Rajasthan High Court

Suruchi Vashishth D/O Sushil Kumar ... vs State Of Rajasthan (2024:Rj-Jp:21741) on 8 May, 2024

Author: Sameer Jain

Bench: Sameer Jain

[2024:RJ-JP:21741]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                 S.B. Civil Writ Petition No. 12530/2022
Suruchi Vashishth D/o Sushil Kumar Sharma, Aged About 47
Years, R/o C-207, Felicity Emrald, Shyam Nagar, New Sanganer
Road, Jaipur, Rajasthan.
                                                                     ----Petitioner
                                     Versus
1.       State Of Rajasthan, Through Its Joint Secretary (Tax),
         Department Of Finance, Government Of Rajasthan
         Government Secretariat, Jaipur.
2.       The Commissioner, Commercial Tax Department, Govt. Of
         Rajasthan, Kar Bhawan, Rajasthan, Jaipur.
3.       The     Additional Commissioner    (Administration),
         Headquarter, Commercial Tax Department, Rajasthan,
         Jaipur.
4.       The Deputy Commissioner (Administration), Commercial
         Tax, Jaipur Division, Jaipur.
                                                                  ----Respondents

For Petitioner(s) : Mr. Ajatshatru Mina with Mr. Movil Jeenwal Mr. Himanshu Kala For Respondent(s) : Mr. Harendar Neel

HON'BLE MR. JUSTICE SAMEER JAIN Order 08/05/2024

1. The present petition is filed with following prayers:-

"i) Issue an appropriate writ, order or direction in the nature thereof thereby, the respondents may kindly be directed to protect the pay of the petitioner and further probation be changed to one year only, and give her arrears accordingly by following the notification dated 30.10.2017 issued by the Government of Rajasthan;

ii) Issue an appropriate writ, order or direction in the nature thereof thereby, the impugned order dated 27.06.2022 may kindly be quashed and set aside.

iii) Pass any other appropriate order which this Hon'ble Court may deem fit,

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just and proper in the facts and circumstances of the case in favour of the petitioner.

iv) Cost of the writ petition be also awarded in favour of the petitioner."

2. At the outset, learned counsel for the petitioner Mr.

Ajatshatru Mina submitted that the petitioner was appointed as Air

Officer Commanding, AFCAO, New Delhi with the Air Force Central

Accounts Office, New Delhi (Central Services). Thereafter, the

petitioner had applied for the post of Junior Commercial Tax

Officer in the Govt. of Rajasthan (State Services). It is an

overarching fact that prior to commencement of the said service

i.e. Junior Commercial Tax Officer, the petitioner had sought for

NOC from the erstwhile department i.e. Air Force Central Accounts

Office, New Delhi and the said NOC was granted. Only after

obtaining the NOC, the petitioner had joined the latter's service

w.e.f. 31.12.2021, initially for a period of two years probation on a

fixed remuneration of Rs. 21,942/-.

3. It is further submitted by the learned counsel for the

petitioner that bare perusal of Annexure-A/R/2 i.e. the Last Pay

Certificate(Provisional) makes it evident that approximately Rs.

50,000/- was drawn by the petitioner from her quondam service,

and that amount is much higher than her present service. It was

further averred that the petitioner is a widow and has

responsibility of upbringing of her two daughters and due to such

low salary, is facing severe hardship.

4. It was further submitted that the petitioner had duly

addressed her grievances qua 'Pay Protection', by filing a

representation before the concerned authorities. The respondents

vide impugned order dated 27.06.2022 (Annexure-3), rejected the

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submission of the petitioner stating that as per the provisions

enshrined under Rule 26 of Rajasthan Service Rules, 1951

(referred as RSR Rules) the petitioner is not entitled to the said

'Pay Protection', as the petitioner was an erstwhile employee of

Central services and not State service.

