1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR O R D E R S.B. CIVIL WRIT PETITION No.8946/2006 The Director, Primary and Secondary Education, Rajasthan, Bikaner & Ors v/s Bacchu Lal Sharma & Anr. DATE OF ORDER ::: NOVEMBER 16, 2009 P R E S E N T HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Ms Priyanka Pareek, Dy. Govt Counsel. Shri R.K. Sharma, for the respondents. BY THE COURT : The respondent No.1 has moved an application dated 24.9.2009 to dispose of the writ petition in terms of the Division Bench judgment. The learned counsel for the petitioners also agrees that a controversy involved in the present writ petition has been settled by Division Bench of this court. Learned counsel for both the parties contended that number of identical writ petitions were filed which were decided by the learned Single Bench in Chandra Mohan Singh & 185 Others Vs. State of Rajasthan & Others - (2004 (3) WLC (Raj.) 413) and being aggrieved with the same, the State of 2 Rajasthan preferred Special Appeal before the Division Bench i.e. D.B. Civil Special Appeal (Writ) No.208/2006, State of Rajasthan Vs. Raniwas Porwal, which was decided finally vide judgment dated 13.12.2007, reported in 2008 (2) RLW 1270 (Raj.), therefore, the present writ petition may be decided in the light of the decision rendered by the Division Bench in the above case and the same directions may be issued in the present case. The Division Bench in State of Rajasthan & Others Vs. Raniwas Porwal (Supra) while disposing of the Special Appeal filed by the State of Rajasthan, issued following directions:- “Therefore, we are of the opinion that the declaration of the amendment of Note 8 vide Notification dated 08.06.2001 to be ultravires was not required to be made and judgment under appeal to that extent is not sustainable and deserves to be set-aside. However, it may be clarified that because of the provisions made in Note 8 read with Note appended to Rule 6 a Senior Teacher drawing pay in second selection grade of 6500-10500 prior to 01.07.1998 and promoted as senior Teacher but after 01.07.1989 who has not completed 10 years as Senior Teacher at the time of commencement of the Act his pay in pay-scale of 6500-10500 was protected as personal to him, though he would become eligible to such scale under the new rules of 3 1998 only on completion of 10 years. In this view of the matter, the rights of the respondents even under the aforesaid provision remain intact and unaffected and it could not have any adverse effect on them. But those who have been promoted as Senior Teachers drawing their pay in Second Selection Grade of 6500-10500 will not be eligible for this pay protection because even under the Rules of 1998 as initially exist, they were to be promoted to Senior Scale, which was Rs.5500-9000 only. But because of lacuna in the Rules originally enacted, not providing any specific provision, their fixation has been wrongly made by considering all Senior Teachers to be of the same category. The initial fixation in higher pay- scale being without any mistake on their part, until Notification of amendment, the resultant recoveries of excess amount paid to them has been waived. But after correction of this lacuna on amendment of Note 8, no such protection has been granted under the Rules. If any such recovery has become due on account of continued drawing of pay by such Senior Teachers promoted after 01.07.1998, due to no mistake or misrepresentation on the part of such incumbents, they may make appropriate representation to the Government to consider their cases against recovery. Accordingly, with the aforesaid clarification the appeals are allowed. The judgment under appeal declaring Notification dated 08.07.2001 to be ultravires is set-aside. However, the view which we have taken on interpretation of the Rules, the existing teachers who have been promoted as Senior Teacher in the Second Selection Grade prior to commencement of the 4 Rules at any time but because of non-completion of 10 years of service as Senior Teacher under the revised rules were required to be fixed in lower pay scale, their continuance in the higher pay- scale was protected as pay-scale personal to them under Note to Rule 6. The rights of all the appellants stand protected to this extent. In that light, the writ petitions filed by the appellants stand allowed to that extent. In the facts and circumstances of the case, there shall be no order to costs.” As agreed by learned counsel for both the parties, the present writ petition is disposed of and the same directions are issued in this case which have been issued by the Division Bench in the case of State of Rajasthan Vs. Raniwas Porwal (Supra), which have been reproduced above. Cost is made easy. In view of the disposal of the writ petition, this application of respondent No.1 also stands disposed of. (Narendra Kumar Jain) J. chauhan/