HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 19872/2019
1. Subodh Kumar Katiyar Son Of Shri Brij Raj Krishna, Since
Deceased Through Legal Heirs -
1/1. Smt. Rekha Katiyar Wife Of Late Shri Subodh Kumar
Katiyar, Aged About 61 Years, Resident Of House No. 109,
Mitra Nagar, Rati Dang, Ajmer
1/2. Varun Katiyar Son Of Late Shri Subodh Kumar Katiyar,
Aged About 38 Years, Resident Of House No. 109, Mitra
Nagar, Rati Dang, Ajmer.
1/3. Tarun Katiyar Son Of Late Shri Subodh Kumar Katiyar,
Aged About 35 Years, Resident Of House No. 109, Mitra
Nagar, Rati Dang, Ajmer.
----Petitioners
Versus
1. State Of Rajasthan, Through Its Additional Chief
Secretary To The Government, Department Of Rural
Development And Panchayati Raj, Secretariat, Jaipur
2. The Zila Parishad, Ajmer Through Its Chief Executive
Officer
3. The Block Development Officer, Panchayat Samiti,
Srinagar, District Ajmer
4. The Director, Pension And Pensioners Welfare
Department, Directorate Rajasthan, Jyoti Nagar, Jaipur
5. The Additional Director, Pension And Pensioners Welfare
Department, Regional Office, Opposite Savitri Girls
College Ajmer
----Respondents
For Petitioner(s) : Mr. S.K. Saksena. For Respondent(s) : Mr. Pradeep Kalwania, GC.
Mr. Rohit Choudhary, Dy.G.C.
HON'BLE MR. JUSTICE INDERJEET SINGH Order (Downloaded on 27/04/2022 at 09:05:08 PM) (2 of 8) [CW-19872/2019] 22/04/2022 The petitioners have filed the present writ petition seeking following relief(s):-
"That the petitioner prays for the following reliefs:
(i) An appropriate writ, order or direction to the respondents for grant of interest @ 9% p.a. as per Rule 89 (1) of the Rules, 1996 on the delayed payment of retiral benefits including on pension from 02.01.2014 to 25.09.2017 and thereafter, arrears of final pension disbursed vide PPO dt.28.06.2019 (Credited in the account on 19.09.2019) qua the provisional pension during the intervening period i.e. 25.09.2017 to 19.09.2019 and gratuity and leave encashment etc. as per Rule 89 (1) of the Rules, 1996 w.e.f. 02.01.2014 to 31.08.2019 as the date of retirement of the petitioner is 01.01.2014 and date of payment of aforesaid amount is 19.09.2019 with consequential relief.
(ii) An appropriate writ, order or direction to the respondents quashing any adverse order, if passed, during pendency of the writ petition frustrating the cause of the writ petition.
(iii) Any other appropriate writ, order or direction to the respondents, which this hon'ble court deems just, and proper in the circumstances of the case.
(iv) Cost of the writ petition."
In the first round of litigation the deceased-petitioner filed S.B. Civil Writ Petition No.9561/2014 (Subodh Kumar Katiyar Vs. State of Rajasthan & Ors.) and the same was allowed by the Co-ordinate Bench of this court vide order dated 21.08.2018. The order dated 21.08.2018 reads as under:-
"Counsel for the parties are not in dispute on the proposition that controversy raised in the instant writ application stands resolved in view of adjudication by this Court in the case of Rajkumar Agarwal Vs. State of Rajasthan & Ors.: SBCWP No. 5400/2015, decided on 12th April, 2017, observing thus:(Downloaded on 27/04/2022 at 09:05:08 PM)
(3 of 8) [CW-19872/2019] "Indisputably, the petitioner was appointed as 'Gram Sewak' under the Rules of 1969. It is also not in dispute that while the petitioner was absorbed in the service of Panchayati Raj Department as 'Gram Sewak', a contemplation in the order dated 23rd January, 2001, specifically protected his pay on the substantive post. Selection scales, after completion of 9, 18 and 27 years of service, were also accorded to the petitioner.
