Rajasthan High Court

Smt Chandra Jethani vs State Education Departmentors on 14 December, 2022

Bench: Sameer Jain

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

              S.B. Civil Writ Petition No. 4261/2016

Smt Chandra Jethani wife of Shri Ashok Kumar Jethani, aged 61
years, Retired Principal, Department of Secondary Education,
Rajasthan and resident of E-329, Shastri Nagar, Ajmer.
                                                                   ----Petitioner
                                   Versus
1. State of Rajasthan through the Secretary to the Government,
Department of Secondary Education, Government of Rajasthan,
Secretariat, Jaipur.
2.   The Director, Secondary Education, Directorate-Rajasthan,
Bikaner
3. The District Education Officer (Madhyamik-I), Topdara, Ajmer
4.   The Secretary to the Government, Department of Finance,
Rule Division, Government of Rajasthan, Secretariat, Jaipur.
                                                                ----Respondents

For Petitioner(s) : Mr. Ashish Saksena, Adv. For Respondent(s) : Mr. S. Zakawat Ali, AGC

HON'BLE MR. JUSTICE SAMEER JAIN

Order

14/12/2022

1. Present writ petition is filed with the following prayer:-

"(i) An appropriate writ, order or direction to the respondents for quashing the order dated 30.07.2013 (Annex.-8) to the extent denial of actual monetary benefits to an employee from the date of taking over charge on the promotion post and not from the date of accrual of the vacancy with the consequential relief.

(ii) An appropriate writ, order or direction to the respondents for quashing the order dated 11.01.2016 (Annex.-16) and declaring the petitioner eligible for actual benefits of the promotional post (i.e. Principal- Higher Secondary School) from the date i.e. 1.4.2005 to 30.06.2013 (or 06.05.2013) and further direction to the respondents for granting actual monetary

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benefits to the petitioner in respect of promotional post in question w.e.f. 01.04.2005 to 30.06.2013 (06.05.2013) with consequential issuance of fixation and arrears in the interest of justice and law.

(iii) An appropriate writ, order or direction to the respondents for grant of interest @ 12% p.a. on the arrears of period w.e.f. 01.04.2005 to 30.06.2013 (06.05.2013) from the date of eligibility till the date of actual payment.

(iv) An appropriate writ, order or direction to the respondents for quashing order of appellate forum and any adverse order, if any, passed during the pendency of the writ petition.

(v) 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.

(vi) Cost of the writ petition."

2. It is submitted by learned counsel for the petitioner

that the petitioner was given charge as Principal w.e.f. 22.08.2003

and commensurate existing pay scale " ikrs; osru" was paid in lieu of

the same. Thereafter, petitioner came to be promoted on the post

of Principal Government Senior Secondary School (Post envisages

at Sr. No. 1- Group 'D' Section II of the Rules, 1970) as per

recommendation of Departmental Promotion Committee against

the vacancy of 2005-2006 in the Pay Scale of 9000-14400 against

vacancy of 2005-06. Fixation of the petitioner was made on

19.07.2013 whereby the petitioner was notionally fixed from the

year i.e. 31.03.2006 to 30.06.2013 and the actual benefit was

given to the petitioner w.e.f. 01.07.2013. Vide order dated

19.12.2013, fixation of the petitioner came to be amended and

she was granted actual benefits w.e.f. 07.05.2013. It is

contended that the petitioner is entitled for actual monetary

benefit for the period of 01.04.2005 to 30.06.2013 or 07.05.2013.

With regard to grant of monetary benefits w.e.f. 01.04.2005,

representation was filed and the same was decided against the

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petitioner vide order dated 11.01.2016 (Anneuxre-16) whereby

notional benefits were granted w.e.f. 01.04.2005 but actual

benefits was granted on 07.05.2013. Against the same, the

present writ petition is filed.

3. Learned counsel for the petitioner has relied upon the

judgment of the Co-ordinate Bench of this Court at Principal Seat,

Jodhpur in Champalal Vyas Vs. State of Raj. & Ors.: SBCWP

No. 6881/2015, which was later affirm by the Division Bench in

State of Rajasthan Vs. Laxmi Narayan Soni: DB SAW No.

821/2019 along with connected cases to submit that the lis in

question has already been settled by Co-ordinate Bench of this

court. The relevant part of Champalal Vyas (supra) is

reproduced as under:-

"From the undisputed factual matrix in all these matters, it is clearly borne out that all the petitioners are working on promotional post of Principal without any interruption with satisfactory performance. Furthermore, all the petitioners are adjudged suitable for promotion in the DCP held on 6th December,2013 and were allotted their respective year of vacancy for promotion. Therefore, the delayed action on the part of respondents in holding DPC cannot be cited as a reason for depriving the petitioners of financial benefits besides seniority etc. From the reply of respondents also, no plausible reason is forthcoming for delayed convening of DPC.

