Judgment:
S.B. Civil Writ Petition No.5641/2009 Karan Singh Vs. State of Rajasthan & Ors. Order dt:
11. 02/2014 1/13 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ORDER
S.B. Civil Writ Petition No.5641/2009 Karan Singh Vs. State of Rajasthan & Ors. Date of Order :::
11. h February, 2014 PRESENT HON'BLE Dr. JUSTICE VINEET KOTHARI Appearance: Mr. G.R. Goyal, for the petitioner. Mr. Kamaldeep Singh Boparai, Dy. Govt. Counsel. -- BY THE COURT:
1. The petitioner, Karan Singh, working as LDC in the Settlement Office (Revenue Department) is at the fag end of his service career, and who is bound to retire on 31.03.2014 on achieving the age of superannuation, hence, the learned counsel for the petitioner, Mr. G.R. Goyal, submits that there is urgency in the matter and the present case may be finally heard at this stage, to which learned Dy. Govt. Counsel has no objection. Accordingly, the writ petition was heard finally.
2. The case has a chequered litigation history in this case. The writ petition filed by the petitioner earlier being SBCWP No.2181/1983- Karan Singh Vs. State & Ors., was allowed by the learned Single Judge of this Court on 18.07.1994. The petitioner S.B. Civil Writ Petition No.5641/2009 Karan Singh Vs. State of Rajasthan & Ors. Order dt:
11. 02/2014 2/13 came to the Court when his services were sought to be terminated as he did not pass the departmental test within a period of three years of his initial appointment. The petitioner initially was appointed on 08.03.1979. The learned Single Judge of this Court while allowing petitioner's earlier writ petition held as under: - “It is clear that the proviso to above sub-rule is only a safeguard against arbitrary removal from service without following the principles of natural justice. It does not permit a punitive action to be taken against an employee who has failed to clear the test. The provision does not require or permit taking of action under Rule 16 of the Rules of 1958. Rule 16 of the Rules of 1958 applies to a departmental enquiry for misconduct. The two provisions, if read together, would mean that the procedure for giving a simple discharge to the employee have to be followed. In this case a regular charge sheet was given to the petitioner and a finding was given that his not passing the examination in three attempts amounted to negligence and dereliction of duty. By no stretch of imagination failing to pass a departmental examination could be said to amount to dereliction of duty or negligence. The action against the petitioner is, therefore, wholly illegal. The impugned order deserves to be set aside and is hereby quashed. So far as the relief which can be granted to the petitioner, it is to be borne in mind that instead of giving a simple discharge to the petitioner, punitive action was unnecessarily taken against him. The S.B. Civil Writ Petition No.5641/2009 Karan Singh Vs. State of Rajasthan & Ors. Order dt:
11. 02/2014 3/13 petitioner does not deserves to be reinstated because actually, the order of removal of service by way of punishment has to be substituted by order of simple discharge. The petitioner has not worked for the last about 11 years. He does not deserves to be awarded back wages only on the technicality of the procedure adopted in removing him from service when he had no right to continue in service. The petitioner therefore, deserves to be granted only a declaration that he could not be removed from service by way of punishment but his services were terminated by way of simple discharge. As the petitioner had to fight this litigation to get himself free from stigma of the punishment, he deserves to be awarded compensatory costs of this limitation. The petition is therefore allowed. The impugned order is quashed. It is instead declared that the petitioner has been given a simple discharge on his not being able to pass departmental examination within the stipulated period. The respondent shall pay Rs.2500/- (Rupees Two Thousand Five Hundred only), as consolidated costs of this proceeding to the petitioner.”. 3. Later on, the petitioner filed a review petition/misc. application being S.B. Civil Misc. Application No.210/1994 in S.B.C.W.P. No.2181/1983- Karan Singh Vs. State & Ors., and the same came to be allowed by the same learned Single Judge on 21.05.1996, in the folloiwng terms: - “This review petition brings out a patent defect in the Judgment dated 18th July, 94 passed in S.B.C. S.B. Civil Writ Petition No.5641/2009 Karan Singh Vs. State of Rajasthan & Ors. Order dt:
11. 02/2014 4/13 Writ Petition No.2181/83. While granting relief in the case it was stated that the petitioner does not deserve to be reinstated. It has also been stated that “the petitioner has not worked for the last about 11 years. He does not deserve to be awarded back wages only on the technicality of the procedure adopted in removing him from service when he had no right to continue in service.”
