NARENDRA KUMAR VIJAIVARGIYA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) WHETHER an employee can raise the plea of discrimination and right to equality in order to derive monetary benefit if an illegal and unwarranted benefit has been availed by other similarly situated employees, is the core question that falls for consideration in this writ petition.

(2.) THE back-ground of this matter in which this question arises is that the petitioner had been initially appointed as a Teacher Grade-III on 18. 10. 1975 and thereafter continued to function on this post till 30. 6. 1982. He was thereafter selected by the Rajasthan Public Service Commission for the post of Junior Accountant which he joined on 1. 7. 1982 in the Public Health Engineering Department and he also started getting the salary for the post of Junior Accountant as also the benefit of the revised pay scale for this post. An amendment was later introduced by the Government of Rajasthan known as Rajasthan Service (Amendment) Rules 1985 which invited option from the Government Servants from which date subsequent to 1. 9. 1981 they wanted to opt for the revised pay scale prescribed under the Rajasthan Civil Service (Revised Pay Scales) Rules, 1983 after their absorption and appointment to other posts through direct recruitment. THE petitioner's grievance is that although he had joined on the post of Junior Accountant, he should have been allowed to draw the pay of Teacher Grade-III as by virtue of his services as Teacher Grade- III - wherein he had completed 12 years of service he would have been entitled to a higher pay scale than the scale of Junior Accountant. THE petitioner, however, had adopted the right course and gave his option that he should be allowed to draw the pay scale of Teacher Grade-III till 30. 6. 1982 and from 1. 7. 1982 he should be allowed to avail the pay scale of Junior Accountant. It is his case that some other Government Servants took advantage of the Rajasthan Service (Amendment) Rules, 1985 and gave their option that they should be allowed to continue in the pay scale of Teacher Grade-III even after they were appointed as Junior Accountant, but the petitioner did not give this option as a right mind person and did not consider it proper to avail the benefit of the pay scale of Teacher Grade-III to which he was not entitled after being appointed as Junior Accountant. But when some other Government Servants taking advantage of the amendment continued to avail the benefit of the pay scale of Teacher Grade- III even after they were appointed as Junior Accountant, the petitioner felt that he should have been allowed to do the same. However, it is obvious that the other Government Servants were illegally allowed to avail the pay scale of Teacher Grade-III for once they were appointed and joined as Junior Accountant it is difficult to comprehend how they could draw the pay scale of the previous post. Infact the real reason for the amendment appears to be that a person was allowed to avail the benefit of the pay scale of his original post of Teacher Grade-III till the time he had not joined on the post of Junior Accountant and if the petitioner's averment is correct, it is difficult to appreciate how some persons who had already been allowed to join on the post of Junior Accountant could have been allowed to avail the benefit of the pay scale of the previous post of Teacher Grade-III (by virtue of their seniority on the post of Teacher Grade-III) as the correct application of the rule should have been that a person could delay the joining on the post of Junior Accountant and could draw the pay scale of Teacher Grade-III only till the time he had not joined on the post of Junior Accountant. But the petitioner's eye-sore became those persons who got the benefit both ways meaning thereby that although they joined on the post of Junior Accountant, yet they availed the benefit of pay scale of Teacher Grade-III. THE respondents in the fitness of things should not have allowed this, but it is difficult to deal with this illegality in this writ petition as neither those petitioners are parties before this court nor the respondent-State has contended that this benefit could not have been made available to some other employees. THE names of those persons are also not disclosed before this Court and therefore, it is not possible to deal with this part of the submission advanced by the petitioner's advocate. From the facts on record, it is clear that the petitioner's contention at the moment is that the benefit which was given to some other persons even by way of some illegal act of the respondent-State by mis-interpretation of the amendment or by over-sight, the same benefit should have been allowed to be availed by the petitioner. This expectation of the petitioner cannot be appreciated or fulfilled, at all, for what he is contending is that even though he adopted the right course, he should be allowed to avail the benefit of an illegal situation with retrospective effect which had gone in favour of some other persons who are not before this Court. It is well settled legal position that if an illegality has resulted in favour of some persons,the same cannot be allowed to be compounded by allowing the authorities to grant it in favour of some other persons on the ground of discrimination. THE ground of discrimination can be allowed to be raised in the facts and circumstances of a situation where the application of the principle do not perpetuate on other illegality which is th position in the instant case. Hence, the plea of the discrimination urged is not fit to be entertained. If the petitioner adopted the right course at the relevant time he is expected to take pride in it; instead of this, he filed this writ petition virtually claiming that the benefit of illegality which was allowed to be availed by some other employees should also be granted to him. This is clearly not acceptable either on moral or on legal grounds. THE petitioner is missing that once he was selected for the post of Junior Accountant by the Rajasthan Public Service Commission (for short "rpsc") which he joined on 1. 7. 1982 he had already availed the pay scale of Teacher Grade-III during the period of 1. 9. 1981 to 30. 6. 1982, but once he joined on this post he was not entitled to draw the pay scale of Teacher Grade-III even by virtue of the Amendment since the amendment merely gave option to the employees to opt from which date they were to be treated as Junior Accountant which would be counted as their service to the post of Junior Accountant in future. THE petitioner even without being aware of this amendment had continued on the post of Teacher Grade-III till 30. 6. 82 and had availed the pay scale of this post and hence, his contention that he could not avail the benefit of this amendment is also not quite correct. Once he joined on the post of Junior Accountant from 1. 7. 82 it was clearly not permissible that he could avail the benefit of pay scale of Teacher Grade-III while he was functioning as Junior Accountant. For all these reasons, this writ petition is not fit to be entertained and therefore, it stands dismissed without any order as to costs. .