Rajasthan High Court - Jodhpur
State Of Rajasthan vs Smt. Nandbala Joshi ... on 5 March, 2024
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
[2024:RJ-JD:11046-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Spl. Appl. Writ No. 930/2023
1. State Of Rajasthan, Through The Director Department Of
Secondary Education, Bikaner (Raj.)
2. The District Education Officer (Headquarter), Secondary
Education, Department Of Education, Dungarpur (Raj.)
----Appellants
Versus
Smt Madhubala Pandaya D/o Kamlashankar Joshi, R/o 3
Bhramsthali Colony, District Dungarpur (Raj.).
----Respondent
Connected With
D.B. Spl. Appl. Writ No. 916/2023
1. State Of Rajasthan, Through The Director, Department Of
Secondary Education, Bikaner (Raj.)
2. The District Education Officer (Headquarter), Secondary
Education, Department Of Education, Dungarpur (Raj.)
----Appellants
Versus
Smt. Nandbala Joshi W/o Hargovind Joshi, R/o Village And Post
Kanba, Tehsil Bichhiwada, District Dungarpur (Raj).
----Respondent
D.B. Spl. Appl. Writ No. 1002/2023
1. State Of Rajasthan, Through The Director, Department Of
Secondary Education, Bikaner (Raj.).
2. The District Education Officer (Headquarter), Secondary
Education, Department Of Education, Dungarpur (Raj.).
----Appellants
Versus
Smt Lata Dixit W/o Shri Mahesh Vyas, R/o H. No. 5,
Bhuvneshwari Colony, Behind S.t. Depot, Dungarpur (Raj.).
----Respondent
D.B. Spl. Appl. Writ No. 201/2024
1. State Of Rajasthan, Through The Director Department Of
Elementary Education, Bikaner.
2. District Education Officer, Elementary Education,
Department Of Education, Dungarpur.
3. Director, Department Of Secondary Education, Bikaner.
4. District Education Officer, Secondary Education,
Department Of Education, Dungarpur
----Appellants
Versus
Smt. Chaya Jain W/o Shri Subhash Chandra Jain, Pujarwada
Street, District Dungarpur (Raj.)
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----Respondent
D.B. Spl. Appl. Writ No. 233/2024
1. Director, Elementary Education, Rajasthan, Bikaner.
2. Deputy Director, Elementary Education, Kota.
3. Deputy Director, Secondary Education, Kota.
4. District Education Officer, Jhalawad.
----Appellants
Versus
Jagdish Kumar Soni S/o Sh. Nand Kishore Soni, R/o Sindhi
Colony, Ketadi Bazar, Post Bhawani Mandi, District Jhalawad.
----Respondent
D.B. Spl. Appl. Writ No. 296/2024
1. State Of Rajasthan, Through The Director Department Of
Secondary Education, Bikaner (Raj.)
2. The District Education Officer (Headquarter), Secondary
Education, Department Of Education, Dungarpur (Raj.).
----Appellants
Versus
Smt Meena Panchal W/o Shri Phool Shankar Panchal, R/o H.
No.135, Subhash Nagar Garden Ke Pass, Naye Hospital Ke Piche,
Dungarpur (Raj.).
----Respondent
D.B. Spl. Appl. Writ No. 300/2024
1. State Of Rajasthan, Through The Director, Department Of
Secondary Education, Bikaner (Raj.).
2. The District Education Officer (Headquarter), Secondary
Education, Department Of Education, Dungarpur (Raj.).
----Appellants
Versus
1. Smt. Preeti Mathur W/o Shri Rakesh Mathur, R/o Sabela
Bya Pass, Opp.govt. Quarter, Dungarpur (Raj.).
2. The Joint Director, Pension And Pensioners Welfare
Department, Udaipur.
----Respondents
D.B. Spl. Appl. Writ No. 301/2024
1. State Of Rajasthan, Through The Director, Department Of
Secondary Education, Bikaner (Raj.).
2. The District Education Officer, (Headquarter), Secondary
Education, Department Of Education, Dungarpur (Raj.).
----Appellants
Versus
1. Smt. Churu Bala Sharma W/o Shri Ashok Kumar Sharma,
Mohalla Ghati, Haveli Naka Street, Dungarpur (Raj.).
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2. The Joint Director, Pension And Pensioners Welfare
Department, Udaipur.
----Respondents
For Appellant(s) : Mr. B.L. Bhati, AAG
For Respondent(s) : Mr. Hemant Singh for
Mr. P.R.S. Jodha
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE MUNNURI LAXMAN Order 05/03/2024
1. An application under Section 5 of the Limitation Act has been preferred with a prayer to condone the delay in filing the present appeals.
2. For the reasons mentioned in the aforesaid application, the same is allowed and delay in filing the present appeals is condoned.
3. These special appeals have been preferred, in sum and substance, with the following prayers and for the sake of convenience, the facts and prayer clauses are being taken from the leading case being D.B. Civil Special Appeal (Writ) No.930/2023:-
"It is, therefore, most respectfully and humbly prayed that this Special Appeal Writ may kindly be allowed and the order impugned dated 14.03.2023 as passed by Learned Single Judge in SBCWP No.19716/2022 may kindly be set aside and the writ petition as preferred by the petitioner may kindly be dismissed."
