Kirti Chhabra vs The State of Rajasthan and Others

Instant petition has been filed by the ex employee of High Court of Rajasthan who has retired after completion of 36 years of service and has been denied emoluments of the last pay drawn of the post of Controller of Publication held on/which she was promoted after undergoing the process provided under the Rajasthan High Court Staff Service Rules 2002 (Rules 2002).

The relevant background facts of the case which are necessary for disposal of instant petition are that the petitioner initially joined service as Assistant Librarian on 22.7.1977 and subsequently promoted to the post of Senior Librarian. By an amendment notification dt. 21.6.2010, u/R. 24 of the Rules 2002 certain posts were included & laying down criteria for promotion to the post and the mode of selection.

It may be relevant to quote the extract of the notification dt. 21.6.2010 relevant for the present purpose reads ad infra--

RAJASTHAN HIGH COURT, JODHPUR

NOTIFICATION

Jodhpur June 21, 2010

No. 8/S.R.O./2010.- In exercise of the powers conferred by Article 229 by A(2) of the Constitution of India, Hon''ble the Chief Justice of the High Court of Judicature for Rajasthan hereby makes the following Rules to amend the Rajasthan High Court Staff Service Rules, 2002 namely--

Short Title and Commencement--

(i) These Rules shall be called as " The Rajasthan High Court Staff Service (Amendment) Rules, 2010.

(ii) They shall come into force at once.

Amendment of Rules 24- The Rule 24 (Promotion to posts carrying special qualifications) is substituted by the following--

PROMOTION TO POSTS CARRYING SPECIAL RESPONSIBILITY OR REQUIRING SPECIAL QUALIFICATIONS:--

Notwithstanding anything to the contrary contained in these Rules, following posts carrying special responsibility or requiring special qualifications, promotion to these posts shall be made by selection on the basis of merit:--

Controller of Publication

Assistant Controller of Publication

9A Controller of publication-: 14300-18300(corresponding new pay scale is PB-4, 37400-67000 grade pay-8700)

13A Assistant controller of publication: 10000-152000 (kept in abeyance till further order)"

In continuation thereof, the rule making authority pursuant to Rule 4, 5, 7 & 22 of the Rajasthan High Court Service Rules, 2002 prescribed the mode of recruitment and qualification for appointment to the various posts. For the post of Controller of Publication, it was prescribed that the post shall be filled by promotion from amongst Assistant Controller (Publication) with seven years'' experience & Degree of Law or in the alternative from amongst the High Court staff having Degree of Law and prescribed pay scale for seven years experience in publication of law journal and if no one is found available from the above two cadres, third alternative is to induct from the cadre of Rajasthan Judicial Service (Selection Scale).

It may be appropriate to quote the procedure for selection/appointment which was laid down by the respondent to fill the post of Controller of Publication vide order dt. 21.6.2010.

"No. Estt./HC/2010/195- in pursuance of rules 4, 5, 7 & 22 of the Rajasthan High Court

Staff Service Rules, 2002, Hon''ble the Chief Justice has been pleased to make the following amendments in this office order No. EStt/HC/2001/378 Dated 05-12-02 regarding method of recruitment and qualification for appointment to the various posts:--

The following expressions shall be inserted in Part-I of order No. Estt./HC/2001/378 dt. 03-12-02 at S. No. 13A, 11A & 9A to prescribe the method of recruitment and qualification for the post of Controller of Publication, Assistant Controller of Publication and Proof Reader respectively:--

13A- CONTROLLER OF PUBLICATION.-- The post of Controller of Publication shall be filled in:-- By promotion from amongst Assistant Controller (Publication) with Seven Years'' Experience & LL.B. Degree on the recommendation of a committee nominated by the Appointing Authority.

Or

By deputation (i) from amongst High Court Staff having Degree of Laws & running in pay scale of Rs. 10,000-15,200/- (corresponding new pay scale is PB-3, 15600-39100. Grade Pay (6600) or above for seven years; & Three years experience in publication of law journal; or

(ii) from the cadre of Rajasthan Judicial Service (Selection Scale).

11A. ASSISTANT CONTROLLER OF PUBLICATION.-- The post of Assistant Controller of Publication shall be filled in:--

By Direct Recruitment on the basis of personal interview taken by Hon''ble The Chief Justice or any other Judge/Judges in charge of ILR nominated by Hon''ble the Chief Justice in this behalf from amongst the eligible candidates having Graduation with English as optional subject with Degree of Laws (LL.B.) and Three years'' experience of publication in Law Journals:

Or

By promotion from amongst Proof Reader with Ten years Experience, and if aforesaid is not eligible or found suitable, may be appointed from High Court staff members in pay scale of Rs. 6,500-10,500 (corresponding new pay scale is PB-2, 9300-34800. Grade Pay-4200) for minimum five years on the recommendation of a committee nominated by the Appointing Authority."

