Shiv Shankar Suthar vs State Of Rajasthan
2022 Latest Caselaw 2009 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Civil Writ Petition No. 9017/2019

Shiv Shankar Suthar S/o Shri Jiyaram Suthar, Aged About 49 Years, Resident Of - Pugal Road, Opp. Vishwakarma Temple Gali, Bangla Nagar, Bikaner.

----Petitioner Versus

1. State Of Rajasthan, Through Additional Chief Secretary, Home Department, Government Of Rajasthan, Jaipur.

2. The Financial Advisor, Police Headquarter, Rajasthan, Jaipur.

3. The Director General Of Police, Police Head Quarter, Rajasthan, Jaipur.

4. The Inspector General Of Police, Bikaner Range, Bikaner.

5. The Superintendent Of Police, Bikaner.

----Respondents Connected With D.B. Civil Writ Petition No. 17602/2018

1. Mangi Lal S/o Shri Amara Ram Ji, Aged About 39 Years, Village Bhed , Tehsil - Osian, District Jodhpur.

2. Purkha Ram S/o Shri Bhiya Ram, Aged About 39 Years, Vpo Shriram Nagar, Tehsil Osian, District Jodhpur.

3. Ram Niwas S/o Shri Teja Ram, Aged About 59 Years, Godaran Ki Dhani, Post Shikargarh, District Jodhpur.

4. Anoparam S/o Shri Joga Ram, Aged About 42 Years, Plot No. 9 9/150, Krishna Nagar, Khokhariya, District Jodhpur.

5. Amraram S/o Shri Roopa Ram Ji, Aged About 41 Years, Dasaniya, Tehsil Shergarh, District Jdohpur.

6. Virendra Singh S/o Shri Govind Singh, Aged About 40 Years, 13/35, Veer Durgadas Colony, Paota B Road, Jodhpur.

7. Sujan Singh S/o Shri Pooran Ram Ji, Aged About 42 Years, Plot No. 60, Rajeev Nagar, A Paota C Road, Bjs Colony, Jodhpur.

8. Bhikam Pal Singh S/o Shri Nuka Ram, Aged About 45 Years, Rto Office, Bjs Colony, Jodhpur.

9. Hukam Singh S/o Bhanwar Singh, Aged About 43 Years,

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62, Ramnathpur, Kalwad Road, Jhotwara, Jaipur Rajasthan.

----Petitioners Versus

1. State Of Rajasthan, Through Its Additional Chief Secretary, Department Of Finance, Government Of Rajasthan, Jaipur.

2. The Additional Chief Secretary, Department Of Home Affairs, Government Of Rajasthan, Jaipur.

3. The Director General Of Police, Police Head Quarter Rajasthan , Jaipur.

4. Deputy Commissioner Of Police, Police Commissionerate, Jodhpur.

----Respondents D.B. Civil Writ Petition No. 4330/2019 Mangi Lal S/o Shri Jodha Ram Ji, Aged About 45 Years, Resident Of - Dabaliyon Ki Dhani, Vishnawas, Mukam/post Lohawat, District Jodhpur.

----Petitioner Versus

1. The State Of Rajasthan, Through Principal Secretary, Home Department, Government Of Rajasthan, Jaipur.

2. The Financial Advisor, Police Headquarter, Rajasthan, Jaipur.

3. The Director General Of Police, Police Head Quarter, Rajasthan, Jaipur.

4. The Commissioner Of Police, Police Commissionerate, Jodhpur.

5. The Deputy Commissioner Of Police, Head Quarter, Jodhpur.

----Respondents D.B. Civil Writ Petition No. 6388/2019

1. Ashok Kumar S/o Shri Balram Saharan, Aged About 44 Years, Vpo Chunavadh, Tehsil And District Sri Ganganagar.

2. Ramniwas S/o Shri Hira Ram, Aged About 44 Years, Vpo Tatarsar, Tehsil And District Sri Ganganagar.

3. Vinod Kumar S/o Shri Rameshwar Lal, Aged About 42 Years, House No. 59, Ramdev Colony, 5E Chhoti, Sri

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Ganganagar.