. On this basis, only a declaration that he could not have been removed from service by way of punishment and his services were to be deemed to have been terminated by way of simple discharge was given. The review petitioner brings to my notice that the aforesaid statements were factually incorrect as the petitioner continued in service on the strength of an interim order passed on 13.9.84 in S.B. Misc. Stay Petition No.2088/83. By the aforesaid stay order the further operation of the order Ex-7 dated 10.8.83 with regard to the termination of the services of the petitioner was stayed. It was however, made clear that the interim order would not preclude the respondent from passing any other other. It is common ground now that no further order terminating the services by way of simple discharge was passed against the petitioner after 13.9.84. It is, therefore, transpires that on the date of the Judgment the petitioner factually continued in employment and must have been paid salaries of all that period. The refusal to grant relief to the petitioner was therefore based on a misconception that the petitioner was out of job. In the light of the aforesaid circumstances, therefore, this review petition deserves to be allowed S.B. Civil Writ Petition No.5641/2009 Karan Singh Vs. State of Rajasthan & Ors. Order dt:
11. 02/2014 5/13 and the relief deserves to be granted on the basis of correct facts. The review petition is hereby allowed. It is, therefore, directed that the impugned order dated 10.8.83 Annex-7 to the petition is quashed. The petitioner is declared to be entitled to continuation in services as if that order was not passed. He is also declared to be entitled to all the benefits of services as if that order was not passed. Sh. M.R. Singhvi counsel for the respondents submits that the liberty should be given to the non- petitioner-employer to now consider and decide whether a simple discharge should be given to the petitioner, as this Court has categorically held in the Judgment that a simple discharge could have been instead of a punitive discharge. It is correct that the employer could have given a simple discharge to the petitioner and the petitioner is benefiting only because instead of giving a simple discharge the termination of service was effected by way of punishment. However, keeping in mind the time lag of over 12 years which has occurred since the termination of services of the petitioner, it would not be just and proper to give this liberty to the employer especially because the allegation against the petitioner related to not passing a departmental examination which was wrongly treated to be a misconduct. The matter should come to and end at some stage and I do not consider it necessary to grant liberty to the non-petitioners to pass a fresh order of simple discharge. The order under review shall be read with the aforesaid modifications. There shall be no order as to S.B. Civil Writ Petition No.5641/2009 Karan Singh Vs. State of Rajasthan & Ors. Order dt:
11. 02/2014 6/13 costs.”. 4. Against the order passed by the learned Single Judge allowing the said review petition of the petitioner, the respondent- State preferred an intra-court appeal being DBSAW No.415/1996- State of Rajasthan & Ors. Vs. Karan Singh. The Division Bench, however, dismissed the intra-court appeal filed by the respondent- State vide the judgment dated 09.08.2004 (Annex.4). The operative portion of the Division Bench judgment dated 09.08.2004 is quoted herein below for ready reference: - “The learned Single Judge rightly set aside the order, terminating the services of the petitioner. A review application was filed and the plea was taken that the respondent had worked for last 11 years. The said fact was found to be factually incorrect. Thus, the review application was also rejected. It is a fact that the respondent has been continuously working as a Lower Division Clerk even today since, 1972 that is for last 25 years. No case is made out for interference with the order of the learned Single Judge. The special appeal stands dismissed.”. 5. Thereafter, the respondent- Settlement Officer, however, passed the impugned order (Annex.5) dated 05.02.2009 and while notionally reinstating the petitioner back in service as LDC w.e.f. 13.09.1984, has taken away the benefit of grade increments, selection grade and regularisation etc. of the petitioner. The relevant portion of the impugned order (Annex.5) dated 05.02.2009 is quoted S.B. Civil Writ Petition No.5641/2009 Karan Singh Vs. State of Rajasthan & Ors. Order dt:
11. 02/2014 7/13 below for ready reference: - “श करण स ह, क इ क र लर क आदश कम क/फ / स /1/1/3/ भपआ/79/2602-14 ददन क 08.03.79 द र कननष सलप#क क #द #र अस ई र# एक वर क सलए ननर*क, पद न क- गई । उ, आदश क- # लन म1 इनह3न ददन क 17.3.79 क उ#सस न5 पस5*5 क- । पवभ ग द र 5 न अव र ददर ज न #र भ ननरम न* र ननर रर5 दक5 #र:क उत ण नह: करन #र . . ए. ननरम3 क अन5ग5 क रव ह: कर5 ह*र उ आदश ददन क 10.8.83 व # < क कर ददर गर । श करण स ह द र उ, आदश क पवरद एक स पवल ररट र च@क खर 2181/83 करण स ह बन म रक र म नन र उच@ नर र लर, ज र#*र म1 पस5*5 क- गई सज #र म नन र उच@ नर र लर द र आदश ददन क 13.09.84 क स गन आदश पद न कर5 ह*ए उ, आदश ददन क 10.08.83 क स चग5 कर ददर गर । उ, स चग5 आदश क- # लन म1 पवभ ग द र श करण स ह क ददन क 24.09.84 मधर नह #व #*न: व म1 ल सलर गर । स पवल ररट र च@क खर 2181/83 #र म नन र नर र लर क ननणर ददन क 18.7.94 क पवरद एक ररवर र च@क खर 210/94 करण स ह बन म रक र द रर ककर ज न #र ररवर र च@क खर 210/94 म1 म नन र नर र लर म1 अ#न ननणर ददन क 27.05.96 द र आदश पद न ककर हG कक, श करण स ह क कननष सलप#क #द #र इ पक र ननरन5र म न ज व क- उ र जर व #< करन क आदश ददन क 10.08.83 # रर5 ह: नह: ककर गर ह 5 व म बचर5 मस5 ल भ ददर ज व। रस# डनट पवभ ग क इ ननणर द र र@ क व र रण5: # < क करन भ र क ददर गर । श करण स ह द र पस5* ररवर ररट र च@क 210/94 क ननणर ददन क 27.05.96 क पवरद रक र द र ड . ब . स#शल अ# ल खर 415/96 रक र बन म करण स ह S.B. Civil Writ Petition No.5641/2009 Karan Singh Vs. State of Rajasthan & Ors. Order dt:
11. 02/2014 8/13 द रर क- ज ददन क 09.08.2004 क ख ररज कर द: गई। र जर रक र क आदश कम क #.8 (1) र ज/7/05 ददन क 17.04.06 क म धरम ड . ब . स#शल अ# ल खर 415/96 ननणर ददन क 9.8.04 क पवरद अ# ल न करन क ननणर सलर गर एव इ क ह: ननदK श पद न ककर कक कम@ र: श करण स ह क व म1 सलर ज @क * हG । इ क अल व क ई #ररल भ र - व5नवप< दर , @रनन5-व5नम न, स र करण आदद दर नह: ह3ग।(The impugned portion). र जर रक र क आदश ददन क 17.4.06 क- # लन म1 प L क आददन क (sic! आज ददन क) 5क क ई ल भ नह: ददर गर । इ क रण प L द र ए . ब . स पवल पवपवर प न #त खर 210/94 क आदश ददन क 27.05.96 क- # लन न करन क क रण एक अवम नन र च@क खर 119/07 म नन र नर र लर क मक पस55 * क- हG । उ, अवम नन र च@क म1 जव ब पस5*5 कर र ज न ह5* र जर रक र न अ#न #त कम क #. 8 (1)/र ज./7/05 ददन क 16.01.09 क म धरम पवपवर प न #त खर 210/94 म1 # रर5 आदश नन क 27.05.96 क- # लन करन क ननदK श पद न ककर हG । अ5: म नन र र ज. उच@ नर र लर ज र#र* क ननणर ददन क 27.5.96 क- # लन करन क बर म1 र जर रक र क #त कम क #. 8 (1) र ज.-7/2005 ददन क 21.1.09 पप आदश3 क अन5ग5 श करण स ह क- कननष सलप#क क #द #र उ#सस न5 ददन क 17.3.79 व ए ननरन5र म न ज कर इनह र जर रक र द र मर- मर #र #ररवन55 क.सल. क नर*न5म व5न क ल भ पदत ककर ज न क- ए5दद र सव क<न5 ज र: क- ज 5 हG, @कक श स ह द र दक5 #र:क उत ण नह: क- हG, अ5: उनह1 र जर रक र क आदश कम क #. 8 (1) र ज./7/05 ददन क 17.4.06 क अन* र व5न वप< द, @रनन5 व5नम न एव स र करण आदद क ल भ दर नह: ह3ग।" (The impugned portion). S.B. Civil Writ Petition No.5641/2009 Karan Singh Vs. State of Rajasthan & Ors. Order dt:
11. 02/2014 9/13 6. Being aggrieved by this, the petitioner has again filed the present writ petition on 29.05.2009 and upon issuance of the notices to the respondents for final disposal on 22.07.2009, the respondents have filed reply to the writ petition, however, justifying the impugned order.
7. In the meanwhile, the petitioner had also filed a contempt petition being No.119/07 for the alleged non-compliance of the order passed by this Court in review petition but that contempt petition was, however, dismissed by the learned Single Judge of this Court on 23.03.2009 in the following terms: - “Heard learned counsel for the parties. Learned counsel for the petitioner submits that the order of this Court dated 27.5.1996 has not been complied with. Learned counsel for the respondent-contemnors has filed a reply and along with the reply, an order Annx.R/1 has been placed on record stating therein that the arrears arising out of difference of salary amounting to Rs.1,61,931/-, after making deductions of G.P.F. and R.P.M.F., has been deposited in the bank account of the petitioner on 24.02.2009. Learned counsel for the respondents submits that on filing a writ petition, this Court pleased to stay the order terminating the services of the writ petitioner and, therefore, by virtue of the interim order, the petitioner continued to be in service and thereafter since the order of termination came to be set aside, the petitioner is continuing in service till date and he is being paid the pay and allowances applicable to the post. S.B. Civil Writ Petition No.5641/2009 Karan Singh Vs. State of Rajasthan & Ors. Order dt:
11. 02/2014 10/13 In my view, there is substantial compliance of the order of this Court and, thus there is no willful or deliberate disobedience of the order of this Court. The contempt petition is dismissed and the notices are discharged.”. 8. Mr. G.R. Goyal, learned counsel for the petitioner submitted that since the petitioner was reinstated back in the service on 24.09.1984 itself in pursuance of interim order of this Court, therefore, there was no justification for the respondent- Settlement Officer to withhold the regular benefits flowing to the petitioner on account of such reinstatement by the order Anex.5 dated 05.09.2009 on the alleged ground that since he did not pass the departmental examination, which was required to be passed at the time of initial appointment in the service. He, therefore, submitted that in view of now impending retirement in near future of the petitioner on achieving the age of superannuation on 31.03.2014, the order impugned (Annex.5) dated 05.09.2009 withholding these benefits, deserves to be quashed and set aside and the petitioner's services deserve to be regularized from the initial date of appointment itself, and he is entitled to all service benefits, which arose to him in pursuance of his continuiaton in the service from 24.09.1984 in pursuance of the orders of this Court.