5. Learned counsel for the petitioner emphasized on notification

dated 30.10.2017, passed by the State of Rajasthan causing

amendment in the Rajasthan Civil Services (Revised) Pay Rules,

2008, submitting that the respondents have failed to apply the

amended provisions of Rule 26 of RSR Rules. Additionally, the

following averments were made:-

5.1 While considering the case at hand, the respondents

have overlooked the amended provisions of Rule 26 (1) Exception,

wherein, it is categorically stated that the fixation of pay of a

probationer-trainee on successfully completing probation period,

shall be in the pay matrix in the relevant level.

5.2 The petitioner is even entitled to emoluments as per

amendment of Rule 26A.

6. In this regard, learned counsel for the petitioner has placed

reliance upon the dictum of judgments of Hon'ble Apex Court

reported in (2010) 7 SCC 678 titled as East Coast Railway &

Ors. vs. Mahadev Appa Rao & Ors., and Allied Motors (P)

Ltd. vs. Commissioner of Income Tax, Delhi reported in

(1997) 3 SCC 472. Relying upon the aforesaid judgments, it was

asserted that to commence efficacious adjudication in matters

pertaining to such enormity, purposive interpretation should be

adopted, so that the enacted Act/provisions is within the context

of the objective of the Act. It was further submitted that if the said

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interpretation is not applied qua pay protection, then the scheme

of the RSR Rules will be frustrated and a spiteful discrimination

shall be caused qua the petitioner.

7. At this juncture, learned counsel for the petitioner promptly

made it clear that the RSR Rules, nowhere makes any distinction

among the Central, State or Sub-ordinate Services. In fact, as per

the RSR Rules, the provisions of the Act/Rules are to be read

harmoniously with the other parent laws so that the intended

purpose is achieved.

8. Per contra, learned counsel for the respondents Mr. Harendra

Neel has vehemently opposed the contentions level by the learned

counsel for the petitioner and submitted that neither the

appointment letter nor the advertisement or any statutory

provision has given the petitioner a plausibility viz-a-viz pay

fixation/protection, especially when the petitioner had switched

over from Central Government services to the State Government

services.

9. It was further contended that if reliance is placed upon the

provisions enshrined under Rule 28 and the Sub-ordinate Rules of

the RSR Rules, it is nowhere specified that the Central

Government employees who are now associated with the State

services are entitled as 'Government Employee' under the rules as

defined by the State of Rajasthan. Insofar the amended Rule 26 is

concerned, it is made applicable only qua the State services, as

there prevails a wide gap between the pay matrix adopted by the

Center and State level employers. Hence, Rule 26 is only

applicable upon the employees who fall under the criteria of State

service employees. It is rather apposite to apply the 'Rule of

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Literal Construction'- litera legis and no extended meaning qua the

term 'State Service' should be adopted.

10. Heard and considered.

11. Upon a considered perusal of the record of the petition and

also, the arguments advanced at Bar, the following noteworthy

stipulations have emerged, namely:-

11.1 That the petitioner is a widow surviving on diminutive

pay/salary/emoluments along with her two daughters.

11.2 That for a specified period i.e. from 25.10.2004 to

30.12.2021, the petitioner was rendering service as Air Officer

Commanding, New Delhi under the Air Force Central Accounts

Office, New Delhi (Central Services) and thereafter, had joined the

State service as Junior Commercial Tax Officer w.e.f. 31.12.2021.

11.3 That the last pay drawn by the petitioner from erstwhile

service was approximately Rs. 50,000/- and at the latter service

only Rs. 22,000/- (Approximately) was granted, for the reason of

the petitioner being on probation.

11.4 That the matter in hand, falls under the ambit of the

provisions of Rajasthan Commercial Tax Sub-ordinate Rules, 1975

and the Rajasthan Service Rules, 1951.

