(1) Udai Lal Joshi Vs. Union of India & Others IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : O R D E R : S.B. Civil Writ Petition No.278/2006. (Udai Lal Joshi Vs. Union of India & Others) DATE OF ORDER : August 20, 2008 P R E S E N T Hon'ble Mr. Justice Gopal Krishan Vyas _______________________________ Mr. S.P. Sharma for petitioner. Mr. Vijay Bishnoi for the respondent(s). Reportable BY THE COURT : In this writ petition, the case of the petitioner is that he was an employee of the Mahi Control Board, Udaipur and was working on the post of LDC and after closure of the Mahi Bajaj Sagar Project, the employees of the Mahi Control Board were declared surplus and option was given to the petitioner for absorption in the Department of Telecommunication. As per his option, the petitioner was absorbed in the Department of Telecommunication and (2) Udai Lal Joshi Vs. Union of India & Others was relieved to join in the Rajasthan Telecom Circle at Banswara (HQ Udaipur) vide Annex.-1 dated 30.09.1988. As per contention of the writ petitioner, an order was passed on 18.08.2000 whereby the competent authority passed an order allowing the counting of past services rendered in the Mahi Control Board, Udaipur for the purpose of OTBP/BCR promotion; meaning thereby, after passing order dated 18.08.2000, the petitioner became entitled to benefit of his past services for the purpose of promotion to higher post, therefore, the petitioner was granted benefit of upgradation provided under the notification dated 20.04.1999 and his pay was fixed in the pay-scale of Rs.5000-8000 with effect from 01.12.1998, after completion of 16 years of total service (after counting his past service) vide order dated 13.12.2000 and further the petitioner was granted benefit of upgradation in the pay-scale of Rs.5,500-9000 vide order dated 13.12.2000. Thereafter, vide order dated 29.11.2000, under one time- bound promotion (OTBP), the petitioner was granted promotion to next higher grade of Rs.1400-2300 (old scale of pay) with effect from 09.09.1992. Thereafter, the petitioner was placed in the upgradation scheme and with (3) Udai Lal Joshi Vs. Union of India & Others effect from 01.12.1998 on completion of 16 years of service in the pay-scale of 5000-8000 and, then, in the pay-scale of Rs.5500-9000 under the CDA scheme with effect from 09.04.1999 upon completion of 26 years of service, vide order dated 13.12.2000. All the above orders were issued after issuance of Annex.-4 dated 18.08.2000 whereby his past services were ordered to be counted for the purpose of OTBP/BCR promotion. The case of the petitioner is that after granting the above benefits, a show cause notice was given to the petitioner that he was wrongly granted the above benefits and, in reply to the said notice, the petitioner raised all the objections and apprised the respondents that in view of the order dated 18.08.2000 he was rightly allowed the benefit of upgradation but vide the impugned order Annex.-10 all the orders granting benefit to the petitioner were withdrawn by the competent authority and pay of the petitioner was ordered to be upgraded to the pay-scale of Rs.5000-8000 with effect from 01.10.2000 on completion of 16 years of service. Learned counsel for the petitioner vehemently (4) Udai Lal Joshi Vs. Union of India & Others argued that once the benefit was granted to the petitioner after passing order by the competent authority for counting his past services rendered in Mahi Control Board, there is no question of rescinding the benefits extended to the petitioner for calculating his past service. But, this aspect of the matter was not considered by the competent authority. Learned counsel for the petitioner while attacking the impugned order Annex.-10 submits that the order impugned has not been passed independently and while deciding the claim of M.M. Manocha for placement in the restructured cadre, the benefit extended to the petitioner with regard to upgradation while counting his past services has been rescinded in which total illegal interference has been made by the respondents. Further, the order dated 18.08.2000 is still in existence, therefore, there is no question of rescinding the benefit extended to the petitioner for grant of OTBP grade-II and upgradation of pay in the scale of Rs.5000-8000 and placement in BCR upgraded scheme (CDA scheme). As per learned counsel for the petitioner, the respondents having once granted the said benefit they are estopped from taking back the benefit extended to the petitioner because they admitted the fact (5) Udai Lal Joshi Vs. Union of India & Others that the petitioner is entitled to the benefit for the services rendered by him prior to absorption in the Mahi Control Board, therefore, the impugned order Annex.