IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. CIVIL WRIT PETITION NO.6031/96
The Chief Engineer, PWD
The Rajasthan State Civil Service Appellate Tribunal & Anr.
Date of order : 7/1/2010.
HON'BLE MR.JUSTICE MOHAMMAD RAFIQ
Shri S.D. Khaspuria on behalf of Shri Hari Barath, Addl. Govt. Counsel for the petitioner.
None present for the respondents.
This writ petition has been filed by the Chief Engineer, Public Works Department, Government of Rajasthan, Jaipur challenging the judgement of Rajasthan Civil Services Appellate Tribunal, Rajasthan, Jaipur (for short-`the Tribunal') dated 17.5.1996, by which the appeal filed by respondent no.2 Shri Dinesh Kumar Bhargava was allowed and it was directed that his pay shall be stepped up at par with that of his junior Shri R.K. Bhatia, who were both working on the post of Executive Engineer. Shri S.D. Khaspuria, learned Additional Government Counsel submitted that the Tribunal committed a grave error of law in directing the stepping up of pay of the respondent no.2 at par with that of Shri R.K. Bhatia. While doing so, the Tribunal has misconstrued and misapplied the provisions of Rajasthan Service Rules. Learned counsel submitted that respondent no.2 was appointed on 19.11.1960 at the pay of Rs.115/- per month. On 19.11.1961, his pay became Rs.120/- and on 19.11.1962, it was Rs.125/- per month. Fixation was made on 1.9.1961 and it became Rs.150/- and thereafter on 19.11.1962, it became Rs.155/- per month, whereas Shri R.K. Bhatia was fixed at Rs.140/- per month on 17.12.1962 as Junior Engineer. Shri R.K. Bhatia was granted the pay of Rs.255/- per month on 1.8.1966 because he in the meantime acquired the degree of A.M.I.E. and became entitled to advance grade increments. This is how, his pay exceeded from that of respondent no.2. On 19.11.1966, while the pay of respondent no.2 was Rs.205/-, the pay of Shri R.K. Bhatia was Rs.255/-. Respondent no.2 was promoted on the post of Assistant Engineer on 20.11.1971 in the pay scale of Rs.375-850 and was fixed at Rs.375/-, whereas Shri R.K. Bhatia was promoted on the post of Assistant Engineer on 3.2.1971 and was fixed at Rs.375/-. While the respondent no.2 was promoted on the post of Executive Engineer on 20.12.1987 and fixed at Rs.3150/-, Shri R.K. Bhatia was promoted as Executive Engineer on 12.9.1990 and was fixed at Rs.3625/-, whereas at that time, the respondent no.2 was getting only Rs.3500/-. There was thus no such anomaly as could form basis for directing to step up the pay of respondent no.2 with reference to Rule 26A of the Rajasthan Service Rules. Learned counsel also referred to the decision of Government of Rajasthan dated 28.4.1969 under Rule 32 of the Rajasthan Service Rules and submitted that it would be on fulfillment of any of the five conditions enumerated therein that the pay of a senior can be stepped up and brought at par with that of Junior. Although, no one has appeared for the respondent, but the Tribunal in allowing the appeal has considered the submissions made by both the parties in the light of the decision of Government of Rajasthan under Rule 32, supra. The Tribunal in the concluding para of the judgement held as under: “The learned counsel for the appellant cited RLT 1978 part III p.50, RLT 79 Part IV p.210 and argued that even in the cases where advance increments were allowed for possessing higher qualifications the senior person were not be denied the benefit of stepping up of pay equal to the junior person unless the junior was getting higher pay on account of special qualification or similar other factors. A perusal of the relevant documents produced before us show that in seniority list of Assistant Engineer (Civil) P.W.D. issued on 4.2.1972, the name of the appellant and Shri R.K. Bhatia appeared at S.No.93 and 118 respectively showing that the appellant was much senior to Shri R.K. Bhatia. In the seniority list of Executive Engineer as on 1.4.93 issued on 17.4.1993 also the name of the appellant and Shri R.K. Bhatia appeared at S.Nos.133 and 170 respectively. The seniority list of Assistants Engineers also shows that the appellant was selected by