4. Subhashchandra S/o Shri Rajiram, Aged About 44 Years, Maniwali, Tehsil Sadulshahar, District Sri Ganganagar.

5. Balwant Singh S/o Shri Narayan Singh, Aged About 43 Years, Vpo Mothsara, Tehsil Bhadra, District Hanumangarh.

----Petitioners Versus

1. State Of Rajasthan, Through Additional Chief Secretary, Home Department, Government Of Rajashan, Jaipur.

2. The Financial Advisor, Police Headquarter, Rajasthan, Jaipur.

3. The Director General Of Police, Police Headquarter, Rajasthan, Jaipur.

4. The Superintendent Of Police, Sri Ganganagar.

5. The Inspector General Of Police, Bikaner Range, Bikaner.

----Respondents D.B. Civil Writ Petition No. 6484/2019

1. Maga Ram S/o Sh. Bhoma Ji, Aged About 59 Years, R/o-

Old Bus Stand, Shastri Nagar, Tehsil And District- Jalore.

2. Tola Ram Mali S/o Sh. Rawata Ram Ji,, Aged About 53 Years, R/o- B Block, Shanti Nagar, Tehsil And District- Jalore.

3. Himmata Ram S/o Sh. Virma Ji,, Aged About 57 Years, R/o- Samtipura, Tehsil And District- Jalore.

4. Kera Ram S/o Sh. Likhma Ram Ji,, Aged About 53 Years, R/o- Sardargarh, Post- Shantipura, Tehsil And District- Jalore.

5. Misara Ram Meghwal S/o Sh. Deepa Ji,, Aged About 53 Years, R/o- Village- Singhlan, Tehsil And District- Jalore.

----Petitioners Versus

1. State Of Rajasthan, Through The Principal Secretary, Public Health And Engineering Department, Government Of Rajasthan, Jaipur.

2. The Secretary (Rules), Department Of Finance, Government Of Rajasthan, Secretariat, Jaipur.

3.   The      Chief      Engineer         (Admn.),         Public      Health   And


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     Engineering Department, Jodhpur.
4.   The       Superintending         Engineer,         Public      Health      And

Engineering Department, Circle- Jalore, District- Jalore.

5. The Executive Engineer, Public Health And Engineering Department, Circle- Jalore, District- Jalore.

----Respondents D.B. Civil Writ Petition No. 7244/2019

1. Bhim Singh S/o Shri Shriram Gurjar, Aged About 44 Years, Resident Of - Vpo Sangwadi, Tehsil And District Rewari (Haryana). At Present Residing At- House No. 332, Police Line, Sri Ganganagar (Raj.).

2. Om Prakash S/o Shri Bhajan Lal Bishnoi,, Aged About 43 Years, Resident Of - Vpo Asrawa, Tehsil Mandi Adampur, District Hisar (Haryana). At Present Residing At - Block A- 4, House No. 6, Police Line, Sri Ganganagar (Raj.).

3. Mukesh Kumar S/o Shri Daya Ram Meghwal,, Aged About 47 Years, R/o Vpo Kandhwas, Tehsil Behror, District Alwar.

4. Baljindra Singh S/o Shri Radha Singh,, Aged About 44 Years, R/o Vpo Gandheli, Tehsil Rawatsar, District Hanumangarh.

----Petitioners Versus

1. The State Of Rajasthan, Through Additional Chief Secretary, Home Department, Government Of Rajasthan, Jaipur.

2. The Financial Advisor, Police Headquarter, Rajasthan, Jaipur.

3. The Director General Of Police, Police Headquarter, Rajasthan, Jaipur.

4. The Superintendent Of Police, Sri Ganganagar.

5. The Inspector General Of Police, Bikaner Range, Bikaner.

----Respondents D.B. Civil Writ Petition No. 10072/2019

1. Mohan Ram S/o Shri Mala Ram Ji, Aged About 43 Years, Resident Of Mukam/post Godawas Khurd, Tehsil Pachpadra, District Barmer.

2. Karan Singh S/o Deep Singh, Aged About 45 Years, Resident Of Bhachbhar Railway Station, Tehsil Ramsar,

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District Barmer.

3. Hema Ram S/o Shri Moola Ram Ji, Aged About 38 Years, Resident Of Jani Niwas, Laxmi Nagar, Barmer.

4. Narpat Singh S/o Shri Sawai Singh, Aged About 40 Years, Resident Of Mukam/post Undu, Tehsil Shiv, District Barmer.

5. Rekha Ram S/o Shri Achla Ram Ji, Aged About 42 Years, Resident Of Mukam/post Batadu, Tehsil Baytu, District Barmer.

6. Nanga Ram S/o Rekha Ram, Aged About 41 Years, Resident Of Harupaniyon Ki Dhani, Post Madpura Sani, Via Kawas, District Barmer.