The pay of the petitioner according to the clarification is to be fixed in view of mandate of Rule 26 (1)(a)(ii). At this juncture, it is relevant to take note of text of Rule 26 of Rajasthan Service Rules, 1951, which reads thus:
"Rule 26. (1) A Government Servant already service in one service, cadre or department who is appointed to another service, cadre or department by direct recruitment or special selection, (including transfer other than by deputation) from one service, cadre or department to another and not by promotion according to service rules, shall have his initial pay fixed as follows :-
Category Last pay on old Initial pay on new post post 1 2 3
(a) Substantive on a (a) Persons in category permanent post and (a) shall have pay fixed not Officiating on a as in the manner stated higher post. below:-
(I) if the maximum of the scale of the new post is higher than the maximum of the old post, than the maximum of the old post, then pay shall be fixed at the stage of the time scale of the new post next above the last substantive pay in the old post.
(ii) If the maximum of the scale of the new post is equal to the maximum of the old post, or then pay shall (Downloaded on 27/04/2022 at 09:05:08 PM) (4 of 8) [CW-19872/2019] be fixed at the stage of the time scale of the new post which is equal to his last substantive pay on the old post, if there is no such stage, the stage next below that pay plus personal pay equal to the difference.
(iii) If the maximum of the scale of the new post is lower than the maximum of the old post, then the pay shall be fixed at the stage which he would have been entitled to as if the period of service rendered on the old post would have been counted as rendered against the new post, subject to the condition that the pay fixed shall be restricted to the pay drawn in the old post.
(iv) if minimum pay on the new post is higher than pay admissible under clause (i), (ii) and (iii) above, than minimum pay shall be allowed.
Rule 14 of the Rules of 1969, makes a provision for regulation of pay, increment, leave etc. of surplus employees, which reads thus:
"Regulation of pay, increment, leave etc. - The pay, increment, allowance and leave etc. of surplus employees during the period they remain surplus and on absorption shall be regulated by the provisions of the Rajasthan Service Rules and other relevant rules and orders issued from time to time."
A conjoint reading of the two rules, extracted herein above, would reflect that the case of the petitioner falls within the contemplation of Rule 26(1) under (Downloaded on 27/04/2022 at 09:05:08 PM) (5 of 8) [CW-19872/2019] Clause(ii). A glance of Clause (ii), would reveal that it deals with an eventuality wherein the maximum of the scales of the new post is equal to the maximum of the old post, which is not the case at hand. The stand of the petitioner that he was never given an option to opt for lower pay scales, is not in dispute, therefore, he cannot be deprived of the right accrued to him in view of specific contemplation under communication/order dated 23rd January, 2001, which specifically provided for protection of pay of the petitioner on the substantive post.
A glance of the clarification/instruction as referred to below Rule 38 of Rajasthan Civil Services Pension Rules, 1996, it would further reflect that the employee who is absorbed on a lower post owing to the abolition of the post held by him, said employee should be intimated of the pay being offered to him on his appointment to the new post as required by Clause (b) of the Rule. It is further provided that on abolishing of post, the permanent incumbent should, as far as possible, be absorbed on an equivalent post. It will be relevant to consider the text of instruction which reads thus: "Rule 38 (1) of the Rajasthan Civil Services (Pension) Rules, 1996 provides that when a Government servant is selected for being absorbed on a lower post owing to the abolition of the post held by him, the employee should be intimated of the pay being offered to him on his appointment to the new post as required by Clause (b) of the said Rule. Instead of intimating the pay offered, the Government is moved for protection of pay the employee was last drawing while holding the permanent post. It is to state that when a post is abolished, the permanent incumbent should as far as possible be absorbed on an equivalent post. On the principles laid down under Rule 26(a)(ii) of the Rajasthan Service Rules.
In case where it is not possible to absorb an employee on an equivalent post, the employee should be given two options as mentioned in the said Rule namely (I) taking the compensation pension or gratuity to which he (Downloaded on 27/04/2022 at 09:05:08 PM) (6 of 8) [CW-19872/2019] is entitled for the service already rendered or
(ii) accepting another appointment on such pay as may be offered. In regard to the pay to be offered on the new post, since the employee does not retain any substantive pay on abolition of his permanent post, he will be treated a fresh employee for the purpose of initial fixation in the new post. The Government, can, however, fix his pay at a stage higher than the minimum of the pay scale but not exceeding the last pay drawn by the employee. This pay, however, wold be further limited to the maximum of the scale of the new post to which he is appointed."
