petitioner filed S.B. Civil Contempt Petition No.292/2007, which came to be decided by order dated 10.03.2008, whereby it was held

that no contempt was made out. However, the petitioner was give liberty against the action of the respondents granting a particular pay-scale as the

petitioner was accorded pay-scale of Rs.4000-6000/- by order dated 02.07.2007 (Annex.7), whereas the petitioner was seeking pay-scale of Rs.5500-

9000. Whereafter, the present writ petition has been filed by the petitioner questioning the legality and validity of the order dated 02.07.2007

(Annex.7).

It is submitted by learned counsel for the petitioner that the respondents have erred in passing the order dated 02.07.2007 fixing the petitioner in the

pay-scale of Rs.40006000/- consequent to grant of 3rd selection grade. It is submitted that the petitioner retired as LDC and by way of 3rd selection

grade, he should have been granted pay-scale of Office Superintendent i.e. Rs.5500-9000/-, whereas the petitioner has been granted pay-scale of the

post of UDC only, to which he became entitled after completing 9 years of service.Â

Further submissions have been made based on the subsequent additional affidavits, which have been filed by the petitioner based on the orders passed

pertaining to certain other employees claiming that they were granted the pay-scale of

Rs.5500-9000/-, whereas the petitioner has been denied the said benefit. Based on the additional affidavit dated 27.04.2015, it was emphasized that

one Gopal Singh, who was similarly situated to the petitioner, was granted the benefit of 3rd selection grade while still working in the Irrigation

Department in the payscale of Rs.5500-9000/- and therefore, atleast on account of parity with said Gopal Singh, the petitioner is entitled to grant for

pay-scale of Rs.5500-9000/- by way of 3rd selection grade. It was also submitted by learned counsel for the petitioner that but for the absorption of

the petitioner in the Medical and Health Department from which the petitioner was ultimately retired, if the petitioner had continued with the Irrigation

Department, he would have earned the selection grade based on the posts existing in the said department and consequent pay-scale applicable to the

said position. It was submitted that merely on account of absorption of petitioner as LDC with the Medical and Health Department, the benefit to

which he would have been entitled in the Irrigation Department cannot be taken away and therefore, the writ petition deserves to be allowed and the

action of the respondents in according 3rd selection grade in the payscale of Rs.4000-6000/- deserves to be quashed and set-aside.

Learned counsel appearing for the State vehemently opposed the submissions.

It was submitted that the petitioner had already been granted two promotions i.e. from the post of Chowkidar to Munshi Gr.II and Munshi Gr.II to

Munshi Gr.I. Whereafter, he was absorbed in the Medical and Health Department as LDC being declared surplus in the department of Irrigation and

thereafter, he was given 3rd selection grade on completion of 27 years of service w.e.f. 01.09.1997 as per the directions of this Court and he was,

therefore, only entitled to the pay-scale of the next promotional post i.e. UDC, which admittedly is Rs.4000-6000/and as such, there is no substance in

the submissions sought to be made by the petitioner.

It was further submitted that the petitioner has been granted benefit based on the circular dated 30.09.1998, which formed the basis for this Court in

earlier accepting the writ petition filed by the petitioner.

Submissions have also been made that even if the petitioner had continued with the Irrigation Department, he was entitled to grant of similar pay-scale

and nothing more. It was prayed that the writ petition be dismissed.

Reliance has been placed on Smt. Shail Bala v. The Union of India & Ors. : 2008(1) WLC (Raj.) 255 and Superintending Engineer & Ors. v. A.

Sankariah : (2003)11 SCC 641.

I have considered the submissions made by learned counsel for the parties and have perused the material available on record.

In the earlier round of litigation, this Court based on the order dated 04.03.1998 pertaining to the work charged employees, who were subsequently

regularized and applicability of the grant of selection grade to such persons, ordered for grant of selection grade to the petitioner in according with the

notification dated 25.01.1992 by computing his services from the date semi-permanent status was granted to him. It was further directed that the

petitioner was entitled for getting selection grade on completion of 9 & 18 years of service w.e.f. 25.01.1992 and selection grade on completion of 27

years of service w.e.f. 01.09.1997. Pursuant thereto, the order Annex.-7 dated 02.07.2007 was issued whereby he was granted 3rd selection grade

w.e.f. 01.09.1997 in the pay-scale of Rs.40006000/-.

Pursuant to the order dated 04.03.1998 conferring the benefit of grant of selection grade to the work charged employees / work charged employees,

who had been subsequently regularized, another circular dated 30.09.1998 was issued. The relevant part whereof, reads as under :-

“ 5- 9] 18 ,oa 27 o""kZ dh lsok dh x.kuk deZpkjh ds odZpktZ lsok esa v)Z&LFkkbZ ?kksf""kr fd;s tkus ij osru J`a[kyk es osru vkgfjr djus dh rkjh[k ls

dh tkosxhA pwafd odZpktZ deZpkjh lsok fu;e] 1964 ds fu;e 3¼3½ ds rgr odZpktZ lsok esa v)Z&LFkkbZ ?kksf""kr fd;s tkus ls iwoZ de ls de nks

o""kZ dh yxkrkj lsok dk gksuk vko’;d gS] blfy, ;fn fdlh odZpktZ deZpkjh dks nks o""kZ dh lsok iw.kZ djus ls igys gh osru J`a[kyk dk ykHk ns fn;k

x;k gks rks Hkh p;fur osru J`a[kyk ds fy, mldh lsok,a nks o""kZ vFkok vf/kd dh lsok ds ckn mls ftl rkjh[k ls v)Z&LFkkbZ ?kksf""kr fd;k x;k gS] mlh ls

x.kuk dh tkosxh rFkk ftl in ij mls v)Z&LFkkbZ ?kksf""kr fd;k x;k gS] mlh in dks vk/kkj ekurs gq, p;fur osrueku Lohd`r fd;s tkosaxsA ;fn v)Z&LFkkbZ

