Rajasthan High Court - Jodhpur
State Of Rajasthan vs Smt. Chaya Jain (2024:Rj-Jd:11046-Db) on 5 March, 2024
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
[2024:RJ-JD:11046-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Spl. Appl. Writ No. 930/2023
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 Madhubala Pandaya D/o Kamlashankar Joshi, R/o 3
Bhramsthali Colony, District Dungarpur (Raj.).
----Respondent
Connected With
D.B. Spl. Appl. Writ No. 916/2023
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. Nandbala Joshi W/o Hargovind Joshi, R/o Village And Post
Kanba, Tehsil Bichhiwada, District Dungarpur (Raj).
----Respondent
D.B. Spl. Appl. Writ No. 1002/2023
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 Lata Dixit W/o Shri Mahesh Vyas, R/o H. No. 5,
Bhuvneshwari Colony, Behind S.t. Depot, Dungarpur (Raj.).
----Respondent
D.B. Spl. Appl. Writ No. 201/2024
1. State Of Rajasthan, Through The Director Department Of
Elementary Education, Bikaner.
2. District Education Officer, Elementary Education,
Department Of Education, Dungarpur.
3. Director, Department Of Secondary Education, Bikaner.
4. District Education Officer, Secondary Education,
Department Of Education, Dungarpur
----Appellants
Versus
Smt. Chaya Jain W/o Shri Subhash Chandra Jain, Pujarwada
Street, District Dungarpur (Raj.)
(Downloaded on 15/03/2024 at 09:07:17 PM)
[2024:RJ-JD:11046-DB] (2 of 8) [SAW-930/2023]
----Respondent
D.B. Spl. Appl. Writ No. 233/2024
1. Director, Elementary Education, Rajasthan, Bikaner.
2. Deputy Director, Elementary Education, Kota.
3. Deputy Director, Secondary Education, Kota.
4. District Education Officer, Jhalawad.
----Appellants
Versus
Jagdish Kumar Soni S/o Sh. Nand Kishore Soni, R/o Sindhi
Colony, Ketadi Bazar, Post Bhawani Mandi, District Jhalawad.
----Respondent
D.B. Spl. Appl. Writ No. 296/2024
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 Meena Panchal W/o Shri Phool Shankar Panchal, R/o H.
No.135, Subhash Nagar Garden Ke Pass, Naye Hospital Ke Piche,
Dungarpur (Raj.).
----Respondent
D.B. Spl. Appl. Writ No. 300/2024
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
1. Smt. Preeti Mathur W/o Shri Rakesh Mathur, R/o Sabela
Bya Pass, Opp.govt. Quarter, Dungarpur (Raj.).
2. The Joint Director, Pension And Pensioners Welfare
Department, Udaipur.
----Respondents
D.B. Spl. Appl. Writ No. 301/2024
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
1. Smt. Churu Bala Sharma W/o Shri Ashok Kumar Sharma,
Mohalla Ghati, Haveli Naka Street, Dungarpur (Raj.).
(Downloaded on 15/03/2024 at 09:07:17 PM)
[2024:RJ-JD:11046-DB] (3 of 8) [SAW-930/2023]
2. The Joint Director, Pension And Pensioners Welfare
Department, Udaipur.
----Respondents
For Appellant(s) : Mr. B.L. Bhati, AAG
For Respondent(s) : Mr. Hemant Singh for
Mr. P.R.S. Jodha
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE MUNNURI LAXMAN
Order
05/03/2024
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. These special appeals have been preferred, in sum and
substance, with the following prayers and for the sake of
convenience, the facts and prayer clauses are being taken from
the leading case being D.B. Civil Special Appeal (Writ)
No.930/2023:-
"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.19716/2022 may kindly be set
aside and the writ petition as preferred by the petitioner
may kindly be dismissed."
4. Brief facts as noticed by this Court are that the respondent
was appointed on the post of Teacher Grade-III in year 1985.
Since at the time of recruitment, sufficient number of female
[2024:RJ-JD:11046-DB] (4 of 8) [SAW-930/2023]
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 respondent
was given ad-hoc appointment and as soon as she completed
necessary qualification/training, her services were confirmed.
4.1. Thereafter, in pursuance of the circular by the State dated
25.01.1992, the respondent was allowed the selection grade on
completion of 9, 18 and 27 years.
4.2. 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 20.08.2010.
5. Learned counsel for the appellant-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
[2024:RJ-JD:11046-DB] (5 of 8) [SAW-930/2023]
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
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."
5.1. Learned 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
respondent. He further submits that the learned Tribunal has
committed an error by not allowing the recovery from the
respondent.
5.2. Learned counsel for the appellant-State has drawn the
attention of this court towards the 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
[2024:RJ-JD:11046-DB] (6 of 8) [SAW-930/2023]
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
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
[2024:RJ-JD:11046-DB] (7 of 8) [SAW-930/2023]
the equitable balance of the employer's right to
recover."
6. Learned counsel for the respondents 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. He 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.
6.1. Learned counsel further submits that there are concurrent
findings of the learned appellate tribunal, learned Tribunal as well
as the learned Single Bench of this Hon'ble Court and thus, unless
something grave is pointed out by the State, no interference is
called for.
6.2. Learned counsel also 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.
7. This Court, after hearing learned counsel for 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.
[2024:RJ-JD:11046-DB] (8 of 8) [SAW-930/2023]
8. 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 year 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 Class-III services and are retired, therefore, no recovery
from them can be made.
9. 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
95 to 102-Sudheer/-
Powered by TCPDF (www.tcpdf.org)
