Vimal Kumar Son Of K.B. Sharma vs Rajasthan State Agriculture ...
2023 Latest Caselaw 627 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

              S.B. Civil Writ Petition No. 11695/2021

Vimal Kumar Son Of K.b. Sharma, Aged About 61 Years,
Resident Of 9/120, Malviya Nagar, Jaipur.
                                                                   ----Petitioner
                                   Versus
1.     Rajasthan State Agriculture Marketing Board, Pant Krishi
       Bhawan, Janpath, Jaipur Through The Secretary.
2.     General Manager, Rajasthan State Agriculture Marketting
       Board, Pant Krishi Bhawan, Janpath, Jaipur.
                                                                ----Respondents

For Petitioner(s)        :     Mr.PS Tomar
For Respondent(s)        :     Mr.RK Paliwal ]
                               Mr.MK Dhakad ] for Mr.RA Katta



         HON'BLE MR. JUSTICE ASHOK KUMAR GAUR

                                    Order

18/01/2023

The instant writ petition has been filed by the petitioner by

making following prayer :-

"1. The respondent may kindly be direct to count the services of the petitioner from 1.4.1980 to 30.4.1993 for the purpose of computation of pension and accordingly make payment of pension, by counting his services from initial date of appointment i.e. 1.4.1980 with all consequential benefits and the arrears thereof with interest @ 12 P.A.

2. Any prejudicial order to the interest of the petitioner, if passed during the pendency of the writ petition, the same may kindly be taken on record and be pleased to quash and set aside."

Learned counsel for the petitioner submitted that the

recruitment process was initiated way-back in the year 1979 by

(2 of 7) [CW-11695/2021]

the Rajasthan State Agriculture Marketing Board (for short "the

respondent Board") for making appointment on the post of Lower

Divisional Clerk (LDC) and the petitioner had also applied in

pursuance of the same advertisement.

Learned counsel for the petitioner submitted that the

petitioner was declared successful in the written examination and

also called for interview, however, the entire selection process was

cancelled by the respondents and as such, several petitions came

to be filed before this Court and therein directions were given by

this Court to give appointment to the selected candidates.

Learned counsel submitted that in spite of the order upheld

by the Division Bench when no appointment order was issued, the

petitioner also filed SB Civil Writ Petition No.4951/1991

(Vimal Kumar Vs. RSAMB & Ors.) and this Court, vide order

dated 03rd January, 1992, directed the respondent Board to

appoint the petitioner on the post of LDC within a period of two

months and the petitioner was to be given seniority as per the

select list.

Learned counsel submitted that the said order was

challenged before the Division Bench and the appeal, filed by the

respondents, was dismissed with cost.

Learned counsel submitted that thereafter, the petitioner

came to be appointed on the post of LDC and his seniority was

fixed w.e.f. 01st April, 1980.

Learned counsel submitted that after rendering services, the

petitioner was also granted benefit of selection scale on

completion of 9, 18 and 27 years of services and the respondents

had taken into account the initial date of appointment of the

petitioner as 01st April, 1980 for giving all the benefits.

(3 of 7) [CW-11695/2021]

Learned counsel submitted that the petitioner attained the

age of superannuation on 30 th March, 2021, however, while

counting the qualifying services for the purpose of pension, the

respondents have not taken into account the service, rendered by

the petitioner from 01st April, 1980 to 30th April, 1993.

Learned counsel submitted that the respondents wrongly

informed the petitioner that since contribution of the petitioner

has been made to CPF w.e.f. 01 st May, 1993 and as such, the

entire service was not to be counted.

Learned counsel submitted that similarly situated person i.e.

Uma Mathur had filed a writ petition before this Court SB Civil

Writ Petition No.15821/2016 (Smt.Uma Mathur Vs.

Rajasthan State Agriculture Marketing Board & Ors.) and the

said petition came to be allowed and accordingly, the respondents

issued an order dated 30th January, 2017 in compliance of the

order, passed by this Court in SB Civil Writ Petition

Nos.15821/2016, 15817/2016 & 15439/2016 and all these

persons were granted benefits w.e.f. 01st April, 1980, 05th August,

1998 and 27th April, 1988, respectively.

Learned counsel submitted that the petitioner also requested

the respondents by giving representation but no heed was paid

and as such, he has been forced to approach this Court.

Learned counsel submitted that the respondents cannot take

into account service of the petitioner w.e.f. 01 st May, 1993 only on

account of deduction of CPF and once, the petitioner was given

appointment w.e.f. 01st April, 1980, the entire service is required

to be counted.

(4 of 7) [CW-11695/2021]

Learned counsel for the petitioner further submitted that

similarly situated persons have been extended benefits and as

such, the petitioner cannot be discriminated.