-10 dated 29.12.2005 deserves to be quashed. Per contra, learned counsel for the respondents submitted that the petitioner has not brought to the notice of this Court certain important facts. It is submitted that admittedly the petitioner was not employee of the Department of Telecommunication and for the first time he was absorbed as per his option in the respondent Department upon certain terms and conditions. While inviting attention of this Court towards Annex.-R/1, it is submitted that at the time of absorption, it was made clear that the petitioner will not claim the benefit of his past services for any purpose other than retirement benefits. Likewise, in the office memorandum dated 14.09.1992 Annex.-R/2, a specific condition was incorporated at the time of absorption of surplus staff of Mahi Control Board that they will be deemed to be new recruits in the respective units and accommodated against outside quota of vacancies. Further, they will not claim the benefit of past service for any other purpose than retirement benefit. (6) Udai Lal Joshi Vs. Union of India & Others Therefore, there is no question of granting the benefit of upgradation while counting the past services for the purpose of upgradation. It is also pointed out by the learned counsel for the respondents that an undertaking was furnished by the petitioner which is evident from Annex.-R/3 in which it is specifically accepted by the petitioner that he will not claim the benefit of past service other than for the purpose of retirement benefit. But, all these facts have not been brought to the notice of the Court at the time of filing this writ petition. Learned counsel for the respondents, Mr. Vijay Bishnoi vehemently argued that the terms and conditions incorporated in the absorption order is required to be followed by both the parties, but, the petitioner was erroneously granted the benefit of upgradation as provided under the notification dated 20.04.1999, after completion of 16 and 26 years of service. When this fact came to the knowledge of the respondents upon claim filed by other similarly situated senior persons, then, the matter was examined and upon examination it is revealed that the petitioner was wrongly granted the benefit of upgradation at the strength of order Annex.-4 dated 18.08.2000 in (7) Udai Lal Joshi Vs. Union of India & Others which it is nowhere stated that for the purpose of benefit of upgradation past service will be counted. Therefore, the mistake committed by the respondent department is rectified by order Annex.-10 which does not require any interference by this Court. I have considered the rival submissions made by both the parties. Admittedly, the petitioner was initially appointed in the project known as Mahi Control Board, Udaipur. Upon closure of the said Board, an option was given to the petitioner for absorption and, thereafter, upon certain terms and conditions, the petitioner was absorbed and undertaking was given by the petitioner which is Annex.- R/3 that he will not claim any benefit of past service but this fract is not disclosed by the petitioner in the writ petition and, straight away, on the basis of document Annex.-4 dated 18.08.2000, the petitioner has claimed that he was rightly granted the benefit of upgradation in the pay-scale of Rs.5000-8000 and further upgradation to the pay-scale of Rs.5500-9000. In my opinion, the petitioner has not brought to the notice of the Court correct facts and, therefore, the petitioner is not entitled to (8) Udai Lal Joshi Vs. Union of India & Others get any relief sought for in this writ petition because with open eyes he has accepted absorption in the respondent department while submitting the undertaking, therefore, there is no question of calculating his past service for the purpose other than retirement benefit. Hence the petition's claim is totally unfounded and, accordingly, the writ petitioner fails before this Court. This writ petition is accordingly dismissed. However, it is admitted by the respondents that erroneously at the strength of order Annex.-4 dated 18.08.2000, the petitioner was granted benefit of upgradation while counting his past services, after completion of 16 and 26 years of service and was allowed the upgraded pay-scale which were paid to the petitioner till passing order Annex.- 10. In my opinion, there is no allegation against the petitioner in the reply filed by the respondents that he has committed any wrong for the purpose of claiming the said benefit of upgradation. Admittedly, as per the respondents, the petitioner was erroneously granted the said benefits. Therefore, the amounts so paid to the petitioner as a result of upgradation of pay shall not be recovered from the petitioner. (9) Udai Lal Joshi Vs. Union of India & Others However, in my opinion, the benefit extended to the petitioner has rightly been rescinded and the petitioner was granted pay scale of Rs.5000-8000 (CDA scheme) with effect from 01.10.2000 on completion of 16 years of service from the date of his absorption. There shall however be no order as to costs. (Gopal Krishan Vyas) J. Ojha, a.