SBCWP No.4440/1999 – Bheru Lal & others v. State of Rajasthan & another Date of Order: 25.03.2009 1 of 9 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT J O D H P U R ::: O R D E R ::: Bheru Lal & others v. State of Rajasthan & others S.B. CIVIL WRIT PETITION NO.4440 OF 1999 ::: Date of Order: 25th March, 2009 ::: P R E S E N T HON'BLE MR JUSTICE GOVIND MATHUR Mr N.M. Vyas, for the petitioner Mr Y.P. Khileri, Addl. Government Counsel for the respondents BY THE COURT: By this petition for writ, a challenge is given to validity, correctness and propriety of the judgment dated 07th December, 1998 passed by the Rajasthan Civil Services Appellate Tribunal, rejecting an appeal preferred by the petitioners to claim the pay scale of Rs.130-300 from the date the same was extended to their juniors. SBCWP No.4440/1999 – Bheru Lal & others v. State of Rajasthan & another Date of Order: 25.03.2009 2 of 9 In brief, facts of the case are that the petitioner No.1- Bheru Lal entered in the services of respondents being appoitned as Up-Vaidhya on 14th September, 1960. Petitioner No.2- Fateh Lal and petitioner No.3- Madan Lal were appointed as Up- Vaidhya with the respondents on 12th August, 1961 and 05th February, 1966 respectively. All the three petitioners subsequently acquired qualification of Ayurved Ratna and also necessary training to hold the post on which they were appointed. The Governor of Rajasthan while exercising powers conferred under proviso to Article 309 of the Constitution of India framed Rajasthan Ayurvedic, Unani, Homoeopathy and Naturopathy Service Rules, 1966 to regulate service conditions of the service created under the Rules aforesaid. The petitioners, were also included in the cadre of Up-Vaidhya, created under the Rules of 1966 and they were designated as Up-Vaidhya Grade-II. The Up-Vaidhyas were subsequently re-designated as Compounder/Nurse (Senior Grade) and Compounder/Nurse (Junior Grade). As per Rules of 1966, the eligibility to be appointed on the post of Compounder/Nurse (Senior Grade) was Bhisagawar or its equivalent qualification in Ayurveda. SBCWP No.4440/1999 – Bheru Lal & others v. State of Rajasthan & another Date of Order: 25.03.2009 3 of 9 The respondents, by an order dated 10th January, 1973, allowed pay scale of Rs.130-300 i.e. the pay scale applicable for the post of Compounder/Nurse (Senior Grade) to nine persons, namely – Shri Devendra Kumar Jain, Satya Narayan Dadhich, Gopal Dutt Sharma, Radhey Shyam Mishra, Rameshwar Lal Saini, Mahaveer Prasad Sharma, Kishan Singh Purohit, Radhey Shyam Sharma and Om Prakash. As per petitioners, all the persons named above were junior to them but a higher pay scale was given to them ignoring petitioners, solely on the count that the petitioners were not having the qualification of Bishagawar or equivalent thereto. The Government of Rajasthan by an order dated 23rd June, 1977 declared qualification of Ayurved Ratna obtained from Hindi Sahitya Sammelan, Prayag as a qualification equivalent to Bishagawar, however, such equivalence was made prospectively, therefore, the petitioners did not claim for higher pay scale, that is relating to the post of Compounder/Nurse Grade-II and which was given to their juniors vide order dated 10th January, 1973. By a corrigendum dated 09th February, 1995 the Government of Rajasthan made equivalence of qualification of Ayurved Ratna obtained from Hindi Sahitya Sammelan, Prayag with the qualification of Bishagawar with effect from 01st April, 1972. SBCWP No.4440/1999 – Bheru Lal & others v. State of Rajasthan & another Date of Order: 25.03.2009 4 of 9 Consequent thereto, petitioners too acquired qualification equivalent to the qualification possessed by the persons to whom pay scale of Rs.130-300 was given, thus, they became eligible to be considered for getting the pay scale of Rs.130-300 at least with effect from 10th January, 1973, the day on which the pay scale aforesaid was granted to their juniors. By way of filing a civil suit before the court of learned Munsif, Bhilwara petitioners agitated their cause and the suit aforesaid came to be decreed on 16th March, 1985 with a direction to defendants (respondents) to allow the pay scale of Rs.130-300 to plaintiffs (petitioners) with effect from 01st April, 1972. On acceptance of a regular First Appeal by learned District Judge, Bhilwara on 26th February, 1991, the suit preferred by the petitioners stood rejected on the count that cause sought to be agitated by the petitioners was a service matter as defined under sec.2(f) of the Rajasthan Civil Services (Service Matters Appellate Tribunal) Act, 1976 and therefore, civil court was not having jurisdiction to adjudicate the same. The petitioners then preferred an appeal before the Rajasthan Civil Services Appellate Tribunal, Jaipur that came to be rejected by the order impugned dated 07th December, 1998. SBCWP No.4440/1999 – Bheru Lal & others v. State of Rajasthan & another Date of Order: 25.03.2009 5 of 9 Learned Tribunal dismissed the appeal on the count that appellants (petitioners) failed to satisfy regarding their appointment as Senior Compounder. Learned Tribunal also held that merely on acquiring qualification equivalent to qualification of Bishagawar petitioners can not be held entitled to receive the pay scale relating to the post of Senior Compounder. While assailing validity of the judgment dated 07th December, 1998, contention of learned counsel for the