7. Shobha Ram S/o Shri Sukhram Bishnoi, Aged About 38 Years, Resident Of Finch, Tehsil Luni, District Jodhpur.

8. Swaroop Singh S/o Shri Gulab Singh, Aged About 43 Years, Resident Of Aakashvani Road, Dan Ji Ki Gedi, Barmer.

9. Ram Singh S/o Shri Ummed Singh, Aged About 41 Years, Resident Of Village/post Jhinjhinyali, Tehsil Fatehgarh, District Jaisalmer.

10. Maga Ram S/o Shri Surta Ram Ji, Aged About 39 Years, Resident Of Mukam/post Baytu Bhimji, Tehsil Baytu, District Barmer.

11. Bhanwar Lal S/o Shri Natha Ram Ji, Aged About 43 Years, Resident Of Mukam/post Sawau Padam Singh ,tehsil Gida, District Barmer.

12. Girdhar Singh S/o Shri Hindu Singh, Aged About 39 Years, Resident Of Village/post Kupardi, Tehsil And District Barmer.

13. Roopa Ram S/o Shri Kheta Ram Ji, Aged About 42 Years, Resident Of Village Kagnada, Tehsil Luni, District Jodhpur.

14. Deva Ram S/o Shri Purkha Ram Ji, Aged About 42 Years, Resident Of Dhawa-Ii, Tehsil Luni, District Jodhpur.

15. Shakti Dan S/o Shri Kachhab Dan, Aged About 41 Years, Resident Of Mukam/post Harsani, Tehsil Gadhra Road, District Barmer.

16. Pukhraj S/o Shri Champa Lal, Aged About 43 Years, Resident Of Umarlai, Tehsil Pachpadra, District Barmer.

                                                                ----Petitioners



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                                   Versus

1. State Of Rajasthan, Through Additional Chief Secretary, Home Department, Government Of Rajasthan, Jaipur.

2. The Financial Advisor, Police Headquarter, Rajasthan, Jaipur.

3. The Director General Of Police, Police Headquarter, Rajasthan, Jaipur.

4. The Superintendent Of Police, Barmer.

----Respondents D.B. Civil Writ Petition No. 11759/2019

1. Ram Kumar S/o Shri Mamraj Vishnoi, Aged About 43 Years, Resident Of - Gajner Road, Behind Chungi Chowki, Bikaner.

2. Sajjan Singh S/o Shri Bhanwar Singh,, Aged About 45 Years, Resident Of - Village Saiswas, Post Fuskani, Via Chudi Ajeetgarh, District Jhunjhunu.

----Petitioners Versus

1. State Of Rajasthan, Through Principal Secretary, Home Department, Government Of Rajasthan, Jaipur.

2. The Financial Advisor, Police Headquarter, Rajasthan, Jaipur.

3. The Director General Of Police, Police Head Quarter, Rajasthan, Jaipur.

4. The Superintendent Of Police, Bikaner.

----Respondents D.B. Civil Writ Petition No. 4253/2021

1. Bhagchand Devenda S/o Choth Mal, Aged About 45 Years, Osian, District Jodhpur.

2. Janwata Ram Bishnoi S/o Khiya Ram, Aged About 42 Years, Village And Post Goda Vishnoiyan, District Jodhpur.

3. Uttam Panwar S/o Rameshwar Lal Panwar, Aged About 44 Years, Chanakya Nagar, Jodhpur.

4. Smt. Ganga Bishnoi D/o Jodha Ram, Aged About 40 Years, Gudamalani, Barmer

5. Smt. Vimla Choudhary W/o Ram Dayal, Aged About 46 Years, Ekta Nagar, Ramjan Ji Ka Hatha, Jodhpur.

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6. Nagendra Kumar Dagar S/o Kailash Chandra Dagar, Aged About 41 Years, Daspa Ki Haweli, Inside Sojati Gate, Jodhpur.

7. Smt. Niku Mathur W/o Praveen Mathur, Aged About 44 Years, 15/885, Chb, Jodhpur.

8. Suresh Kumar Bhati S/o Bhanwar Lal Bhati, Aged About 47 Years, Ashok Nagar, Jodhpur.

9. Rajendra Prasad Sharma S/o Madan Lal Sharma, Aged About 47 Years, Jajiwal Kalla, Jodhpur.

10. Smt. Tripti Sharma D/o Shashikant Sharma, Aged About 38 Years, Laxmi Nagar, Barmer.

11. Hemant Bohra S/o Bhagwati Lal Bohra, Aged About 36 Years, 80/222, Patel Marg, Mansarovar, Jaipur.

----Petitioners Versus

1. The Raj. Vidhyut Prasaran Nigam Ltd., Through Its Chairman Cum Managing Director, Vidhyut Bhawan, Jyoti Nagar, Jaipur.

