Manoj Kumar Harshwal Andanr vs State Education Departmentors ...
2023 Latest Caselaw 2187 Raj/2

[2023/RJJP/003163]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                 S.B. Civil Writ Petition No. 6868/2016

1. Manoj Kumar Harshwal son of Late Shri Ghanshyam Sen,
aged 36 years, Teacher Grade-III, Government Upper Primary
School - Tonkra, Block Silora, District Ajmer & resident of Pandit
Fateh lal nagar, Near Kishangarh Public School, Mazela Road,
Kishangarh, District Ajmer.
2. Rajendra Khinchi son of Late Shri Jodhalal Khinchi, aged 41
years, Teacher Grade-III, Government Senior Secondary School
- Tilora, District Ajmer & resident of Opposite Bank of Baroda,
Ganaheda, Pushkar, District Ajmer.
                                                                   ----Petitioners
                                    Versus
1. State of Rajasthan through its Secretary to the Government,
Department of Elementary Education, Secretariat, Jaipur.
2. The Director, Elementary Education, Directorate - Rajasthan
Bikaner.
3. The District Education Officer, Elementary Education, Ajmer.
4. Block Elementary Education Officer, Panchayat Samiti -
Kishangarh (Block-Silora), District Ajmer.
5. Block Elementary Education Officer, Panchayat Samiti -
Pisangan, District Ajmer.
6. Zila Parishad, Ajmer through its Chief Executive Officer.
                                                                 ----Respondents

For Petitioner(s)          :    Mr. S.K. Saksena
For Respondent(s)          :    Mr. Bharat Saini


         HON'BLE MR. JUSTICE ANOOP KUMAR DHAND
                          Order

17/02/2023

Instant petition has been filed by the petitioners with

the following prayer:

"That the petitioners' prays for the following relief's:

(i) An appropriate writ, order or direction to the respondents for declaring the petitioners eligible

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for grant of study leave with consequential orders for the period they pursued BSTC Course at DIET Masuda.

(ii) An appropriate writ, order or direction to the respondents for declaring the petitioner No. 1 for grant of notional benefit of yearly increment as per Rule 9 of the Rules, 1996 (i.e. from 02.01.1998 to 08.11.2004) and likewise, the petitioner No.2 (from 15.07.2000 to 25.01.2005) with consequential revision of entire fixation of the petitioners alongwith arrears and interest @ 12% p.a. from the date of eligibility till the date of actual payment.

(iii) An appropriate writ, order or direction to the respondents for declaring the petitioners eligible for grant of selection scales counting their service w.e.f. initial appointment i.e. 02.01.1998 (in respect of petitioner No.1) and 15.07.2000 (in respect of petitioner No.2) and consequential grant of selection scales / ACP in supersession to the earlier ACP granted with consequential relief of re- fixation and arrears alongwith interest @ 12% p.a. from the date of eligibility till the date of actual payment.

(iv) 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.

(v) Cost of the writ petition."

Learned counsel for the petitioners submits that

petitioner No.1 was given compassionate appointment vide order

dated 26.12.1997 and pursuance to the said appointment,

petitioner No.1 joined the post of Teacher. Counsel submits that

similarly petitioner No.2 was offered appointment on

compassionate ground and he joined the service on 15.07.2000.

Counsel submits that as per the terms and conditions in the

appointment orders, the petitioners were required to attain the

requisite qualification within a period of three years from the date

of appointments. Counsel submits that petitioner No.1 passed his

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Basic School Training Certificate (for short 'BSTC') on 08.11.2004

and petitioner No.2 passed his BSTC certificate on 21.04.2005.

Counsel submits that the services of the petitioners have been

confirmed by the respondents vide order dated 17.12.2012 and

19.02.2013 respectively. Counsel submits that the respondents

have granted benefit of annual grade increments to the petitioners

after a lapse of one year on getting the requisite educational

qualification. Counsel submits that for the purpose of getting the

requisite qualification the petitioners remained on study leave for

about one year for getting practical training and rest of studies

were completed through correspondence course. Counsel submits

that the petitioners are entitled to get one year study leave but

the respondents have declined the same to the petitioners.

Counsel submits that the petitioners are entitled to get the benefit

of selection scale w.e.f. their date of appointment in the light of

circular issued by the Department of Personnel dated 02.06.2020.

Counsel submits that as per the circular, the incumbents who got

compassionate appointment are entitled to be regularized w.e.f.

the date they joined the service. Counsel submits that likewise

such candidates are entitled to get seniority from the date of

joining of their service. Counsel submits that under these

circumstances, the petitioners are entitled to get the benefit of

selection scale w.e.f. their initial date of appointment. Counsel

submits that as per Rule 9 of the Rajasthan Compassionate

Appointment of Dependents of Deceased Government Servants

Rules, 1996 (for short 'the Rules of 1996'), the petitioners are not

entitled for annual grade increments until they acquired the

requisite qualification. Counsel submits that as per Rule 9 of the

[2023/RJJP/003163] (4 of 10) [CW-6868/2016]

