Radhey Shyam Sharma vs State Of Rajasthan And Ors
2023 Latest Caselaw 5585 Raj

[2023:RJ-JD:24822]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR (1) S.B. Civil Writ Petition No. 4372/2018

Prem Shankar Ameta S/o Sh. Bhanwar Lal Ameta, R/o Bhramon Ki Hatye Chittorgarh Dist. Chittorgarh.

----Petitioner Versus

1. State Of Rajasthan Through The Secretary Cum Commissioner, Rural Development And Panchayati Raj Department, Government Of Rajasthan, Jaipur.

2. The Chief Executive Officer, Zila Parishad, Chittorgarh.

3. The Vikas Adhikari, Panchayat Samiti Bhegun District Chittorgarh.

----Respondents Connected With (2) S.B. Civil Writ Petition No. 4378/2018 Radhey Shyam Sharma S/o Shri. Mohan Lal Sharma, R/o Village Semaliya, Post Chachi, Tehsil Begun, District, Chittorgarh.

----Petitioner Versus

1. State Of Rajasthan Through The Secretary Cum Commissioner, Rural Development And Panchayati Raj Department, Government Of Rajasthan, Jaipur.

2. The Chief Executive Officer, Zila Parishad Chittorgarh.

3. The Vikas Adhikari, Panchayat Samiti Bhesroadgarh District Chittorgarh.

----Respondents (3) S.B. Civil Writ Petition No. 4379/2018 Satyanarayan Chasta Son Of Shri Daya Shankar, R/o Jai Nagar Road, Begun, District Chittorgarh.

----Petitioner Versus

1. State Of Rajasthan Through The Secretary Cum Commissioner, Rural Development And Panchayati Raj Department, Government Of Rajasthan, Jaipur.

2. The Chief Executive Officer, Zila Parishad Chittorgarh.

3. The Vikas Adhikari, Panchayat Samiti Begun, District Chittorgarh.

----Respondents (4) S.B. Civil Writ Petition No. 4380/2018 Radhey Shyam Pancholi S/o Sh. Badri Lal, R/o Bhrmon Ki Hatye Begun Dist. Chittorgarh.

----Petitioner Versus

1. State Of Rajasthan Through The Secretary Cum Commissioner, Rural Development And Panchayati Raj Department, Government Of Rajasthan, Jaipur.

2. The Chief Executive Officer, Zila Parishad Chittorgarh.

3. The Vikas Adhikari, Panchayat Samiti Bhegun District Chittorgarh.

----Respondents (5) S.B. Civil Writ Petition No. 4381/2018 Rameshwar Lal Tiwari S/o Sh. Bharmal, R/o Village Meghpura Post Dorai Tehsil Begun Dist. Chittorgarh

----Petitioner Versus

1. State Of Rajasthan Through The Secretary Cum Commissioner, Rural Development And Panchayati Raj Department, Government Of Rajasthan, Jaipur.

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2. The Chief Executive Officer, Zila Parishad Chittorgarh.

3. The Vikas Adhikari, Panchayat Samiti Begun, District Chittorgarh.

                                                    ----Respondents


For Petitioner(s)               :    Mr. Mukesh Vyas
For Respondent(s)               :    Mr. Manish Tak



                         JUSTICE DINESH MEHTA

                                      Judgment

04/08/2023

1. These writ petitions involve common question of facts and

law and therefore, are being disposed of by this common order.

2. For the sake of brevity and convenience, the facts of S.B.

Civil Writ Petition No.4372/2018; Prem Shankar Ameta Vs. State

& Ors. are taken into consideration.

2.1. The petitioner (Prem Shankar Ameta) was engaged by

the Municipal Board, Bhegun, District Chittorgarh as an ad-

hoc employee in the year 1985.

2.2. The petitioner had filed a writ petition claiming

regularization and during the pendency of the same, the

Municipal Board, Bhegun decided to give appointment to the

petitioner against a vacant post in the pay scale of 825-15-

900-20-1200-25-1350 w.e.f. 01.02.1995 by an order dated

15.03.1995.

2.3. Thereafter, the posts of Sub-Nakedar were abolished by

the State Government and all the employees including the

petitioner were absorbed in different departments.

