BRIJ MOHAN SHARMA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) IN this writ petition filed under Article 226 of the Constitution of India the petitioner has prayed that an appropriate writ order or direction may be issued to quash the orders (Exhibits 4 and 5) dated August 23, 1971 and October 12, 1971, passed by the Principal, R.N.T. Medical College and Controller Associated Group of Hospitals, Udaipur (respondent No. 2 here in after).

(2.) BY order dated June 19, 1963, the petitioner was appointed on the post of Modeller in the Grade of Rs. 115 -335. The aforesaid appointment of the petitioner was made on the basis of selection through the Director of Public Relations, Rajasthah, Jaipur. In pursuance of the aforesaid order the petitioner joined as Modeller on September 23, 1963. By order dated September 23, 1964, the petitioner was promoted as Artist in the Grade of Rs. 170 -385. The aforesaid promotion was made on temporary basis for a period or six months or till a candidate selected by Rajasthan Public Service Commission was made available, which ever was earlier. The petitioner, however, continued to hold the post of Artist till the order dated October 22, 1969, was passed by Respondent No. 2. In the aforesaid order it was stated that two posts of Artists in the College had been abolished and one post of senior Artist had been created by the State Government and that as a result of the same Shri Satya Narain Bharadwaj, who was holding the post of Artist, was being appointed in the new post of senior Artist, and the petitioner, who was holding the other post of Artist, was being appointed on the post of Modeller in place of one Shri Govind Singh, who was being declared surplus. Thereafter an order dated August 23, 1971, was passed by respondent No. 2, wherein it was ordered that the petitioner had been initially appointed as Modeller in the College with effect from September 23, 1963, in the pay scale of Rs. 115/335 and he was subsequently promoted as Artist with effect from September 24, 1964, in the pay scale of Rs. 17 0 -385 which he was holding up to October 31, 1969, and then he was re -posted to his initial post of Modeller with effect from November 1, 1969. In the said order it was further stated that the pay scale of Modeller had changed to Rs. 180 -425 and that pending his pay fixation the petitioner should have been allowed the p*y arrived, if he would have continued as Modeller or the minimum of the pay scale of Modeller under the Rajasthan Civil Services (New Pay Scale) Rules, 1969 (hereinafter referred to as 'the New Pay Scale Rules') which ever was higher, but he had been allowed to draw Rs. 220/ - per month which he had been drawing as an Artist and that in order to regularise the said issue the petitioner would be provisionally allowed to draw Rs. 180/ - per month, the minimum of the pay scale, with effect from November 1, 1969. The aforesaid order dated August 23, was followed by the order dated October 12, 1971, passed by Respondent No. 2. By the aforesaid order the pay of the petitioner on the post of Artist as on September 1969 was fixed at Rs. 210/ - per month in accordance with the New Pay Scale Rules and his pay as on September 24, 1968 and on September 24, 1969, was fixed at Rs. 220/ - and Rs. 235/ -respectively. In the said order dated October 12, 1971, it was further directed that since the petitioner had been reverted to the post of Modeller with effect from November 1, 1969, his pay from November 1, 1969, had been fixed at Rs. 180/ -per month, and since a sum of Rs. 1418/ - had been paid in excess to the petitioner, steps should be taken to recover the said excess amount from the pay of the petitioner at the rate of Rs. 50/ - per month. The petitioner submitted representations to the State Government against the aforesaid orders dated August 23, 1971, and October 12, 1971. The said representations were ultimately rejected by the order dated November 11, 1974, passed by the Assistant Secretary to the Government, Medical and Health Department, Rajasthan, Jaipur, where in it was stated that since the petitioner was not declared surplus, it was not possible to protect his pay. Thereupon the petitioner filed this writ petition for the reliefs referred to above.

(3.) IN the writ petition the petitioner has submitted that the on abolition of the post of Artist held by the petitioner, the petitioner was absorbed on the post of Modeller in accordance with paragraph 9 of the Circular of the State Government dated July 23, 1966 and the Petitioner should therefore, be deemed to have been absorbed on the post of Modeller under Rule 7 (3) of the Rajasthan Civil Services (Absorption of Surplus Personnel) Rules (here in after referred to as the 'Absorption of Surplus Personnel Rules'). The case of the petitioner is that in view of his absorption on the post of Modeller by virtue of Rule 7 (3) of the Absorption of Surplus Personnel Rules, the petitioner was entitled to draw the same salary on absorption as he was drawing on the post of Artist on the date he was absorbed on the post of Modeller and that the mere fact that before his appointment on the post of Modeller with effect from November 1, 1969, the petitioner was not declared surplus is of no consequence. In the writ petition the petitioner has also submitted that the petitioner was also entitled to the protection of the pay drawn r y him prior to November 1, 1969, on his appointment on the post of Modeller with effect from November 1, 1969, by virtue of the provisions contained in Rule 26 B of the Rajasthan Service Rules. The petitioner has also submitted that in any event this was a fit case in which the petitioner should have been given the benefit of the power of relaxation that has been confened on the Government under Rule 3 of the New Pay Scale Rules, in as much as Shri Govind Singh who was junior to the petitioner and had been declared surplus on the post of Modeller, by order dated October 22, 1969, has been absorbed on the post of Modeller and was drawing a salary of Rs. 250/ -per month and the petitioner who was senior to Shri Govind Singh, was being made to draw lesser salary than Shri Govind Singh.