State Of Rajasthan vs Hari Narain Sharma S/O Shri ...
2021 Latest Caselaw 7593 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

              D.B. Special Appeal Writ No. 386/2020

1.      State Of Rajasthan, Through Secretary, Public Works
        Department,      Government            Of     Rajasthan,   Secretariat
        Jaipur.
2.      Chief Engineer, Public Works Department, Rajasthan,
        Jaipur.
3.      Superintending Engineer, Pwd Mech, Circle Jaipur.
                                                                 ----Appellants
                                    Versus
Hari Narain Sharma S/o Shri Rameshwar Lal Sharma, Aged
About 41 Years, Resident Of Charan Nadi, Near Govt. School,
Nadi Ka Phatak, Benar Road, Jhotwara, Jaipur.
                                                                ----Respondent

For Appellant(s) : Mr. Rajesh Maharshi, AAG For Respondent(s) : Mr. P.C. Sharma

HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON'BLE MR. JUSTICE UMA SHANKER VYAS

Order

14/12/2021

This appeal is filed by the State Government to challenge the

judgment of the learned Single Judge dated 14.11.2019 in Civil

Writ Petition No.8459/2002. Brief facts are as under:-

Respondent-original petitioner was working as stenographer

in the State service. The State Government issued a notification

on 16.04.1990 (hereinafter to be referred as 'the first notification')

promulgating Rajasthan Civil Services (Revised Pay Scales) Rules,

1990. By virtue of these rules, the Rajasthan Civil Services

(Revised Pay-Scales) Rules, 1987 came to be amended. One of

the amendments pertains to the Stenographers where the pay

(2 of 7) [SAW-386/2020]

scale was Rs.1140-2250. This amended rule also envisaged grant

of two additional increments to the stenographers subject to

certain conditions relevant portion of which reads as under:-

(a) Stenographer 1140-2250(11) (i).................

(ii) Persons holding the post of Stenographer/Personal Assistant/Sr. Personal Assistant/Private Secretary as on 1.4.1987 and who were appointed to the post of Stenographer on (a) Passing qualifying tests both in Hindi & English Stenography and typing conducted by the Rajasthan Public Service Commission or (b) passing qualifying test either in Hindi or English Stenography and typing conducted by the Rajasthan Public Service Commission and have passed one of the Courses/tests of Stenography and typing in second language (Hindi or English only), of the Courses/tests enumerated in the Note given below or......

(4) have undergone the Course/Training, as the case may be, of eight months duration in Stenography conducted by the Bhasha Vibhag or O&M Department (now Administrative Reforms Department).

These amendments were given effect from 01.04.1987. As

per this notification thus the stenographer will be granted two

additional increments if he has successfully undergone a

course/training of eight months duration in stenography conducted

by Bhasha Vibhag or O & M Department. The petitioner was sent

(3 of 7) [SAW-386/2020]

for such training on 01.05.1990 and completed the training on

31.12.1990. Certificate of having passed the training was issued

on 15.02.1991.

In quick succession of the first notification, the State

Government issued a new notification dated 18.05.1990

(hereinafter to be referred to as 'the second notification') under

which the Rajasthan Civil Services (Revised Pay Scales) (Forty

sixth Amendment) Rules, 1990 were promulgated. The

amendment took effect from 01.09.1988. The stenographers were

placed in the pay scale of Rs.1400-2300. Regarding grant of two

increments these rules envisaged as under:-

(a) Stenographer 1400-2300 (10) (i)................

(ii) Persons holding the post of Stenographer/Personal Assistant/Senior Personal Assistant/Private Secretary or who maybe appointed to these posts on passing qualifying tests either in Hindi or English Stenography and typing, conducted by Rajasthan Public Service Commission shall be granted two advance increments with effect from the date they pass qualifying test of Stenography and typing test in the second language (Hindi or English only) conducted by the Rajasthan Public Service Commission.

Note:- Advance increments as above shall be granted only once in the entire service.

The petitioner was granted the increments by an order dated

15.05.1991 in terms of the first notification dated 16.04.1990.

(4 of 7) [SAW-386/2020]

On 08.11.2002 the State Government issued an order

communicating to the petitioner that the action of grant of two

increments was erroneous since the petitioner did not fulfill the

conditions of the second notification dated 18.05.1990. As per this

notification the petitioner had to pass the test that may be

conducted by the Department. The increments granted are

therefore required to be withdrawn with consequential effect.

The petitioner thereupon approached the High Court by filing

the above mentioned petition and in which the Court stayed the

said communication dated 08.11.2002. The petition came to be

disposed of by the learned Single Judge by the impugned

judgment. The learned Judge was of the opinion that as per the

first notification dated 16.04.1990 the amendment in the pay rules

was to take effect from 01.04.1987. The petitioner was therefore

entitled to two increments with effect from 01.04.1987.

