Rajasthan High Court - Jodhpur
Smt. Hema Sharma vs State Of Raj. And Ors on 30 January, 2023
Bench: Rekha Borana
[2022/RJJD/030430]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 12768/2016
Smt. Hema Sharma W/o Shri S.K. Sharma, aged about 45
yerars, 146 Balaji Road, Masuriya, Jodhpur.
----Petitioner
Versus
1. The State Of Rajasthan Through The Secretary,
Sanskrit Education Department, Secretariat, Jaipur
Rajasthan.
2. The Director, Sanskrit Education, Jaipur, Rajasthan.
3. The Joint Director, Sanskrit Education, Jaipur.
4. The Divisional Officer, Department Of Sanskrit
Education, Division Jodhpur, Jodhpur.
----Respondents
For Petitioner(s) : Mr. Manoj Bhandari, Sr. Advocate
assisted by Mr. Aniket Tater
For Respondent(s) : Mr. Anil Kumar Gaur, AAG
HON'BLE MS. JUSTICE REKHA BORANA
Judgment
30th January, 2023
The present petition has been filed against the order
dated 24.8.2016 (Annexure-9) whereby the request of the
petitioner for counting her past services for the purposes of
conferment of selection grade, seniority, promotion and
pension has been rejected.
The facts of the case are that the petitioner was
initially appointed on 12.9.1995 as a lecturer with Shri
Pareek Varisth Upadhyay Sanskrit Vidyalaya, Nagaur which
[2022/RJJD/030430] (2 of 18) [CW-12768/2016]
was an Institution receiving aid from the Government. She
was confirmed on the said post on 11.9.1996 and continued
to work with the said institute for a period of almost 12
years. In the year 2007, she was selected by the Rajasthan
Public Service Commission (RPSC) in pursuance to direct
recruitment on the post of Head Master and was afforded
appointment with effect from 24.07.2007. After completion
of two years' probation period, she was fixed in the pay
scale of 9300--34800 with a grade pay of Rs. 4200 /- with
effect from 30.7.2007.
In the year 2010, a scheme for absorption of the
employees working with the Non- Governmental
Educational Institutes in the government services was
introduced and the rules governing their terms and
conditions of service were framed with the nomenclature as
"Rajasthan Voluntary Rural Education Service Rules, 2010"
(hereinafter referred to as 'the Rules of 2010'). The said
Rules were framed specifically for regulating the
appointment and other service conditions of the persons
appointed in terms of the said Rules. In terms of the said
Rules, the employees working with the Non-Government
Aided Educational Institutes were given an option to be
appointed under the said Rules of 2010 and were granted
appointment on the terms and conditions as prescribed
under the said Rules. Rule 5 (iv) of the rules of 2010
provided that the employees appointed in terms of the said
[2022/RJJD/030430] (3 of 18) [CW-12768/2016]
rules would be allowed the benefit of Assured Career
Progression/Career Advancement Scheme as allowed to
other employees of State Government. The rule further
provided that the period from the date of their appointment
on the sanctioned and aided posts would be counted for the
purpose of grant of Assured Career Progression/Career
Advancement Scheme. This condition in the Rules of 2010
is the one on the basis of which the petitioner is claiming
parity and therefore, moved representation dated
27.07.2016 with a prayer that her services with the
previous aided institute be counted for the purposes of
financial upgradations as well as other service benefits. It
was also prayed that she be granted the protection of pay
with effect from her date of selection in the government
services as she ought to have been fixed on the pay scale
equivalent to the last pay she was receiving prior to her
present appointment. The said representation of the
petitioner was rejected vide communication dated
24.8.2016 on the premise that she had been appointed in
pursuance to the direct recruitment in the year 2007 and
therefore the Rules of 2010 would not be applicable on her.
It is the said rejection that is under challenge in the present
petition.
Learned senior counsel Mr. Manoj Bhandari appearing
on behalf of the petitioner submitted that the petitioner was
working on a sanctioned and regular post in an institute
[2022/RJJD/030430] (4 of 18) [CW-12768/2016]
receiving the aid by the Government and therefore was
entitled to be treated equivalent to the employees absorbed
with the Government in terms of Rules of 2010. Vide the
Rules of 2010, all those employees who were equivalent to
her have been granted the benefit of the years of service
put in by them in the aided institute and therefore she is
also entitled to the said benefit in parity. Counsel further
submitted that although the petitioner stands on the same
footing, her past services are not been counted for the
purposes of grant of Assured Career Progression whereas,
the employees absorbed in terms of Rules of 2010 are
being granted the benefit of Assured Career Progression
counting their services from the date of their initial
appointment with the Aided Institute. Therefore she,
although being equally situated and discharging the same
duties, is deprived of the equivalent benefits. Learned
senior counsel further submitted that in terms of Rule 26 of
the Rajasthan Service Rules, 1951 (hereinafter referred to
as 'the RSR') she is entitled to the protection of pay and
non-grant of the same being wholly illegal deserves
interference by this Court. Counsel further submitted that in
terms of Rule 33 of the Rajasthan Civil Services (Pension)
Rules, 1996 (hereinafter referred to as 'Pension Rules')
petitioner is entitled for counting of her past services for the
purposes of pension too.
