WRIT PETITION 513 of 2010 on 1 July 1998

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In the High Court of Judicature for Rajasthan Jaipur Bench **

Civil Writ Petition No.513/2010

Shyam Sunder Sharma Versus State & Ors.

Date of Order ::: 15/01/10

Hon'ble Mr. Justice Ajay Rastogi

Mr. Jag Mohan Saxena, for petitioner

Counsel submits that controversyraised herein has been decided by DB decisionof this Court at principal seat Jodhpur inSpecial Appeal (Writ) 208/06 & bunch of others(State of Rajasthan Vs. Ramniwas Porwal) on13/12/07 (Per Hon. Mr. Rajesh Balia, J.) (2008(2) WLC 406) clarifying the position ad infra:

“However, it may be clarified thatbecause of the provisions made in Note 8read with Note appended to Rule 6 a SeniorTeacher drawing pay in second selectiongrade of 6500-10500 prior to 1.7.1998 andpromoted as Senior Teacher but after1.7.1989 who has not completed 10 years asSenior Teacher at the time of commencementof the Act his pay in pay-scale of 6500-10500 was protected as personal to him,though he would become eligible to suchscale under the new rules of 1998 only oncompletion of 10 years. In this view ofthe matter, the rights of the respondentseven under the aforesaid provision remainintact and unaffected and it could nothave any adverse effect on them.

But those who have been promoted asSenior Teachers drawing their pay inSecond Selection Grade of 6500-10500 willnot be eligible for this pay protection

because even under the Rules of 1998 asinitially exist, they were to be promotedto Senior Scale, which was Rs.5500-9000only. But because of lacuna in the Rulesoriginally enacted, not 26 providing anyspecific provision, their fixation hasbeen wrongly made by considering allSenior Teachers to be of the samecategory. The initial fixation in higherpay-scale being without any mistake ontheir part, until Notification ofamendment, the resultant recoveries ofexcess amount paid to them has beenwaived.

But after correction of this lacunaon amendment of Note 8, no such protectionhas been granted under the Rules. If anysuch recovery has become due on account ofcontinued drawing of pay by such SeniorTeachers promoted after 1.7.1998, due tono mistake or misrepresentation on thepart of such incumbents, they may makeappropriaterepresentationtotheGovernment to consider their cases againstrecovery.Accordingly, with the aforesaidclarification the appeals are allowed. ThejudgmentunderappealdeclaringNotification dated 8.6.2001 to be ultravires is set-aside. However, the viewwhich we have taken on interpretation ofthe Rules, the existing teachers who havebeen promoted as Senior Teacher in theSecondSelectionGradepriortocommencement of the Rules at any time butbecause of non-completion of 10 years ofservice as Senior Teacher under therevised rules were required to be fixed inlower pay-scale, their continuance in thehigher pay-scale was protected as pay-scale personal to them under Note to Rule6. The rights of all the appellants standprotected to this extent. In that light,

the writ petitions filed by the appellantsstand allowed to that extent.”

A bunch of 62 Special Appeals (Writ) (No.936/05 State of Rajasthan Vs. Shyam Swaroop Upadhayaya) came up for consideration beforeDivision Bench at Jaipur Bench – that too videjudgment dt.04/04/08 (per Hon.Mr.R.M.Lodha,J.) were disposed of in the light of judgment in State of Rajasthan Vs. Ramniwas Porwal (2008(2) WLC 406) ad infra:

“The existing teachers who have beenpromoted as Senior Teacher in the secondselection grade prior to commencement ofthe Rules at any time but because of non-completion of 10 years of service asSenior Teacher under the revised Pay rulesare required to be fixed in lower payscale. Their continuance in higher payscale protected as pay scale personal tothem under Note to Rule 6 would remain tothat extent.”

Consequently, writ petition is hereby

disposed of with the direction to thepetitioner to make fresh representation withinone month and if made, respondent-authority isdirected to pass appropriate orders in termsof DB decision in State of Rajasthan Vs.Ramniwas Porwal (supra) and communicate thedecision within three months to petitioner whoif feels aggrieved, will be free to avail ofremedy under law.

(Ajay Rastogi), J.