Rules of 1996, the petitioners are entitled to get annual grade

increments notionally from the date of appointment but no arrears

would be paid to them. Counsel submits that in view of the

submissions made herein above, the relief claimed by the

petitioners may be granted to them by issuing appropriate

directions to the respondents. In support of his contentions, he

has placed reliance on the judgments of this Court passed in the

case of The State of Rajasthan & Ors. vs. Awadh Kumar

Sharma (D.B. Civil Special Appeal (writ) No.521/2014)

decided on 18.05.2016, Radhey Shyam vs. State of Rajasthan

& Ors. (S.B. Civil Writ Petition No.419/2011) decided on

15.02.2023, Dinesh Kumar Singh and Ors. vs. The State of

Rajashtan and ors. (S.B. Civil Writ Petition No.2467/2007)

decided on 12.11.2013, Ajay Shara vs. State of Rajasthan and

anr. (S.B. Civil Writ Petition No.5580/95) decided on

21.08.1997 and Udal Singh vs. The State of Rajasthan and

Ors. (S.B. Civil Writ Petition No.818/2015) decided on

06.05.2022.

Per contra, learned counsel for the respondents

opposed the arguments raised by the counsel for the petitioner

and submitted that though the petitioners got appointment on

compassionate ground but they are not entitled to get any benefit

until they acquire the requisite qualification as per Rule 9 of the

Rules of 1996. Counsel submits that as per Rule 9, the petitioners

were supposed to acquire the requisite qualifications within a

period of three years but they have acquired the said qualifications

after expiry of that period. Counsel submits that the petitioners

are not entitled for selection scale w.e.f. their initial date of

[2023/RJJP/003163] (5 of 10) [CW-6868/2016]

appointment as they were not qualified to get the post of Teacher

in absence of the requisite qualification of BSTC. Counsel submits

that the petitioners are not entitled to avail the benefit of study

leave and there is no such provision under the Rules of 1996.

Counsel submits that the petitioners are not entitled to get the

benefit of selection scale w.e.f. their initial date of appointment as

they have acquired the requisite qualification in the year 2004-

2005. Counsel submits that in view of the submissions made

herein above, the petitioners are not entitled to get the relief as

claimed by them in this writ petition and interference of this Court

is not warranted.

Heard and considered the submissions made at the Bar

and perused the material available on the record.

The undisputed fact of this case is that both the

petitioners got appointment on compassionate ground and as per

the terms and conditions of their appointment orders, they were

supposed to get the requisite qualification i.e. BSTC within a

period of three years from the date of their appointment. This fact

is not in dispute that petitioner No.1 has passed his BSTC

certificate on 08.11.2004, likewise petitioner No.2 has passed the

same on 21.04.2005.

Now, three questions remain before this Court for

adjudication of this case; first is - whether the petitioners are

entitled to get notional benefit w.e.f. their initial date of

appointment and second is - whether the petitioners are entitled

to get study leave, and third is - whether the petitioners are

entitled to get selection scale w.e.f. the date of their initial

[2023/RJJP/003163] (6 of 10) [CW-6868/2016]

appointment. Rule 9 of the Rules of 1996 is specific and clear, and

for ready reference the same is quoted hereunder:

"Rule 9 (1) The procedural requirement for selection such as training or departmental examination or typing test shall not be insisted upon at the initial appointment. The dependent shall however, be required to clear such training or departmental examination or typing test, within a period of 3 years for entitlement for confirmation failing which his/her appointment shall be liable to be terminated. No annual grade increments will be allowed until he/she acquires such qualifications. On acquiring such qualifications annual grade increments shall be allowed notionally from the date of appointment but no arrears will be paid.

Note :- For the purpose of this rule the Head of the Department shall conduct such test every year irrespective of the number of candidates"

Perusal of Rule 9 clearly indicates that dependents of

the deceased are required to clear such training or departmental

examination or typing test within a period of three years for

entitlement for confirmation, failing which his / her appointment

shall be cancelled. The Rule is more clear that such candidates

would not be entitled for annual grade increments until they

acquire such qualification. The Rule further says that on

acquisition of such qualification, annual grade increments shall be

allowed notionally from the date of payment but no arrears would

be paid. The fact is not in dispute that the petitioners were given

appointment in the year 1997 and 2000 respectively and they

have passed the requisite qualification in the year 2004-2005.

Hence they are entitled to get their confirmation on the day they

acquired the requisite qualification as per Rule 9 of the Rules of

[2023/RJJP/003163] (7 of 10) [CW-6868/2016]

1996 and they are not entitled to get annual grade increments for

this intervening period i.e. from their date of appointment till the

date of getting the requisite qualification.

The next question, whether the petitioners are entitled

to get study leave or not. The controversy involved in this case

has already been set at rest by the Division Bench of this Court in

the case of Awadh Kumar Sharma (supra) as under:

"We have considered the submissions on behalf of the parties. The only issue urged before us to assail the order under appeal is with regard to grant of study leave for the period spent on training.