It may be relevant to note that while amendment was made u/R. 24 of the Rules 2002 and criteria was laid down for promotion to the post of Controller of Publication and also of Assistant Controller of Publication and we find that the feeder post of Assistant Controller of Publication from its initial creation vide notification dt. 21.6.2010 was kept in abeyance till further orders and for all practical purposes the first mode of appointment to the post of Controller of Publication notified vide order dt. 21.6.2010 from amongst Assistant Controller of Publication become meaningless and only mode remain available with the respondent is to fill the post of Controller of Publication by invoking second option of deputation from the High Court staff having prescribed Degree of Law and running in the prescribed Grade pay scale with experience in Publication of Journals and if not eligible or not found suitable, third option of appointing a judicial officer as a temporary arrangement until regular appointment.

It is not in dispute that the procedure which has been prescribed by the respondent pursuant to its order dt. 21.6.2010 for filling the post of Controller of Publication, has been complied with and notification was issued by the Registrar (Admn.) Rajasthan High Court, Jodhpur dt. 21.3.2012 inviting application from the eligible staff members and office note which has been placed for our perusal clearly indicates that three officers submitted their application including the petitioner and the Committee after examining their service records and overall suitability of the applicants, found the petitioner suitable and recommended her for appointment to the post of Controller of Publication pursuant to which she was appointed vide order dt. 18.9.2012 & joined on 21.9.2012.

It may further be noticed that initially the order passed by the respondent on 21.2.2013 was to provisionally fix the pay of the petitioner on the post of Controller of Publication but later on it revealed that it cannot be considered as provisional pay and accordingly the word ''provisional'' initially notified wherever appearing in pay fixation order dt. 21.2.2013 was deleted by the respondents vide order dt. 31.8.2013 and may be treated as appointment.

After rendered 36 years of service, the petitioner submitted application seeking voluntary retirement invoking R. 50(1) of Rajasthan Civil Service (Pension) Rules, 1996 (Rules 1996) read with Rules 2002 and her application came to be accepted vide order dt. 20.5.2013 and she was allowed to retire voluntary with effect from 22.7.2013.

The dispute arose as to how her pension is to be computed and whether last pay drawn by her is of the post of Controller of Publication or of Senior Librarian which she held as alleged by the respondent, being substantive post while she sought voluntary retirement.

Various correspondences took place between the respondent & Pension Deptt. and finally the officer was informed with the objection of the Pension Department that in terms of R. 45 (Note 17) of the Rules 1996 officer is not entitled for emoluments of the pay of the post of Controller of Publication and officer may get pension fixed on the post of Senior Librarian which according to the respondents was the last post substantively held by the officer on which she took voluntary retirement on 22.7.2013.

The submission of counsel for the petitioner is that she was appointed on the post of Controller of Publication after undergoing the process of selection prescribed under the Scheme of Rules 2002 and this being the post, which she substantively held on the date of seeking voluntary retirement i.e. on 22.7.2013, that will be her last pay drawn to be considered for computation of enhancement for grant of pension as envisaged u/R. 45 of the Rules 1996.

Counsel submits that the petitioner is entitled for computation of pension on the basis of last emoluments drawn by her and Instruction No. 17 issued by the Govt. u/R. 45 has no application in the facts of the instant case and communication dt. 24.11.2014 & subsequent rejection of her representation dt. 4.2.2015 are not sustainable in law and is seeking mandamus against the respondent to consider the case of the petitioner for emoluments prescribed u/R. 45 of the Rules 1996 of the last pay drawn on the post of Controller of Publication for release of pension and other retiral benefits flowing thereof.

It is opposed by the respondents and their objection is that she was appointed on deputation to the post of Controller of Publication which could not be considered to be substantive appointment which she held at the time of seeking voluntary retirement and the last pay drawn by her on the post of Controller of Publication in view of R. 45 (Note 17) of the Rules 1996 as informed by the Pension & Pensioners Welfare Department vide order dt. 2.4.2014 to the Registrar (Admn.) Rajasthan High Court, Jodhpur is not admissible and the decision was communicated to the petitioner.

