Rajasthan High Court - Jodhpur
State Of Rajasthan vs Smt. Ramila Bhatt ... on 1 March, 2024
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
[2024:RJ-JD:10741-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Spl. Appl. Writ No. 872/2023
1. State Of Rajasthan, Through The Director, Department Of
Secondary Education, Bikaner (Raj.).
2. The District Education Officer (Headquarter), Secondary
Education, Department Of Education, Dungarpur (Raj.).
----Appellants
Versus
Smt. Nirmala Pandaya W/o Shri Tarunesh Pandaya, Village And
Post Kanba Tehsil Bichhiwara, District Dungarpur.
----Respondent
Connected With
D.B. Spl. Appl. Writ No. 873/2023
1. State Of Rajasthan, Through The Director, Department Of
Secondary Education, Bikaner (Raj.).
2. The District Education Officer (Headquarter), Secondary
Education, Department Of Education, Dungarpur (Raj.)
----Appellants
Versus
Smt. Ramila Bhatt W/o Shri Ram Prasun Bhatt, R/o 346, Pratap
Nagar, Dungarpur (Raj.).
----Respondent
D.B. Spl. Appl. Writ No. 884/2023
1. State Of Rajasthan, Through The Director Department Of
Secondary Education, Bikaner (Raj.).
2. District Education Officer (Headquarter), Secondary
Education, Department Of Education, Dungarpur (Raj.).
----Appellants
Versus
Smt. Usha Pandaya W/o Late Shri Prakash Pandaya, R/o Village
And Post Oda Bada, Tehsil Bichhiwada, District Dungarpur.
----Respondent
For Appellant(s) : Mr. Tapendra Sankhla for
Mr. B. L. Bhati, AAG
(Downloaded on 06/03/2024 at 08:34:38 PM)
[2024:RJ-JD:10741-DB] (2 of 7) [SAW-872/2023]
For Respondent(s) : Mr. Prithvi Raj Singh Jodha
Mr. Himmat Singh Bhati
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE MUNNURI LAXMAN
Order
01/03/2024
1. An application under Section 5 of the Limitation Act has been
preferred with a prayer to condone the delay in filing the present
appeals.
2. For the reasons mentioned in the aforesaid application, the
same is allowed and delay in filing the present appeals is
condoned.
3. The present special appeals are filed by the appellant-State
seeking following reliefs:-
"It is, therefore, most respectfully and humbly prayed that
this Special Appeal Writ may kindly be allowed and the
order impugned dated 14.03.2023 as passed by Learned
Single Judge in SBCWP No.338/2023 kindly be set aside
and the writ petition as preferred by the petitioner may
kindly be dismissed."
4. The respondents were appointed on the post of Teacher
Grade-III in the year 1985. Since at the time of recruitment,
sufficient number of female candidates, in the tribal districts of
Banswara and Dungarpur, were not available which prompted the
State to relax the qualification to metric. While relaxing the
qualification, the private respondents were given ad-hoc
appointment and as soon as they completed necessary
qualification/training, their services were confirmed.
[2024:RJ-JD:10741-DB] (3 of 7) [SAW-872/2023]
5. Thereafter, in pursuance of the circular by the State dated
25.01.1992, the respondents were allowed the selection grade on
completion of 9, 18 and 27 years.
6. The present cause of action arose because the State started
implementing the judgment of State of Rajasthan & Ors. vs.
Jagdish Narayan Chhaturvedi reported in (2009) 12 SCC 49
and thereby brought two orders, one dated 29.06.2009 and
another dated 20.09.2018.
7. The counsel for the State has hinged the arguments on the
concluding para of the circular which reads as follows:
"Accordingly, the State Government has
reconsidered the matter and in partial modification of
order of even number dated 29.6.2009, the Governor is
pleased to order that in cases where Government
servants have been granted selection grade prior to
order dated 29.6.2009 by counting period of ad-hoc
service, such cases may not be reviewed. However, their
additional selection grades become admissible to such
employees after 29.6.2009 under the rules, this shall be
granted by excluding the period of ad-hoc service as per
the order of Hon'ble Supreme Court. For example, if any
employee got the advantage of first selection grade prior
to 29.6.2009, on completion of service of 9 years (after
inclusion of, say, three years' ad-hoc service), his next
selection grade on completion of service of 18 years, on
or after 29.6.2009, shall be granted only after three
years of ad-hoc service is added to 18 years i.e.
18+3=21 years.
All pending cases would be decided as per these
orders.
The cases of grant of selection grade decided
subsequent to order of even number dated 29.6.2009,
may be reviewed and revised in accordance with the
provisions of this order. Similarly pension cases of
[2024:RJ-JD:10741-DB] (4 of 7) [SAW-872/2023]
Government servants, finalized after re-fixation of pay
under order dated 29.6.2009, may also be reviewed and
revised. However cases of persons who retired prior to
29.6.2009 would not be re-opened."
