1 26 S.B. CIVIL WRIT PETITION No. 774/2003 [DEVA RAM VS. STATE OF RAJ. & ORS.] Dated : 26.02.2008 HON'BLE MR. MUNISHWAR NATH BHANDARI, J. Mr.P.R.Singh for the petitioner. Mr. N.M.Lodha A.A.G.} Mr.S.N.Toshniwal } for the respondent. ***** This writ petition has been preferred to seek a direction that petitioner may be promoted to the post of Lower Divisional Clerk along with the benefit of pay scale of aforesaid post w.e.f. 21.02.1986. Learned counsel for the petitioner submits that the petitioner after declaring surplus was absorbed initially on the post of Gram Sevak and thereafter by subsequent order the petitioner was absorbed finally on the post of Sahayak Parcha Vitrak cum Surveyor, however, even after absorption, petitione was asked to discharge the duties of the post of L.D.C. and the petitioner is otherwise continuously discharging the duties of L.D.C. Thus he is entitled to get the benefit of pay scale of L.D.C. As well as the order of promotion on the aforesaid post. Learned counsel for the respondents on the other hand 2 submits that pursuant to the declaration of Naka Guard/Sub Nakedars as surplus, from time to time the order of absorption were passed. As far as the petitioner is concerned, he was finally absorbed on the post of Sahayak Parcha Vitrak cum Surveyor and in that regard even post was created in the Year 2002. Petitioner accepted the absorption without protest and after enjoying the benefits a claim has been made for grant of promotion to the post of L.D.C whereas no avenue of promotion is provided as such from the post Sahayak Parcha Vitrak cum Surveyor. So far as the pay scale presently made admissible to the petitioner is concerned, referring to the rejoinder filed by the petitioner, it is stated that the petitioner is getting same pay scale as otherwise made admissible to the L.D.C thus so the monetary benefits are concerned, petitioner is getting the same benefit. It was further submitted that the petitioner has not worked on the post of L.D.C but working on the post on which he was absorbed. Thus, the question for grant of monetary benefit on the post of L.D.C from the Year 1986 does not arise. Learned counsel for the petitioner however submits that even perusal of the document reveals that a recommendation was made by the Competent Authority for absorption of the petitioner on the post of L.D.C in view of the existence of two vacant post but that recommendation was not accepted by the authority concerned and otherwise looking to the recommendation, it becomes clear that the 3 petitioner was discharging the duties of L.D.C . Considering the rival submissions of the parties, I have looked into the record and find that so far as the first prayer made by the petitioner is concerned, that cannot be accepted as petitioner cannot be given promotion to the post of L.D.C from the post he is holding now, therefore, the first prayer as made in the writ petition deserves to be dismissed. So far as the second prayer is concerned, the statement of fact shows that the petitioner said to be working and discharging the duties for the post of L.D.C and necessary claim has been made on the basis of that only. In that regard though a reference of the recommendation vide Annex.7 has been shown but then even if the petitioner was discharging the duties of L.D.C and the statement of fact in that regard is accepted for the sake of argument and then also the present writ petition was filed in the Year 2003 thus in view of the settled law regarding grant of benefit even of principle of equal pay for equal work, the petitioner is not entitled for the benefit for the pay scale of the post of L.D.C for a period prior to filing the writ petition. So far as the benefit subsequent to filing of present petition is concerned, even as per rejoinder filed by the petitioner, it comes out that on absorption on the post of Sahayak Parcha Vitrak cum Surveyor in the Year 2002, the petitioner drawing the same pay scale which is otherwise of the pay scale of the L.D.C i.e. the pay scale of 3052-4590 hence the 4 petitioner is receiving the pay scale which otherwise can be given on the principle of equal pay for equal work. In view of the above facts, the petitioner is not entitled even to seek benefit as has been prayed in second prayer. It is further relevant to mention that the perusal of several order shows that even the Government had taken a decision to absorb surplus employees on the post of L.D.C and pursuant to such decision, many of the employees at par with the petitioner's were even extended such benefits though in the writ petition, the petitioner has not made specific prayer for his absorption on the post of L.D.C but then leaving technical aspect, a direction is required to be given to the respondents to consider the case of the petitioner for his absorption on the post of L.D.C looking to the facts and circumstances of this case as well as the order passed by the respondents themselves for absorption of the surplus employee on the post of L.D.C. Such consideration should be made by the Government without being persuaded by any finding recorded in this judgment more so when the petitioner is drawing the same pay scale hence other than the benefit of avenue of promotion it is not going to make a large difference to the Government. In view of the aforesaid while dismissing the writ petition in regard to the prayer made, the respondents are directed to consider 5 the case of the petitioner for placing him on the post of L.D.C after taking it into consideration all the circumstances and in that regard petitioner is also directed to make a detailed representation to the respondents along with all necessary enclosures/documents showing similar treatment having been granted to others. Necessary representation may be made within a period of two weeks and the respondents thereafter are directed to consider the same within a period of two months. (MUNISHWAR NATH BHANDARI), J. mamta