DPC for the vacancies of 1975 whereas Shri R.K. Bhatia was selected through Rajasthan Public Service Commission directly in the same year. For the post of Executive Engineer, P.W.D. Both were selected by DPC, the appellant was selected against the vacancies for the year 1987-88 while Shri R.K. Bhatia was selected for the year 1991. Thus in all respects the appellant is senior to Shri R.K. Bhatia both as Assistant Engineer as well as Executive Engineer and possessed the same academic qualifications excepting that A.M.I. examination was cleared by Shri R.K. Bhatia in 1966 and by appellant in 1968. Thus the contention of the respondents that Shri R.K. Bhatia was getting higher pay because of higher specialised qualification was not tenable. Upto his promotion as Executive Engineer the appellant was getting higher pay than Shri R.K. Bhatia. Although the appellant was already working as Executive Engineer (promoted against vacancies of 1987-88) and was drawing higher pay, the anomaly arose when Shri R.K. Bhatia was subsequently promoted as Executive Engineer on 12.9.90 and his pay was fixed at Rs.3625/- i.e. more than the appellant. Thus the fixation at higher stage of pay was not because Shri R.K. Bhatia was already getting more pay than the appellant but because of the fixation under the revised pay scale Rules on his promotion as Executive Engineer on that date i.e. 12.9.90. He was not getting higher pay because of any special qualification or other similar factors and therefore, as laid down in the case of Shri S.N. Khandelwal V/s. State of Raj. and others (RLT 79 Part IV p.210) the appellant is entitled to have his pay stepped up. We are, therefore, of the view that the pay of the appellant should be stepped up from 12.9.90 in such a manner that the appellant does not get lesser pay than Shri R.K. Bhatia.” It would be evident from the above referred to findings of the Tribunal that in the seniority list of Assistant Engineer (Civil) issued on 4.2.1972, while the name of respondent no.2 appeared at S.No.93 with that of Shri R.K. Bhatia at 118, subsequently in the seniority list of Assistant Engineer issued on 17.4.1993, the name of respondent no.2 appeared at S.No.133, whereas the name of Shri R.K. Bhatia was at 170. While the respondent no.2 was promoted against the vacancies of the year 1975, Shri R.K. Bhatia was selected through Rajasthan Public Service Commission directly in the same year. Obviously, therefore, the promotees as per the relevant Rules were liable to be ranked senior to the direct recruitees of the same selection year. But, here the vacancies against which respondent no.2 was selected, was of the year 1987-88, whereas Shri R.K. Bhatia was selected against the vacancies of the year 1991. If Shri R.K. Bhatia acquired the A.M.I.E. degree in the year 1966, the respondent no.2 also acquired the same degree qualification in the year 1968. So, the contention that Shri R.K. Bhatia, having acquired the degree qualification, was entitled to advance grade increments, is equally applicable to the case of the respondent no.2. The Tribunal also noted that when respondent no.2 was already working as Executive Engineer because he was promoted against the vacancies of the year 1987-88 and was, therefore, drawing higher pay than Shri R.K. Bhatia. The dispute arose when Shri R.K. Bhatia was subsequently promoted as Executive Engineer on 12.9.1990 and his pay was fixed higher than that of respondent no.2. In my considered view, the Tribunal was fully justified in allowing the appeal because the case of the respondent no.2 was covered even under the decision of Government of Rajasthan dated 28.4.1969 because both of the employees were belonging to the same cadre/class and were serving in the same department and were under the administrative control of the same Head of the Department and while one was senior, the other one was junior and, therefore, the senior could not be deprived of the benefits of stepping up of pay, if his junior was getting higher pay than him. I do not find any merit in this writ petition and the writ petition is accordingly dismissed.
(MOHAMMAD RAFIQ), J.