The main legal point established is that service in the Work Charge Establishment, governed by rules framed under proviso to Article 309, qualifies for pay fixation under Rule 26 of the RSR.

1. We have heard learned Counsel for the parties.

No. 529/1995, decided on 11.02.1996;;

Writ Petition Allowed

2. The issue raised in this petition is that in order to apply Rule 26 of the Rajasthan Service Rules, 1951 for fixation of pay, whether the period of service rendered by the incumbent as Government Servant under another Department of the Government rendered in Work Charge Establishment, which is also governed by rules framed under proviso to Article 309 and is pensionable, can be taken into account, when such incumbent is appointed later on in the other service governed by Rajasthan Service Rules.

3. The petitioners case is that from 01.06.1973 to 08.01.1980, he was serving under the State Government in the Work Charge Establishment `terms of which were not governed by Rajasthan Service Rules (RSR), but by Rajasthan Work Charged Establishment Rules, 1964, framed by the Governor in exercise of his powers

under proviso to Article 309 of the Constitution. Thereafter, on 15.01.1980, the petitioner was appointed as Ammen in the service governed by RSR, by selection/absorption. At that time petitioner-appellant was working as Store Munshi on Work Charge Establishment. Pay Scale of Store Munshi and Ameen (the new post at which petitioner was appointed) was the same.

4. In view of his appointment from one Government Department to another Government Department, the question arose about fixation of pay of the petitioner in pay scale applicable to post of Ameen. The petitioner-appellant claimed that after the petitioner is appointed to a service governed by RSR., fixation of his pay on such post is governed by Rule 26 of RSR and he is entitled to protection of his pay, which he was drawing under the previous Government service in terms of Rule 26.

5. The respondents urged that since the terms and conditions of services rendered in Work Charge Establishment in certain circumstances are not governed by RSR as per Rule 2 (b)(f) of RSR, when such incumbent is later on appointed to a Government service governed by RSR, he cannot carry the benefit of previous service for the purpose of fixation of his pay on such latter appointment in terms of Rule 26 of RSR. He relies on a Bench decision of this Court in State of Rajasthan vs. Mangilal, passed in D.B. Civil Special Appeal (Writ) No. 529/1995 decided on 11.03.1996

6. Mangilals case (Supra), had arisen in like circumstances. The learned Single Judge had held that the fact that the petitioner appellant is a Government Servant governed by the RSR being not disputed, his pay is required to be fixed under Rule 26. Service rendered under Work Charge Establishment is a service rendered under Government. If this is so, notwithstanding that the RSR does not apply to work charge establishment, where the incumbent was previously employed, still persons employed in work charge establishment can be considered under Rule 26 RSR. The expression used in Rule 26 prescribes only “Government employee” “appointed to another Government service” and, therefore, the distinction cannot be drawn for the purpose of invoking Rule 26 between one Government service and another Government service on the basis of non-applicability of RSR to the previous service.

7. The said Judgment of the learned Single Judge on which reliance has been placed, by learned Counsel for the petitioner has since been subjected to appeal before the Division Bench in the case noticed above. The Division Bench held that since service under Work Charge Establishment is not governed by RSR, to such employees, Rule 26 is not applicable when later on they are appointed to a Government service governed by RSR.

8. Learned Counsel for the appellant states that issue needs to be reconsidered as the view taken by the Division Bench has not taken into account that Work Charge Rules, 1964 were also rules framed under proviso to Articles 309 and though all the general terms and conditions of RSR are extended to it, but it provides for status