9. Mr. Kamaldeep Singh, learned Dy. Govt. Counsel, appearing for the respondent- State relied upon the decision of Hon'ble Supreme Court in the case of State of Rajasthan & Ors. Vs. Jagdish Narain Chaturvedi reported in 2009 (12) SCC49and urged S.B. Civil Writ Petition No.5641/2009 Karan Singh Vs. State of Rajasthan & Ors. Order dt:
11. 02/2014 11/13 that since the petitioner's appointment was not regularize and he was reinstated back in the service only in pursuance of the orders of the Court in review petition, referred above, therefore, he was not entitled to the grant of regular pay increments and selection pay scales etc.
10. Having heard the learned counsel for the parties at length and having gone through the record, this Court is of the opinion that the reliance placed by the learned Dy. Govt. Counsel in the case of Jagdish Narain Chaturvedi (supra) is misplaced. The said judgment dealt with the cases of irregular appointments and it was held that upon regularisation in such cases, the benefit of selection grades will not be available from the initial date of appointment and same will be granted from the date of regularisation only.
11. Here, the present case is entirely different and the present petitioner, Karan Singh was initially appointed as LDC and was given three years' period to clear the departmental examination, which was required to be done at the time of entry in the service, his services were terminated and subject to long litigation, he was continued in the services on 24.09.1984 in pursuance of the interim orders passed by this Court and there from the learned Single Judge upon the review petition filed by him vide the above-quoted order dated 25.07.1996 noted these fact and declared him entitled to all the benefits. Admittedly, the respondent, State, lost the legal battle up to the Division Bench of this Court with the dismissal of the intra-court appeal against the judgment passed by learned Single Judge allowing the review petition of petitioner. While passing the order, the S.B. Civil Writ Petition No.5641/2009 Karan Singh Vs. State of Rajasthan & Ors. Order dt:
11. 02/2014 12/13 learned Single Judge in the review petition has specifically observed that the petitioner is entitled to all the benefits of service as if the termination order (Annex.7) dated 10.08.1983 was never passed. Thereafter, with the dismissal of the special appeal, preferred by the respondent-State, there was no justification for the respondent- Settlement Officer to impose a condition in the order (Annex.5) dated 05.09.2009 not to give him the regular benefits of selection scales, increments and status of the regular employee etc. Now at the fag end of the service career of the petitioner, when the petitioner is bound to retire on 31.03.2014, even the condition of passing of the departmental examination, cannot be insisted upon. The petitioner has to be treated as regularized in the services right from the date of his initial appointment.
12. Accordingly, the present writ petition filed by the petitioner deserves to be allowed and the impugned restriction placed in the impugned order Annex.5 dated 05.02.2009 about non-grant of regular benefits to the petitioner, deserve to be set quashed and aside.
13. The writ petition is, accordingly, allowed. The impugned portion of para 3 of the order (Annex.5) dated 05.02.2009 to the extent, “इ क अल व क ई #ररल भ र - व5नवप< दर , @रनन5-व5नम न, स र करण आदद दर नह: ह3ग।”. and “अ5: उनह1 र जर रक र क आदश कम क #. 8 (1) र ज./7/05 ददन क 17.4.06 क अन* र व5न वप< द, @रनन5 व5नम न एव स र करण आदद क ल भ दर नह: ह3ग”. are hereby quashed and set aside. The petitioner will be entitled to all the S.B. Civil Writ Petition No.5641/2009 Karan Singh Vs. State of Rajasthan & Ors. Order dt:
11. 02/2014 13/13 benefits, like regular pay and increments, selection scales benefit and regularization in the services as a regularly appointed LDC and the said benefit be computed and given to him within a period of two months from today. The retiral benefits upon retirement of the petitioner on 31.03.2014 shall also be computed accordingly and shall be payable to be him. No order as to costs. A copy of this order be sent to the concerned parties forthwith. (Dr. VINEET KOTHARI), J.
DJ/- 104