The argument of learned counsel for the respondents, that petitioners were paid salary and other emoluments in terms of their posting orders containing the recital "Patey Vetan", appears to be quite alluring but not of substance. It is really strange that petitioners were asked by the respondents to

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discharge duties of Principal carrying higher responsibility by evolving a novel and iniquitous design namely concept of 'Patey Vetan'. In my view, while passing the posting orders of petitioners, the respondents have acted in an absolutely arbitrary and unreasonable manner in clear negation of the doctrine "equal pay for equal work",enshrined under Article 39(b) read with Article 14 of the Constitution. The decision rendered in Vijay Kumar Damor (supra) was later on approved by the Division Bench vide judgment and order dated 18th of November, 2013. It is also noteworthy that in Damor's case, the incumbents had not availed regular promotion whereas in the instant case the petitioners have availed regular promotion as the DPC has found their candidature suitable for promotion against the year of vacancy. Therefore, the case of petitioners Champalal Vyas and Laxmi Narayan is on better footing whereas case of Gopaldas Soni is at par with Damor's case. In view of foregoing discussion, all these writ petitions are allowed and the respondents are directed to allow the petitioners;(1) Champalal Vyas, (2) Laxmi Narayan Soni, and (3) Gopaldas Soni, pay scale of the promotional post from the date they are performing duties of Principal, i.e., 30.11.2009, 20.09.2010, and23.10.2009 respectively, with all other consequential benefits including the benefit of pay fixation. The requisite exercise of pay fixation and allowing other benefits be undertaken by the respondents within a period of three months from today and accordingly arrears be paid to the petitioners."

4. After placing reliance upon the judgment of Champalal

Vyas (supra), learned counsel for the petitioner has further

relied upon the judgment of Division Bench in the case of Laxmi

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Narayan Soni (supra), in which appeal filed by the State

judgment of Champalal Vyas (supra), was also dismissed. The

relevant part of judgment of Laxmi Narayan Soni (supra), is

reproduced as under:-

"11. It is evident on a plain reading of Rule 28 (1) that the competent authority can resort to officiating appointments in a temporary capacity by filling "eligible officials and employees" who are in the line of promotion to the higher post. Undoubtedly, the power to resort to such temporary arrangements exists. At the same time, it is also evident that such temporary arrangements are conditional and the State cannot exceed one year limit specified in the proviso. Crucially, only employees eligible for promotion can be asked to officiate. Rule 28(2) speaks of a specific situation which is that in the event of non-availability of suitable persons fulfilling the requirement for promotion, the State can resort to temporary appointment from even those ineligible. Read in the context of Rule 28(1) this can only mean that in the absence of those eligible for appointment on temporary basis, the procedure under Rule 28(2) can be resorted to. In the present case, there in no dispute that Rule28(2) could not have been resorted to; the writ petitioners were in-fact eligible for promotion. They were indeed promoted subsequently in respect of the same vacancy years, applicable from the time they were made to function on officiating capacity. That apart, Rule 28(2) which the State relies upon, speaks of "general instruction" which would govern the grant of promotion till the vacancies and the manner in which pay and allowances are to be given to such temporary officials. In the present case, the State has not produced any general instructions but rather relies upon specific orders dictating the terms upon which the petitioners were made

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"temporarily" fora period of three years work as Principals.

12.In the light of the above discussion, this Court is of the opinion that no exception can be taken to the learned Single Judge's directions given that all the petitioners were eligible at the time when they were given temporary appointment; they did not fulfill the description or fall within the exception of Rule 28(2) and most importantly all of them were eligible and could have been promoted with effect from the date they were made to officiate temporarily as Principals. But for the fact that no DPC was held, all of them were subsequently selected through regularly constituted DPC. In these circumstances the denial of salary and all benefits to them from the date of their initial temporary appointment (having regard to their subsequent selection and appointment on regular basis against the vacancies for the earlier period), could not but be held to be arbitrary."

5. While placing reliance upon the said orders, learned

counsel for the petitioner has submitted that in similar facts and

circumstances, similarly situated persons have been awarded

actual benefits from the date they were performing the duties.

6. Per contra, learned counsel for the respondents has

opposed the contentions raised by the learned counsel for the

petitioner. However, he is not able to distinguish the judgments of

Champalal Vyas (supra) and Laxmi Narayan Soni (supra).

7. Heard the arguments advanced by learned counsel for

the parties, scanned the record of the case and considered the

judgments cited at Bar.

8. Considering the fact that the matter in hand is squarely