2.4. The petitioner was absorbed in Panchayat Samiti,

Bhegun, District Chittorgarh by way of order dated

1.05.2001.

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2.5. The order of absorption dated 01.05.2001 contained

various conditions, out of which the following two are

relevant, i.e. (i), the services rendered by the petitioner prior

to the absorption shall not be counted for promotion, etc.

and (ii), the date of absorption shall be reckoned from the

date of appointment on the new post.

2.6. The petitioner claimed benefit of selection grade from

the date of initial appointment and since the respondents

denied the petitioner's claim, a writ petition came to be filed

by him being S.B. Civil Writ Petition No.14489/2016.

2.7. Said writ petition came to be disposed of by a

Coordinate Bench of this Court vide order dated 09.12.2016.

While referring to the judgment passed in the case of

Jagdish Bhanoda Vs. State of Rajasthan & Ors.; S.B.

Civil Writ Petition No.773/2009, decided on 29.07.2009,

the Coordinate Bench directed the petitioner to file a

representation with a corresponding direction to the

respondents to consider his case in light of the judgment

passed in the case of Jagdish Bhanoda (supra).

2.8. The petitioner submitted a representation in

furtherance of the above referred order dated 09.12.2016,

but the same was rejected by the respondents vide order

dated 26.10.2017.

2.9. While rejecting the petitioner's representation, the

respondent No.3 highlighted point Nos.1 & 2 of the

absorption order and held that the petitioner was not entitled

for grant of selection grade/ACP w.e.f. the date of initial

appointment.

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3. Mr. Vyas, learned counsel for the petitioner(s) argued that

the order dated 26.10.2017, passed by the respondent No.3 is ex-

facie illegal and contrary to the facts and law, including the

judgment of Hon'ble the Supreme Court rendered in the case of

State of Rajasthan Vs. Jagdish Narain Chaturvedi reported in

(2009) 12 SCC 49.

4. Learned counsel invited Court's attention towards the order

dated 15.03.1995 and underscored that the petitioner's

appointment as Sub-Nakedar was made against a vacant post and

his services had been made effective from 01.02.1995, while

giving regular pay scale to the petitioner.

5. He argued that since the petitioner has been appointed

against a vacant post and regular pay scale was given, he is

entitled for benefit of selection grade/ACP on completion of 9-18-

27 years while reckoning the date of appointment as 01.02.1995.

6. Learned counsel fairly submitted that though the petitioner

was working as a daily wager since 1985, but he is not claiming

benefit of such period and his claim is confined to the period after

he was taken on regular roll.

7. Mr. Tak, learned counsel for the respondent-State submitted

that the petitioner cannot claim benefit of selection grade/ACP

from 01.02.1995 inasmuch as, he was absorbed and came in the

respondent-Department after his absorption w.e.f. 01.05.2001.

8. He submitted that the respondent-State has rightly given

benefit of selection grade/ACP to the petitioner(s) w.e.f.

01.05.2001. While inviting Court's attention towards the point

Nos.1 & 2 of the order of absorption dated 01.05.2001, learned

counsel argued that the petitioner's services prior to the

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absorption cannot be reckoned for the purpose of benefit of

selection grade/ACP.

9. Mr. Vyas, learned counsel for the petitioner in rejoinder relied

upon the judgment of Coordinate Bench of this Court passed in

the case of Gulam Rasool Bisayati Vs. State of Rajasthan &

Ors.; S.B. Civil Writ Petition No.18941/2018, decided on

08.09.2022 and submitted that in somewhat similar

circumstances, the Coordinate Bench had directed the State to

give benefit of selection grade/ACP to the similarly situated

employees from the date when they were declared semi-

permanent.

10. Mr. Tak, learned counsel for the respondent-State informed

that the State has filed an appeal against the above judgment in

the case of Gulam Rasool Bisayati (supra).

11. Heard learned counsel for the parties and perused the

relevant law including the judgments passed in the case of Jagdish

Narain Chaturvedi (supra) and Jagdish Bhanoda (supra).

12. According to this Court, the circular dated 25.01.1992, in

relation to conferment of selection grade gives a regularly selected

candidate a right to be conferred benefits of selection grade on

completion of 9-18-27 years of service. The fact is clear on record

that the petitioner was appointed against a vacant post w.e.f.