12. It is evaluated that the petitioner was divested from 'Pay

Protection' benefit for single reason that the petitioner is a former

employee of the Central Government and was not under the pay

roll of State government. The relevant provisions of Rules of 1975

and RSR Rules, 1951 are reproduced herein-under:-

"Rule 2(a):- 'Appointing Authority' means the Commissioner, Commercial Taxes, Rajasthan and includes in relation to any post in the Service, such other Officer or Authority who may, with the approval

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of the Government, be specially empowered by the Commissioner to exercise the powers and functions of the Appointing Authority;

Rule 2(f):- "Government" and "State" means respectively the Government of Rajasthan and the State of Rajasthan;

Rule 26(1):- Fixation of pay of a probationer-

trainee completing probation period successfully in the Pay Matrix in the relevant Level...Provided further also that a person who is already in regular service of the Government of India and other State Governments including institutions of Government of India and other State Governments, if appointed by direct recruitment under the State Government on a post higher than the post last held under the previous employer and on a post higher than the initial post of the State Service on 'probation' and the pay last drawn by him is higher than the entry pay prescribed for the new post his pay will be fixed in the Level in the Pay Matrix of the new post at the equal Cell with reference to the pay of the previous post and if there is no equal Cell than at next higher Cell.

Amendment of Rule 26A:- The existing Rule 26A shall be substituted by the following, namely:-

"26A. Fixation of pay on promotion on or after 1st October, 2017.-The fixation of pay in case of promotion from one Level to another in the revised pay structure shall be made in the following manner, namely:-

(1) One increment shall be given in the Level from which the employee is promoted and he shall be placed at a Cell equal to the figure so arrived at in the Level of the post to which promoted and if no such Cell is available in the Level to which promoted, he shall be placed at the next higher Cell in that Level.

Illustration:

1 Level in the revised pay structure: Level 4 2 Basic Pay in the revised Pay Band 5200-20200 pay structure 21000 Grade pay 1700 1750 1900 2000 2400

3. Granted Promotion in Grade pay 2 3 4 5 9 Level 5 No.

4. Pay after giving one Levels 1 2 3 4 5 increment in Level 4:

1 17700 17900 18200 19200 20800 21600

5. Pay in upgraded Level i.e. 2 18200 18400 18700 19800 21400

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Level 5: 22000 (either 3 18700 19000 19300 20400 22000 equal to or next higher to 4 19300 19600 19900 21000 22700 21600 in Level 5) 5 19900 20200 20500 21600 23400 6 20500 20800 21100 22200 24100 7 21100 21400 21700 22900 24800

(2) Fixation of pay of Government servant on promotion in the current year of DPC-

(i) Where DPC of current year is convened and Government servant is promoted on the higher post, the pay fixation may be made on notional basis on the higher post from 1st April of the DPC year in respect of post carried forward from the previous year or from the date of vacancy against which the selection is made, as the case may be. The entitlement of actual benefit will be payable from the date charge taken over on the promotion post by the serving employee.

(ii) Where DPC of current year is convened but before issuance of the promotion order the promoted employee retires, in that case his notional fixation of pay may be made from Ist April of the DPC year in respect of post carried forward from the previous year or from the date of vacancy against which the selection is made or if it is not possible to identify the actual date of vacancy of the post, on the date of retirement of Government servant, as the case may be.

(iii) If DPC is held in the current year and promotion order is issued in the next year, fixation of pay on promoted post shall be made on notional basis from 1st April of the DPC year in respect of post carried forward from the previous year or from the date of vacancy against which the selection is made or if it is not possible to identify the actual date of vacancy of the post, the notional fixation of pay shall be made on 31st March of the DPC year, as the case may be and actual payment be made from the date charge taken over of the promotion post.

(3) If promotion is made on the date of annual increment in that case first annual increment shall be allowed on the lower post and thereafter fixation of pay on promotion on higher post shall be made. (4) If a Government servant is promoted on higher post after grant of ACP in the same Level, no further fixation of pay shall be made on the higher post.

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(5) The next date of increment after fixation of pay on promotion shall be 1st July of the year. Rule 28-A. Pay during probation:- A probationer trainee appointed to the service by direct recruitment, shall be paid monthly fixed remuneration during the period of probation at such rates as may be fixed by the Government from time to time:

Provided that an employee having been regularly selected as per provisions of recruitment rules in the Government service may be allowed emoluments in his/her own pay scale in the existing pay scale of the post during service as probationer trainee or fixed remuneration of the new post, whichever is advantageous to him/her.