Subsequent notification dated 18.05.1990 which amended the pay

rules would not change this position. The petition was disposed of

with following directions:-

"Thus, the order dated 8.11.2002 is quashed and set aside. Further the Department is directed to make revision of pay of the petitioner by revising the order dated 15.5.1991 and granting two increments to the petitioner under the pay scale Rules of 1987 w.e.f. 1.4.1987, thereafter revised his pay accordingly under Rajasthan Civil Services (Revised Pay Scale) Rules, 1989 onward. However if any excess payment is found to have been made, the same shall not be recovered. This exercise shall be conducted within a period of 3 months."

The State Government has challenged the said judgment in

this appeal. Learned Government counsel clarified that this appeal

is confined to the directions pertaining to the increments and pay

(5 of 7) [SAW-386/2020]

fixation and not against the recovery of the salary already paid.

We have therefore looked in the appeal from this angle.

Having heard learned counsel for the parties and having

perused the documents on record, in our opinion the learned

Single Judge has committed a few legal errors which are required

to be corrected. As noted, under the first notification dated

16.04.1990 the State Government while prescribing the pay scale

of Rs.1140-2250 for stenographers, also made available the

benefit of two advance increments to those stenographers who

undergo a course or training of eight months duration which may

be conducted by the Department. Though these amendments

were given retrospective effect from 01.04.1987, the petitioner

who had not undergone the training as on that date, in any case

cannot claim advance increments from 01.04.1987. Giving

retrospective effect to an amendment in the pay rules is different

from claiming benefit as per such amendments without satisfying

the requirement of advance increments. The learned Single Judge

therefore when provided that the petitioner would get two

advance increments form 01.04.1987, committed an error since

on that date the petitioner had not even completed the training

which was a pre-condition for grant of advance increments.

Further, as noted soon after issuance of the first notification,

the Government had issued second notification on 18.05.1990.

These rules also made amendments in the Pay Rules of 1987.

Relevant features of these amendments were that the

stenographers' pay was enhanced to Rs.1400-2300.

The condition for grant of two additional increments was

changed to passing of a test in Hindi language that may be

conducted by the Rajasthan Public Service Commission. These

(6 of 7) [SAW-386/2020]

changes would be effective from 01.09.1988. In this area thus the

amendments under the first notification dated 16.04.1990 stood

superseded. Significantly while granting two increments to the

petitioner the State Government had fixed his pay in the scale of

Rs.1640-2900. This was not the scale of stenographers even as

per the revised pay structure under the second notification. Under

the second notification as noted, the pay scale prescribed for

stenographers was 1400-2300. The learned Judge also noticed

this dichotomy.

The petitioner cannot claim the benefit of pay fixation under

the second notification while seeking benefit of grant of advance

increments as per the first notification. If the pay of the petitioner

was fixed in terms of the revised pay scales prescribed under the

second notification, his right for being granted two increments also

had to be governed as per the terms and conditions provided in

the said notification.

Under the circumstances we do not find any error in the

action of the Government in withdrawing two increments wrongly

granted to the petitioner under order dated 15.05.1991. However

for multiple reasons recovery pursuant to such correction in his

pay fixation cannot be permitted. Firstly the Government has not

filed appeal against the directions for not carrying out any

recovery. Secondly there was no misrepresentation on the part of

the petitioner which led to this error. Thirdly the error which was

committed in the year 1991 was sought to be corrected more than

ten years later. Lastly the petitioner has by now retired. It would

be inequitable to permit recovery from a retired Government

servant under the above noted circumstances.

(7 of 7) [SAW-386/2020]

In the result appeal is disposed of with the following

directions:-

(i) The impugned order dated 08.11.2002 ordering withdrawal

of two increments granted to the petitioner is upheld. The pay of

the petitioner would be accordingly re-fixed. However the pay

scale of Rs.1640-2900 which has been granted to the petitioner

would not be withdrawn since this aspect even the Government

has not questioned.

(ii) The re-fixation of the pay of the petitioner would have only

prospective effect. In other words on the basis of such exercise it

would not be open for the Government to recover any amount

from the petitioner towards the past salary payments.

(iii) At this stage learned Advocate for the petitioner stated that

because of the pending controversy the petitioner's pensionary

benefits have not been released though the petitioner retired with

effect from 30.09.2021. Now that the dispute about the

petitioner's pay fixation has been resolved, it is expected that the

department shall release his pensionary benefits without any

further delay.

(UMA SHANKER VYAS),J (AKIL KURESHI),CJ

Kamlesh Kumar/N.Gandhi/16

Powered by TCPDF (www.tcpdf.org)