8. The counsel for the appellant - State submits that it was well
within the domain of the State to implement the judgment of
Jagdish Narayan Chaturvedi (supra) and thus not to grant
selection grade for the period of ad-hoc services of the
respondents. Counsel for the State further submits that the
learned Tribunal has committed an error by not allowing the
recovery from the respondents.
9. Counsel for the State has drawn the attention of this court to
conditions No.3 and 5 of State of Punjab & Ors. Vs. Rafiq
Masih (White Washer) & Ors. reported in (2015) 4 SCC 334.
The operative portion which reads as thus:
"8. As between two parties, if a determination is
rendered in favour of the party, which is the weaker of
the two, without any serious detriment to the other
(which is truly a welfare State), the issue resolved would
be in consonance with the concept of justice, which is
assured to the citizens of India, even in the Preamble of
the Constitution of India. The right to recover being
pursued by the employer, will have to be compared, with
the effect of the recovery on the employee concerned. If
the effect of the recovery from the employee concerned
would be, more unfair, more wrongful, more improper,
and more unwarranted, than the corresponding right of
the employer to recover the amount, then it would be
iniquitous and arbitrary, to effect the recovery. In such a
situation, the employee's right would outbalance, and
therefore eclipse, the right of the employer to recover.
xxx xxx xxx
[2024:RJ-JD:10741-DB] (5 of 7) [SAW-872/2023]
18. It is not possible to postulate all situations of
hardship which would govern employees on the issue of
recovery, where payments have mistakenly been made
by the employer, in excess of their entitlement. Be that
as it may, based on the decisions referred to
hereinabove, we may, as a ready reference, summarise
the following few situations, wherein recoveries by the
employers, would be impermissible in law:
(i) Recovery from the employees belonging to
Class III and Class IV service (or Group C and
Group D service).
(ii) Recovery from the retired employees, or the
employees who are due to retire within one year,
of the order of recovery.
(iii) Recovery from the employees, when the
excess payment has been made for a period in
excess of five years, before the order of recovery
is issued.
(iv) Recovery in cases where an employee has
wrongfully been required to discharge duties of a
higher post, and has been paid accordingly, even
though he should have rightfully been required to
work against an inferior post.
(v) In any other case, where the court arrives at
the conclusion, that recovery if made from the
employee, would be iniquitous or harsh or
arbitrary to such an extent, as would far outweigh
the equitable balance of the employer's right to
recover."
10. Counsel for the respondents Mr. Jodha submits that the
condition No.1 of the Rafiq Masih's case (supra) clearly pass the
recovery from the employees belonging to Class-III and Class-IV
services and admittedly, the present respondents are Teacher
Grade-III and belong to Class-III of the services and thus, no
recovery can be made from them.
[2024:RJ-JD:10741-DB] (6 of 7) [SAW-872/2023]
11. Mr. Jodha further submits that most of the respondents
present before this Court have retired as they were appointed in
the year of 1985 and already a period of about 39 years has
lapsed since the original recruitment.
12. Mr. Jodha submits that there are concurrent findings of the
learned appellate tribunal, learned State tribunal as well as from
the Single Bench of this Hon'ble Court and thus, unless something
grave is pointed out by the State, no interference is called for.
13. Mr. Jodha further submits that the judgment passed by this
Hon'ble Court in Single Bench is supported by the case law of the
Hon'ble Apex Court in Rafiq Masih's case (supra) and thus, fortifies
the case of the respondent and hence, no case for recovery at
such a belated stage is called for.
14. This Court, after hearing both the parties, restricts its
adjudication to the core prayer of the respondents which
originated when recoveries were being made because the
respondents' ad-hoc service was sought to be excluded from the
service to be counted for the purpose of granting of selection
grade.
15. It is a fact that after about 39 years, all the
beneficiaries/Teacher Grade-III/respondents in these special
appeal writs have retired and the peculiar facts of the case arise
out of the relaxation granted by the State to the female
candidates in tribal districts of Dungarpur and Banswara for the
purpose of appointment of teacher grade-III in 1985 and thus, the
law laid down in Rafiq Masih's case (supra) is absolutely applicable
(in particular condition No.1). Since the respondents belong to
[2024:RJ-JD:10741-DB] (7 of 7) [SAW-872/2023]
Class-III services and are retired, therefore, no recovery from
them can be made.
16. Therefore, no cause to differ to the concurrent finding is
made out. Hence, the present appeals are dismissed.
(MUNNURI LAXMAN),J (DR. PUSHPENDRA SINGH BHATI),J
19-21-AjaySingh/-
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