SBCWP No.342/99 – Banwari Lal v. Rajasthan Civil Service Appellate Tribunal Date of Order: 05.03.2009 1 of 5 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT J O D H P U R ::: O R D E R ::: Banwari Lal v. Rajasthan Civil Services Appellate Tribunal & others S.B. CIVIL WRIT PETITION NO.342 OF 1999 ::: Date of Order: 05th March, 2009 ::: P R E S E N T HON'BLE MR JUSTICE GOVIND MATHUR None present, for the petitioner BY THE COURT: As per petitioner, he entered in the services of respondent Municipal Board being appointed as Head Clerk in the year 1965. The post of Head Clerk was re-designated as Office Assistance and therefore, as per petitioner he was designated as Office Assistant under an order dated 02nd January, 1989. Respondents made fixation of petitioner's pay in the pay scale of Rs.1400- 2600 on revision of pay scales in the year 1989. On introduction of provisions regarding grant of selection grades on completion of 9, 18 and 27 as per Government of Rajasthan's notification SBCWP No.342/99 – Banwari Lal v. Rajasthan Civil Service Appellate Tribunal Date of Order: 05.03.2009 2 of 5 dated 25th January, 1992, respondents allowed pay scale of Rs.2000-3200 to the petitioner with effect from 16th October, 1992, but the same was withdrawn. Thereupon petitioner preferred an appeal before the Rajasthan Civil Services (Service Matters) Appellate Tribunal, Jaipur and that came to be rejected on 06th January, 1999 being not maintainable. The petitioner, therefore, has filed this petition for writ giving challenge to withdrawal of selection grade granted to him as per notification dated 25th January, 1992. It is averred in the petition that since 12th April, 1965, petitioner is holding post of Head Clerk, which was subsequently designated as Office Assistant and therefore, selection grade of Rs.2000-3200 was rightly given to him by the respondent Municipal Board and there was no just and valid reason for withdrawal of pay scale so accorded. In reply to the writ petition, stance taken by the respondents is that as per Rajasthan Municipalities (Subordinate and Ministerial Services) Rules, 1963 {herein after 'the Rules of 1963'}, there is no provision for making direct recruitment to the post of Head Clerk/Office Assistant. The petitioner, as a matter of fact, was employed purely on ad hoc basis for a term of one SBCWP No.342/99 – Banwari Lal v. Rajasthan Civil Service Appellate Tribunal Date of Order: 05.03.2009 3 of 5 month just to discharge ministerial duties. However, he was allowed to continue in service for pretty long time, therefore, just with humanitarian consideration, a resolution was undertaken by the Board to appoint the petitioner as Lower Division Clerk with effect from 12th April, 1965. In view of the facts stated above, as per respondents the services of petitioner stood regularized as Lower Division Clerk with effect from 12th April, 1965. A promotion was accorded to the petitioner as Upper Division Clerk with effect from 07th November, 1975. The pay scale of Rs.2000-3200 was erroneously sanctioned to the petitioner in view of fact that no further promotion was available to the petitioner being lacking requisite qualification as per provisions of the Rules of 1963. In rejoinder, petitioner while reiterating the facts stated in the writ petition, accepted the factual aspect relating to his promotion as Upper Division Clerk. Nothing is stated regarding his competence for appointment as Head Clerk with effect from 12th April, 1965. I have examined the averments made in the writ petition, reply to it and rejoinder filed on behalf of the petitioner and also documents available. SBCWP No.342/99 – Banwari Lal v. Rajasthan Civil Service Appellate Tribunal Date of Order: 05.03.2009 4 of 5 From perusal of the document Annx.1 dated 12th April, 1965, it is apparent that appointment was given to the petitioner purely on ad hoc basis for a period of one month. True it is, that document Annx.1 designated the petitioner as Head Clerk. However, no appointment to that post could have been made by the respondent Municipal Board by way of direct recruitment as the method concerned is not a mode of recruitment to the post of Head Clerk under the Rules of 1963. The petitioner appears to have been re-designated as Office Assistant under an order dated 03rd July, 1990 (Annx.3) in view of an amendment introduced in Rajasthan Subordinate Offices (Ministerial Staff Service) Rules and also under the Rules of 1963. However, such re-designation nowhere establishes regular appointment of the petitioner on the post concerned. As a matter of fact, the appointment of the petitioner from inception was irregular and only to validate continuation of the petitioner in services of Municipal Board, a resolution was undertaken with sympathetic consideration to appoint the petitioner as Lower Division Clerk with effect from 12th April, 1965, i.e. date of initial appointment of the petitioner. As a matter of fact, the petitioner became regular employee of the Municipal Board as a consequence of resolution aforesaid, only in capacity of Lower Division Clerk. As such, his promotion to the post of Upper Division Clerk was SBCWP No.342/99 – Banwari Lal v. Rajasthan Civil Service Appellate Tribunal Date of Order: 05.03.2009 5 of 5 made with effect from 07th November, 1975. The respondent Municipal Board allowed pay scale relating to post concerned to the petitioner as per notification dated 25th January, 1992. The petitioner was erroneously accorded pay scale of Rs.2000-3200 by treating him an Office Assistant. The respondent Board, therefore, rightly withdrew the same. The petitioner was having no right to claim pay scale of Rs.2000- 3200 and as such, no illegality was committed by the respondent Board while withdrawing the pay scale aforesaid. In view of it, the petition for writ is liable to be dismissed. However, respondent Board is not required to effect any recovery from the petitioner for the amount which is said to be paid in excess to petitioner as a consequence of grant of pay scale of Rs.2000-3200 as no misrepresentation appears to be made by the petitioner for receiving such pay scale. With the protection given above, this petition for writ is dismissed. [GOVIND MATHUR],J. mma