[2022/RJJD/030430] (5 of 18) [CW-12768/2016]
In support of his submissions, learned senior counsel
Mr. Manoj Bhandari relied upon the judgment rendered by
the Hon'ble Apex Court in the case of S.I. Rooplal and
Ors. Vs. Lt. Governor through Chief Secretary, Delhi
and Ors. [(2000) 1 SCC 644] and the judgments passed
by this Court in the matters of K.C. Joshi Vs. State of
Rajasthan & Ors. (S.B.Civil Writ Petition
No.2196/2002) decided on 4.9.2008 and Dr. Rajeev
Mangal versus State of Rajasthan & Ors. (S.B. Civil
Writ Petition NO.1592/2008) decided on
22.05.2008.
Per contra, learned Additional Advocate General
appearing for the respondents submitted that the reliefs as
prayed for by the petitioner are totally misconceived as the
petitioner was appointed through Direct Recruitment in the
year 2007 and the rules in question, 'the Rajasthan
Voluntary Rural Education Service Rules, 2010' were even
introduced in the year 2010. Therefore, the Rules of 2010
could not have been given a retrospective effect and the
petitioner could not be granted any benefit in terms of the
rules which were not even applicable on her. Further, Rules
of 2010 were applicable for only those employees who were
absorbed in government services in terms of the conditions
as prescribed under the said Rules. Admittedly, the
petitioner was not absorbed in the government services and
therefore the said Rules could not have been applicable on
[2022/RJJD/030430] (6 of 18) [CW-12768/2016]
her. So far as Rule 26 of the RSR is concerned the same is
applicable only for the government employees and
admittedly the petitioner was not a 'Government employee'
prior to her appointment in the year 2007. An employee
working with an aided institute cannot be termed to be a
government servant by any interpretation and therefore,
the petitioner cannot be governed either by Rule 26 of the
RSR or by Rule 33 of the Pension Rules.
Heard learned counsel for the parties. Perused the
material available on record.
It is an admitted fact on record that the petitioner was
working on a sanctioned post with an institute recognised
and receiving aid from the State Government. The institute
with which the petitioner was working was admittedly a
"Non-Government Aided Educational Institution". As soon as
the petitioner claims parity on basis of the Rules of 2010,
she ipso facto agrees to the fact that she was working with
a Non-Government Institute as the Rules of 2010 had
been framed only for the employees working with a Non-
Government Aided Educational Institution. Therefore, the
claim of the petitioner for protection of pay in terms of Rule
26 of the RSR and counting of the past services in terms of
Rule 33 of the Pension Rules falls flat on the face of it. Rule
26 of the RSR opens with the words, "A Government
servant..........". Similarly, Rule 33 of the Pension Rules also
starts with the words "A Government servant.............". For
[2022/RJJD/030430] (7 of 18) [CW-12768/2016]
ready reference, Rule 26 of the RSR and Rule 33 of the
Pension Rules are reproduced hereunder:
"26.(1) A Government servant already
serving in one service, cadre or department
who is appointed to another service, cadre or
department by direct recruitment or special
selection, (including transfer other than by
deputation) cadre or department to another)
and not by promotion according to service
rules, shall have his initial pay fixed as
follows:
CATEGORY LAST PAY ON OLD INITIAL PAY ON NEW POST
POST
(a) Substantive on (a) Persons in category (a)
a permanent shall have pay fixed as in
post and not the manner stated below-
officiating on a (i) If the maximum of the
higher post. scale of the new post is
higher than the maximum of
the old post, then pay shall
be fixed at the stage of the
time scale of the new post
next above the last
substantive pay in the old
post. (ii) If the maximum of
the scale of the new post is
equal to the maximum of
the old post, then pay shall
be fixed at the stage of the
time scale of the new post
which is equal to his last
substantive pay on the old
post, or if there is no such
stage, the stage next below
that pay plus personal pay
equal to the difference. (iii)
If the maximum of the scale
of the new post is lower
than the maximum of the
old post, than the pay shall
fixed at the stage which he
would have been entitled to
as if the period of service
rendered on the old post
would have been counted as
rendered against the new
post, subject to the
condition that the pay fixed
[2022/RJJD/030430] (8 of 18) [CW-12768/2016]
shall be restricted to the
pay last drawn in the old
post. (iv) If minimum pay
on the new post is higher
than pay admissible under
clause (i), (ii) & (iii) above,
than minimum pay shall be
allowed.