A glance of the instruction, as extracted herein above, would reflect that absorption of the employee on abolition of a post held by him, is to be made as far as possible on an equivalent post and on appointment on an equivalent post, pay is to be fixed on the principle as contemplated under Rule 26 (1)(a)(ii) of the Rajasthan Civil Services Rules, 1951.
In the case at hand, the petitioner was not absorbed on the equivalent post, and therefore, contemplation under order/communication dated 23 January, rd 2001, for protection of pay was provided. The petitioner, accepting the contemplation of pay protection joined the post of 'Gram Sewak', with the Panchayati Raj Department. Hence, the case at hand falls within the contemplation of Clause (iii) of Rules 26 (1)(a).
In the case of M. M. Bhavsar (supra), in somewhat similar circumstances and factual matrix the option of the incumbent to lower category of post under the State with pay protection was not treated as waiver of protection of pay to which incumbent was entitled on the date of absorption. In the case at hand, the petitioner opted for absorption under the Panchayati Raj Department on the post of 'Gram Sewak' in the backdrop of a specific contemplation as to pay protection accorded to him vide order/communication dated 23rd January, 2001. That fact that the petitioner continued in the same protected pay scale and retired attaining the age of superannuation on 30 th (Downloaded on 27/04/2022 at 09:05:08 PM) (7 of 8) [CW-19872/2019] September, 2016, is also not in dispute. Thus, while the petitioner was absorbed on the post of 'Gram Sewak' a post in lower pay scale but with pay protection, would not amount to his waiver of the protection of pay accorded by the State-respondents vide order dated 23rd January, 2001.
No other point was raised by the counsel for the parties for consideration of this Court.
For the reasons and discussion aforesaid, the writ application succeeds and is hereby allowed.
Impugned orders dated 20th October, 2010 (Annexure-5), and 9th March, 2012 (Annexure-8), qua the petitioner; are hereby quashed. As a consequence thereof, the petitioner would be entitled all consequential benefits.
No costs."
Accordingly, writ application stands allowed in terms of the order in the case of Rajkumar (supra).
In the result, the impugned orders dated 2nd May, 2014 (Annexure - 10), and 22nd May, 2014 (Annexure - 11), are hereby quashed, as a consequence, the petitioner would be entitled to all consequential benefits.
The respondents would do the needful to determine the retiral benefits admissible to the petitioner and release the same as expeditiously as possible; preferably, within four months from the date a certified copy of this order is presented.
Counsel for the petitioners submitted that the Co-ordinate Bench of this court vide order dated 21.08.2018 directed the respondents to release the retiral benefits to the deceased-
petitioner within a period of four months, however, the respondents paid the retiral benefits to the deceased-petitioner with the delay of six months on 28.06.2019. Counsel further submits that the respondents have failed to pay the interest on (Downloaded on 27/04/2022 at 09:05:08 PM) (8 of 8) [CW-19872/2019] the delayed payment in view of the Section 89 (1) of Rajasthan Civil Services (Pension) Rules, 1996 (hereinafter to be referred as 'Pension Rules, 1996).
Counsels appearing on behalf of the respondents have opposed the writ petition filed by the petitioner.
Heard counsel for the parties and perused the record.
Considering the submissions made by counsel for the petitioners and also considering the Rule 89 (1) of the Pension Rules, 1996 as well as the judgment passed by the Co-ordinate Bench of this court in the matter of Subodh Kumar Katiyar (supra), I find that the respondents have paid the retiral benefits after a delay of six months, therefore, in the facts and circumstances of the present case, I dispose of the writ petition with a direction to the respondents to pay six months' interest @ 9% on the delayed payment of retiral dues. Compliance of this order be made within a period of three months.
(INDERJEET SINGH),J MG/45 (Downloaded on 27/04/2022 at 09:05:08 PM) Powered by TCPDF (www.tcpdf.org)