Rule 5 of the Rules of 1978 provides for recruitment of a member of the family of the deceased against an existing vacancy, in relaxation of the normal recruitment rules, provided the basic qualification prescribed for the post is fulfilled. Rule 8 provides for relaxation of age and other requirements. Rule 8 (2) provides for selection procedure with regard to written test, typing test or interview in order to verify the minimum standards of work and efficiency expected. The Authority was also entitled to prescribe any condition, if considered necessary, for acquiring any training or proficiency e.g. typing speed or any other qualification etc. within a reasonable period after employment. In terms of the same, the respondent was required to acquire the training qualification within a period of three years which he did successfully.

The respondent was duly relieved to join the training programme without any pre-conditions. He was not required to attend the training programme without affecting discharge of duties as a Teacher.

The application made by him to attend the training programme was only in accordance with the condition in his letter of appointment. The appellant was appointed as Teacher for imparting education to young impressionable minds in their formative years in Class I to V. The need for a

[2023/RJJP/003163] (8 of 10) [CW-6868/2016]

qualified Teacher at this stage hardly needs emphasis. The appellants themselves considered it necessary that the respondent should acquire the training qualification for efficient discharge of duties within a prescribed period. In order to facilitate the same, the appellants also relieved him for joining the training programme.

The acquisition of training qualification by the respondent was undoubtedly in the larger public interest of a trained and qualified teacher available to the students at the primary level. Denial of study leave to the respondent for the period in question would be a highly anomalous position in the facts and circumstances of the case virtually penalising him for acquiring training qualifications. The submission on behalf of the appellants that the benefit was only available to widows and divorced women does not appeal to us. The appellants had essentially exercised powers under Rule 8 (2) of the Rules of 1978. The effect of relieving him to join the training programme under the terms of his appointment without any pre-conditions cannot be lost sight of. Any ambiguity that may have existed in this regard stands resolved by the subsequent Circular dated 02.02.2002 which extended the benefit of study leave also to the wards of the deceased appointed in service without any gender limitations. The Circular being procedural in nature only we see no reason why it should not be given retrospective effect. Apparently it came to be issued noticing the gender discrimination under the Rules of 1971 and to rectify the same."

Similarly in the case of Radhey Shyam (supra), the

co-ordinate Bench of this Court dealt with the similar issue as

under:

"It is essentially submitted that the requisite benefits have been denied to the petitioner only on the ground of his having failed to acquire the qualification of BSTC within three years and such an approach of the respondents remains illegal inasmuch as he is entitled to get all the service benefits available to the post held once he has acquired the requisite qualification.

[2023/RJJP/003163] (9 of 10) [CW-6868/2016]

The learned counsel for the parties are ad idem that the other writ petitions involving similar issues have since been considered and allowed by this Court in the light of the decision in S.B. Civil Writ Petition No. 1899/2005 : Bhagwanti Jeengar & Anr. Vs. State of Rajasthan & Ors., decided on 04.08.2006 wherein this Court has, inter alia, held that the grant of study leave is not at all dependent on the period prescribed for acquiring the eligibility; and it has been held that there were no just and valid reason to deny study leave and other consequential benefits to the incumbents. The proposition aforesaid squarely apply to the present case too.

Accordingly, this writ petition is allowed in terms of the orders passed in relation to the similarly placed persons; and the respondents shall, accordingly, sanction the study leave to the petitioner and make fixation of the petitioner in the revised pay scales. The petitioner shall also be entitled for getting annual grade increments in accordance with the Rules, if not otherwise disentitled."

In view of the settled proposition of law as decided by

the Division Bench and co-ordinate Bench of this Court, the

petitioners are entitled to get study leave for a period of one year

during which actually they got the training / took the studies from

their respective colleges.

So far as the third issue is concerned, the petitioners

are not entitled to get selection scale w.e.f. initial date of their

appointment for the reason that as per Rule 9 of the Rules of 1996

their services were confirmed w.e.f. the date they acquired the

requisite qualification. Hence, the petitioners are entitled to get

the benefit of selection scale and other actual service benefits

from the date of acquisition of the requisite qualification.

[2023/RJJP/003163] (10 of 10) [CW-6868/2016]

The circular dated 02.06.2020 relied upon by the

counsel for the petitioner is not applicable in the facts and

circumstances of the case for the reason that the candidates

would be entitled to get the benefit of all benefits w.e.f. their initial

date of appointment provided they possess the requisite

qualification on the date of their appointment but here in this case

the petitioners were not in possession of the requisite qualification

at the time of their appointment and they acquired the same in

the years 2004 and 2005 respectively.

In view of the discussions made herein above, the writ

petition is disposed of with the direction to the respondents to

grant notional benefits to the petitioners w.e.f. the date of their

initial appointment and consequential benefits would be granted to

the petitioners including the selection scale w.e.f. the date of

acquisition of the requisite qualification.

Apart from above, the petitioners would be entitled to

get the benefit of the study leave of one year.

Needless to observe that the respondents would pass

necessary orders in compliance of the above order, within a period

of two months from the date of receipt of a certified copy of this

order.

All application (pending, if any) also stand disposed of.

(ANOOP KUMAR DHAND),J

KuD/26

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