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2019 Supreme(Raj) 716
IN THE HIGH COURT OF RAJASTHAN AT JAIPUR BENCH
PUSHPENDRA SINGH BHATI, J.
Mohd. Raiyazul Haq Qureshi - Appellant
Versus
State of Rajasthan and Ors - Respondent
S.B. Civil Writ Petition No. 6653 of 2012
Decided On : 30-08-2019
Advocate Appeared:
For the Appellant : Shailesh Prakash Sharma
For the Respondent: Pradeep Kalwania, GC
An employee who is absorbed on a lower post owing to the abolition of the post held by him is entitled to pay protection.
Headnote:
PAY PROTECTION - RAJASTHAN SERVICE RULES, 1951 - RULE 26(1)(A)(II) - ABSORPTION OF EMPLOYEE ON LOWER POST - PAY FIXATION - PROTECTION OF PAY - OPTION TO OPT FOR LOWER PAY SCALES - WAIVER OF PROTECTION OF PAY.
Fact of the Case:
The petitioner, a 'Gram Sewak' under the Rules of 1969, was absorbed in the service of Panchayati Raj Department as 'Gram Sewak' with pay protection. The petitioner challenged the impugned orders dated 20th October, 2010, and 9th March, 2012, which denied him the pay protection.
Finding of the Court:
The court held that the petitioner's case fell within the contemplation of Rule 26(1)(a)(ii) of the Rajasthan Service Rules, 1951, which provided for pay protection in cases where the maximum of the scales of the new post was equal to the maximum of the old post. The court further held that the petitioner's absorption on the post of 'Gram Sewak', a post in a lower pay scale but with pay protection, did not amount to his waiver of the protection of pay accorded by the State-respondents vide order dated 23rd January, 2001.
Issues: Whether the petitioner was entitled to pay protection upon his absorption in the Panchayati Raj Department as 'Gram Sewak'.
Ratio Decidendi: The court relied on the judgment of Rajkumar Agarwal Vs. State of Rajasthan & Ors. rendered in SBCWP No. 5400/2015 decided on 12.04.2007, which held that an employee who is absorbed on a lower post owing to the abolition of the post held by him is entitled to pay protection. The court also relied on Rule 26(1)(a)(ii) of the Rajasthan Service Rules, 1951, which provided for pay protection in cases where the maximum of the scales of the new post was equal to the maximum of the old post.
Final Decision: The court allowed the writ petition and quashed the impugned orders dated 20th October, 2010, and 9th March, 2012. The petitioner was held entitled to all consequential benefits.
JUDGMENT :
PUSHPENDRA SINGH BHATI, J.
1. Learned counsel for the parties jointly submits that the controversy in question is covered by the judgment of this court in the matter of Rajkumar Agarwal Vs. State of Rajasthan & Ors. rendered in SBCWP No. 5400/2015 decided on 12.04.2007. Relevant portion of the judgment reads as under:-
"Heard the learned counsel for the parties and with their assistance perused the relevant materials available on record as well as gave my thoughtful consideration to the rival submissions at Bar.
Indisputably, the petitioner was appointed as 'Gram Sewak' under the Rules of 1969. It is also not in dispute that while the petitioner was absorbed in the service of Panchayati Raj Department as 'Gram Sewak', a contemplation in the order dated 23rd January, 2001, specifically protected his pay on the substantive post. Selection scales, after completion of 9, 18 and 27 years of service, were also accorded to the petitioner.
The pay of the petitioner according to the clarification is to be fixed in view of mandate of Rule 26 (1)(a)(ii). At this juncture, it is relevant to take note of text of Rule 26 of Rajasthan Service Rules, 1951, which reads thus:
"Rule 26. (1) A Government Servant already service in one service, cadre or department who is appointed to another service, cadre or department by direct recruitment or special selection, (including transfer other than by deputation) from one service, cadre or department to another and not by promotion according to service rules, shall have his initial pay fixed as follows:-
| Category | Last pay on old post | Initial pay on new post |
| 1 | 2 | 3 |
| (a) | Substantive on a permanent post and not Officiating on a higher post. | (a) Persons in category (a) shall have pay fixed as in the manner stated below:- (i) if the maximum of the scale of the new post is higher than the maximum of the old post, than the maximum of the old post, then pay shall be fixed at the stage of the time scale of the new post next above the last substantive pay in the old post. (ii) If the maximum of the scale of the new post is equal to the maximum of the old post, or then pay shall be fixed at the stage of the time scale of the new post which is equal to his last substantive pay on the old post, if there is no such stage, the stage next below that pay plus personal pay equal to the difference. (iii) If the maximum of the scale of the new post is lower than the maximum of the old post, then the pay shall be fixed at the stage which he would have been entitled to as if the period of service rendered on the old post would have been counted as rendered against the new post, subject to the condition that the pay fixed shall be restricted to the pay drawn in the old post. (iv) if minimum pay on the new post is higher than pay admissible under clause (i), (ii) and (iii) above, than minimum pay shall be allowed.” |
Rule 14 of the Rules of 1969, makes a provision for regulation of pay, increment, leave etc. of surplus employees, which reads thus:
"Regulation of pay, increment, leave etc. - The pay, increment, allowance and leave etc. of surplus employees during the period they remain surplus and on absorption shall be regulated by the provisions of the Rajasthan Service Rules and other relevant rules and orders issued from time to time."
A conjoint reading of the two rules, extracted herein above, would reflect that the case of the petitioner falls within the contemplation of Rule 26(1) under Clause (ii). A glance of Clause(ii), would reveal that it deals with an eventuality wherein the maximum of the scales of the new post is equal to the maximum of the old post, which is not the case at hand. The stand of the petitioner that he was never given an option to opt for lower pay scales, is not in dispute, therefore, he cannot be deprive