Rule-35. Regulation of pay leave, allowance, pension etc..- Except as provided in these Rules, the pay, allowances, pension, leave and other conditions of Service of the members of the Service shall be regulated by:

1. The Rajasthan Civil Services (Unification of Pay Scales) Rules, 1950 as amended from time to time;

2. The Rajasthan Service Rules, 1951 as amended from time to time;

3. The Rajasthan Civil Services (Rationalization of pay Scales) Rules, 1956, as amended from time to time;

4. The Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958, as amended from time to time;

5. The Rajasthan Civil Services (Revised pay) Rules, 1961, as amended from time to time;

6. The Rajasthan Civil Services (New Pay Scales) Rules, 1969, as amended from time to time;

7. The Rajasthan Traveling Allowance Rules, 1971, as amended from time to time, and

8. Any other Rules prescribing general conditions of Service made by the appropriate authority under the proviso to Article 309 of the Constitution of India, and for the time being in force."

13. On perusal of the above stated rules, it is inferred that both

the Rules i.e. Rules of 1975 and RSR Rules, 1951 and in view of

the amended rules w.e.f. 01.10.2017, are catering to the

provisions of 'Pay Protection' qua the probationer-trainee. In the

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said rules, there is no elimination of the employees rendering

erstwhile services under the Central Government. The aim and

object of the amended provisions is read as "To prescribe a

revised pay structure and principles governing fixation of pay in

the revised pay structure." Therefore, this Court deems it

appropriate to interpret the said rules underneath the principle of

pro bono publico i.e. for the good of public.

14. It is assumed that the paramount object of the above

referred rules as incorporated by the legislature, is to equate the

employee with the emoluments that were lastly paid in the former

employment. In this regard, the reliance placed by learned

counsel for the petitioner upon the dictum of East Coast Railway

& Ors.(Supra) and Allied Motors (P) Ltd.(Supra) are

appreciable qua the fact of embracing 'Purposive Interpretation' of

the said rules. It is evident that interpretation qua any

Statute/Rule/Regulation should be such that the cardinal idea of

Welfare State is not frustrated or hampered.

15. In regard with the peculiar averment made by the learned

counsel for the respondent, qua the restricted meaning to the

word 'State Services' under the RSR Rules, more particularly, Rule

26, on bare perusal of the said provision it is apparent that no

distinction qua the Central, State and Sub-ordinate services has

been made. The said argument cannot be countenanced. It is

noted that if the argument submitted by learned counsel for the

respondent is considered, the said will cause a grave

discrimination qua the petitioner and shall not only oppose the

settled position of law - "equal pay for equal work", but shall also

violate the fundamental rights enshrined under Article 14 and 21

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of the Constitution of India. If considered, it will further make an

impression that no one, apart from the State Services which are

equivalent to Rajasthan Administrative Services will be entitled for

pay protection. The said argument on the face of it will be

opposed to Articles 14 and 21 of the Constitution of India.

16. Taking into consideration the above said, this Court is of the

following view:

16.1 That the prayer sought in the instant petition is

justifiable. The respondents have failed to interpret and

efficaciously apply appropriate provisions of the said Rules.

16.2 That no distinction qua the Central, State and Sub-

ordinate services has been made under the Rules i.e. Rules of

1975 and RSR Rules, 1951 and in view of the amended rules

w.e.f. 01.10.2017.

16.3 That the averment leveled by learned counsel for the

respondents qua the fact that the petitioner was a regular

employee in the erstwhile service and on probation in the present

service is misnomer and has bare inference upon the case in hand.

17. For the aforesaid reasons, the present petition needs to be

allowed in terms of the prayers so made.

18. Accordingly, the present petition is allowed. Pending

applications, if any, stand disposed of.

(SAMEER JAIN),J