Rajasthan High Court - Jodhpur
Tikama Ram vs State Of Rajasthan on 11 May, 2023
Bench: Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 8483/2021
Tikama Ram S/o Shri Maga Ram, Aged About 61 Years, R/o
Indra Colony, Barmer, District Barmer.
----Petitioner
Versus
1. State Of Rajasthan, Through Secretary, Public Health And
Engineering Department, Government Of Rajasthan,
Jaipur.
2. The Chief Engineer (Admn), Public Health And
Engineering Department, Rajasthan, Jaipur.
3. The Additional Chief Engineer, Circle-Ii, Jodhpur.
4. The Superintendent Engineer, Public Health And
Engineering Department, Division Barmer.
5. The Executive Engineer, Public Health And Engineering
Department, Balotra Division, Balotra.
6. The Assistant Engineer, Public Health And Engineering
Department, Sub-Division Balotra.
7. Joint Director, Pension And Pensioners Welfare
Department, Barmer.
----Respondents
For Petitioner(s) : Mr. Manoj Bohra
For Respondent(s) : Ms. Anjana Jawa, through VC with
Mr. Mohit Singh Choudhary (for
respondent No.1-6)
Mr. Ravi Panwar, AGC (for respondent
No.7)
JUSTICE DINESH MEHTA
Order
11/05/2023
I.A.No.01/2023:
1. The State has preferred the present application seeking
vacation of the interim order passed by this Court on 08.07.2021,
whereby this Court has restrained the respondents from effecting
recovery from the petitioner.
2. The petitioner has preferred the present writ petition with
the following prayer:
" A. That by an appropriate writ, order or direction,
the impugned recovery order dated 17.06.2021
(2 of 5) [CW-8483/2021]
(Annex.10) passed by the respondent No.2 may
kindly be quashed and set-aside.
B. Further by an appropriate writ, order or
direction, the respondent may kindly be modified
the order dated 19.08.2021 (Annex.4) to the extent
that to confer permanent status on the post of
Driver instead of Helper to the petitioner with all
consequential benefits.
C. Further by an appropriate writ, order or
direction, the respondent may kindly be directed to
release the retiral benefits of the petitioner
forthwith along with interest @ 18 % pa.
D. Any other writ, order, direction which this
Hon'ble court deems fit tin the interest of justice
and the petitioner may kindly be passed.
E. Costs of the writ petition may kindly be awarded
to the petitioner."
3. Requisite facts in brief are that the petitioner was appointed
on the post of chowkidar on 25.11.1980 as an ad-hoc employee;
he was given semi permanent status on 26.11.1982; from
01.04.1982, he was asked to work as a driver; on 16.01.1989, he
was made helper and was given permanent status as a helper by
order dated 19.08.1991. On 22.09.1992, the petitioner was given
ad-hoc promotion as a driver, however, said order was cancelled
by an order passed on 25.06.1993. The petitioner preferred a writ
petition in which said order dated 25.06.1993 was stayed. Said
writ petition was, however, dismissed on 03.07.2006.
4. On 31.07.2020, the petitioner retired whereafter the
impugned recovery notice dated 17.06.2021 has been issued
seeking to recover the difference of salary paid to the petitioner
(as a driver) and the salary payable to a helper. Said order has
been stayed by this Court per-viam interim order dated
08.07.2021, passed in the present writ petition.
(3 of 5) [CW-8483/2021]
5. Ms. Anjana Jawa, learned counsel for the applicant submitted
that the petitioner has wrongly been paid salary as a Driver,
though his writ petition challenging the cancellation of promotion
to the post of Driver was dismissed by this Court on 03.07.2006.
6. She submitted that the petitioner was asked to work as
Driver vide order dated 22.09.1992 for a short period of three
months, later on the order was cancelled on 25.06.1993. She
added that the order dated 25.06.1993, whereby petitioner's ad-
hoc promotion to the post of Driver has been cancelled, was
challenged by the petitioner by way of writ petition being S.B. Civil
Writ Petition No.3027/1993 and said writ petition has been
dismissed by this Court on 03.07.2006.
7. Having highlighted the facts aforesaid, learned counsel
argued that since, cancellation of petitioner's so called promotion
as Driver vide order dated 25.06.1993 has been affirmed by this
Court, the petitioner cannot be treated to have served and retired
as a Driver.
8. Learned counsel argued that the petitioner had dispensed his
services as Class IV and helper and he has retired as such. No
formal order of promotion as Driver has been passed in his favour,
hence, the recovery initiated against the petitioner is valid and
justified.
9. Mr. Bohra, learned counsel for the petitioner on the other
hand submitted that maybe there was no formal order of
promotion and the order dated 25.06.1993, cancelling petitioner's
promotion to the post of Driver has been affirmed by the High
(4 of 5) [CW-8483/2021]
Court, but the fact remains that until his superannuation, the
petitioner had worked as a Driver.
10. It was submitted that the petitioner was a low paid employee
and there was no misrepresentation on his part. Hence, recovery
of the alleged excess salary would be violative of his fundamental
rights and against the law laid down by Hon'ble the Supreme
Court in the case of State of Punjab & Ors. Vs. Rafiq Masih (White
Washer) reported in (2015) 4 SCC 334.
11. Heard learned counsel for the parties and perused the
record.
12. It is to be noted that even in the order dated 26.06.2020,
passed by the respondents superannuating the petitioner, the
respondents themselves have addressed him as a Driver. This
clearly shows that the respondents have always treated the
petitioner as a Driver, even at the time of his superannuation.
13. True it is, that vide order dated 03.07.2006, this Court had
rejected petitioner's writ petition, in which he had challenged
order dated 25.06.1993, cancelling his promotion, nevertheless,
the fact remains that the respondents had not given effect to such
order and have not only taken petitioner's services as a Driver but
have paid him accordingly.
14. So far as the fact that the petitioner has worked as a Driver,
is not in dispute.
15. According to this Court, on the basis of principle of 'Equal
Pay Equal Work', the petitioner was entitled to get salary as a
Driver, which he has got.
(5 of 5) [CW-8483/2021]
16. That apart, as the petitioner is a low paid employee and
there was no mis-representation on behalf of the petitioner, this
Court is of the prima-facie view that the recovery of alleged
excess payment cannot be made from him in light of the judgment
of Hon'ble the Supreme Court in the case of Rafiq Masih (supra).
17. The application under Article 226(3) of the Constitution of
India is, therefore, disposed of while modifying the order and
directing that during the pendency of the writ petition, the
respondents shall stand restrained from effecting any recovery
from the petitioner for the period upto 17.06.2021.
18. The respondents shall, however, be free to recalculate the
pension payable to the petitioner while treating him a helper,
ofcourse after following due procedure and principles of natural
justice.
19. The matter is admitted.
20. Ms. Anjana Jawa, accepts notices on behalf of respondent
No.1 to 6 and Mr. Ravi Panwar does it on behalf of respondent
No.7.
21. With the modification as noted in para No.17 and 18 above,
the recovery shall remain stayed till disposal of the writ petition.
22. The stay application stands disposed of accordingly.
(DINESH MEHTA),J
86-pooja/-
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