IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
ORDER
IN
S.B. Civil Writ Petition No.1782/1997
{Bhagwan Sahai Biwal Vs. State of Rajasthan and Others}
Date of Order ::: 27.01.2010
Present
Hon'ble Mr. Justice Mohammad Rafiq
Mrs. Anuradha Soni for
Shri Rajendra Soni, Counsel for petitioner
Shri K.N. Gupta, Counsel for respondents
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By the Court:-
Heard learned counsel for the parties.
This writ petition has been filed by petitioner against order dated 09.05.1996 (Annexure-4) passed by Executive Officer, Municipal Board, Chomu, and order dated 05.02.1997 (Annexure-6) passed by Regional Deputy Director, Local Self Department, Jaipur. By the subsequent order, the Regional Deputy Director required the Municipal Board, Chomu, to withdraw benefit of selection scale granted to the petitioner, with effect from 28.10.1991, on completion of 15 years of service in the pay scale of Rs.975-1720. The consequential order was passed by the Executive Officer, Municipal Board, Chomu, on 09.05.1996.
Mrs. Anuradha Soni, holding brief of Shri Rajendra Soni, learned counsel for the petitioner, submitted that the impugned order is purported to have been passed on the basis of certain audit objections, but no opportunity of hearing was afforded to the petitioner prior to passing of aforesaid order. The petitioner was rightly granted benefit of first selection scale on completion of 15 years of service, in accordance with the Government Circular dated 23.01.1985 read with Notification dated 23.09.1989.
The learned counsel for the petitioner submitted that interpretation drawn on aforesaid Circular by the Deputy Director, Local Self Department, is wholly erroneous. Alternatively, it was argued that even if certain payment has been made to the petitioner on account of wrong pay fixation made by the respondents themselves, the petitioner cannot be penalized for the same and no recovery of such amount, paid to him, can be made so long it is not shown that such pay fixation was made on account of any misrepresentation or fraud on the part of the petitioner.
The learned counsel for the petitioner relied on the judgment of the Hon’ble Supreme Court in Sahib Ram Vs. State of Haryana & Others AISLJ III-1995 (1) 151 and the judgment of this Court in State of Rajasthan Vs. Ram Narayan 2002 (2) WLC (Raj.) 81.
Learned counsel for the respondents opposed the writ petition and submitted that the petitioner was initially appointed on the post of Sweeper in the Municipal Board, Chomu, on 12.11.1974, and, at that time, an entry was made in his service book about his educational qualification being middle passed, whereas no such certificate was ever produced by the petitioner. The petitioner was promoted on the post of Jamadar vide order dated 29.10.1976 and was fixed at Rs.891/- in pay scale of Rs.775-1025, on 28.10.1991. He was unduly granted selection scale on completion of 15 years of service in pay scale of 975-1720 on 28.10.1991. The petitioner was not entitled to first selection scale because he had already secured first promotion on the post of Jamadar vide order dated 29.10.1976. In fact, the order granting such selection scale was wrongly passed on 25.10.1993 after promulgation of another Circular dated 25.01.1992. As per Clauses 4-A and 5 of Circular dated 25.01.1992, if an employee is not eligible to next higher post, even on completion of 18 years of service, if an employee drawing salary in pay scale of 775-1025, in that event, on completion of 18 years of service, he would be entitled to be granted second selection scale in pay scale of 800-1250, and accordingly the petitioner was fixed at Rs.975/-, in that pay scale, with effect from 18.11.1992. The action taken by the respondents was merely a correction of mistake which did not necessitate opportunity of hearing.
The learned counsel for the respondents submitted that the petitioner did not possess minimum qualification i.e. Secondary Pass and since the petitioner was not having that qualification, he would not be eligible for promotion to the post of Assistant Sanitary Inspector.
Having heard learned counsel for the parties and perused the material on the record, especially the document Annexure R/1 enclosed with the reply, I find that the petitioner has not been able to dispute the fact that he had secured first promotion on the post of Jamadar vide order dated 19.10.1976, and, therefore, he would not be entitled to first selection scale which, in any case, is granted in lieu of promotion for inability of employer to provide first promotion within a span of 9 years of service. Having secured first promotion, the petitioner would have only been entitled to second selection scale on completion of 18 years of service and the explanation given by the respondents that first selection scale was even then wrongly given to him appears to be plausible. The respondents have rightly fixed the petitioner at Rs.950/- in the pay scale of 800-1250, with effect from 18.11.1992, because that is the date on which he completed 18 years of service counting such period from the date of his initial appointment i.e. 12.11.1974. However, to that extent, the payment had already been made to the petitioner; the respondents have not been able to show that grant of such selection scale to him vide order dated 25.10.1993 was because of any misrepresentation or fraud on the part of the petitioner. The petitioner was not having eligibility for promotion to the post of Assistant Sanitary Inspector. In that event, according to Clauses 4-A and 5 of the Circular dated 25.01.1992, the petitioner was not given pay scale of post of Assistant Sanitary Inspector, but the pay scale of 800-1250 as second selection scale on completion of 18 years of service.
In view of the aforesaid discussion, the writ petition is partly allowed. The impugned orders are quashed to the extent of recovery ordered to be made from the petitioner; it is directed that no recovery shall be made from the petitioner pursuant to the aforesaid orders and, if such recovery has already been made, such amount of recovery shall be refunded to the petitioner with interest at the rate of 6% per annum within three months from the date a copy of this order is produced before the respondents.
The writ petition accordingly stands disposed of.
(Mohammad Rafiq) J.
//Jaiman//