SAMPATRAJ Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is a plaintiff's second appeal in a suit for arrear of salary filed by the plaintiff against the State of Rajasthan and arises out of the following circumstances.

(2.) THE plaintiff was in service of the erstwhile State of Jodhpur and at the time when he was selected as Upper Division Clerk as a result of integration he was working in the office of Sud-divisional Officer, Sojat. THE Divisional Commissioner, Jodhpur vide his letter dated December, 19, 1951 (Ex. 3) notified that all the government servants in the Ministerial Service of the Revenue Department working in Jodhpur division including the Treasury Staff have been selected for substantive appointment to the new classification and their seniority had been fixed in accordance with the rules as amended. THE selection was, however, confined to the pre-covenant entrants. Two lists were prepared in pursuance of the said letter; one of the Upper Division Clerks and the other of the Lower Division Clerks. Sampat Raj was at item No. 14 of the list of Upper Division Clerks. It was shown that through the process of integration Sampat Raj was appointed as an Upper Division Clerk in the office of the Sub-divisional Officer, Sojat. In this very letter the Divisional Commissioner notified for the option to be exercised by the incumbents to elect the new pay scale prescribed under the Rajasthan Civil Services (Unification of Pay Scales) Rules, 1955. THE relevant portion of the letter issued by the Commissioner is as follows : "all the Government servants must exercise their option to elect the new scale or the old scale in accordance with the Rajasthan Civil Services (Unification of Pay Scales) Rules, which will have effect from the 1st April, 1950, within a period of one month from the date of this order. . . . . . " It is not disputed that the plaintiff opted for new pay scales prescribed by the Government and started drawing salary from 1-4-1950 in the grade of Upper Division Clerk. Later on an objection was raised by the Accountant General that the plaintiff was not entitled to draw his salary in the grade of an Upper Division Clerk from 1-4-1950 According to the view taken by the Accountant General the plaintiff could draw the salary of grade of an Upper Division Clerk from 21-2-1952 after adding one advance increment when he was actually asked to function as the Upper Division Clerk. THE Commissioner, however, did not agree with this view of the Accountant General and wrote a letter an 27-6-1955 (Ex. 6) mentioning in that Sampatraj was actually selected as an Upper Division Clerk vide order dated 19-12-1951 As such he should be allowed to draw the of Upper Division Clerk's grade from 1. 4. 1950 in view of the Dy. Secretary to the Government G. A. D. letter No. G. A. D. F. 36 (Int. A/50 dated 18-11-1953) (copy enclosed for ready reference ). It was an ad-hoc arrangement and due to the process of integration persons were allowed to work without dislocation when they were categorised and fixed in the Unified Pay Scales except in the case of surplus hands all were given the benefit of the Unified Pay Scales from 1 4-1950 and Shri Sampatraj should, therefore, get the same benefit and be fixed as Upper Division Clerk from 1-4-1950.

(3.) LEARNED counsel appearing for the State urged that the suit was time barred, and therefore, it cannot be decreed by the Court even if Rule 3 is interpreted in the manner in which it has been interpreted by this Court. It may be mentioned that the State did not press the plea of limitation before the trial Court. In the first appellate court this plea was, however, pressed by the State but it was rejected by the learned appellate judge. Since the plea of limitation was [abandoned by the State at the trial stage, it cannot be allowed to be raised at the appellate stage as the question is not purely a question of law but a mixed question of law and fact.