Per contra learned counsel for the respondents submitted

that the petitioner is not entitled for the relief, which is claimed in

the present writ petition.

Learned counsel submitted that the first date of deduction of

CPF account of the petitioner was 01st May, 1993 and as per rules

of pension, the benefit of pension is to be given to the petitioner

from the first date of deduction of CPF account and prior to 18 th

February, 1993, the petitioner had not deposited any amount in

CPF contribution.

Learned counsel further submitted that the petitioner was

allowed to join his duties on 18th February, 1993 but he was given

only notional benefit of seniority w.e.f. 01st April, 1980 in

compliance of the order, passed by this Court and as such, the

petitioner, who was not in service, cannot get benefit of qualifying

service, as has been claimed in the present petition.

Learned counsel further submitted that the issue with regard

to decision, passed by this Court in the case of Smt. Uma Mathur

(supra) is not applicable in the present facts of the case and as

such, no parity can be claimed by the petitioner.

I have considered the submissions made by learned counsel

for the parties and perused the record of the case.

This Court finds that in the earlier round of litigation, while

allowing the writ petition filed by the petitioner, this Court had

directed the respondent Board to give appointment to the

petitioner and his appointment was to be as per the judgment

passed by this Court earlier on 04 th December, 1985, whereby two

(5 of 7) [CW-11695/2021]

other persons, namely, Uma Mathur and Radhey Shyam were

given appointment and as such, this Court directed that case of

the petitioner was also required to be considered and the same

benefits were to be given.

This Court further finds that after the decision, passed by the

Single Bench, special appeal was filed by the respondent Board

and the same appeal came to be dismissed.

This Court finds that the respondents issued an order on 12 th

September, 1997, whereby they appointed the petitioner and gave

him seniority w.e.f. 1980.

This Court further finds that the respondents did not grant

actual benefits to the petitioner, as was directed by this Court but

the notional benefits were given to him by fixing him in the pay

scale and actual benefit was granted to the petitioner from 25 th

July, 1992.

The issue, before this Court, is in respect of counting

services, rendered by the petitioner w.e.f. 1980 or from later date.

This Court finds that the respondents cannot take a plea now

that since the petitioner was appointed after decision of Division

Bench in the year 1997, his past service, which was required to be

taken into account from 1980, can be denied to him.

This Court further finds that the respondents themselves

considered qualifying service of other similarly situated candidates

from the date of their initial appointment in spite of issuance of

appointment order, at later point of time, such persons have been

extended benefit and as such, the respondents cannot make a

discrimination in considering case of the petitioner while counting

services for the purpose of pension and other retiral benefits.

(6 of 7) [CW-11695/2021]

This Court finds substance in the submission of learned

counsel for the petitioner that appointment order of the petitioner

is to relate back as per the directions given by this Court initially

and if the litigation was initiated by the respondent Board and

ultimately, the appeal, filed by the respondent Board was also

dismissed, the same cannot deprive the petitioner from getting

the benefit, for which, he became entitled.

The submission of learned counsel for the respondents that

since the contribution/deduction of CPF account was made by the

petitioner from 01st May, 1993 and as such, the said date is to be

reckoned for the purpose of qualifying service, this Court rejects

the said submission, as this Court finds that deduction of CPF

account from a particular date will not deprive the petitioner, if his

appointment is treated from 1980. If the employer has delayed

appointment, the same should not result into putting a premium

on the illegal act, which is committed by the employer.

The submission of learned counsel for the respondents that

the petitioner was in fact appointed in the year 1997 and only by

getting his seniority, no benefit can be claimed by him, suffice it

say by this Court that if appointment of the petitioner is to relate

back to the year 1980, the date for counting qualifying service

cannot be shifted to the year 1993 or 1997.

Accordingly, this Court finds that the issue with regard to

counting of qualifying service of the other similarly situated

persons has also been decided by this Court in earlier round of

litigation and as such, the petitioner cannot be discriminated.

In view of the above, the present writ petition stands

allowed. The respondents are directed to count service of the

petitioner from 01st April, 1980 to 30th April, 1993 for the purpose

(7 of 7) [CW-11695/2021]

of computation of pension and other post retiral benefits and

accordingly, revision in pension shall be made by the respondents

by giving benefits to the petitioner within a period of six weeks

from the date of receipt of copy of this order.

This Court also directs the respondents to grant interest @

9% per annum on the differential amount to be paid to the

petitioner, as the petitioner has illegally been deprived from his

rightful claim by the respondents for a considerable period.

(ASHOK KUMAR GAUR),J

Preeti Asopa /32

Powered by TCPDF (www.tcpdf.org)