1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.721/1995 Banshi Lal Sharma vs. State of Rajasthan & Ors. Date of order : 26/2/2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Sunil Samdaria for the petitioner. Shri Zakir Hussain, Addl. Govt. Counsel for the respondents. ****** This writ petition has been filed by the petitioner challenging the order dated 17.5.1993 by which the respondents rejected his representation for grant of benefit of selection scale from the date of his initial appointment as Malaria Surveillance Inspector on 21.9.1964. Shri Sunil Samdaria, learned counsel for the petitioner has argued that the petitioner was initially appointed as Surveillance Inspector on 21.9.1964 and he was confirmed in that post vide order dated 7.2.1994 with effect from 21.9.1964. He was thus substantively appointed as Malaria Surveillance Inspector with effect from the date of his initial appointment on 21.9.1964. Learned counsel submitted that services of the petitioner were subsequently 2 transferred to another cadre as LDC vide order dated 12.9.1979 and petitioner was posted in T.B. Clinic, Beawar. His pay fixation was also then accordingly made vide order dated 25.9.1979. The petitioner was thereafter promoted on the post of UDC vide order dated 10.2.1987. He was confirmed as LDC also vide order dated 24.4.1990 with effect from the date of his appointment on 15.9.1979. The petitioner made number of representations to the respondents for granting him benefit of selection scale on completion of 15 years as per their earlier Circular dated 23.1.1985 and subsequently he requested for granting him benefits as per the subsequent Circular dated 25.1.1992 on completion of 9, 18 and 27 years. The respondents however rejected representation of the petitioner and held that he would be entitled to count the period of service only from the date of his appointment as LDC on 12.9.1979. Learned counsel submitted that proviso-1 to clause (1) of Circular dated 25.1.1992, which the respondents are relying, is applicable to only such cases where an employee subsequent to his first 3 appointment is posted in another cadre as a result of direct recruitment. In the present case, it was a transfer from one cadre to another and therefore the said proviso would not be applicable to the case of the petitioner. Learned counsel submitted that the Government in the subsequent Circular dated 17.2.1998 has provided for the removal of such like anomaly by inserting fresh provisions in third and fourth proviso to clause-3. It is therefore prayed that the impugned order be quashed and set aside and the writ petition be accordingly allowed. Shri Zakir Hussain, learned Additional Governmental Counsel opposed the writ petition and submitted that petitioner was transferred on the post of Malaria Surveillance Inspector to that of LDC on his own request. Petitioner has submitted application within two years of his initial appointment and this was ultimately materialised and the order of his transfer to the post of LDC was passed on 12.9.1979. It was argued that the petitioner would now be deemed to have been freshly appointed on the post of LDC with effect from that date 4 and therefore the period of 9, 18 and 27 years of service would be countable from such date. Learned counsel relied on clause- 1 which inter alia referred to above. It was argued that when petitioner has already been granted promotion on 10.2.1987 within nine years and the second selection scale would thus be due to him upon completion of nine years counting from this date. Having heard the learned counsel for the parties and perused the material on record, I find that the first proviso on which the respondents are seeking to rely cannot indeed be applied to the facts of the present case because it merely provides that if an employee subsequent to his first appointment to a post in a cadre / service, as a result of direct recruitment, is appointed to some other post in the same cadre or other cadre, service from the date latter appointment shall be taken into consideration for the purpose of grant of selection scale. In the present case, what is emerging from the facts is that the petitioner was merely transferred from one cadre to another and this was made on his 5 own request but this request was made by the petitioner within two years of his appointment and it took as long as 12 years to materialise. Even if, therefore, the petitioner has accepted the transfer belatedly made from one cadre to another, that would have been effect of wiping out the services for the entire period. At the same time, the transfer of the petitioner from the post of Surveillance Inspector to the post of LDC cannot be considered as promotion because it was a lateral transfer and not a promotion to higher post. Although with regard to pay protection owning to the past services of the petitioner, the third proviso of clause (1) to the Circular dated 25.1.1992 states that in case an employees is declared as surplus and absorbed against a new post, the services of 9, 18 and 27 years as the case may be, shall be deemed to have been completed on the date on which his immediately junior employee completed that period of service or on completion of service from the date of appointment to the post held before absorption, whichever is later. But then this anomaly was sought to 6 be taken care of by the Government in the scheme of grant of selection scale on completion of 9, 18 and 27 years of services in the subsequent Circular of the Finance Department dated 17.2.1998 in proviso IV to clause 3 which inter alia provides that in case an employee who has been transferred from one department to another department or from one Appointing Authority to another Appointing Authority within the same Department in public interest or at his own request or while serving in one department of the State Government is recruited directly in other department on the same post, the services of nine, eighteen or twenty seven years, as the case may be, shall be counted for the purpose of grant of Selection Grade from the date of initial regular appointment on the same post in accordance with the provisions contained in the relevant recruitment rules. The term `same post’ for the purpose shall mean post carrying the same designation and pay scale. It was however provided for the purpose of counting of service rendered in previous department/under previous 7 appointment authority for grant of Selection Grade, if the pay of a junior Government servant becomes more than the pay of this senior, no stepping up of pay of senior Government servant shall be permissible. In view of above, the service of the petitioner rendered in the earlier post cannot be altogether ignored. The petitioner shall be granted the benefit of grant of selection grade deeming as if he is serving the respondents from the dated 21.9.1964. In the result, this writ petition is allowed. The respondents are directed to grant the benefit of selection scale to the petitioner deeming the date of his initial appointment as 21.9.1964 in terms of the Circular of the Finance Department dated 25.1.92 as modified by subsequent Circular dated 17.2.1998. Petitioner shall be entitled to all consequential benefits. Compliance of the judgement be made within a period of three months from the date its copy is produced before the respondents. (MOHAMMAD RAFIQ), J. 8 RS/