(b) (i) (b) Persons covered by any
Substantive paragraph in category (b)
on a lower shall have pay fixed in the
post but manner stated below--
officiating on (i) If minimum pay of the
a higher new post is equal or higher
permanent or than the last pay in the old
temporary post other than that held
post in the substantively, then the
same service, minimum pay
cadre or
department (ii) If minimum pay of the
provided that new post, is lower than last
such pay in the old post other
officiation was than that held
in accordance substantively, then pay
with the shall be fixed at the stage
provisions of of the time scale which is
Service Rules equal to his last pay in the
relating to old post or if there is no
promotion, such stage, the stage next
promulgated below that pay plus
under proviso personal pay equal to the
to Article 309 difference:
of the
Constitution. Provided that if the
maximum of the scale of
(ii) Temporary the new post is lower than
on a the maximum of the old
permanent or post, than the pay shall be
temporary fixed at the stage which he
post, provided would have been entitled
that to as if the period of
appointment service rendered on the old
was made by post would have been
direct counted as rendered
recruitment, against the new post,
promotion, subject to the condition
special that the pay so fixed shall
selection, be restricted to the pay
Emergency last drawn in the old post.
recruitment or
as a part of Provided further that if
initial fixation of pay on the basis
[2022/RJJD/030430] (9 of 18) [CW-12768/2016]
constitution of of pay admissible on
a service or substantive post in
cadre, in accordance with paragraph
accordance (a) (i) or (a) (ii) or (a) (iii)
with provision above is more
of the Service advantageous, pay shall be
Rules relating fixed under the said
to clauses.
recruitment,
promotion,
and initial
constitution
promulgated
under proviso
to Article 309
of the
Constitution.
(iii)
Temporary on
a permanent
or temporary
post, provided
that if there
are no service
rules
promulgated
under proviso
to Article 309
of the
Constitution
and the post
was within the
purview of the
R.P.S.C.,
appointment
was made on
the advice of
the RPSC.
(iv)
Temporary on
a permanent
or temporary
post, provided
that
appointment
had been
made in the
process of
absorption of
persons
[2022/RJJD/030430] (10 of 18) [CW-12768/2016]
declared
'surplus' due
to abolition of
posts, and
that pay
drawn on the
abolished post
was of the
type described
in paragraphs
(a), (b) (i),
(b) (ii) and
(b) (iii) above.
(c) (i) Temporary (c) Persons covered by any
on a paragraphs in category (c)
permanent or shall have pay fixed in the
temporary manner stated below:--
post having Minimum of the scale or at
been such higher stage as may
appointed be approved by the
adhoc without Government on the
following the recommendation of the
procedure laid Rajasthan Public Service
down in the Commission or if the post
Service Rules is outside the purview of
promulgated the Rajasthan Public
under proviso Service Commission, on
to Article 309 the recommendation of the
of the selecting authority.
Constitution ,
or the
Rajasthan
Public Service
Commission
(Limitation of
Functions)
Regulation
and
Government
instructions
issued
thereon.
(ii) Temporary
on a
permanent or
temporary
post, having
been
appointed in
the process of
[2022/RJJD/030430] (11 of 18) [CW-12768/2016]
absorption of
person
declared
'surplus' due
to abolition of
post but pay
drawn on the
abolished post
was not of the
type described
in paragraphs
(a), (b)(i),(b)
(ii) and (b)
(iii) above.
(iii)
Temporary on
a permanent
or temporary
post,
appointment
to which is not
regulated by
any Service
Rules
promulgated
under proviso
to Article 309
of the
Constitution
and which is
also not within
the purview of
the Rajasthan
Public Service
Commission.
(iv)
Temporary on
a permanent
or temporary
post other
than of the
type described
in paragraphs
(i)to(iii)above.
