IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR 1. S.B. CIVIL WRIT PETITION NO.2394/1995 Mathura Prasad vs. State & Ors. 2. S.B. CIVIL WRIT PETITION NO.357/1999 Mathura Prasad vs. State & Ors. Date of order : 20/1/2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Sanjay Pareek for the petitioner. Shri Hemant Mathur, Deputy Government Counsel for the respondents. ******
These two writ petitions raise identical questions of law and fact and in fact second writ petition being S.B. Civil Writ Petition No.357/99 is virtually an offshoot of the first writ petition being S.B. Civil Writ Petition No.2394/95, therefore, both the writ petitions are being heard and decided by this common judgement.
The petitioner, who was a worked charged employee has basically claimed the relief to the effect that-
(i) he was rightly granted pay scale no.7 of Rs.1200-2050 by order dated 14.10.1994 with effect from 1.9.1988 and that the Superintendent Engineer, Bharatpur by his order dated 22.11.1994 illegally reversed that order while directing recovery of the excess amount paid to the petitioner;
(ii) that the petitioner should be paid benefits of selection scale on completion of 9, 18 and 27 years of service in view of Government Circular dated 25.1.1992 from the date of grant of semi permanent status to him in the year 1967.
(iii) that petitioner should be granted promotion on the post of Senior Mistri and thereafter on the post of Supervisor as was granted to six of his juniors referred to in para 16 of the writ petition no.2394/95.
So far as first relief is concerned, contention of the petitioner as averred in para 8 is that by Revised Pay Scale Rules of 1989, the pay scale of Rs.950-1680, which is pay scale no.6, was prescribed for Mistri Civil Grade-III, whereas the pay scale of Rs.1200-2050 was prescribed for Mistri Civil Grade-II, which is scale no.7.
This contention is not disputed even by the respondents in their reply. According to them, since the petitioner at the relevant time was Mistri Civil Gr.III, therefore he was entitled to pay scale of 950-1680, but the Executive Engineer, wrongly fixed the petitioner in pay scale no.7, but in doing so, he took a bond from the petitioner that in the event the Government did not approve such pay scale, the petitioner will have to refund the said amount. The bond is on record as Annexure-R/1.
Since there is no dispute between the parties as to the correctness of the facts referred to above and the petitioner also does not dispute that he was Mistri Civil Gr.III, this argument of the petitioner, therefore, cannot be upheld. The relief on that aspect of the matter cannot be granted.
In so far as the grant of benefit of selection scale from the date the petitioner was declared semi permanent and the action of the respondents in granting such benefits only from the date he was taken in the regular establishment i.e. 1.3.1979 is concerned, action of the respondents must be declared illegal, This is so because even according to their own policy Circular No.P.1(3)Finance/Expenditure-3/93 dated 4.3.1998 and Circular No.P.1(3)Finance/Expenditure/3/98 dated 30.9.1998, the Government has clarified that for the purpose of benefit of selection scale on completion of 9, 18 and 27 years of service, computation of such period shall be made with reference to the date of semi permanent status conferred upon the work charged employee. This contention of the petitioner has to be therefore accepted.
Regarding promotion granted to the juniors of the petitioner, detailed averments have been made by the petitioner in para 16 of the writ petition no.2394/95 to the effect that the source of promotion to the post of Senior Mistri was 100% by promotion from the Mistries who were having five years of service. The petitioner completed five years of service and became eligible for such promotion. It has also been averred that number of posts of Senior Mistries were lying vacant at the relevant time, but the respondents did not fill in such posts. On the basis of seniority, they also did not timely determine the year wise vacancies. They arbitrarily promoted many of his juniors. Reference was made to promotion given to S/Shri Bhagwati Prasad, Giriraj Sharan Mathur, Mahesh Chand Sharma, Virendra Kumar Saxena, Naveen Chand Sharma, Jagan Lal Sharma, Gopal Prasad Mistri and Shri Ishwar Dayal. Petitioner has asserted that he made number of representations and when such representations were forwarded to the Executive Engineer concerned, he by his letter dated 18.11.93 replied to the Superintending Engineer, which is on record at Annexure-12, admitting the fact that while the petitioner was at S.No.7 in the seniority list of Mistri dated 6.3.1993, some of his juniors namely Naveen Chand Sharma, Virendra Kumar Saxena, Bhagwati Prasad, Giriraj Sharan, Chagan Lal and Mahesh Chand Sharma were respectively placed at S.Nos.16 to 21 respectively. The respondents in reply to the writ petition have not denied the correctness of these averments. The petition therefore deserves to succeed even on this ground.
In the result, both the writ petitions are allowed in part. The prayer so far as first part of the relief claimed by the petitioner is concerned, is rejected. However, regarding other two, the respondents are directed to grant the benefit of selection scale to the petitioner on completion of 9, 18 and 27 years of service as the case may be from the date of grant of semi permanent status to him in the year 1967 and further consider the case of the petitioner for granting him promotion on the post of Senior Mistri as well as Supervisor from the date his immediate junior Shri Naveen Chandra was granted such promotion on such post with all the consequential benefits.
Compliance of the judgement shall be made within three months from the date its copy is produced before the respondents.
(MOHAMMAD RAFIQ), J.
RS/