1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : O R D E R : S.B. CIVIL WRIT PETITION NO.3055/1996 (Taj Mohd. Vs. State & Ors.) Date of Order :: 26.08.2008 P R E S E N T HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS Mr.S.K. Mathur, for the petitioner. Mr.N.K. Mehta, Dy. Govt. Counsel. Heard learned counsel for the parties. In this case, petitioner is challenging the order dated 27th May, 1996 (Annexure-8) passed by the Rajasthan Civil Services Appellate Tribunal, Jaipur in appeal filed by petitioner against the order dated 03rd December, 1994. The case of petitioner is that he was allowed selection scale vide order dated 25th January, 1992 when he was working on the post of L.D.C. in the Public Health and Engineering Department, Udaipur. The petitioner was initially appointed on the post of L.D.C. vide order dated 05th May, 1962 and promoted on the post of U.D.C. vide order dated 13th January, 1971. Thereafter, second and third selection scale was 2 allowed to the petitioner and regular fixation was also made as per selection scale granted to him. As per petitioner, he was promoted as Office Assistant on ad hoc basis vide order dated 03rd September, 1993 but petitioner did not join the promotional post, therefore, vide order dated 21st September, 1993 the selection scale granted to petitioner was taken back on the ground that petitioner has foregone the opportunity of promotion on the post of Office Assistant. The order of rescinding selection scale in the event of forgoing opportunity of promotion by way of filing appeal before the Rajasthan Civil Services Appellate Tribunal. The learned Tribunal after discussing entire scheme of selection scale rejected the appeal filed by petitioner alongwith three other similarly situated persons. In my opinion, as per notification dated 25th January, 1992 and 4.12.1996 when petitioner forgone the promotion then he was rightly denied the benefit of third selection scale and respondents have rightly passed an order for withdrawing the third selection scale because an opportunity for promotion was granted to the petitioner who was getting the pay scale of the promotional said post as selection scale. In this view of the matter, learned Tribunal has rightly arrived at with the finding that due to non-joining of 3 petitioner on the promotional post and forgoing the opportunity of promotion, the State Government was right in rescinding third selection scale already granted to the petitioner. In this view of the matter, I see no reason to interfere with the order passed by learned Tribunal. However, the order of Rajasthan Civil Services Appellate Tribunal with regard to recovery of amount from the date of actual grant of selection scale till foregoing the opportunity of promotion is erroneous. The amount was paid to the petitioner in the event of non-availability of promotional avenues and the petitioner was entitled for the said benefit till he foregone the promotion opportunity granted by the respondent-department. Therefore, while dismissing this writ petition, it is ordered that no recovery shall be made from the petitioner for the amount already paid in lieu of granting third selection scale till foregoing the promotional post. If any recovery is made for the said period, the said amount shall be refunded to the petitioner within a period of three months. No order as to costs. (GOPAL KRISHAN VYAS),J. A.K. Chouhan/- A.K. Chouhan/-