IMPORTANT POINT
The notification requiring recovery of excess pay under the Rajasthan Civil Services Rules is constitutional and does not violate Article 14.

JUDGMENT :

Per Dr. Pushpendra Singh Bhati, J:

1. This writ petition under Article 226 of the Constitution of India has been preferred claiming the following reliefs:

“It is, therefore, humbly and respectfully prayed that writ petition of the petitioner may kindly be allowed and by an appropriate writ, order or direction:-

(A) That, the part of notification dated 13.02.2009 (Annex.P/1) “in such cases the excess amount of pay and allowances already drawn on account of fixation of pay under these Rules shall be deposited by the concerned incumbent in lump sum” may kindly be declared ultra vires Article 14 of the Constitution of India and be set-aside.

(B) That, Respondents may kindly be restrained from effecting any recovery from Petitioner in pursuance of order dated 13.04.2009 (Annex.P/3) and 20.05.2009 (Annex.P/5).

(C) That, consequent to aforesaid it may kindly be directed that Petitioner is entitled to be fixed at a stage of Rs.12500/-w.e.f. 15.04.2009.

(D) That, Respondents may further be directed to pay to the petitioner the amount deducted from his arrears.

(E) Any other relief which this Hon’ble Court may deem fit may kindly be granted in favor of the petitioner;

(F) Cost of the writ petition may kindly be awarded to the petitioner.”

2. The petitioner, being a dependent of a deceased government servant (father), was appointed as Patwari in Tehsil Kapasan, District Chittorgarh on 15.04.2000, whereafter, he has passed the Patwar Examination on 06.09.2001.

3. As the pleaded facts and the record would reveal, in the present writ petition, the petitioner, firstly, is partially assailing the notification dated 13.02.2009, whereby vide the Rajasthan Civil Services (Revised Pay) (First Amendment) Rules, 2009, a new proviso has been inserted to sub-rule (1) of Rule 10 of the Rajasthan Civil Services (Revised Pay) Rules, 2008 (hereinafter referred to as ‘Rules of 2008’); such challenge, to be specific, is laid to a particular part of the said newly inserted proviso i.e., “In such cases the excess amount of pay and allowances already drawn on account of fixation of pay under these rules shall be deposited by the concerned incumbent in lump sum”.

3.1. In pursuance of the aforesaid said notification dated 13.02.2009, particularly, the initial part of the aforesaid newly inserted proviso i.e. “where a Government servant is due for promotion or grant of selection grade, whichever may be higher after 12.09.2008 and if he so desires to first avail the benefit of next promotion or selection grade, as the case may be, in the existing pay scale in force prior to 01.09.2006, in such a case Government servant may elect to switch over to the Running Pay Band and Grade Pay under these rules from the date of availing such promotion or selection grade, as the case may be, in the existing pay scale”, the petitioner submitted an application along with an option form on 25.03.2009, seeking to switch over to the specified running pay band/grade pay.

3.1.1. In the said application, the petitioner stated that because as on 15.04.2009, he was to complete 9 years of service and as per the Rajasthan Civil Services (Revised Pay) Rules, 1998, his revised pay scale was Rs.5000-150-8000 i.e. basic pay of Rs.5,000/-, and owing to the pay revised under the Rules of 2008, the petitioner, w.e.f. 15.04.2009, was to be placed in the running pay band of Rs.9300-34800 with Grade Pay No.11 i.e. Rs.3200, therefore, as per the said option form, his basic pay, as on 15.04.2009, was required to be fixed at Rs.9300+3200 = Rs.12,500/-.

3.2. As per the petitioner, while holding the post of Patwari, on the date of coming into force of the Rules of 2008, his basic pay was Rs.3,650/- (pay scale of Rs.3050-4590 under Rules of 1998). On count of promulgation of the Rules of 2008, the petitioner’s basic pay was fixed at Rs.8,410/-.

3.2.1. As contended by the petitioner, in pursuance of the aforesaid option form, which was submitted on account of the extension of the benefit of first selection g