2. The Secretary (Administration), Rajasthan Vidhyut Prasaran Nigam Limited Through Its Chairman Cum Managing Director, Vidhyut Bhawan, Jyoti Nagar, Jaipur.

3. The Secretary, Department Of Finance, Government Of Rajasthan, Jaipur.

4. The Secretary (Administration), Jodhpur Vidhyut Vitran Nigam Limited, Jodhpur.

                                                                ----Respondents


For Petitioner(s)        :     Mr. Ramendra Singh Saluja
through V.C.                   Mr. Anirudh Purohit
                               Mr. Sushil Solanki
For Respondent(s)        :     Mr. Manish Vyas, AAG
through V.C.                   Mr. Kailash Choudhary
                               Mr. Sandeep Shah, AAG with
                               Ms. Akshiti Singhvi
                               Mr. C.P. Soni
                               Ms. Vandana Bhansali





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HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON'BLE MR. JUSTICE MADAN GOPAL VYAS

Order

05/02/2022

These petitions arise out of a common background. Though

individual facts differ, the central issues are identical. We may

notice the facts from Civil Writ Petition No. 7244/2019.

The petitioners have challenged the vires of Rule 19(3) of the

Rajasthan Civil Services (Revised Pay) Rules, 2008 (hereinafter

referred to as the 'Pay Rules of 2008'). They were appointed as

Constable Drivers in the Police department in March, 1998. They

were placed in the pay scale of Rs.3050-4590/-. On completion of

9 years of service without promotion, they were granted the pay

scale of Head Constable with effect from the year 2007. Their pay

was fixed in the pay scale of Rs. 5200-20200/- with grade pay of

Rs. 1900/-. In April, 2016 they completed further 9 years in

service without promotion. On such occasion, they were granted

benefit of pay scale of 5200-20200 with grade pay of Rs. 2800/-

instead of what was their expectation to be placed in the pay scale

of Sub-Inspector of Rs. 9300-34800/- with a grade pay of Rs.

4200/-. After approaching this Court once and failing to persuade

the department to mitigate their grievance, the petitioners filed

the present petitions.

The action of the department in granting the petitioners the

benefit of second upgradation in pay upon completion of 18 years

of service was in tune with Rule 19(3) of the Pay Rules of 2008.

They have therefore challenged the said Rule.

Learned counsel appearing on behalf of the petitioners

submitted that the said Rule is arbitrary and discriminatory. In the

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cases where regular promotion is not between two successive

grades, the higher grade pay attached to the next promotional

post will be granted only at the time of regular promotion.

According to the learned counsel, this creates an anomaly and

deprives the petitioners of the benefit of the next higher grade

only on account of the hierarchical difference of promotional pay

scales. They have pointed out that in the Revision of Pay Rules

2017, this anomaly has been removed. Sub-rule (3) of Rule 14 of

the Pay Rules of 2017, which concerns this aspect, was brought to

our notice for such purpose. They had also raised an alternative

contention. It was argued that injustice is being done to the

petitioners on account of the introduction of Rule 19(3) under the

Pay Rules of 2008 this was further aggravated in view of Rule

14(3) of the Pay Rules of 2017. It was pointed out that those

Constables whose right to get the second pay upgradation arose

after the introduction of the Pay Rules of 2017, got higher

benefits. These Constables were obviously juniors to the

petitioners. On account of this anomaly, in the same cadre, juniors

to the petitioners may be drawing higher pay.

Our attention was drawn to the judgment of the learned

Single Judge in the case of Kuldeep Singh and others Vs. State

and others (S.B. Writ Petition No. 3926/2013 and connected

petitions decided on 26.04.2013), in which options were given to

the petitioners to be retained in the 5 th pay commission scales till

grant of ACP and thereafter to be brought over to the 6 th pay

commission scales. Learned counsel submitted that majority of the

petitioners are willing to exercise such option if their first

argument fails and for such purpose they are willing to return the

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higher salary received by them under the 6 th pay commission

scales.

On the other hand, learned counsel for the Government

opposed the petitions contending that the Rules are framed in

exercise of powers of delegated legislature. The Rule in question

does not suffer from any illegality. The petitioners have not made

out a clear case for being retained in the 5 th pay commission

scales till grant of ACP.

As is well known, the Government comes up with different

schemes from time to time to mitigate the difficulties of those

Government servants who, on account of non availability of

vacancies in promotional posts, stagnate in the same cadre for

years together. The parameters of these schemes change from

time to time. Essentially, the schemes form part of the pay

structure and are contained in the pay rules. A Government

employee can get benefit of these schemes withing the four

corners of the schemes.