# "Provided that during probation training
period the provisions of this rule shall not be
applicable. The probationer-trainee shall be
allowed pay in his / her own pay scale of the
previous post or fixed remuneration as per
provisions of Rule 24. After successful
[2022/RJJD/030430] (12 of 18) [CW-12768/2016]
completion of probation training his/ her pay
shall be fixed under the provisions of this
rule." (2) Pay for the purpose of sub-rule (1)
shall mean substantive pay, officiating pay and
pay on temporary post and shall not include
special pay. (3) When appointment to the new
post is made at the request of the Government
servant under Rule 20(a) or Rule 215(b) and
the maximum pay in the time scale of new
post is lower than his last pay in the old post,
he will draw that maximum of new post as
initial pay, (4) (a) In respect of a Government
servant whose initial pay is fixed under
paragraph (a) (ii), (a) (iii) and (b) (ii) of sub-
rule (1) of this rule, the service rendered on
his previous post since drawal of last
increment shall be counted for purposes of
grant of increment in the new post.
Exception.- If a Government servant in service
as probationer/on probation is appointed to
new post before completion of the prescribed
period of probation satisfactorily, the period of
service rendered on old post shall not be
counted for this purpose on the new post. (b)
In cases other than (a) above, next date of
increment shall be allowed on completion of
the full requisite qualifying service counting for
increment under Rule 31 of Rajasthan Service
Rules."
Rule 33 of the Pension Rules states as under:
"33. Pension on absorption in or under
a corporation, company or body:
A Government servant who has been
permitted to be absorbed in a service or
post in or under a corporation or company
wholly or substantially owned or controlled
by the Government or in or under a body
controlled or financed by the Government
shall, if such absorption is declared by the
Government to be in the public interest, be
deemed to have retired from service from
the date of such absorption and shall be
eligible to receive retirement benefits
[2022/RJJD/030430] (13 of 18) [CW-12768/2016]
which he may have elected or deemed to
have elected, and from such date as may
be determined, in accordance with the
orders of the Government applicable to
him."
A bare perusal of the above provisions makes it clear
that only a Government servant, if absorbed/ transferred/
deputed to some other Government service would be
entitled to the benefits in terms of the above provisions.
The reliance of the petitioner on the Rules of 2010 is a clear
admission of the fact that she was working with Non-
Government Aided Educational Institute and therefore the
said admission itself is sufficient to hold that she would not
be entitled to any benefit in terms of the above provisions.
Now, coming on to the issue whether, the petitioner
would be entitled for the benefits in terms of Rule 5 of the
Rules of 2010 equivalent to the employees who were
absorbed in terms of the said Rules.
For the adjudication of the said issue, consideration of
the relevant aspects is as under :
1. A perusal of the Rules of 2010 shows that the said rules
were framed with an intent to fill up the vacancies in the
remote and the rural areas. The specific condition of Rule
5(iii) of the Rules of 2010 laid down that the appointed
employees shall be posted only in the colleges/schools in
the rural areas. The term "rural area" has been defined in
Rule 2 (m) of the Rules of 2010 as under:
[2022/RJJD/030430] (14 of 18) [CW-12768/2016]
"(m) "rural area" means the entire State of
Rajasthan except the following areas:-
(i) an area for which a municipality has been
constituted under the Rajasthan Municipality
Act, 2009 (Act No. 18 of 2009) or an Urban
Improvement Trust has been constituted
under Rajasthan Urban Improvement Act,
1959 (Act No. 35 of 1959) or an Authority
has been constituted under the Jaipur
of 1982) or Jodhpur Development Authority
Act, 2009 (Act No. 02 of 2009) or any other
Development Authority Constituted by the
State Government under the relevant Act,
(ii) the urbanisable limits as indicated in the
master plan or the master development plan
of a city or town prepared under any law for
the time being in force, and where there is
no master plan or master development plan,
the municipal limits of the area,
(iii) the peripheral belt as indicated in the
master plan or master development plan of a
city or a town prepared under any law for the
time being in force, and where there is no
master plan or master development plan or
where peripheral belt is not indicated in such
plan, the area as may be notified by the
Urban Development Department/Local Self
Government Department of the State
Government from time to time;
xxxx"
Admittedly, the petitioner entered into the
Government service in the year 2007 without any such
condition and was afforded posting in an urban area and is
admittedly working at Jodhpur till date.
2. Rule 5 (iv) of the Rules of 2010 provides that the
employees appointed under these rules shall not be entitled
for any promotion till they attain the age of superannuation.
In lieu of the said detriment, they had been allowed the
benefit of ACP counting the period from the date of their
appointment on the sanctioned and aided post. Admittedly,
[2022/RJJD/030430] (15 of 18) [CW-12768/2016]
the petitioner who has entered into Government service
through regular recruitment would be entitled to all
promotional avenues as well as financial upgradations
permissible to the government employees in terms of law.
