Rajasthan Khadi And Village Industries Board vs Urmila Jain And Ors

This appeal has been filed by Rajasthan Khadi and Village Industries Board through its Secretary against judgment of learned Single Judge dated 02.02.2017, whereby the writ petition filed by respondent/writ-petitioner was allowed. Learned Single Judge, while allowing the writ petition, directed the appellant to give her the benefit of third selection scale on completion of 27 years of service from two years after 29.03.1994 when she was actually given third selection scale. Learned Single Judge also directed that the respondent/writ-petitioner shall be entitled for all consequential benefits of selection scale on completion of 27 years on 29.03.1996.

Mr. Madhukar Tiwari, learned counsel for appellant, submitted that there are typographical errors in the judgment. It is contended that in fourth line of para 2 it is wrongly stated that the respondent/writ-petitioner was promoted on the post of Statistical Officer on 5th April, 1988, whereas she was actually promoted on 5th April, 1985, and that the same mistake has been repeated in 8th line of para 3.

In para 10, the operative part of the impugned judgment, the learned Single Judge, while allowing the writ petition, directed the appellant to give the benefit of third selection scale to the respondent/writ-petitioner on completion of 27 years of service from two years after 29.03.1994, whereas actually this should have been mentioned as second selection scale on completion of 18 years of service.

The respondent/writ-petitioner, who appeared in person, agrees that the aforesaid typographical errors need to be corrected. In fact, she has filed a review petition but the same has not been decided for a long time. It is argued that she was actually given the first promotion on the post of Statistical Officer on 05.04.1985 and not on 05.04.1988 and that she was granted the benefit of second selection scale on completion of 18 years of service by order dated 29.03.1994 and not the benefit of third selection scale on completion of 27 years of service. The respondent/writ-petitioner submits that there is no justification for the appellant for debarring her from benefit of selection scale even when she refused to accept the promotion. It is contended that the appellant was proposing to post her against a post which was not encadred in the Board and therefore she had every reason not to accept such posting.

Having heard learned counsel for the appellant and the respondent in person, this Court finds that there are indeed certain typographical errors in para 2, 3 and 10 of the impugned judgment, referred to above. The Government of Rajasthan in its Finance Department (Rules Division) has issued a Memorandum dated 04.12.1996 providing for the guidelines to deal with the cases of such Government servants who forgo the promotion. Para 2 of aforesaid Office Memorandum provided that the Government servant who is drawing pay in second or third selection scale if on his actual promotion to second/third promotion post forgoes the promotion, the benefit of second and/third selection scale, as the case may be, shall be withdrawn from the date he forgoes the promotion. However, this situation was subsequently regulated by the State Government vide an omnibus amendment brought to in all the relevant service Rules by the Rajasthan Various Service (Third Amendment) Rules, 1998, which in Rule 2 provided as under:-

"Restriction of promotion of persons foregoing promotions:- In case a person, on his appointment by promotion to the next higher post either on the basis of urgent temporary appointment or on regular basis on the recommendation of the Departmental Promotion Committee, forgoes such an appointment through his written request and if the concerned Appointing Authority accepts his/her request, the person concerned shall be debarred from consideration for promotion (both on the basis of urgent, temporary appointment or on regular basis) for subsequent two recruitment years for which the Departmental Promotion Committee is held and the name of such person who forgoes promotion shall not b e included in seniority-cum- eligibility list to be placed before the Departmental Promotion Committee for subsequent two recruitment years."

Learned Single Judge, relying on the aforesaid Rule, has in para 10 of the impugned judgment intended to direct that the benefit of second selection scale, which was granted to the respondent/writ-petition vide order dated 29.03.1994, could at the maximum be delayed by two years on account of the fact that she had forgone the promotion and therefore has directed that the third selection scale shall be given with effect from 29.03.1996. In doing so, however, learned Single Judge has incorrectly mentioned this to be the third selection scale on completion of 27 years of service, whereas it was second selection scale granted to the respondent/writ-petitioner on completion of 18 years of service.

We do not find any reason to interfere with the impugned judgment except observing that date of promotion stated in para 2 and 3 of the judgment shall be read as 05.04.1985. The direction contained in para 10 of the judgment shall stand modified in the terms that the benefit of second selection scale on completion of 18 years of service granted to the respondent/writ-petitioner on 29.03.1994 shall however now be granted with effect from 29.03.1996.

At this stage the respondent/writ-petitioner, who is present in person before the Court, has cited a Division Bench judgment of this Court dated 09.09.2002 - D.B. Civil Special Appeal (Writ) No.1939/2002 (Defects), by which it was directed that the appellant shall not make recovery of the amount already paid to her on account of grant of selection scale. Even otherwise, the benefit of second selection scale by order dated 29.03.1994 was granted to the respondent/writ-petitioner by the appellant themselves and not owing to any misrepresentation or fraud on her part.

The appeal is accordingly dismissed. However, it is directed that while giving effect to the judgment the appellant shall not make any recovery from the respondent/writ-petitioner considering that she has already retired. Benefit of second selection scale to her shall now be computed from the date 29.03.1996 and her retiral benefits shall be recomputed accordingly.

The appeal is dismissed, however, with aforesaid modification in the impugned judgment. This also disposes of stay application.