It is also well known that the earlier schemes, which granted

the benefit of next promotional scale upon stagnation for specified

number of years of service without promotion, have been

substituted by the Central Government and the State Government

by schemes called 'Assured Career Progression' or modified

Assured Career Progression schemes. This was essentially on the

basis that the burden of the exchequer under the previous

schemes was found to be quite substantial. Under the Rules of

2008 while revising the pay scales for the Government servants

with effect from 01.09.2006, the Assured Career Progression

scheme was framed under Rule 19. Relevant portion of this rule

reads as under:-

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"19. Scheme of Assured Career Progression.- In lieu of selection grades, the scheme of Assured Career Progression (ACP) with three financial upgradations shall be allowed as under:-

[(1) The scheme will be available to all posts in class IV, ministerial, subordinate services and those holding isolated posts and drawing pay in the Rajasthan Civil Services (Revised Pay) Rules, 2008 upto grade pay of Rs. 4200 excluding State services] (2) Benefit of pay fixation available at the time of normal promotion shall be allowed at the time financial upgradations under the scheme. Thus, an increase of 3% of sum of pay in the running pay band and grade pay shall be available as financial upgradation under the scheme.

(3) The grade pay shall change at the time of financial upgradation under this scheme. The grade pay given at the time of financial upgradation under ACPs will be the immediate next higher grade pay in the hierarchy of Running Pay Bands and grade pay being prescribed. Thus, grade pay at the time of financial upgradation under ACPs can, in certain case where regular promotion is not between two successive grades, be different than what is available at the time of regular promotion. In such cases, the higher grade pay attached to the next promotion post in the hierarchy of the concerned cadre/organisation will be given only at the time of regular promotion."

Perusal of these provisions would demonstrate that in lieu of

selection grades, the Government had offered assured career

progression with financial upgradation. As per Sub-rule (2) of Rule

19, the benefit of fixation available at the time of normal

promotion shall be allowed at the time of financial upgradation

under the scheme and accordingly, an increase of 3% of sum of

pay in the running pay band and grade pay would be available as

financial upgradation. As per Sub-rule (3) of Rule 19, the grade

pay shall change at the time of financial upgradation under this

scheme. Such grade pay would be immediate next higher grade

pay in the hierarchy of running pay bands. The grade pay at the

time of financial upgradation can happen in certain cases where

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regular promotion is not between two successive grades. In such

cases, higher grade pay attached to the next promotional post will

be given only at the time of regular promotion. Sub-rule (3) thus

specifies that in the cases where the regular promotion is not

between two successive grades, in such cases the higher grade

pay attached to the next promotional post will be available only

upon actual promotion.

In our view, it was within the powers of the State

Government, as a delegated legislation, to not only grant the

benefit of ACP but also to make it conditional or restrict its

application in appropriate cases. The Rule thus does not suffer

from lack of power nor it is discriminatory in any manner since it

addresses a peculiar situation which forms a separate class by

itself.

We do not think that Sub-rule (2) and Sub-rule (3) cannot

co-exist and are self contradictory, as was argued by one of the

advocates for the petitioners. They operate in different fields.

Equally, merely because in the Pay Rules of 2017, this distinction

was removed by itself would not indicate that Rule 19(3), when it

was in operation, was invalid.

Coming to the request of the petitioners for being allowed to

exercise the option to be retained in the 5 th pay commission scales

till grant of ACP, we are not inclined to examine the same in the

group of petitions. Firstly, apart from only one petition, rest of the

petitions do not contain any such prayer. Further, whether such

consideration can be granted at such a distant point of time when

the petitioners may have accepted the options and were therefore

brought over to the pay scales prescribed in the 6 th pay

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commission, is a question which must be examined by the

Government at the first instance.

Under the circumstances, the challenge of the petitioners to

Rule 19(3) of the Pay Rules of 2008 fails. However, it would be

open for the petitioners to approach the concerned authorities

with the request to allow them to exercise the option of being

retained in the 5th pay commission scales till the grant of ACP.

Learned counsel for the petitioners Mr. Saluja urged that a circular

was issued as late as on 17.08.2020, in which the employees are

granted this benefit. It would be open for the petitioners to bring

all these aspects to the notice of the concerned authorities in their

representations. It would be open for the concerned authorities to

consider such representations and dispose of the same in

accordance with law. If the petitioners are aggrieved by the orders

to be passed on their representations, they may seek remedy

available under law.

With these observations, all the petitions are disposed of.

(MADAN GOPAL VYAS),J (AKIL KURESHI),CJ 28to36-jayesh/-

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