SBCWP No.6671/94. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.6671/1994. Om Prakash Sharma Vs. State of Rajasthan & Ors. Date of order : October 16, 2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri R.A. Katta for the petitioner. Shri B.L. Awasthi, Additional Government Counsel. **** BY THE COURT :- Reportable This writ petition has been filed by the petitioner with the prayer that respondents be directed to allow the petitioner to submit revised option for his pay fixation in the Rajasthan Revised Pay Scale Service Rules, 1983 (for short, "Rules of 1983"). 2) Shri R.A. Katta, learned counsel for the petitioner has contended that petitioner after regular selection was appointed on the post of LDC in the Judgeship of Balotara on 12/12/1975. He was confirmed on that post vide order dated 10/10/1977. He was thereafter transferred to the Judgeship of SBCWP No.6671/94. 2 District Jaipur and since then he is working there. It is contended that consequent upon enforcement of the Rules of 1983, petitioner was required to submit option with the choice of particular scale. Petitioner accordingly in the light of the notification dated 17/2/1983 submitted his option w.e.f. 12/12/1981. Such option was made effective from 1/9/1991. Petitioner submitted option in the scale of Rs.355-570 at the stage of Rs.445/- as he reached at that stage on 12/12/1981. As per option given by him, his salary was fixed at Rs.610/- in the scale of Rs.490-840. Subsequently, however, the petitioner realised that because of exercise of such option, he had been deprived of the benefit of jump for a period of two years which could get in 1987 whereas it would have otherwise been due to him in 1985. He in this manner, shall suffer loss of Rs.140/- per month and accordingly reduction of his dearness allowance. This so happened due to the bonafide and innocent mistake of the petitioner because he could not understand the intricacy of exercising option in the correct manner. Writ petition was filed in the year 1994; at that stage, petitioner was drawing Rs.250/- per month which now according to the learned counsel is Rs.1500/- per month. Petitioner submited a detailed representation to the District Judge, Jaipur in December, 1984 for SBCWP No.6671/94. 3 permitting him to re-submit the option. District Judge vide order dated 9/4/1985 rejected the application of the petitioner holding that it would have financial implications. Learned counsel contended that petitioner in his representation named three persons and also their order numbers who were exactly identically situated and whose option once submitted in the Rules of 1983 was allowed to be changed. One such person is Shri Ramavtar Sharma-II who was working in the same Judgeship and who was junior to the petitioner. This has resulted in junior getting higher scale of pay than the petitioner who is senior, inasmuch as, respondents having applied double standards in similar cases. Thus, action of the respondents is discriminatory being violative of Articles 14 & 16 of the Constitution of India. Petitioner made number of representations and ultimately they were all rejected. Learned counsel referred to the instances of Shri Ramesh Chandra Soni, Shri Kamlesh Kumar Sharma, Smt.Madhu Jain, Shri Jagat Singh and Shri Rajesh Jain and argued that all these persons, who were similarly situated, were permitted to change their option once exercised and on the ground of parity, petitioner may also be allowed similar benefit. Learned counsel relied on the common judgment of co-ordinate Bench of this Court dated 10/11/1998 passed in SBCWP No.6192/96 SBCWP No.6671/94. 4 (Manohar Kumar Jain Vs. State & Ors.) and SBCWP No.2699/93 (Bhanwara Ram Vs. State & Ors.) and argued that in the aforesaid writ petitions, respondents were directed to permit the petitioners to re- exercise the option once submitted, which in fact was for consideration of 41 employees of the State Insurance Department and also of 5 Upper Division Clerks, who were all allowed the similar benefit. 3) Shri B.L. Awasthi, learned Additional Government Counsel opposed the writ petition and argued that government servant when exercising option has to apply his mind fully as to the implication thereof. A notification was published to this effect on 17/2/1983 according to which, the concerned employees were required to exercise option within two months from the date of its publication. Petitioner having once exercised the option could not be allowed to re-exercise the same. Shri B.L. Awasthi referred to the circular of the Finance Department dated 20/11/1993 and argued that the finance department by the said circular permitted fresh option to be exercised beyond the period of two months only in cases where government servants could not exercise such option within the prescribed time limit and therefore, were deemed to have opted in favour of revised pay scale rules w.e.f. 1/9/1981. The said order was passed by the finance department on the SBCWP No.6671/94. 5 analogy that by taking option as deemed to have been exercised, the employees were put in disadvantageous position. Representation of the petitioner was rejected by the competent authority and therefore there was no question of any illegality. Shri B.L. Awasthi also denied the allegation of discrimination. 4) I have given my anxious consideration to the rival submissions of the parties and perused the material on record. 5) The petitioner has in this writ petition submitted various examples of the government servants referred to above who according to him, were similarly situated and were allowed to exercise option second time. Respondents even though have filed detailed reply but have not denied the fact that those government servants were permitted to re- exercise the option. Petitioner has given the example of Shri Ramavtar Sharma-II who is junior to him and yet, he is drawing salary in the higher scale than the petitioner. As per the next below rule, petitioner even otherwise, in view of provisions of Rule 32 of the RSR, is entitled to be paid at par salary at par with his junior. Judgment of this Court in Manohar Kumar Jain and Bhanwara Ram referred to above squarely covers the controversy involved in the present matter wherein 41 officials of the State Insurance Department as also 5 UDCs, were allowed to SBCWP No.6671/94. 6 re-exercise the option, who had already submitted their option under the Rules of 1983. In other words, they were allowed to change their option even after they had exercised such option within the time prescribed by the finance department. They were allowed to do so because of the fact that the persons, who could not exercise the correct option, would suffer recurring financial loss. 6) In view of above, the present writ petition deserves to be allowed and is accordingly allowed. The impugned-orders dated 20/10/1993, 21/4/1994, 20/5/1994 and 19/4/1985 are quashed and set-aside. The respodnents are directed to consider the case of the petitioner in the light of the judgment dated 10/11/1998 passed in SBCWP No.6192/96 (Manohar Kumar Jain Vs. State & Ors.) and SBCWP No.2699/93 (Bhanwara Ram Vs. State & Ors.) and accordingly permit him to exercise fresh option. Petitioner shall be entitled to all consequential benefits. Compliance of the judgment shall be made within three months from the date, its copy is served upon the respondents. (MOHAMMAD RAFIQ), J. anil