4. Brief facts as noticed by this Court are that the respondent was appointed on the post of Teacher Grade-III in year 1985. Since at the time of recruitment, sufficient number of female (Downloaded on 15/03/2024 at 09:07:12 PM) [2024:RJ-JD:11046-DB] (4 of 8) [SAW-930/2023] candidates in the tribal districts of Banswara and Dungarpur were not available, which prompted the State to relax the qualification to metric. While relaxing the qualification, the private respondent was given ad-hoc appointment and as soon as she completed necessary qualification/training, her services were confirmed. 4.1. Thereafter, in pursuance of the circular by the State dated 25.01.1992, the respondent was allowed the selection grade on completion of 9, 18 and 27 years.
4.2. The present cause of action arose because the State started implementing the judgment of State of Rajasthan & Ors. vs. Jagdish Narayan Chhaturvedi reported in (2009) 12 SCC 49 and thereby brought two orders, one dated 29.06.2009 and another dated 20.08.2010.
5. Learned counsel for the appellant-State has hinged the arguments on the concluding para of the circular which reads as follows:
"Accordingly, the State Government has reconsidered the matter and in partial modification of order of even number dated 29.6.2009, the Governor is pleased to order that in cases where Government servants have been granted selection grade prior to order dated 29.6.2009 by counting period of ad-hoc service, such cases may not be reviewed. However, their additional selection grades become admissible to such employees after 29.6.2009 under the rules, this shall be granted by excluding the period of ad-hoc service as per the order of Hon'ble Supreme Court. For example, if any employee got the advantage of first selection grade prior to 29.6.2009, on completion of service of 9 years (after inclusion of, say, three years' ad-hoc service), his next selection grade on completion of service of 18 years, on or after 29.6.2009, shall be granted only after three (Downloaded on 15/03/2024 at 09:07:12 PM) [2024:RJ-JD:11046-DB] (5 of 8) [SAW-930/2023] years of ad-hoc service is added to 18 years i.e. 18+3=21 years.
All pending cases would be decided as per these orders.
The cases of grant of selection grade decided subsequent to order of even number dated 29.6.2009, may be reviewed and revised in accordance with the provisions of this order. Similarly pension cases of Government servants, finalized after re-fixation of pay under order dated 29.6.2009, may also be reviewed and revised. However cases of persons who retired prior to 29.6.2009 would not be re-opened."
5.1. Learned counsel for the appellant - State submits that it was well within the domain of the State to implement the judgment of Jagdish Narayan Chaturvedi (supra) and thus not to grant selection grade for the period of ad-hoc services of the respondent. He further submits that the learned Tribunal has committed an error by not allowing the recovery from the respondent.
5.2. Learned counsel for the appellant-State has drawn the attention of this court towards the conditions No.3 and 5 of State of Punjab & Ors. Vs. Rafiq Masih (White Washer) & Ors. reported in (2015) 4 SCC 334. The operative portion which reads as thus:
"8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the Preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the employee concerned. If (Downloaded on 15/03/2024 at 09:07:13 PM) [2024:RJ-JD:11046-DB] (6 of 8) [SAW-930/2023] the effect of the recovery from the employee concerned would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover.
xxx xxx xxx
18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).
(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
(v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh (Downloaded on 15/03/2024 at 09:07:13 PM) [2024:RJ-JD:11046-DB] (7 of 8) [SAW-930/2023] the equitable balance of the employer's right to recover."
6. Learned counsel for the respondents submits that the condition No.1 of the Rafiq Masih's case (supra) clearly pass the recovery from the employees belonging to Class-III and Class-IV services and admittedly, the present respondents are Teacher Grade-III and belong to Class-III of the services and thus, no recovery can be made from them. He further submits that most of the respondents present before this Court have retired as they were appointed in the year of 1985 and already a period of about 39 years has lapsed since the original recruitment. 6.1. Learned counsel further submits that there are concurrent findings of the learned appellate tribunal, learned Tribunal as well as the learned Single Bench of this Hon'ble Court and thus, unless something grave is pointed out by the State, no interference is called for.
6.2. Learned counsel also submits that the judgment passed by this Hon'ble Court in Single Bench is supported by the case law of the Hon'ble Apex Court in Rafiq Masih's case (supra) and thus, fortifies the case of the respondent and hence, no case for recovery at such a belated stage is called for.
7. This Court, after hearing learned counsel for both the parties, restricts its adjudication to the core prayer of the respondents which originated when recoveries were being made because the respondents' ad-hoc service was sought to be excluded from the service to be counted for the purpose of granting of selection grade.
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8. It is a fact that after about 39 years, all the beneficiaries/Teacher Grade-III/respondents in these special appeal writs have retired and the peculiar facts of the case arise out of the relaxation granted by the State to the female candidates in tribal Districts of Dungarpur and Banswara for the purpose of appointment of teacher grade-III in year 1985 and thus, the law laid down in Rafiq Masih's case (supra) is absolutely applicable (in particular condition No.1). Since the respondents belong to Class-III services and are retired, therefore, no recovery from them can be made.
9. Therefore, no cause to differ to the concurrent finding is made out. Hence, the present appeals are dismissed. (MUNNURI LAXMAN),J (DR. PUSHPENDRA SINGH BHATI),J 95 to 102-Sudheer/-
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