Counsel for respondent state while supporting further submits that as she was appointed on deputation on the post of Controller of Publication, it cannot be considered to be a post substantively held while she took voluntary retirement as such is entitled to computation of emoluments for fixation as contemplated u/R. 45 of the last substantive post held of Senior Librarian but when her pension case was sent to the Pension & Pensioners Welfare Department, extensive correspondences took place and finally it was turned down by the Pension Department with specific note dt. 24.11.2014 that she was appointed on the post of Controller of Publication on deputation which cannot be considered to be the last emoluments drawn by her in view of R. 45 (Note 17) appended thereto and petitioner cannot be paid pension contrary to the rules in the wake of R. 13A of Rules 1996 and she is entitled for computation of pension on the basis of salary last drawn by her on the substantive post of Senior Librarian, while she took voluntary retirement on 22.7.2013.

We have considered the submissions of the parties and with their assistance perused the material available on record.

Let Rule 45 and Note 16, 17 & 18 of the Rules 1996 which are relevant for the present purpose read ad infra--

R.45--

Emoluments

The expression "Emoluments" used for the purposes of pension, service, gratuity and retirement/death gratuity means sum of pay in the running pay band plus grade pay and NPA/NCA, if any, which a govt. servant was receiving/or to which he was entitled to immediately before his retirement or on the date of his death or on the basis of average of last ten months immediately before the date of retirement, whichever is beneficial.

Provided that the amount of dearness allowance admissible on sum of running pay band plus grade pay and NPA/NCA, if any, at the time of retirement/death of a govt. servant, as the case may be, shall be treated as part of emoluments for the purpose of grant of retirement gratuity/death gratuity.

Note--

1-15 xx xx

Pay drawn by a Government servant while on deputation to Government of India/Other State Governments shall not be treated as emoluments, but the pay which he would have drawn under the Government had he not been on deputation to Government of India/other State Government shall alone be treated as emoluments.

Pay drawn by a Government servant while on foreign service shall not be treated as emoluments, but the pay which he would have drawn under the Government had he not been on foreign service shall alone be treated as emoluments.

Pay drawn by a Government servant while on ex-cadre post shall not be treated as emoluments, but the pay which he would have drawn in the cadre had he not been on ex cadre post shall alone be treated as emoluments."

Accordingly, on the basis of last emoluments drawn by govt. servant, pension is computed & is payable in terms of R. 54 of Rules 1996.

R. 45 referred to supra clearly envisage that for the purpose of retiral benefits, which include pension, gratuity etc. a govt. servant was receiving/or to which he/she was entitled to immediately before retirement or on the date of his/her death or on the basis of average of last 10 months immediately before the date of retirement, which is beneficial to the employee, thus, on the basis of last emoluments, pension is to be computed and Note 16 refers for such of the Government servants who are on deputation either to Government of India/Other State Governments whatever emoluments are being paid during the term of deputation and that may not be considered & be treated as the emoluments contemplated u/R. 45 of the Rules 1996 and in continuity thereof, Note 17 envisages that Government servant who is in foreign service, whatever pay was drawn by him/her cannot be considered/treated as emoluments and same is being indicated in Note 18 where pay drawn by a Government servant, on a ex-cadre post, shall not be treated as emoluments, but, at the same time, the pay which he would have drawn under the Government had he not been on foreign service shall alone be treated as emoluments. Thus, Note 16, 17 & 18 appended to R. 45 clearly envisage that ordinarily the emoluments of the substantive post which the govt. servant held and last drawn at the time of retirement is the touch stone which should be taken note of for computing emoluments payable on which pension of the govt. servant is to be computed appended to R. 45 of Rules 1996 and if we read Note 16, 17 & 18 appended to R. 45 of the Rules 1996, pay drawn by a govt. servant on deputation to Government of India/Other State Governments or to foreign service or ex cadre post such emoluments cannot be treated as emoluments.

Keeping in view the above scheme of R. 45 of Rules 1996, in the instant case we find that the rule making authority in its wisdom while making amendment vide notification dt. 21.6.2010 provided three alternative mode of appointment by promotion on selection amongst officers in the cadre of Assistant Controller of Publication holding prescribed qualification, experience & pay Grade of the feeder post but since inception on creation the post of Assistant Controller of Publication being kept in abeyance, at least there cannot be any promotion to the post of Controller of Publication and the first mode is meaningless and that was the reason for which other alternative mode prescribed for filling the post of Controller of Publication was adopted.