petitioners is that the Tribunal failed to appreciate that by getting equivalence of “Ayurved Ratna” with “Bishagawar” the petitioners become eligible to be treated at par with the persons to whom the pay scale of Rs.130-300 was granted w.e.f. 10th January, 1973. A reply to the writ petition has been filed on behalf of respondents, which is a formal one and as a matter of fact, it no where deals with the controversy involved in this petition for writ. In general, the respondents have defended the order passed by learned Tribunal. During course of arguments, it is urged by Shri Y.P. Khileri, learned counsel for the respondents that the petitioners at the relevant time i.e. on 10th January, 1973, were not possessing the qualification of Bishagawar or SBCWP No.4440/1999 – Bheru Lal & others v. State of Rajasthan & another Date of Order: 25.03.2009 6 of 9 equivalent thereto, therefore, while promoting 09 Up-Vaidhya Grade-II, candidature of the petitioners was not considered. As per learned counsel for the respondents, as a matter of fact, petitioners were not eligible to be considered for grant of the pay scale of Rs.130-300 on 10th January, 1973. Heard learned counsel for the parties. It is not in dispute that persons named in the order dated 10th January, 1973 (Annx.3) were working as Up-Vaidhya Grade- II and in the cadre aforesaid they were quite junior than the petitioners. The petitioners No.1, 2 and 3 were appointed as Up- Vaidhya on 14th September, 1960; 12th August, 1961 and 05th February, 1966 respectively. They also acquired qualification of Ayurved Ratna prior to 1965. The persons, to whom the pay scale of Rs.130-300 was allowed under order dated 10th January, 1973; were appointed as Up-Vaidhya Grade-II either in the year 1970 or in the year 1971. On 10th January, 1973, the pay scale relating to the post Compounder/Nurse (Senior Grade) was allowed to them as they were possessing qualification as required under the Rules of 1966 to hold the post of Compounder/Nurse (Senior Grade). The pay scale aforesaid was not given to the petitioners for the reason that on 10th January, SBCWP No.4440/1999 – Bheru Lal & others v. State of Rajasthan & another Date of Order: 25.03.2009 7 of 9 1973 they were not having the qualification of Bishagawar or any other qualification equivalent thereto. As a matter of fact, right of the petitioners for grant of pay scale of Rs.130-300 arose only on granting equivalence to the qualification of Ayurved Ratna with qualification of Bishagawar under the order dated 09th February, 1995. By the order aforesaid, the qualification of Ayurved Ratna was treated as qualification equivalent to the qualification of Bishagawar with effect from 01st April, 1972. In view of the order aforesaid, the petitioners deemed to have a qualification equivalent to the qualification of Bishagawar with effect from 01st April, 1972 and therefore, as on 10th January, 1973 the petitioners have to be considered as the Up-Vaidhyas Grade-II possessing qualification equivalent to persons to whom the pay scale of Rs.130-300 was allowed under the order dated 10th January, 1973. The persons, to whom the pay scale aforesaid was given under the order dated 10th January, 1973, were junior than the petitioners. The respondents, therefore, by treating the qualification possessed by the petitioners i.e. of Ayurved Ratna from Hindi Sahitya Sammelan, Prayag as equivalent to Bishagawar with effect from 01st April, 1972; are required to consider their case for grant of the pay scale of Rs.130-300 with SBCWP No.4440/1999 – Bheru Lal & others v. State of Rajasthan & another Date of Order: 25.03.2009 8 of 9 effect from 10th January, 1973. Learned Tribunal, as a matter of fact, failed to appreciate entitlement of the petitioners for getting the pay scale of Rs.130-300 from the date the same was given to their juniors. The Tribunal overlooked the fact that the petitioners, as a consequent to a decision of the Government under the order dated 09th February, 1995 came at the same pedestal or to say, at better pedestal for getting the pay scale of Rs.130-300 vis-a-vis the persons to whom the pay scale aforesaid was given with effect from 10th January, 1973. The petitioners on having the qualification equivalent to “Bishagawar” could not have been treated with a measure different than that was applied to the persons referred in the order dated 10th January, 1973. In view of whatever discussed above, the judgment impugned dated 07th December, 1998 is erroneous and the same deserves to be quashed. Accordingly, this petition for writ is allowed. The judgment dated 07th December, 1998 passed by learned Rajasthan Civil Services Appellate Tribunal in Appeal No.67/1993- Bheru Lal & others v. Director, Department of Ayurved, is declared illegal and the same is quashed. The petitioners are declared entitled to receive the pay scale of Rs.130-300 under the Rajasthan Civil SBCWP No.4440/1999 – Bheru Lal & others v. State of Rajasthan & another Date of Order: 25.03.2009 9 of 9 Services (New Pay Scale) Rules, 1969 from the date the same was given to their juniors under the order dated 10th January, 1973. Accordingly, the respondents are directed to make fixation of petitioners' pay in the pay scale of Rs.130-300 with effect from 10th January, 1973. The petitioners are also declared entitled for all consequential benefits flowing as per directions aforesaid. No order as to costs. [GOVIND MATHUR],J. mma