1 S.B.CIVIL WRIT PETITION NO.4396/2008 Bhawani Singh Vs. State of Raj. & Ors. Date of Order :: 14.7.2008 HON'BLE MR. JUSTICE GOVIND MATHUR Mr. M.A. Siddiqui, for the petitioner. Mr. S.S. Ladrecha, Addl. Govt. Advocate. ... By this petition for writ a challenge is given to the order dated 11.9.2007 passed by the Addl. Collector, Jodhpur withdrawing the selection grades granted to the petitioner in pursuant to the notification dated 25.1.1992 issued by the Government of Rajasthan and also making an order to effect recovery of the amount said to be paid in excess. By an order dated 19.3.1979 passed by the Collector appointment was given to the petitioner no adhoc basis as Lower Division Clerk. After holding the screening the service of the petitioner was regularised by the Collector, Jodhpur under an order dated 2.3.1981 w.e.f. 11.7.1980. The respondents allowed selection grades to the petitioner by treating 19.3.1979 as the date of initial appointment. By the order impugned the Addl. Collector, Jodhpur ordered for withdrawal of selection grades granted w.e.f. 19.3.1979, being 11.7.1980 the date of initial appointment of the petitioner. The Addl. Collector by the same order also allowed selection grades to the petitioner by treating 11.7.1980 as the date of his initial appointment. An order for effecting recovery for the payment said to be paid in excess is also made. The contention of learned counsel for the petitioner is that being in employment of the respondents from 19.3.1979, the selection grade 2 should have been allowed to him from the date aforesaid. It is also contended by learned counsel for the petitioner that in any event no recovery for the amount said to be paid in excess could have been made as whatever amount paid to the petitioner is by the action of the respondents themselves, without having any misrepresentation or forgery on part of the petitioner. Under the instructions of the Court Sh. Shyam Ladrecha, Addl. Govt. Advocate accepts notice on behalf of the respondent- Collector, Jodhpur. The petitioner was employed as Clerk with the respondents on 19.3.1979 on adhoc basis and that too without adhering the procedure prescribed under the relevant Rules those are the Rajasthan Subordinate Ministerial Service Rules, 1957. The appointment of the petitioner from inception was de hors the Rules, however, the same stood regularized w.e.f. 11.7.1980 in pursuant to order dated 2.3.1981 passed by the Collector, Jodhpur. The selection grades under the notification dated 25.1.1981 are allowed to the employees of the Government of Rajasthan in lieu of promotion and with a view to remove stagnation in service. The petitioner while working as LDC in adhoc capacity pursuant to the order dated 19.3.1979 was not at all eligible and entitled to be considered for promotion, and therefore, the period during which the petitioner worked in adhoc capacity can not be taken into consideration for determination of the term of nine years as prescribed in the notification concerned. The respondents, therefore, rightly treated 11.7.1980 as the date of initial appointment of the petitioner instead of 19.3.1979. No error exists in the order dated 11.9.2007 so far as the determination of the date of initial appointment of the petitioner is concerned. ABy the order impugned the respondents have also made an order to effect recovery from pay of the petitioner against the amount said to 3 be paid in excess. The fixation of the petitioner by granting selection grades was made by the respondents at their own and there was no misrepresentation or fraud on part of the petitioner. The petitioner can not be held liable to refund the amount said to be paid in excess to him as he received the amount aforesaid by a willful action on part of the the respondents themselves. Accordingly, this petition for writ is disposed of with a direction to the respondents not to effect recovery of the amount said to be paid in excess to the petitioner in pursuant to the order dated 11.9.2007. The remaining part of the order impugned remains un-interfered. (GOVIND MATHUR), J. Jgoyal