The second alternative mode by which the post of Controller of Publication could be filled is amongst the High Court staff.& member of service of Rules 2002 having Degree of Law and running in prescribed pay Grade with seven years experience in publication of law journal and if one is not found eligible or suitable for promotion, third alternative mode is to appoint from the cadre of Rajasthan Judicial Service (Selection Scale) on temporary arrangement unless the person by a regular mode of appointment is made applicable.

Thus, keeping in view the alternative mode for filling the post of Controller of Publication, notification came to be issued by the respondent dt. 21.6.2010 inviting applications in the prescribed proforma from amongst eligible staff members of the High Court Jodhpur/Jaipur Bench to fill the post of Controller of Publication and after the applications were received, the same were scrutinized & examined by the Committee and after undergoing the procedure prescribed under the Scheme of Rules 2002, the petitioner was found suitable and was appointed as Controller of Publication vide order dt. 18.9.2012 pursuant to which she joined on 21.9.2012 and while she was holding the post of Controller of Publication she took voluntary retirement u/R. 50(1) of the Rules 1996 and she was permitted to seek voluntary retirement w.e.f. 22.7.2013.

It is true that under the service jurisprudence when we consider deputation as mode of appointment that always remain for a particular term and deputation could be with Govt. of India or other State Government or in foreign service which may not commensurate with post which the officer/employee held in the parent department & while working in state govt. due to some exigency ex cadre post is created to man the post but that remain a temporary phase V to continue as long as service of the officer is required one can continue against ex cadre post and deputationist has to repatriate to the substantive post held in the department after completion of maximum term as prescribed under the relevant scheme of Rules and even for appointment by deputation on foreign service or to other state govt. consent of the employee is also one of the pre condition precedent.

In the instant case, the minutes of the meeting dt. 1.8.2013 of the Administrative Committee placed for our perusal indicates that the committee took note of mode of appointment on the post of Controller of Publication by deputation and expressed its view that appointment by deputation as provided u/R. 13A of the Rules 2002 appears to be incompatible with the fundamental principles of service jurisprudence and thus the provision requires a re-look and we do find justification that for deputation, in service jurisprudence, there are lending & borrowing department and consent of the employee/officer is also one of the pre condition to send on deputation and there cannot be an appointment in regular channel of promotion on deputation and in our view it requires consideration for making suitable amendment as proposed.

Be that as it may. At the present moment we have to proceed as per the existing Scheme of Rules 2002 and deputation has been prescribed as one of the mode of appointment has been considered to fill the post of Controller of Publication & with whatever nomenclature is being prescribed to fill the post of Controller of Publication when the feeder post of Assistant Controller of Publication has been kept in abeyance since its creation vide its notification dt. 21.6.2010 we can take a judicial notice that the rule making authority was very much conscious of the fact that the post is to be filled by second mode of recruitment from amongst the High Court staff who are members of the Rules 2002 having Degree of Law with prescribed pay scale and experience in publication of law journal and this being the mode invoked by the respondent to fill the post of Controller of Publication and procedure was followed by inviting applications amongst staff of High Court vide notification dt. 21.3.2012 and after suitability was adjudged by the Committee the petitioner was appointed on the post of Controller of Publication vide order dt. 18.9.2012 pursuant to which she joined on 21.9.2012 in these facts & circumstances the appointment of the petitioner on the post of Controller of Publication can be considered substantive appointment for all practical purposes last held at the time of her retirement on 22.7.2013 and petitioner became entitled for computing emoluments of the post of Controller of Publication as contemplated u/r. 45 of the Rules 1996 and the communication sent by the respondent invoking R. 45 (Note 17) of the Rules 1996 in our considered view is not legally sustainable in the light of observations made supra & deserves to be set aside.

As we have already observed that the proposal has been made by the Administrative committee in its meeting dt. 1.8.2013 to suitably amend the rules, it is certainly open for the respondent to consider & make suitable amendment to avoid the anomaly created by assigning the nomenclature of deputation which in service jurisprudence is not considered for substantive appointment.

Consequently, the writ petition succeeds and is hereby allowed. The communication dt. 12.4.2014 sent to the petitioner rejecting her claim for computing emoluments of the post of Controller of Publication, invoking R. 45(17) of the Rules 1996, is not sustainable and is hereby quashed and set aside and the respondents are directed to review/revise her pension and other retiral benefits keeping in view the emoluments of the post of Controller of Publication which she held on the date of her retirement i.e. 22.7.2013 and accordingly her pension and other retiral benefits be re-computed and arrears be paid to her along with interest at the rate of @ 9% per annum from the date it became due until actual payment. No cost.