?kksf""kr djus ds ckn fdlh nwljs in ij] tks v)Z&LFkkbZ dk fu;fer inksUufr in ugha gS] fu;qfDr nh xbZ gks rFkk ,slh fu;qfDr ij mls v)Z&LFkkbZ ?

kksf""kr in ds ewy osru dh rqyuk es vf/kd ewy osru Lohd`r fd;k x;k gks rks mldh izFke] f}rh; ,oa r`rh; p;fur osruekuksa ds fy, Øe’k% 9] 18 ,oa 27

o""kZ dh lsok dh x.kuk ckn esa nh xbZ fu;qfDr dh rkjh[k ls dh tkosxh rFkk ckn esa nh xbZ fu;qfDr okys in dks vk/kkj ekurs gq, p;fur osrueku Lohd`r

fd;s tkosaxsA

6- ftu odZpktZ deZpkfj;ksa dks vf/k’ks""k ?kksf""kr dj nwljs foHkkxksa esa mlh in ij vFkok mlds leku osru J`a[kyk okys nwljs in ij vFkok mlls de

osru J`a[kyk okys in ij lek;ksftr fd;k x;k gks rFkk vf/k’ks""k deZpkjh ds lek;ksftr gksus ds ckn /kkfjr in ds ewy osru esa lek;kstu ls iwoZ /kkfjr in ds

ewy osru dh rqyuk esa dksbZ cokys in ij v)Z&LFkkbZ ?kksf""kr djus dh rkjh[k ls 9] 18 ,oa 27 o""kZ dh lsok dh x.kuk dh tkosxhA ;fn p;fur osrueku Lohd`r djus ds dkj.k dfu""B deZpkjh

vius ls ofj""B deZpkjh ls vf/kd osru izkIr djrk gS rks ofj""B deZpkjh dk osru LVsi&vi (Stepup) ugha fd;k tkosxkA â€​

A bare look at the above quoted portion of the circular would reveal that the grant of selection grade was to be governed for employees absorbed in

the other department from the date they having been declared semi-permanent, which was also the direction issued by this Court in the earlier round

of litigation. The original circular dated 25.01.1992 providing for selection grade for employees in Class IV, Ministerial & Subordinate Services. The

grant of selection grade is based on completion of service of 9, 18 & 27 years and by calculating the promotion as availed by the said employee during

said period of 9, 18 & 27 years of service, it is not in dispute that the petitioner was made semi-permanent w.e.f. 31.08.1970 and the said said date the

period of 9, 18 & 27 years is to be counted. It is also not in dispute that while working in the Irrigation Department, the petitioner was twice promoted

i.e. from the post of Chowkidar to Munshi Gr.II and from the post of Munshi Gr.II to Munshi Gr.I w.e.f. 09.03.1978 and 01.09.1984 respectively and

on completion of 27 years of service i.e. on 01.09.1997, the petitioner, therefore, was entitled to grant of selection grade by taking into consideration

the two promotions already accorded to the petitioner while working under the work charged

establishment and as at the stage of consideration of entitlement to 3rd selection grade, the petitioner already stood absorbed in the Medical and

Health Department, as LDC and the next promotional post is that of UDC, the petitioner was rightly granted the pay-scale of UDC i.e. Rs.4000-

6000/-. It is not in dispute that the scale of pay of UDC is Rs.4000-6000/-.

The submissions and claims made by the petitioner and sought to be emphasized based on as to what would have happened if the petitioner would

have continued with the Irrigation Department specially with reference to the case of one Gopal Singh is concerned, the said aspect cannot be taken in

to consideration as the fact of absorption of the petitioner under Rajasthan Civil Services (Absorption of Surplus Personnel) Rules, 1969 (‘the Rules

of 1969’) is not in dispute and there is no provision either in the circulars governing the grant of selection scale and/or the Rules of 1969 providing

for taking into consideration the aspect as to what benefits the absorbed personnel would be entitled to, if he would have remained in the earlier

department i.e. prior to his absorption. The said submissions made by the petitioner is wholly speculative, inasmuch as, once he was declared surplus in

the Irrigation Department and was absorbed in the Medical and Health Department, the petitioner cannot continue to rely on the legacy of having

served with the Irrigation Department, unless the Rules / Circulars in this regard provide for the same.

The absorption of employee from one department to another department under the Rules of 1969 necessarily results in uprooting of the employee from

one department and his establishment in another department and therefore, the employee cannot seek benefits in the absorbed position by comparing

his status with the earlier department and therefore, all the submissions made in this regard cannot be countenanced.

In view of above discussion, there is no substance in the writ petition, the same is, therefore, dismissed.