3. Further, Rule 5(x) of the Rules of 2010 provided that
the period of service in the aided institutions shall not be
counted for the payment of gratuity. Rule 5(ix) of the Rules
of 2010 provided that if the CPF contribution of the
employee would not be deposited by the institute wherein
the employee was working prior to the date of their joining,
the Government contribution would not be paid by the State
Government. It is not the case of the petitioner that she
did not receive her gratuity as well as the CPF amount from
the institute wherein she was working prior to her selection
by the RPSC in the year 2007.
From the above provisions of Rules of 2010, it can
very well be concluded that the petitioner cannot be termed
to be equivalent to the employees absorbed in terms of the
Rules of 2010. It is the settled proposition of law that a
person cannot approbate and reprobate. On one hand, the
petitioner is availing the benefits of working in an urban
area, promotional avenues and would be availing the
benefit of pension after retirement which admittedly, the
employees absorbed in terms of the rules of 2010 are not
availing rather they have been, by the conditions of the
appointment itself, deprived of the said benefits. By any
[2022/RJJD/030430] (16 of 18) [CW-12768/2016]
means, it cannot be held that the petitioner is discharging
the same duties as the absorbed employees.
Coming on to the issue whether the petitioner could
be governed by the Rules of 2010 on the premise of she
also having been an employee of a Non-Government
Educational Institute, it is relevant to note that the said
rules came into existence in the year 2010. The petitioner
was appointed by way of direct recruitment in the year
2007, that is, much prior to the Rules of 2010 even coming
into existence. The Rules of 2010 have not been given a
retrospective effect and it is the settled proposition of law
that any piece of Legislation cannot be given a retrospective
effect unless and until the same has been provided in the
statute itself. Even if for the sake of arguments, the ground
as raised by the petitioner is accepted, the same would
result into an absurd proposition opening a Pandora's box of
Litigation. There would be thousands of employees working
with the Non-Government Aided Educational Institutes prior
to 2010 who would have entered Government services vide
some mode of recruitment at some point of time prior to
2010. If the Rules of 2010 would be given a retrospective
effect, the same would apply to all those thousands of
employees resulting into a chaos. The question then would
arise as to what would be the outer limit to which the Rules
of 2010 can be given a retrospective effect. It cannot be
presumed that an employee like the present petitioner, who
[2022/RJJD/030430] (17 of 18) [CW-12768/2016]
was appointed in 2007, would be extended the benefits in
terms of the Rules of 2010 and the employees appointed
prior to 2007 would not be granted the said benefits. No
distinction can therefore be made between any of the
employees who entered into government service prior to
2010. Neither can such be the intention of the legislation
and this Court is of the specific opinion that no such absurd
proposition can be given a way to.
So far as the judgments relied upon by the learned
senior counsel for petitioner are concerned, all of them
relate to the cases wherein the parties were admittedly the
Government servants who were either transferred or
deputed or absorbed in some other Government service.
The ratio as laid down in the said judgments would
definitely not apply to the present petitioner as firstly, she
was not a 'Government Servant' prior to her appointment in
the year 2007 and secondly, she was neither absorbed nor
deputed nor transferred from one Government service to
some other Government service.
One more important aspect of the matter is that the
petitioner was appointed in the year 2007, was confirmed in
the year 2009 and the rules under consideration came into
effect in the year 2010. Till all this time, the petitioner did
not raise any grievance and it is only in the year 2016 when
for the first time she preferred a representation for the
reliefs prayed for in the present Writ Petition. The two
[2022/RJJD/030430] (18 of 18) [CW-12768/2016]
representations placed on record also substantiates the said
fact as the first representation is un-dated and no proof of
the same having being sent or served has been placed on
record. The second representation mentions the same to be
of 27.7.2016 which has been responded immediately vide
the impugned communication dated 24.8.2016. Meaning
thereby, the grievance if any, was raised for the first time in
the year 2016 only. Therefore also, any grievance regarding
the benefits paid to the petitioner at the time of her
appointment in the year 2007 being raised in the year 2016
cannot be entertained by this Court at such a belated stage.
The claim of the petitioner for pay protection is firstly not
tenable in view of the observations made in the preceding
paras and secondly, even if she had any such right, the
same would clearly be termed to have been waived by her
and any relief qua the said grievance after a period of nine
(9) years can not be entertained also on the ground of
delay and laches.
In view of the above observations, this Court is not
inclined to interfere in the present writ petition and the
same being devoid of merits is therefore, dismissed. The
stay petition and all the pending applications also stand
disposed of.
vij/- (REKHA BORANA),J
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