01.02.1995 by way of order dated 15.03.1995 passed by the

Executive Officer of Municipal Board, Bhegun and a regular pay

scale was given to him.

13. The petitioner was appointed as Sub-Nakedar and from

01.02.1995 he entered the State services. But the posts of Sub-

Nakedar were abolished by the State Government and consequent

[2023:RJ-JD:24822] (6 of 8) [CW-4372/2018]

to a policy decision, he was absorbed in the respondent-

Panchayati Raj Department per-viam order dated 01.05.2001.

14. It would be apt to produce Proviso 3 to Clause 3 of the

circular dated 25.01.1992 which is being reproduced herein under:

"Provided further that in the case of an employee who has been/ is declared surplus and absorbed against a new post either in the same or another department excluding absorption on higher post, the service of nine, eighteen or twenty seven years, as the case may be, shall be counted for the purpose of grant of selection grade from the date of initial appointment in the Government service in accordance with the provisions contained in the relevant recruitment rules. As a result of counting of service rendered prior to absorption for grant of selection grade, if the pay of a junior Government servant happens to be more than the pay of his senior, no stepping up of pay of senior Government servant shall be permissible."

15. A simple look at above clause makes it clear that in case of

absorption, the benefits of selection grade/ACP shall be given from

the date of initial appointment in the Government services.

16. In the opinion of this Court, point No.1 in the absorption

order cannot be an impediment in petitioner's way of getting

selection grade/ACP w.e.f. 01.02.1995, inasmuch as the same only

provides that the services rendered prior to the absorption will not

be counted for the purpose of promotion.

17. The concept of promotion is entirely different than the right

of the employee to get benefit of selection grade/ACP which is also

called stagnation benefit.

18. The stagnation benefit or selection grade/ACP (pursuant to

circular dated 25.01.1992 or other circular(s) issued in this

regard) is given to an employee as an acknowledgment of long

[2023:RJ-JD:24822] (7 of 8) [CW-4372/2018]

and satisfactory services rendered by an employee, when

promotional avenues are not available. Whereas promotion raises

an employee's position in the official hierarchy. In the case of

promotion as the claim of competing employees (on the basis of

seniority and/or merit) are to be taken into account and in such

background/situation, condition No.1 may well be understood that

the services rendered as Sub-Nakedar cannot be counted for

purpose of promotion.

19. The condition No.1 which has been incorporated to exclude

the period of petitioner's services as Sub-Nakedar prior to

absorption for the purpose of promotion cannot be used to deprive

the petitioner of his rightful claim of getting benefits of selection

grade/ACP w.e.f. his regular appointment which in the present

case is concededly, 01.02.1995.

20. The post of Sub-Nakedar was a cadre post and the petitioner

was appointed against a vacant post, as is evident from his

appointment order. Hence, he had entered the State services with

effect from 01.02.1995. The State's decision to abolish the post

and to absorb all the Sub-Nakedars in different departments

cannot have the effect of forefeiture of the services which the

petitioner has rendered in Municipal Board. But for abolition of

post and petitioner's absorption in Panchayati Raj Department, he

would definitely get the advantage of stagnation benefit (by

whatever name called) from the date of his initial appointment.

21. For what has been discussed herein above, all the captioned

writ petitions (which involve identical facts narrated hereinabove)

are hereby allowed.

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22. The respondents are directed to confer the benefits of

selection grade/ACP to the petitioners on completion of 9-18-27

years of service w.e.f. the date of their initial appointment as Sub-

Nakedar in their respective municipalities.

23. The respondents shall rework or calculate the benefits of

selection grade/ACP already granted to the petitioners, making the

same effective from their initial date of appointment.

24. While carrying out such exercise, the respondents shall be

free to examine individual case and to ascertain as to whether the

appointment of the petitioner(s) was against vacant post and a

regular pay scale was granted to them or not and if given from

which date it was given.

25. Necessary exercise be done within a period of three months

from today and such calculation be intimated to the petitioners.

After calculation has been made, it will be required of the

respondent-State to pay the consequential benefit/amount to the

petitioners within a period of three months therefrom.

26. All these present writ petitions stand allowed, accordingly.

(DINESH MEHTA),J 39 to 43-AbhishekS & Akanksha/-

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